1 itxa 638.12.doc k IN HIGH COURT OF JUDICATURE AT BOMBAY rt ORDINARY ORIGINAL CIVIL JURISDICTION ou INCOME TAX APPEAL NO.638 OF 2012 Commissioner of Income Tax 21 ..Appellant C Versus Shri Jalaj Batra ..Respondent h ig ........... Mr. Abhay Ahuja for Appellant. Mr. Sahil Kapoor, Mr. C.S. Anand i/b Mr. Jitendra Singh for H Respondent. CORAM: S.C. DHARMADHIKARI AND A. A. SAYED, JJ. y DATE : 12th NOVEMBER, 2014 ba P.C.: om 1 This Appeal by Revenue challenges order passed on 3rd June, 2011 by Income Tax Appellate Tribunal Bench at Mumbai in Income Tax Appeal No.1971/Mum/2009 of assessment year 2006 2007. B Tribunal dealt with two Appeals and other one is Income Tax Appeal no.1931/Mum/2009 which was preferred by Assessee. 1/8 ::: Downloaded on - 11/08/2015 15:47:37 ::: 1 itxa 638.12.doc 2 These Appeals were directed against order of Commissioner rt of Income Tax (Appeals), Central III, Mumbai dated 19th January 2009. ou 3 Mr. Ahuja appearing on behalf of Revenue submits that questions of law at pages 7 and 8 of paper book are substantial C because Tribunal s order is perverse. It does not take into consideration issue of telescopic benefit of Rs.3.52 Crores. That h benefit has been granted without considering fact that Assessee ig admittedly does not maintain any books of accounts. He has nothing to H support his oral stand that investment in assets and expenditure had been incurred out of disclosure made after search operation. Similarly with regards to question (c ) Mr. Ahuja complains that order of y ba Tribunal is perverse because in absence of any evidence or supporting material claim has been granted. om 4 On other hand, Asessee's advocate would submit that there are pure findings of fact rendered by Tribunal after duly considering B order of Assessing Officer and findings therein. Further documents which were before Assessing Officer only have been noted. There is no substance in Complaint that such of claims or grounds which have been given up before First Appellate Authority are allowed 2/8 ::: Downloaded on - 11/08/2015 15:47:37 ::: 1 itxa 638.12.doc to be raised in Tribunal. In that regard Counsel submits that rt question (a) has been framed and termed as substantial question of law without appreciating that no benefit has been given to Assessee with ou regard to transactions or dealings with M/s. Sonal Fin. Cap. Pvt. Ltd. All that Tribunal has done is to have look at Bank Account, C deposits and withdrawals therefrom and deducted such of items which led to double taxation. Meaning thereby when both h receipts and withdrawals from Bank Account have been taxed ig Tribunal found that this is case of double taxation and which could not H have been permitted in given facts and circumstances. Therefore, this Appeal does not raise any substantial question of law and deserves to be dismissed. y ba 5 With assistance of learned Advocates appearing for both om sides, we have perused Memo of Appeal and all Annexures thereto. There is group called Jalaj Batra Group, search operation was carried out under section 132 of Act on 25 th October, 2005. Assessee and B his Associates are also covered. Assessee is stated to be involved in off market transactions of Penny stocks. There were direct transfers from one beneficiary account to another and that is managed with help of money lenders. Complaint is that benami Bank Accounts and 3/8 ::: Downloaded on - 11/08/2015 15:47:37 ::: 1 itxa 638.12.doc D.P. Accounts were opened in name of several persons involved in this rt group. prices of scripts were manipulated by these persons and bulk deals in such scripts were utilized for bench marking of prices. Such ou type of transactions were carried out by Assessee and that is why during course of survey several documents were impounded. C assets or shares equivalent to Rs.317.49 lacs were found and seized which were got sold and adjusted against tax liability of disclosed h income. ig H 6 It is stated in Memo of Appeal itself that Assessee filed his return of income on 31st December 2007 declaring income at Rs.10 Crores but without any basis. Various notices were issued but there was no y ba compliance. Since return of income was filed but no supporting documents such as capital account, balance sheet and profit and loss om account, Assessee was once again directed to file true and correct return of income. He did not comply with notices. No further opportunities were given to him and since nothing was produced by him. B Assessing Officer finalized assessment on basis of material gathered and enquiries carried out including statements of investigating authorities and worked out additional income of Rs.3,42,34,399/ and passed Assessment Order under section 153A 4/8 ::: Downloaded on - 11/08/2015 15:47:37 ::: 1 itxa 638.12.doc read with section 144 of Income Tax Act, 1961. rt 7 Assessee approached Commissioner of Income Tax (Appeals) and though it raised several grounds including liability of ou M/s. Sonal Fin. Cap. Pvt. Ltd. and addition of on account of unexplained stock these were not pressed and withdrawn. Assessee's Appeal was C partly allowed by Commissioner of Income Tax (Appeals) and deleted addition of Rs.12 lacs as salary paid to staff, estimated addition of h Rs.10 lacs on account of non business income/expenditure and addition of ig Rs.21,51,723/ on account of withdrawal attributable to consumption of H income for non business purpose and dismissed other grounds. 8 That is how cross Appeals to Tribunal. y ba 9 What we find from Tribunal's order is that this entire material om together with rival contentions have been exhaustively noted. Thereafter, as rightly pointed out by Counsel for Assessee, no relief has been granted to Assessee in relation to grounds which B were given up and particularly about M/s. Sonal Fin. Cap. Pvt. Ltd. undisputed factual position has been noted by Tribunal in as much as if there were no books of accounts and yet Assessing Officer referred to Bank statements and details of accounts then, exercise 5/8 ::: Downloaded on - 11/08/2015 15:47:37 ::: 1 itxa 638.12.doc carried out by him of bringing to tax investment in closing stock as well as rt withdrawal from bank account was not proper. Tribunal found that Assessee declared income from Assessment Year 2000 2001 to ou 2006 2007 of Rs.12,26,90,630/ . Investment in closing stock was brought to tax to tune of Rs.7,02,11,084/ . balance sum of C Rs.5,24,79,546/ and in relation to which claim for telescopic has been examined reveals that there is no substance in contention of Mr. Ahuja h that without any application of mind or materials claim of telescopic ig benefit has been allowed. We find that Tribunal has extensively H referred to Assessing Officer s order and exercise carried out by him. It has taken matter item wise/addition wise and found that Assessing Officer had before him Bank statements/the inflows in to y ba Bank Account. He had in his order observed that he would consider investment after Assessee has offered Rs.10 Crores as income. om However, he has not considered same. That refusal has been commented upon by Tribunal in para 9 of order under challenge and found that when receipts in bank account are taxed then B payment from that very bank account have nexus with receipt therefore, addition could not be sustained by First Appellate Authority. With regard to expenses relating to service apartment at Hotel Hilton similar exercise is carried out and Assessee's contentions have 6/8 ::: Downloaded on - 11/08/2015 15:47:37 ::: 1 itxa 638.12.doc been accepted. With regard to expenditure on household items that aspect rt also has been considered and Tribunal concluded that declaration of income is more than sufficient to take care of expenditure. This ou could not have been matter and which is not covered by disclosure. From paras 9 to 15 we find that every single item or addition has been C considered and with extensive reference to findings of Assessing Officer and that of Commissioner. materials in support of this h claims or additions have also been noted. finding of double taxation ig has been rendered after examining matter in details namely, scrutiny H of bank accounts. Either inflows have been explained with evidence and then question of taxing withdrawals will not arise or because there is no evidence, taxing of deposits in bank was y ba justified. That is conclusion reached and Tribunal holds that both inflow and outflow cannot be taxed. This is basis and essential om foundation when it sums up in para 17 reliefs granted to Assessee. We do not find that any substantial relief has been granted as complained by Mr. Ahuja particularly with regard to items or grounds which have been B given up before First Appellate Authority. In circumstances, cross Appeals have been decided by Tribunal strictly in consonance with factual materials produced. findings of fact based thereon are therefore reflecting possible view of Tribunal. Such view does 7/8 ::: Downloaded on - 11/08/2015 15:47:37 ::: 1 itxa 638.12.doc not raise any substantial question of law particularly when it is not rt perverse as complained. Appeal is therefore devoid of merits and is dismissed. No costs. ou C (A. A. SAYED, J.) (S.C. DHARMADHIKARI, J.) h katkam ig H y ba om B 8/8 ::: Downloaded on - 11/08/2015 15:47:37 ::: The Commissioner of Income-tax ­- 21 v. Shri Jalaj Batra