TaxTMI 
TaxTMI 
2023 (8) TMI 765
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....al; therefore, these appeals have been heard together and are being disposed of by this consolidated order. 3. First, we shall take Revenue's appeal and Assessee's appeals for assessment year (AY) 2017-18. For assessment year 2017-18, the assessee has filed two appeals viz: in IT(SS)A No. 32/SRT/2023, which is against the order passed by the Assessing Officer under section 143(3)/153A of the Income Tax Act, 1961, dated 30.09.2021 and the appeal filed by the assessee in ITA No. 142/SRT/2023, for A.Y.2017-18, is against the rectification order passed by the Assessing Officer under section 154 of the Act, dated 09.10.2021. The Revenue has filed the appeal in IT(SS) No. 65/SRT/2023 for A.Y.2017-18, against the order passed by the Assessing Officer under section 143(3)/153A of the Income Tax Act, dated 30.09.2021. Therefore, assessee`s appeal in IT(SS)A No. 32/SRT/2023 and Revenue`s appeal in IT(SS) No. 65/SRT/2023, both for assessment year 2017-18, are cross appeals for assessment year 2017-18. However, appeal filed by the assessee in ITA No. 142/SRT/2023, for A.Y.2017-18, is against the rectification order passed by the assessing officer under section 154 of the Act. 4. Although....
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....8, Assessee`s appeal, for AY.2017-18, the grounds of appeal are as follows: "Ground No. 1: The Ld. CIT(A) has erred in upholding the validity of rectification order passed by Assessing Officer under section 154 of the Income Tax Act, 1961." 5. To adjudicate the above appeals of the Assessee and Revenue, for AY.2017-18, we shall take lead case in IT(SS)A No. 65/SRT/2023. 6. The relevant material facts, as culled out from the material on record, are as follows. The assessee, before us, is an individual deriving income from House Property, Business and Profession, and Other Sources. The assessee filed original return of Income u/s 139(1) of the Income Tax Act, 1961, for Assessment Year 2017-18, on 29.12.2017, declaring total income of Rs. 24,77,900/-. This return of income was duly processed u/s 143(1) of the Act. In assessee`s case no assessment was completed earlier. Subsequently, a search and seizure action u/s 132 of the Act was conducted in the Kuberji Group and the business and residential premises of Shri Rajendra Prasad Babulal Khetan was also covered in the search. At the time of search, various documents of incriminating nature, was found and seized which indi....
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....nt 1. 786 3136 3750 61551 23,08,16,250 8. Therefore, assessing officer observed that an amount of Rs. 20,08,16,250/- has been invested in cash for the said land block No. 786 by the purchasers. Shri Rajendra chandak and Shri Jayantibhai B. Patel are the sellers and Shri Vinod Goswami, Vishal N. Jalan and Rakesh Khetan are the purchasers. The on-money invested by Shri Vinod Goswami, Shri Vishal N Jalan and Shri Rakesh Khetan are Rs. 8,03,26,500/-, Rs. 3,01,22,438/- and Rs. 9,03,67,313 respectively. The assessee has requested to explain the said transaction towards unaccounted investment made with documentary evidences as appearing in books of accounts. 9. In response, the assessee has replied as follows: "1. In respect of digital image stated to be scanned from mobile phone of Shri Sunny J. Patel and Shri Jayantibhai B. Patel and pasted on Page No. 3 of above referred notice, I humbly beg to submit that the said digital image and contents therein are totally irrelevant for me and in my case. As has been mentioned by your honour in your above referred notice, this seems to be some understanding between some Shri R. D. Palitna (seller) and Shri Rajendr....
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....d and registered on 22.02.2021. Mutation entry in the revenue records (Village Frorm No. "6") was certified on 09.06.2021. Earlier, we had nothing to do with this land. Thus, this land was not purchased by them in the year under assessment nor the same was purchased from the persons mentioned in your notice. We were totally unaware about his land in the year under assessment and did not have any concern with this land in the year under assessment. We purchased the same in F.Y.2020-21 as per details and terms and conditions mentioned in the said deed • Final plot area of the land purchased by my son and joint owners is 2195 sq. mrs. They have purchased this land at fair market value and made the payments of entire amount of sales consideration of Rs. 3,00,00,000/- to the sellers Shri Parshottambhai Bachubhai Radadia and his family members (total 10 joint owners as mentioned in sale deed) through banking channel as per details mentioned in the sale deed. The payments so made for purchase of this land have been duly accounted for in books of accounts my son. There has been no payment in cash.Thus, neither this land was purchased by us in the year under assessment, nor the....
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....th reference to above, I humbly beg to submit that I had not received copy of the MOU (Page No. 75 to 79 of Annexure A-4 stated to be seized from residence of Shri Shankarlal Nebhumal Uttamchandani) as mentioned in above referred notice. In the absence of copy of same and statement/explanation of Shri Shankarlal Uttamchandani in respect of the same, I am not in position to give exact reply. In the meanwhile, I humbly beg to submit that I had no knowledge about entering any MoU with Shri Devendrabhai Mulchanddas Jariwala and Prahladbhai Mulachanddas Jariwala and making any such cash payments to them. I, therefore, request your honour to kindly provide me copy of these seized papers (MOU) as mentioned in the notice and statement/explanation of Shri Shankarlal Uttamchandani in respect of the same, so that I can file proper reply in this regard." 12. However, the assessing officer rejected the contention of the assessee and observed that assessee did not give any substantial evidence in respect of the contention taken by them, nor could prove that the said deal did not materialize in form of satakhat or other documents, therefore an addition of Rs. 3,61,00,000/- wa....
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....earned DR for the revenue argued that the documents and papers found at the residence of assessee during the search proceedings prove beyond doubt that the assessee had major role in the said land transaction. From the details available with assessing officer it is ascertain that the assessee had made huge investment in land in Surat and is partner in many firms related to Kuberji Group. Further, the digital data seized by the search team is as per the Evidence Act, 1872 of I.T. Act, 1961 and as per section 292C of the I.T. Act, there is presumption with regard to content of the seized material. The search u/s 132 of the Act has conducted in the case of assessee and many group concerns/individuals of Kuberji Group. Further, the assessee has not explained the transactions properly, therefore addition made by the assessing officer may be sustained. 16. The Learned Departmental Representative (Ld. DR) for the Revenue submitted that the DIN Number and the assessment order, computation sheets and the demand notice were in the sequence and these orders were framed by the Assessing Officer on 30.09.2021. The Ld. DR pointed out that by mistake, the figures written in intimation under se....
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....nd seized during the course of search and seizure action in the case of assessee but was seized from a third party. Apart from this, addition is also beyond the scope of section 153A of the Act, as the same is not based on any incriminating material found and seized during the course of search and seizure action in the case of assessee. The assessee has not entered into any such transaction with above mentioned parties (lease givers) and has never taken any such property on lease and has not made any such payment /investment. There has been no such finding, at all in the case of assessee. The assessee has been informed by the said party, M/s Ketan Textiles that the above mentioned MOU could not be executed and materialized and no such investment was made by the firm. 19. Thus, on merits of the case, the Ld. Counsel for the assessee submitted that entire addition made by Assessing Officer based on the unsigned memorandum of understanding (MoU). Moreover, there was no name of the assessee in the said MoU, therefore just because the MoU was received by the Income Tax Department from a third party and said MoU was not signed by the assessee, therefore addition should not have been m....
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....nt order was framed by the Assessing Officer, therefore Ld. CIT(A) was erred in upholding the validity of assessment passed by the Assessing Officer under section 143(3) r.w.s. 153A of the Income Tax Act, 1961. The Ld. Counsel pointed out that the impugned unsigned assessment order has been passed and served upon the assessee on 16.10.2021 by changing the figure of assessed income at Rs. 3,85,77,900/- as against originally assessed income of Rs. 24,77,900/- as per computation sheets and demand notice uploaded on 30.09.2021 and therefore the assessment order is invalid in the eye of law as it is a time barred assessment order and Ld. CIT(A) should have quashed such assessment order. For that, Ld. Counsel relied on two judgments which are reproduced below: (i) Shanti Lal Godawat vs. ACIT (2009) 126 TTJ 135 (Jodhpur) (ii) CWT vs. Dhhansukhlal J. Gajjar (1999) 137 ITR 534 (Guj. HC) Hence, Ld. Counsel contended that The Ld. CIT(A) erred in upholding the validity of the unsigned assessment order passed by the Assessing Officer u/s 143(3) r.w.s. 153A of the Income Tax Act, 1961, whereas the impugned unsigned assessment order has been passed and served on the assessee ....
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....ing property situated at Plot No. 141, T.P.No.-8, F.P.No.54, Umarwada. In the aforesaid MOU, first party (lease taker of the property) were partners of firm Ketan Textile i.e. Nareshkumar Vishveshwarlal Agarwal and Rajendra Prasad Babulal Khaitan (the assessee). The Second party (lease giver of the property) was Devendrabhai Mulchanddas Jariwala and Prahladbhai Mulchanddas Jariwala. And as per the said MOU consideration for the said transaction agreed upon was Rs. 3,61,00,000/-. On Page No. 76 of Annexure-A-4, there was mention of cash receipts out of above mentioned amount and the receiver of the cash as a token of receipt has also signed it. During the assessment proceedings, the assessee did not give any substantial evidence in respect of contention taken by him, nor could prove that the said deal did not materialize in form of satakhat or other documents and hence the Assessing Officer has made the addition amounting to Rs. 3,61,00,000/- on account of unaccounted investment. 24. During the appellate proceedings, the assessee argued before the ld CIT(A) that during the course of search, various incriminating documents were found and seized. During the course of the search at ....
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.... on any incriminating material found and seized during the course of search and seizure action in the case of assessee. The Assessee has not entered into any such transaction with above mentioned parties (lease givers) and has never taken any such property on lease and has not made any such payment /investment. There has been no such finding at all in the case of assessee. The Assessee has been informed by the said M/s Ketan Textiles that the above mentioned MoU could not be executed and materialized and no such investment was made by the firm. 25. After considering the assessee`s submission, the ld CIT(A) observed that the MOU relied by the assessing officer in making this addition i.e. page No. 75 to 79 of Annexure-A-4 is relating to the property at plot No. 141, Umarwada, Surat. In the said MOU, the land in question was to be leased to M/s Ketan Textiles by the Owners Mr Devendrabhai Jariwala and Prahladbhai Jariwala for total consideration of Rs. 3,61,00,000/-. Out of this amount, Rs. 1,01,00,000/- was paid in cash on 02.05.2016 and 03.05.2016 as evident from the signed receipts enclosed with the MoU. This proves that the total amount of Rs. 1,01,00,000/- was paid either by ....
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.... can the cash available with some other firm with different partners can be the source of the said cash? This contention of the assessee was rejected by ld CIT(A). Therefore, ld CIT(A) noted that the cash in question shall be deemed to have been paid by the partners of M/s Ketan Textiles. The assessee was the partner of said firm having share of 12.5% (others being Mr. Naresh Agarwal (37.5%), Mr. Hiren Uttamchandani (37.5%) and Mr. Rajesh Poddar (12.5%)). Hence, in absence of any details that this amount of Rs. 1,01,00,000/-was sourced from M/s Ketan Textiles, it has to be held that it was paid by the partners in the profit sharing ratio of 37.5: 37.5:12.5 :12.5 between Mr. Naresh Kumar Agarwal, Mr. Hiren Uttamchandani, Mr. Rajesh Poddar and the assessee respectively. Accordingly, out of the addition made by the assessing officer of Rs. 3,61,00,000/-, the addition to the tune of Rs. 12,62,500/- (12.5% of Rs. 1,01,00,000) was sustained in the hands of the assessee. 27. However, Learned Counsel for the assessee also challenged the addition to the tune of Rs. 12,62,500/- (12.5% of Rs. 1,01,00,000) sustained in the hands of the assessee by ld CIT(A), stating that such similar additi....
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....lly. We have also deliberated on various case laws relied by the AR of the assessee. Before us, the AR of the assessee vehemently submitted that in assessee's co-owner case, the revenue has accepted similar Long Term Capital Gain in the scrutiny assessment. Copy of the assessment order in respect of two co-owners is placed on record. We have noted that no counter to the submission of the assessee, was made by DR that similar Long Term Capital Gain was accepted in case of co-owner. 3. The Hon'ble Madras High Court in ICT vs. Kumararani Meenakshi Achi (supra) held that during the same assessment year same quantity of wealth in possession of co-sharer is subjected to a lower rate of taxation, it would be highly improper to burden a similarly situated co-sharer with a higher rate of tax. If such an action on the part of the assessing authorities is sanctioned it would militate against the principle of equality of laws enshrined in Article 14 of the Constitution. By following the same principle, the Co-ordinate Bench of this Tribunal in Chetanbhai Prahladbhai Gami vs. ITO in ITA No. 2082/AHD/2013 dated 19.07.2019, the Tribunal granted relief to the assessee holding that whi....
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....e for AY 2009-10. The said property was inherited by the assessee. The assessee has submitted valuation report of the property from Govt. Approved Valuer who has arrived value of property at Rs. 66,61,020 as on 01.04.1981. The value of the assessee's share comes to Rs. 4,16,314. Indexed cost as per section 48 of the Act is worked out at Rs. 24,22,947/-. As per stamp duty authority the assessee's share being 6.25% of sale value in the property comes to Rs. 25,56,310/-. Thus capital gain comes to Rs. 1,33,363/-, which was taxable in the hands of the assessee. The capital gain of Rs. 1,33,363 has now been shown by the assessee in the Return of Income filed in response to notice u/s 148 of the Act. However, the assessee has not declared suo moto Long Term Capital Gain as he has not filed return of Income. The assessee has consciously not filed return of income to avoid payment of tax. Therefore, Penalty proceedings u/s. 271(1)(c) of the Act are initiated on this issue for concealment of income." 6. In view of the above aforesaid factual and legal discussion and respectfully following the decision of Madras High Court in Kumararani Meenakshi Achi (supra) and decision of Co-ordi....
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..... We have gone through the scrutiny assessments completed by the assessing officer under section 143(3) r.w.s. 153A of the Act and we note that the proportionate addition for impugned amount of Rs. 1,01,00,000/- were not made by the assessing officer, in respect of above partners. The assessee, being co-owner, is also entitled for similar treatment. Hence respectfully following the judgment of the Coordinate Bench, in the case of Late Shri Mohanlal Ambelal Desai,(supra), we delete the addition of Rs. 12,62,500/- sustained by ld CIT(A). 31. In the result, Revenue`s appeal in ITA 65/SRT/2023, for A.Y. 2017-18, is dismissed. 32. In IT(SS)A No. 32/SRT/2023, for AY.2017-18, the assessee has raised the following grounds of appeal: (i).Ground No. 1: The Ld. CIT(A) erred in upholding the validity of the unsigned assessment order passed by the Assessing Officer u/s 143(3) r.w.s. 153A of the Income Tax Act, 1961, whereas the impugned unsigned assessment order has been passed and served on the assessee on 16.10.2021 by changing the figure of assessed income at Rs. 3,85,77,900/-, as against, originally assessed income of Rs. 24,77,900/-, as per computation sheet and demand notic....
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.... in deleting the addition ignoring the principles of "Human Probability test" that is, preponderance of probabilities which is applicable for income tax proceedings. (ii) Ground No. 5: The Ld. CIT(A) erred in deleting the addition of Rs. 60,30,000/- made by the Assessing Officer towards unexplained gift. (Similar ground No. 5 in AY.2020-21 raised by the Revenue). (2)Assessee's CO No. 11/SRT/2023, for AY.2019-20: (i) The ld. CIT(A) erred in upholding the validity of the unsigned assessment order passed by Assessing Officer, which was served on the assessee on 16.10.2021 by changing the figure of assessed income at Rs. 3,07,81,040/- as originally assessed income of Rs. 36,88,360/- as per computation sheet and demand notice uploaded on 30.09.2021, therefore, assessment order is invalid and time barred, hence, such order may be quashed." 40. Now, we shall take Revenue's appeal in IT(SS)A No. 66/SRT/2023, for A.Y. 2019-2020. Succinct facts qua the issue are that ground raised by the Revenue relate to the addition made by the assessing officer of Rs. 2,10,62,281/-on the basis of loose papers found and seized from the third person. According to the assessing ....
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....counted income in the hands of assesses for the year under consideration. Therefore, ld DR prays the Bench that addition made by the assessing officer may be upheld. 43. On the other hand, ld Counsel for the assessee, pleaded that addition has been made on the basis of two rough loose papers stated to be seized from one Shri Jayantibhai Bhulabhai Patel (JBP), by presumptively relating the same with the assessee. These loose papers are pasted on Page No. '3'(Para '6') of the unsigned assessment order served on 16/10/2021. From the very face of these loose papers, it is clear that the same are mere rough papers containing some rough jottings/ calculations without any details, descriptions and meaningful narrations. These are clearly dumb documents. In these dump documents, there is no mention of any property, transaction or purpose to which these rough jottings/ calculations relate. There is no mention of any date(s) or period. There are no details of the parties to or from whom the alleged payments are made/received. At one place the word 'Khetanji' is mentioned in Gujarati Language and at other place 'R.K.' is mentioned, thousands of persons with ....
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.... incriminating material contains the name "Khetan ji" or "R.K." which cannot be the basis for treating the jottings relating to the assessee especially when there is no property alleged to be purchased jointly was identified by the assessing officer and hence, it was submitted that the incriminating material found in the form of loose sheets should be treated as dumb document and merely resemblance of the name or the initial cannot be the basis for making the addition in the hands of the assessee. 45. We note that Assessing Office did not make any inquiry from buyers of flat in respect of actual prices paid by them. He also did not make any other inquiry in order to corroborate his conclusion. There is no incriminating evidence to show that the assessee has sold the flats at a higher rate. we note that the impounded loose sheet can at the most be termed as "dumb document" which did not contain full details about the dates, and its contents were not corroborated by any material and could not relied upon and made the basis of addition. Therefore, we observe that ld CIT(A) has rightly held that the jottings on the loose papers found have not been corroborated with any other evidenc....
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....he stand taken by the Assessing Officer, which we have already noted in our earlier para and is not being repeated for the sake of brevity. On the other hand, ld Counsel for the assessee defended the order passed by the ld CIT(A). We have heard both the parties. We note that ld CIT(A) observed that it is a fact that the gift deeds from the assessee's brother Mr. Basudev Khetan were found during the course of survey in the office premises of M/s Nilkant Silks, a Prop, concern of the assessee's son. These gifts were received by the assessee through banking channel. Before the assessing officer, the assessee submitted the Capital account, Balance sheet, Income Tax Return (ITR) and bank statement of the donor. The ld CIT(A) observed that these details were sufficient to prove the identity and creditworthiness of the donor. During the appellate proceedings, the assessee submitted that the assessing officer had issued notice u/s 133(6) of the Act to the donor during the assessment proceedings and the donor had confirmed that he had given gifts to the assessee. However, the assessing officer held that the gifts were the accommodation entries without any basis or any investigation ....
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....ence does not require adjudication. 54. In the result, Assessee`s Cross Objection No. 11/SRT/2023, for assessment year 2019-20, is dismissed, being infructuous. 55. Now, we shall take Revenue's appeal for AY.2020-21 in IT(ss)A No. 67/SRT/2023 and Assessee's cross objection No. 12/SRT/2023 for AY.2020-21, wherein the grounds of appeal raised by the Revenue and grounds of appeal raised by the assessee in its Cross Objections are summarized, which are reproduced below: (1) IT(SS)A No. 67/SRT/2023 (Revenue Appeal) for AY.2020-21: (i).Ground No. 1 to 4 raised by the Revenue relates to deleting addition of Rs. 3,15,15,350/- made by the Assessing Officer on account of unexplained investment in land at Umarwada. In these grounds, the grievance of the Revenue is that ld. CIT(A) ignored the incriminating details and documents, two new partners were entered with 2.5% each profit sharing ratio and the contribution of assessee other than banking channel was worked out at Rs. 3,15,15,350/-. Since, the assessee failed to explain the contents of the seized paper, hence provisions of section 132(4A) and 292C of the Act are applicable to the assessee. (ii).Ground No.....
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....ft amendment agreement, Shri Nitesh R. Khetan (son of assessee) and Shri Vinod M. Goswami were proposed to be taken as new partners into the said firm w.e.f, 28/01/2020. However, assessee and his son were not prepared to join this firm and, therefore, this draft agreement was not signed by the assessee or his son, Nitesh Khetan. It was just a proposal on the part of partners of said firm, which was never executed by the assessee or his son. Hence, this is just a proposal document which was never executed and materialized. The ld Counsel also argued that as informed to assessee by Shri Vinod Goswami, even the persons who signed this draft agreement also subsequently cancelled it and a cancellation agreement was also signed by them. It is also informed that such cancellation agreement was also seized from the residence of Shri Naresh B. Agarwal. It is not fair on the part of A.O. not to consider and mention about such cancellation agreement. Thus, this was a non-executed, not-materialized and not acted upon document having no evidentiary value. Based on these facts ld Counsel contended that ld CIT(A) has rightly deleted the addition made by the assessing officer, therefore order of l....
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....hat the said agreement was not signed by all the parties and did not become final. It is submitted by the assessee that as he or his son Mr. Nitesh Khetan never signed the said agreement, the contents of the same are not applicable to either the assessee or his son. During assessment proceeding, assessee also requested the assessing officer to verify the fact of his son's not joining the said firm from the ITBA and PAN data base of the said firm, latest return filed by the said firm, registrar of firms as also from the said firm and its partners. It was submitted during the appellate proceedings that there is no mention of any adverse finding by the assessing officer in this regard. Thus, nothing has been brought on record by the assessing officer to prove that the assessee or his son had in fact joined the said firm and became its partner. This being the fact of the case that the partnership firm was never reconstituted as envisaged in the copy of the partnership amendment agreement found, the working of the two loose papers referred by the assessing officer without corroboration with the actual facts cannot be fully relied upon for making an addition. Undisputedly, these loos....