Shri Dhirejlal V. Karadia, Surat V. The Income tax Officer,Ward-8(1), Surat

ITA 1053/AHD/2008

• Counselvise Citation: 105320514 RSA 2008
• Duration Of Justice: 3 year(s) 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 01-02-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 24-03-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: PRAKASH D SHAH
• Keywords: Bogus purchase
• Section: 148

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, D BENCH . .. . . .. . , !! '#$ !! '#$ !! '#$ !! '#$, , , , %& %& %& %& '() * +! '() * +! '() * +! '() * +!, , , , (, - (, - (, - (, - ( $ ( $ ( $ ( $ BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND B.P. JAIN, ACCOUNTANT MEMBER) ITA NO.1053/AHD/2008 [ASSTT.YEAR : 2002-2003] SHRI DHIRAJLAL V. KARADIA 302, OMKAR DAESHAN APARTMENT DAIRY FALIA, KATARGAM SURAT 395 004. ! /VS. ITO, WARD-8(1) SURAT. ( (( (/0 /0 /0 /0 / APPELLANT) ( (( (12/0 12/0 12/0 12/0 / RESPONDENT) ! 34 5 6 (/ ASSESSEE BY : SHRI PRAKASH D. SHAH - 5 6 (/ REVENUE BY : SHRI B.L.YADAV !8 5 4,/ DATE OF HEARING : 1 ST FEBRUARY, 2012 9:; 5 4,/ DATE OF PRONOUNCEMENT : 02-03-2012 (< / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL OF THE ASSESSEE FOR A.Y.2002-2003 IS DIRECTED AGAINST THE ORDERS OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-V, SURAT. 2. THE GROUND NO.1 OF THE ASSESSEES APPEAL READS A S UNDER: 1. THE LD.CIT(A) ERRED IN UPHOLDING THE ADDITION O F RS.5,19,005/- BEING THE VALUE OF DIAMONDS SOLD TO M /S.RAJ EXPORTS, SURAT ON PROTECTIVE BASIS. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ADDITION WAS MADE ON ACCOUNT OF DIAMONDS SOLD TO M/S.RAJ EXP ORTS (RE FOR SHORT) ON PROTECTIVE BASIS. HE SUBMITTED THAT IN T HE CASE OF M/S. RAJ EXPORTS, IN ITA NO.1827/AHD/2005 FOR THE RELEVANT A SSTT.YEAR 2002-2003 THE TRIBUNAL VIDE ITS ORDER DATED 11-11-2011 HAS DE LETED ENTIRE ADDITION MADE BY THE AO AND HAS HELD THAT THE PURCHASES FROM THE ASSESSEE WERE ITA NO.1053/AHD/2008 -2- GENUINE. THE LEARNED DR COULD NOT CONTROVERT THE S UBMISSION MADE BY THE LEARNED COUNSEL OF THE ASSESSEE. HOWEVER, HE S UBMITTED THAT IT IS A CASE OF BOGUS PURCHASE OF DIAMONDS. HE RELIED ON TH E ORDERS OF THE AO AND THE CIT(A). 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND HAVE PE RUSED THE ORDER OF THE TRIBUNAL IN THE CASE OF RE DATED 11-11-201 1 (SUPRA). WE FIND THAT THE SUBSTANTIVE ADDITION ON ACCOUNT OF THE DIA MONDS SOLD BY THE ASSESSEE TO THE RE WERE MADE IN THE CASE OF THE RE AND IN THE CASE OF THE ASSESSEE THE SAME WAS ADDED ON PROTECTIVE BASIS ONLY. WE FIND THAT THE TRIBUNAL IN THE CASE OF RE VIDE ORDER DATED 1 1-11-2011 (SUPRA) HAS CONSIDERED THE EVIDENCE PLACED ON RECORD BY THE ASS ESSEE INCLUDING THE COPIES OF THE AFFIDAVITS OF ELEVEN PARTIES EXECUTED BEFORE THE EXECUTIVE MAGISTRATE OF SURAT WHEREIN THEY HAVE ADMITTED THE SALES OF DIAMONDS MADE TO THE APPELLANT AND THE PAYMENTS WERE RECEIVE D THROUGH CHEQUES AND HAS CONCLUDED THAT THERE COULD BE NO ADDITION O N THIS COUNT AND THE 50% OF THE ADDITION SUSTAINED BY THE CIT(A) WAS DEL ETED. IN THESE FACTS OF THE CASE, SINCE THE PURCHASE IN THE HANDS OF RE HAVE NOT BEEN HELD AS NON-GENUINE, WE HOLD THAT NO CASE OF ADDITION ON PR OTECTIVE BASIS ON THIS COUNT IN THE HANDS OF THE ASSESSEE COULD BE MADE OU T BY THE DEPARTMENT, ACCORDINGLY, THE GROUND NO.1 OF THE ASSESSEE IS ALL OWED. 5. THE GROUND NOS.2 AND 3 OF THE ASSESSEES APPEAL READ AS UNDER: 2. THE LD.CIT(A) ERRED IN UPHOLDING THE ADDITION O F RS.6,228/- BEING COMMISSION DETERMINED TO THE RETURN INCOME OF APPELLANT WITHOUT TAKING INTO CONSIDERATION THAT THE SAME HAS ALREADY BEING CONSIDERED AND INCLUDED WHILE DETERMINING THE RETUR N INCOME. 3. THE LD.CIT(A) ERRED IN UPHOLDING THE REOPENING O F ASSESSMENT UNDER SECTION 148 OF THE INCOME TAX ACT BY THE AO. ITA NO.1053/AHD/2008 -3- 6. THE LEARNED COUNSEL FOR THE ASSESSEE HAS NOT PRE SSED THESE GROUNDS OF THE ASSESSEES APPEAL, WHICH ARE ACCORDINGLY DIS MISSED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( '() * +! '() * +! '() * +! '() * +! /B.P. JAIN) (, - (, - (, - (, - /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) ' ' ' '#$ #$ #$ #$ /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD ITA NO.1053/AHD/2008 -4- 1. DATE OF DICTATION : 01-02-2012 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER. : 01-02-2012 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P.S./P.S : 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT. : 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER : 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P.S./P.S. : 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK. : 02-03-2012 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK. : 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER. : 10. DATE OF DESPATCH OF THE ORDER :