SHRI RAMESH CHANDRA ROHERA, Ujjain V. THE ACIT 2(1), Ujjain

CO 67/IND/2014

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 1462 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 2 month(s) 19 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 02-11-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 29-09-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 13-08-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJEEV VARSHANE
• Assessee Lawyers: S S DESH
• Keywords: Loose papers; Bogus loan
• Section: 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, J.M. AND SHRI B.C.MEENA, A.M. I.T.(SS).A.NO.234/IND/2014 A.Y. : 2004-05 ACIT, 2(1), SHRI RAMESH CHANDRA ROHERA, UJJAIN VS CHHOTA SARAFA, UJJAIN APPELLANT RESPONDENT C.O.NO.67/IND/2014 ARISING OUT OF I.T.(SS)A.NO.234/IND/2014 A.Y. : 2004-05 SHRI RAMESH CHANDRA ROHERA, ACIT, 2(1), UJJAIN CHHOTA SARAFA, VS UJJAIN CROSS OBJECTOR RESPONDENT ACIT UJJAIN V. RAMESH CHANDRA ROHERA, UJJAIN I.T( SS).A.NO. 234/IND/2014 & C.O.67/IND/2014 2 2 DEPARTMENT BY SHRI RAJEEV VARSHANE, CIT DR ASSESSEE BY SHRI S. S. DESHPANDE, C.A. DATE OF HEARING : 29 .0 9 .2015 DATE OF PRONOUNCEMENT : 02.11. 2015 O R D E R PER GARASIA, J.M. THE APPEAL BY THE REVENUE AND CROSS OBJECTION BY TH E ASSESSEE ARE DIRECTED AGAINST THE ORDER OF CIT(A), UJJAIN, DATED 28.03.2014 FOR THE ASSESSMENT YEAR 2004-05. 2. THE BRIEF FACTS OF THE CASE ARE AS UNDER. 3. THE ASSESSEE IS A PARTNER IN PARTNERSHIP FIRM M/S. ANAND TRADERS, CHHOTA SARAFA, UJJAIN. THE FIRM WAS SUBJECT TO SEARCH OPERATION U/S 132. VARIOUS LOOSE PAPERS WERE SEIZED FROM THE PREMISES OF THE FIRM AND ACCORDINGLY THE F IRM COMPILED THE DETAILS AND SUBMITTED ITS RETURN OF IN COME U/S 153A FOR THE ASSESSMENT YEAR 1998-99 TO 2004-05. IN ALL THESE ASSESSMENT YEARS, THE PEAKS WERE WORKED OUT AFTER ACIT UJJAIN V. RAMESH CHANDRA ROHERA, UJJAIN I.T( SS).A.NO. 234/IND/2014 & C.O.67/IND/2014 3 3 CONSIDERING THE LOOSE PAPERS FOUND, BOOKS SEIZED WI THDRAWAL BY THE PARTNERS AND THE RESULTANT WORKED OUT PEAK W AS RETURNED AS INCOME. DURING THE COURSE OF SEARCH PRO CEEDINGS U/S 132 , A LOOSE PAPER LPS/1 WAS SEIZED FROM THE R ESIDENCE. THE LOOSE PAPER CONTAINS THE DETAILS OF RS. 1,175/- ONLY. THE DETAILS OF RS. 1175/- RELATE TO DONATION OF KANYA B HOJ AND DETAILS THEREOF HAVE BEEN SUBMITTED DURING THE COUR SE OF ASSESSMENT PROCEEDINGS. THE AO HAS ASSUMED THAT RS. 1,175/- IS RS. 11,75,000/- PURELY ACTED ON GUESS, S URMISE AND CONJECTURE. THE AO HAS CONFIRMED THE SECRECY OF THE DETAILS FROM THE NEIGHBOURS OF THE PERSONS, WHOSE N AMES HAVE BEEN MENTIONED IN THE LOOSE PAPERS AND HE HAS MADE THE ADDITION OF RS. 11,75,000/-, WHICH IS MENTIONED IN HIS ASSESSMENT ORDER. 4. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. C IT(A) HAS DELETED THE ADDITION BY OBSERVING AS UNDER : (II) IN ASSESSMENT YEAR 2004-05 FIRST ADDITION OF RS. 11,75,000/- IS BASED ON SEIZED PAGE 1 OF LPS-1. A DETAILED STATEMENT OF SHRI RAMESH ROHERA WAS ACIT UJJAIN V. RAMESH CHANDRA ROHERA, UJJAIN I.T( SS).A.NO. 234/IND/2014 & C.O.67/IND/2014 4 4 RECORDED ON 25.09.2003 DURING SEARCH, ON THE AFORESAID PAPER, IN WHICH HE EXPLAINED IN REPLY TO Q.NO.6, 7, 8, 9 & 10 THAT THIS PAPER SHOWS COLLECTI ON FOR NAVRATRI FESTIVAL. I HAVE SEEN THE PAPER. IT GI VES AMOUNT IN HUNDREDS ONLY, NAMES ARE ALSO WRITTEN IN SHORT AND ONLY DATES ARE GIVEN WITHOUT MENTION OF ANY YEAR. NEITHER APPELLANT WAS EXAMINED NOR ANY OF PARTIES WHOSE NAME WAS MENTIONED IN THE PAPER WAS CALLED AND EXAMINED BY AO AND YET THE AO CAME TO A CONCLUSION THAT SUCH AMOUNT WERE IN THOUSANDS, AND THEY PERTAIN TO YEAR 2003. IF THE AO FORMS A VIEW THAT SUCH PAPER SHOWS TRANSACTION OF RS. 11,75,000/- AND NOT RS. 1,175/- AND IT PERTAINS TO YEAR 2003 AND SUCH AMOUNTS ARE UNACCOUNTED LOANS GIVEN TO THESE PARTIES, THEN THE ONUS IS ON A O TO PROVE OR ESTABLISH THE SAME AS HELD IN THE CASE OF K.P. VARGHESE, (1981) 131 ITR 597 (HON'BLE SUPREME COURT). IF THE PAPER RELIED ON DOES NOT EVEN CONTAI N THE YEAR TO WHICH IT BELONG AND AO ACTED MERELY ON ACIT UJJAIN V. RAMESH CHANDRA ROHERA, UJJAIN I.T( SS).A.NO. 234/IND/2014 & C.O.67/IND/2014 5 5 SURMISES AND CONJECTURES, THEN THE SAME CANNOT BE SUSTAINED AS HELD IN THE CASE OF KHAZAN SINGH & BROS.,(2007), 164 TAXMAN 30 ( P & H ). IN PRESENT CASE YEAR 2003 DOES NOT FIT AS DATES MENTIONED GOES UPTO 30-09- WHICH CANNOT BE 30-09-=2003 AS THE SEARCH ACTION TOOK PLACE ON 25.09.2003 AND APPELLANT WOULD NOT HAVE MENTIONED A TRANSACTION OF FUTURE DATE. THE MENTION BY AO REGARDING SOME SECRET ENQUIRIES WITH NEIGHBOURS, ETC., DOES NOT HELP THE CASE, AS NO STATEMENT OR EVIDENCE IS THERE ON RECOR D TO SHOW THAT SUCH INVESTIGATION WAS DONE AND IF IT WAS AT ALL DONE WHY IT WAS NOT CONFRONTED TO APPELLANT. CONSIDERING ALL THE FACTORS MENTIONED ABOVE THE ADDITION OF RS. 11,75,000/- IS HEREBY DELETED SINCE SUCH ADDITION IS BASED ON ASSUMPTION AND PRESUMPTION REGARDING ACTUAL AMOUNT, ACTUAL NAME ACIT UJJAIN V. RAMESH CHANDRA ROHERA, UJJAIN I.T( SS).A.NO. 234/IND/2014 & C.O.67/IND/2014 6 6 AND YEAR OF TRANSACTION, WHICH IS NOT SUSTAINABLE I N LAW. 5. LD. SENIOR D.R. SUBMITTED THAT DURING THE COURSE OF SEARCH A LOOSE PAPER WAS FOUND WHICH MENTIONED NAME OF THE EIGHTEEN PERSONS, NAMELY, GAURAV TRADERS, MAA KALIK A DUDH BHANDAR, BILLU & BILLU, BILLU & BILLU FREEGANJ, RIT A TRADERS, VARIAL DAS, KAIRO STOVE, GANESH TRADERS, VAISHALI S AREE, SEVAK RAM & SONS, NEW SUNDER DAIRY, KRISHNA MACHINE RY, SONA AGENCY, KRISHNA AGENCY, REETA TRADERS, SUPER C OLOUR LAB, RAJKUMAR KHIALDAS AND DARPAN LAKERWADI, FROM W HOM THE VARIOUS AMOUNTS WERE COLLECTED. ALL THESE AMOUN TS HAVE BEEN RECEIVED BETWEEN 3.9.2003 TO 30.9.200. THE LOO SE PAPER WAS FOUND IN WHICH THE AMOUNT WRITTEN WAS RS. 1175/ - AND 1175/- IS NOTHING BUT RS. 11,75,000/-. MOREOVER, TH E ASSESSEE HAS NOT EXPLAINED THE SOURCE OF THIS AMOUNT DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THEREFORE, THE LD. CIT(A ) IS NOT JUSTIFIED IN DELETING ADDITION. 6. THE LD. AUTHORIZED REPRESENTATIVE RELIED UPON THE ORDER OF THE LD. CIT(A). ACIT UJJAIN V. RAMESH CHANDRA ROHERA, UJJAIN I.T( SS).A.NO. 234/IND/2014 & C.O.67/IND/2014 7 7 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. WE FIND THAT THE ASSESSEE DURING THE COUR SE OF SEARCH HAS REPLIED IN QUESTION THAT WHETHER YOU HAVE RECEI VED ADVANCE OF RS. 11,75,000/- FROM VARIOUS PERSONS. PL EASE GET IT VERIFIED FROM THE BOOKS AND IN REPLY TO THIS QUESTI ON, THE ASSESSEE SUBMITTED THAT THESE DETAILS REPRESENT RS. 1175/- ONLY AND THIS IS A LIST OF CHANDA FOR COLLECTION OF NAVRATRI BHOJ. THE ASSESSEE HAS COLLECTED THIS AMOUNT IN ASSESSMEN T YEAR 2002-03, WHEREAS THE AO HAS MADE THE ADDITION IN ASSESSMENT YEAR 2004-05. WE FIND THAT THE AO HAS NO T ENQUIRED FROM THE PERSONS LISTED AND APPEARING IN H IS LOOSE PAPERS. THE AO HAS NOT CONFRONTED THE ASSESSEE FOR MAKING THIS ADDITION. THEREFORE, WE ARE OF THE VIEW THAT T HE LD. CIT(A) IS JUSTIFIED IN HIS ACTION AND OUR INTERFERENCE IS NOT REQUIRED. 8. AT THE TIME OF HEARING, THE CROSS OBJECTION WAS NOT PRESSED, HENCE, THE SAME IS DISMISSED AS NOT PRESSE D. ACIT UJJAIN V. RAMESH CHANDRA ROHERA, UJJAIN I.T( SS).A.NO. 234/IND/2014 & C.O.67/IND/2014 8 8 9. IN THE RESULT, THE APPEAL AS WELL AS CROSS OBJECTIO N BOTH ARE DISMISSED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 2 ND NOVEMBER, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 2 ND NOVEMBER, 2015. CPU* 6.9