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TAXAP/507/2009 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 507 of 2009
=========================================
COMMISSIONER
OF INCOME TAX-IV - Appellant(s)
Versus
SAMRAT
BUILDERS - Opponent(s)
=========================================
Appearance :
MR
MR BHATT, SR. ADVOCATE with MRS. MAUNA M BHATT
for Appellant
None for
Opponent(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 27/04/2010
ORAL
ORDER
(Per
: HONOURABLE MS.JUSTICE H.N.DEVANI)
In
this appeal under section 260A of the Income-tax Act, 1961 (the
Act), appellant-revenue has proposed the following question :
Whether
the Appellate Tribunal is right in law and on facts in confirming
the order of the CIT (A) deleting the addition of Rs.50,93,465/-
made under the head receipt of on-money?
The
Assessment Year is 1994-95 and the relevant accounting period is the
previous year 1993-94. A search
was conducted at the residential premises of one Shri Hasthimal K.
Bhansali on 22nd
March 1994. During the search proceedings, one person named Shri
Lalit R. Shah came to the residential premises of Shri Bhansali and
his statement was recorded under section 131 of the Income Tax Act,
1961 (the Act). Certain diaries and loose papers were impounded
from him under section 131 of the Act which were marked as Annexure
A-1 and A-3. As per the statement of Shri Lalit Shah, the flats were
sold at the rate of Rs.1,500/- per sq. yards and the amount was
collected by cheques, whereas Rs.1,200/- per sq. yard came to be
collected in cash. He also admitted to having made collection in
cash on behalf of the respondent assessee. The Assessing Officer
reopened the assessment of the respondent assessee under section 147
of the Act and framed assessment under section 147 read with section
143(3) of the Act, making an addition of Rs.50,93,465/- to the total
income of the assessee as unaccounted on-money received.
The
assessee carried the matter in appeal before Commissioner (Appeals),
who deleted the said addition. The revenue carried the matter in
appeal before the Income Tax Appellate Tribunal (the Tribunal), but
failed.
Mr.
M. R. Bhatt, learned Senior Advocate for the appellant revenue has
placed reliance upon the order of assessment and submitted that the
Assessing Officer had made the addition made on the strength of
reliable material evidence and that Annexure A-1 and Annexure A-3,
which were recovered during the course of meticulous search, record
details of transactions. It is submitted that the Tribunal has not
appreciated the facts correctly in recording that Shri Lalit Shah
had retracted his statement. It is accordingly, urged that the
appeal does give rise to a substantial question of law as proposed
or as may be formulated by the Court..
A
perusal of the record of the case indicates that the entire basis
for making the addition in the hands of the assessee is the
statement made by Shri Lalit Shah, stating that on-money was being
collected in cash in relation to Sunrise Park Scheme and certain
documents recovered from him. However, there is no evidence on
record to show that the on-money received in cash by Shri Lalit Shah
has, in fact, travelled to the assessee. No corroborative evidence
has been brought on record to show that the amount in question has
in fact been received by the assessee. Besides, the Assessing
Officer has neither rejected the books of account of the respondent
assessee by resorting to section 145 of the Act, nor has he applied
the provisions of section 69 of the Act. Both the appellate
authorities have, upon appreciation of the evidence on record
concurrently found that there is no clinching evidence available
with the Assessing Officer to conclude that the respondent has, in
fact, received the
money. In view of the aforesaid concurrent findings of fact
recorded by both, Commissioner (Appeals) as well as the Tribunal, it
is not necessary to discuss the other part of the evidence.
Suffice
it to state that in light of the aforesaid concurrent findings of
fact recorded by both, Commissioner (Appeals) as well as the
Tribunal, upon appreciation of the evidence on record, it cannot be
stated that there is any legal infirmity in the impugned order of
Tribunal so as to warrant interference.
In
absence of any question of law, much less a substantial question of
law, the appeal is dismissed.
[D.A.MEHTA,
J.]
[HARSHA
DEVANI, J.]
parmar*
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