Sh. Ajay Kumar Aggarwal, New Delhi V. ITO, New Delhi

CO 203/DEL/2011

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8207 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 6 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 04-01-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 12-12-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 28-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: BHIM SINGH
• Assessee Lawyers: B C GUPTA
• Keywords: Retraction
• Section: 143(3)

Judgement Text

C.O. NO. 203/DEL/2011 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER C.O. NO. 203/DEL/2011 (IN I.T.A. NO. 2210/DEL/2011) A.Y. : 2007-08 SH. AJAY KUMAR AGGARWAL, C-7, GURUDWARA ROAD, HOUSING SOCIETY, N.D.S.E.-I, NEW DELHI (PAN/GIR NO. : AAGPA8915Q) VS. I.T.O., WARD - 32(2), ROOM NO. 332-B, CR BUILDING, NEW DELHI (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSESSEE BY : SH. B.C. GUPTA, CA & MANJU GOEL CA DEPARTMENT BY : SH. BHIM SINGH, D .R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS CROSS OBJECTION BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXV I, NEW DELHI DATED 24.2.2011 PERTAINING TO ASSESSMENT YEAR 2007-0 8. 2. THE GROUNDS RAISED READ AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE DEPARTMENTAL APPEAL IS BAD IN LAW AND IS LIABLE TO BE DELETED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE CI T(A) HAS RIGHTLY STATED IN HIS ORDER THAT IT STANDS C.O. NO. 203/DEL/2011 2 ESTABLISHED THAT POST SURVEY, THE APPELLANT HAS IMMEDIATELY FILED RETRACTION STATEMENT STATING THAT T HE SURRENDER WAS OBTAINED WITHOUT ANY EVIDENCE PERTAINING TO THE ALLEGED DISCREPANCIES OR ALLEGED RENOVATION OF SHOP. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE CI T(A) HAS RIGHTLY STATED IN HIS ORDER THAT SURRENDER STATEMENT DATED 09.02.2007 PER SE CANNOT BE THE BASIS F MAKING THE ADDITION OF RS. 4000526/- UNDER SECTION 143(3) OF THE INCOME TAX ACT,1961 IN VIEW O F THE CBDT CIRCULAR F.NO. 286/2/2003-IT (INV) WHERE I T WAS STATED THAT WHILE RECORDING STATEMENT DURING TH E COURSE OF SURVEY OPERATION NO ATTEMPT SHOULD BE MAD E TO OBTAIN CONFESSION TO THE UNDISCLOSED INCOME AND ASSESSING OFFICER SHOULD RELY UPON THE EVIDENCES/MATERIAL GATHERED DURING SURVEY. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE C IT (A) HAS RIGHTLY SATED IN HIS ORDER THAT THE ASSESSING OFFICER HAS NOT BROUGHT ON RECORD THE DETAILED INVENTORY OF CASH FOUND. AT THE TIME OF SURVEY THE SIGNATURE OF THE SURVEY TEAM BY EITHER ITO OR INSPECTOR ARE INVARIABLY REQUIRED TO BE MADE ON SUC H INVENTORIES DRAWN. IN THE ABSENCE OF INVENTORY OF C ASH SATED TO HAVE BEEN DRAWN, BUT NOT EVIDENCED BY ANY RECORD, IT IS HELD THAT THE FINDING OF EXCESS CASH FOUND DURING THE SURVEY IS FALSE. C.O. NO. 203/DEL/2011 3 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE C IT (A) HAS RIGHTLY STATED IN HIS ORDER THAT THE ADDITION O F RS. 1820000/- IN NOT BASED ON ANY MATERIAL OR EVIDENCE. THE PREMISES ARE STATED TO BE ON RENT. AT THE TIME O F SURVEY NO UNACCOUNTED BILLS / VOUCHERS RELATING TO THIS EXPENDITURE HAVE BEEN FOUND OR IDENTIFIED. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE C IT (A) HAS RIGHTLY STATED IN HIS ORDER THAT THE APPELLANT VALUES STOCK AT COST OR MARKET PRICE WHICHEVER IS LOWER WH ICH IS ALSO CONFIRMED FROM THE TAX AUDIT REPORT SUBMITT ED. THE SURVEY TEAM HAS VALUED THE STOCK EXCESSIVELY AT MRP WITHOUT CONSIDERING THE DISCOUNT FACTOR. 7. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE DEPARTMENTAL APPEAL IS BAD IN LAW STATING FOR ADDIT ION MERELY ON ACCOUNT OF SURRENDER BY THE ASSESSEE WHICH WERE RETRACTED IMMEDIATELY AND CIT (A) HAS RIGHTLY PASSED A SPEAKING ORDER. 8. THAT THE ASSESSEE CRAVES LEAVE TO ADD, AMEND OR ALTER ANY OF THE GROUNDS OF CROSS OBJECTIONS BEFORE OR AT THE TIME OF HEARING. 3. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. WE FIND THAT IN REVENUES APPEAL IN I.T.A. NO. 2210/ DEL/2011 (A.Y. 2007-08) VIDE ORDER DATED 19.12.2012, WE HAVE ALREADY DEALT WITH THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (A) WHEREIN WE HAVE PARTLY ALLOWED THE APPEAL OF THE REVENUE. THI S CROSS OBJECTION FILED BY THE ASSESSEE IS ONLY SUPPORTIVE OF LD. COMM ISSIONER OF INCOME TAX (A)S ORDER. SINCE THE LD. COMMISSIONER OF INC OME TAX (A)S ORDER C.O. NO. 203/DEL/2011 4 HAS BEEN DEALT WITH IN REVENUES APPEAL, THE CROSS OBJECTION BY THE ASSESSEE IS INFRUCTUOUS AND HENCE, DISMISSED AS SUCH . 4. IN THE RESULT, THE CROSS OBJECTION FILED BY THE A SSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04/1/2013. SD/- SD/- [ [[ [RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 04/1/2013 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES