M/s Vepco Veneers, Yamunanagar V. ITO, Yamunanagar

ITA 100/CHANDI/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 57613 (ITAT-CHANDIGARH)
• Duration Of Justice: 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-01-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 25-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAI SHREE SHARMA
• Assessee Lawyers: TEJ MOHAN SINGH
• Keywords: Unexplained investment; Assessment record
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B CHANDIGARH BEFORE MS.SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER ITA NO. 100/CHD/2011 ASSESSMENT YEAR: 2007-08 VEPCO VENEERS, V ITO, WARD-3, VILLAGE PANSARA, YAMUNA NAGAR. KHAJURI ROAD, YAMUNA NAGAR. PAN: AADFV-3589J (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI TEJ MOHAN SINGH RESPONDENT BY : SMT. JAISHREE SHARMA DATE OF HEARING : 12.01.2012 DATE OF PRONOUNCEMENT : 20.01.2012 ORDER PER MEHAR SINGH, AM THE PRESENT APPEAL FILED BY THE ASSESSEE IS DIRECTE D AGAINST THE ORDER DATED 08.11.2010 PASSED BY THE LD . CIT(A) U/S 250(6) OF THE INCOME-TAX ACT,1961 (IN SHORT 'TH E ACT'). 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLL OWING GROUNDS OF APPEAL: 1. THAT THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDING THE ADDITION OF RS.19,69,901/- TREATING THE NEGATIVE STOCK IN THE MONTH OF JANUARY,2007 AS UNACCOUNTED INVESTMENT IN PURCHASES WITHOUT APPRECIATING THE EXPLANATION RENDERED WHICH IS ARBITRARY & UNJUSTIFIED. 2. THAT THE ENTIRE AFORESAID ADDITION OF RS.19,69,901/- IS BASED ON SUSPICION, SURMISES AND CONJECTURES WITHOUT BRINGING ON RECORD ANY 2 EVIDENCE TO REBUT THE EXPLANATIONS RENDERED DURING THE COURSE OF BOTH ASSESSMENT AND APPELLATE PROCEEDINGS AND AS SUCH THE ADDITION UPHELD IS ARBITRARY AND UNJUSTIFIED. 3. THAT THE LD. CIT(A) HAS FURTHER ERRED IN SUSTAIN ING THE ADDITION OF RS.4015/- OUT OF TOTAL ADDITION OF RS.8030/- MADE ON ACCOUNT OF DISALLOWANCE OF 10% OF EXPENSES CLAIMED UNDER THE HEAD TRAVELING AND CONVEYANCE ALLEGEDLY FOR PERSONAL USE WHICH IS ARBITRARY & UNJUSTIFIED. 4. THAT THE ORDER OF THE LD. CIT(A) IS ERRONEOUS, ARBITRARY OPPOSED TO LAW AND FACTS OF THE CASE AND IS, THUS UNTENABLE. 2. IN THE COURSE OF PRESENT APPELLATE PROCEEDINGS, LD. 'AR' CONTENDED THAT THE IMPUGNED ASSESSMENT ORDER IS PRE -DATED, IN VIEW OF THE DATE I.E. 13.11.2009 INDICATED ON T HE NOTICE OF DEMAND ISSUED U/S 156 OF THE ACT. THE LD. 'AR' M ENTIONED THAT, ON 11.11.2009, ASSESSEE'S COUNSEL WAITED FOR HIS TURN FOR APPEARANCE, IN THE OFFICE OF THE AO, BUT COULD NOT MEET, IN VIEW OF THE PRE-OCCUPATION OF THE AO. ON 12.11. 2009, AS STATED BY THE LD. 'AR', ASSESSEE'S COUNSEL AGAIN CO ULD NOT MEET AO. FURTHER, ON 13.11.2009, IT WAS STATED THA T THE ASSESSEE'S COUNSEL COULD NOT MEET THE AO AND HE WAS INFORMED THAT THE DRAFT ASSESSMENT ORDER HAS BEEN S ENT FOR APPROVAL, TO THE OFFICE OF THE JOINT COMMISSIONER O F INCOME- TAX, YAMUNA NAGAR. IN SUCH FACT-SITUATION OF THE C ASE, HE WAS OF THE OPINION THAT NO OPPORTUNITY WAS AFFORDED TO THE ASSESSEE WHILE PASSING ASSESSMENT ORDER ON 12.11.20 09 U/S 143(3) OF THE ACT. 3. ON THE OTHER HAND, LD. 'DR' CONTENDED THAT THE CONTENTION OF THE ASSESSEE IS WITHOUT ANY CORROBORA TIVE 3 EVIDENCES AND THE ASSESSEE HAD FAILED TO ESTABLISH THAT THE ASSESSMENT ORDER IS PRE-DATED OR THE DRAFT ASSESSME NT ORDER WAS FORWARDED TO THE JOINT COMMISSIONER OF INCOME T AX FOR APPROVAL. 4. WE HAVE CAREFULLY PERUSED THE RIVAL CONTENTIONS AND FACTS OF THE CASE AND ALSO THE AFFIDAVIT DATED 15.1 2.2011, FILED BY ASSESSEE'S COUNSEL, NARRATING THE SAME FAC TS, AS INDICATED BY THE LD. 'AR', IN THE COURSE OF APPELLA TE PROCEEDINGS, BEFORE US. A BARE PERUSAL OF THE ASSES SMENT ORDER REVEALS THAT IT IS DATED AS 12.11.2009. THE ASSESSMENT RECORD WAS CALLED FOR AND PRODUCED BEFOR E THE BENCH. ON A CAREFUL PERUSAL OF THE ASSESSMENT RECO RD, IT WAS FOUND THAT THE ASSESSMENT ORDER IS DATED AS 12.11.2009. IN PURSUANCE OF THE SAID ASSESSMENT OR DER, NOTICE U/S 156 OF THE ACT WAS PREPARED BY THE MINIS TERIAL STAFF, WHEREIN DATE OF ASSESSMENT ORDER IS INDICATE D AS 13.11.2009. HOWEVER, AN ENTRY WAS MADE IN THE DEMA ND AND COLLECTION REGISTER, ON 12.11.2009. THE MAIN P LANK OF THE ARGUMENT OF THE LD. 'AR' IS THAT DATE OF ASSESS MENT ORDER, AS RECORDED IN THE DEMAND NOTICE U/S 156 OF THE ACT IS DECISIVE IN CONSTRUING THAT THE ASSESSMENT ORDER IS PRE- DATED. SUCH CONTENTIONS OF THE LD. 'AR' ARE WITHOUT ANY CORROBORATIVE AND CREDIBLE EVIDENCES AND PURELY BAS ED ON SURMISES AND CONJECTURES. THE IMPUGNED ASSESSMENT H AS BEEN FRAMED U/S 143(3) OF THE ACT, ON 12.11.2009, W HICH CONTAINS MANDATE FOR DETERMINATION OF TAXABLE INCOM E AND CONSEQUENTIAL COMPUTATION OF TAX LIABILITY AND ISSU ANCE OF NOTICE U/S 156 OF THE ACT. MERE MENTIONING OF INCOR RECT DATE 4 BY THE MINISTERIAL STAFF, WHILE COMPUTING THE TAX L IABILITY, IN PURSUANCE OF THE MANDATE CONTAINED, IN THE IMPUGNED ASSESSMENT ORDER, DOES NOT PROVE THAT THE IMPUGNED ASSESSMENT ORDER IS PRE-DATED. IN VIEW OF THIS, TH E DATE MENTIONED ON THE SAID ASSESSMENT ORDER IS NOT TO BE DETERMINED, ON THE BASIS OF INCORRECT DATE MENTIONE D BY THE MINISTERIAL STAFF, ON THE NOTICE ISSUED U/S 156 OF THE ACT. FURTHER, ASSESSEE HAS FILED AFFIDAVIT DATED 15.12.2 009 NARRATING THE SAME FACTS BEFORE THE BENCH ON THE IS SUE IN QUESTION. IN THIS CONTEXT, IT IS MENTIONED THAT AN AFFIDAVIT MAY BE A PIECE OF EVIDENCE, BUT IS NOT ABSOLUTELY S ACROSANCT, UNLESS CORROBORATED BY CREDIBLE AND COGENT EVIDENCE S, AS ALSO SUPPORTED BY OTHER MATERIAL ON RECORD. IN VIE W OF THE MATERIAL AVAILABLE ON RECORD, AS DISCUSSED EARLIER AND IN THE ABSENCE OF CORROBORATIVE EVIDENCE FILED BY THE ASSE SSEE, WE DO NOT FIND ANY SUBSTANCE IN THE CONTENTION RAISED BY THE ASSESSEE. THE DEPOSITION MADE IN THE AFFIDAVIT IS TO BE PROVED BY BRINGING ON RECORD COGENT AND RELIABLE EV IDENCES. THE ASSESSEE HAS ALSO FAILED TO PROVE THAT THE CASE RECORD WAS SENT TO THE JCIT FOR THE PURPOSE OF APPROVAL OF THE DRAFT ASSESSMENT ORDER. THIS QUERY WAS RAISED BY THE BENC H SPECIFICALLY, BUT NO CREDIBLE OR PLAUSIBLE SUBMISSI ON WAS MADE BY THE LD. 'AR' TO SUPPORT HIS ASSERTION. BE T HAT AS IT MAY, THE FOCUS OF THE ASSESSEES CONTENTION IS THAT PROPER AND REASONABLE OPPORTUNITY BE GIVEN TO THE ASSESSEE , WITH A VIEW TO PRESENTING HIS CASE BEFORE THE AO. 5 5. HAVING REGARD TO THE FACT SITUATION OF THE PRES ENT CASE, WE ARE OF THE CONSIDERED OPINION THAT NO PREJUDICE IS CAUSED TO THE REVENUE IN CASE REASONABLE AND PROPER OPPORT UNITY IS AFFORDED TO THE ASSESSEE, TO PRESENT HIS CASE. THE LD. 'DR' DID NOT OBJECT TO SUCH CONTENTIONS OF THE LD. 'AR'. ACCORDINGLY, THE CASE IS RESTORED TO THE FILE OF TH E AO FOR THE PURPOSE OF FRAMING THE ASSESSMENT AFRESH, IN ACCORD ANCE WITH THE PROVISIONS OF THE ACT AND THE RELEVANT MAT ERIAL ON RECORD. THE ASSESSEE IS ALSO DIRECTED TO RENDER EFF ECTIVE AND NECESSARY COOPERATION IN THE MATTER, FOR FINALIZATI ON OF THE ASSESSMENT. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH JAN.,2012. SD/- SD/- (SUSHMA CHOWLA) (MEHAR SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 20 TH JAN.,2012. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT,DR ASSISTANT REGISTRAR, ITAT CHANDIGARH