IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL No. 1258 of 2011 With TAX APPEAL No. 1259 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE V. M. SAHAI HONOURABLE MR.JUSTICE N.V. ANJARIA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question 4 of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= COMMISSIONER OF INCOME TAX - Appellant(s) Versus AMAR CORPORATION - Opponent(s) ========================================================= Appearance :
MR SUDHIR M MEHTA for Appellant(s) : 1, None for Opponent(s) : 1, =========================================================
CORAM : HONOURABLE MR.JUSTICE V. M. SAHAI
and HONOURABLE MR.JUSTICE N.V. ANJARIA Date : 31/08/2012 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE N.V. ANJARIA) These two appeals arise from order dated 31.03.2011 of the Income Tax Appellate Tribunal, Ahmedabad Bench ‘D’, which is a common order passed in ITA Nos.2036 of 2007 to ITA No.2041 of 2007 corresponding to the Assessment Years 1998-99 to 2004-05 and the Cross Objections filed in each of the cases being C.O.No.190 of 2007 to 195 of 2007.
1.1 Appeal No.1258 of 2011 relates to the said common order insofar as it is in respect of ITA No.2041 for Assessment Year 2004-05. Appeal No.1259 of 2011 is relatable to order in Cross Objection concerned being CO No.195 of 2007 for the said year.
1.2 In both the appeals, the Revenue has proposed following two common questions as substantial questions of law.
“1. Whether on the facts and circumstances of the case and in law, the statement of the respondent as well as of the employees along with the documents seized would tantamount to evidence under section 158BB of the Income Tax Act or whether the statement recorded under section 132(4) has only very limited application?
2. Whether the evidence found as a result of search or other such materials or information is sufficient enough to conclude that there was concealment of income to the extent of Rs.1,03,18,945/- on account of On-money?””
2. We heard learned advocate Mr. Sudhir Mehta for the appellant.
3. The issue relates to the addition made by the Assessing Officer for Rs.1,03,18,945/- on account of On-money. The assessee firm, engaged in the real estate, developed the housing projects namely ‘Amarjyot Apartment’ and ‘Amardham’ during financial years 1997-98 to 2003-04. The `on-money' addition was made on the basis of loose papers being page No.19, 80 and 65 found during the search conducted on 18.06.2003. That material was referrable to one particular flat No. A/204. The Assessing Officer refused to believe the retracting affidavits filed under section 132(4) of the Act by makers of the statement who had earlier admitted the undisclosed income. The Commissioner of Income-tax (Appeals) allowed the appeal of aggrieved assessee and deleted the addition on On-money by holding that it was done on presumptive basis.
4. In the common impugned order the issue was same regarding the additions made for `On-money' for all the assessment years. As far as addition made in respect of Assessment Year 1998-99 is concerned, the Tribunal restored the said issue of On-money transaction to file of Assessing Officer by observing inter-alia that the Assessing Officer was expected to confine himself with respect to Flat No.A/204 alleged to be purchased by one Smt. Saralaben Patel. He, therefore, in respect of all the flats could not have additions. The Assessing Officer was directed to reinvestigate. As far as the additions for the rest of Assessment Years are concerned, which were deleted by the Commissioner of Income-tax (Appeals), they were confirmed by the Tribunal. Accordingly, the addition for the year under consideration 2004-05 stood deleted.
5. It was correct on part of the Tribunal to reason that the alleged incriminating material which was limited to transaction of one flat, could not be the basis for concluding that in respect of all flats there were On-money transactions. The matter was remanded to the Assessing Officer for decision afresh in so far as the year in connection with which the said incriminating material for particular flat was seized. There was no evidence to conclude about On-money transaction for all the flats as well as for the years subsequent to financial year 1998-99 and the additions made for all subsequent years were obviously on the basis of extrapolation and guess work. Therefore, they were only presumptive in nature. They were rightly deleted. The findings recorded by the Tribunal were proper and based on material on record.
5.1 It is pertinent to note that Tax Appeal No.26 of 2012 in respect of same assessee in the same subject matter on the identical issue in respect of Assessment Year 2005-06 has been dismissed by this Court by our order dated 18.07.2012.
6. For the aforesaid reasons, no interference is warranted in the impugned order of the Tribunal. The findings and conclusions arrived at by the Tribunal are proper. No substantial question of law arises for consideration.
7. Accordingly, both the appeals are dismissed.
(V.M. SAHAI, J.)
(N.V. ANJARIA, J.)
(sn devu pps)