Kailash O Mahajan, Hubli V. ITO, Hubli

ITA 107/BANG/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0244 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 27-06-2016
• Assessment Year: 1998-1999
• Appeal Filed On: 01-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SWAPNA DAS JT
• Keywords: Valuation report
• Section: 234B; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC B BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER ITA NO.107/BANG/2016 ASSESSMENT YEAR : 1998-99 SHRI KAILASH O. MAHAJAN, BELLARY GALLI, HUBLI. PAN: ACJPM 4014H VS. THE INCOME TAX OFFICER, WARD 1(3), HUBBALLI. APPELLANT RESPONDENT APPELLANT BY : SHRI RAVISHANKAR, ADVOCATE RESPONDENT BY : SMT. SWAPNA DAS, JT. CIT(DR) DATE OF HEARING : 27.06.2016 DATE OF PRONOUNCEMENT : 30.06.2016 O R D E R THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST T HE ORDER OF THE CIT(APPEALS), HUBLI DATED 30.10.2015 FOR THE ASSESS MENT YEAR 1998-99 INTER ALIA ON THE FOLLOWING GROUNDS:- 1. THE ORDER OF THE CIT (A) IN SO FAR AS THEY ARE AGAINST THE APPELLANT ARE OPPOSED TO LAW, EQUITY, AND WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE APPELLANT DENIES TO BE ASSESSED AT RS. 3,12, 280/- AGAINST THE DECLARED TOTAL INCOME OF RS.87,280/- ON THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO.107/BANG/2016 PAGE 2 OF 5 3. THE LEARNED CIT (A) IS NOT JUSTIFIED IN CONFIRMI NG THE ADDITION OF RS.2,2,5000/- UNDER SECTION 69 OF THE A CT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THE LEARNED CIT(A) WAS NOT JUSTIFIED IN CONFIRMI NG THE FINDING OF THE AO THAT THE NOMENCLATURE AS PER THE DECLARATION DIFFERED FROM THE SALE INVOICE AND HENCE THE SAID S ALE WAS OUT OF DIAMONDS DIFFERENT FROM THE ONE IN THE DECLARATION MADE ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THE LEARNED CIT(A) WAS NOT JUSTIFIED IN RELYING ON THE OBSERVATIONS MADE IN THE EARLIER APPELLATE ORDERS T O ARRIVE AT A FINDING THAT THE DECLARATION STOOD UNPROVED AND HEN CE THE DIAMONDS SOLD WERE NOT OUT OF THE DECLARATION MADE. 6. THE LEARNED CIT(A) WAS NOT JUSTIFIED ON FACTS I N NOT CONSIDERING THE DIAMONDS ON HAND WITH THE APPELLANT AS PER THE DECLARATION, TO BE THE SAME DIAMONDS SOLD ON THE FA CTS AND CIRCUMSTANCES OF THE CASE. 7. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER W ITH THE HON'BLE CHIEF COMMISSIONER OF INCOME TAX/DIRECTOR G ENERAL OF INCOME TAX, THE APPELLANT FIRM DENIES ITSELF LIABLE TO BE CHARGED TO INTEREST UNDER SECTION 234B OF THE ACT WHICH UND ER THE FACTS AND CIRCUMSTANCES OF THE CASE DESERVES TO BE CANCEL LED. THE CALCULATION OF INTEREST UNDER SECTION 234B IS NOT I N ACCORDANCE WITH LAW AS THE RATE, AMOUNT AND METHOD FOR CALCULA TING INTEREST IS NOT DISCERNIBLE FROM THE ORDER OF ASSESSMENT. 8. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIF Y, DELETE OR SUBSTITUTE ANY OR ALL OF THE GROUNDS AND TO FILE A PAPER BOOK AT THE TIME OF HEARING THE APPEAL. 9. IN VIEW OF THE ABOVE AND OTHER GROUNDS THAT MAY BE TAKEN AT THE TIME OF THE HEARING THE APPEAL, THE APPELLAN T PRAYS THAT THE APPEAL BE ALLOWED IN THE INTEREST OF JUSTICE AND EQ UITY. 2. THOUGH VARIOUS GROUNDS ARE RAISED, BUT THEY ALL RELATE TO INTRODUCTION OF CASH IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE ON SALE OF DIAMONDS ITA NO.107/BANG/2016 PAGE 3 OF 5 WHICH WERE DECLARED UNDER VOLUNTARY DISCLOSURE OF I NCOME SCHEME, 1997 (VDIS). 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS NOTED THAT CERTAIN INTRODUCTION OF CASH WAS EXP LAINED BY THE ASSESSEE TO HAVE BEEN INTRODUCED ON ACCOUNT OF SALE OF DIAMO NDS. IT WAS ALSO CONTENDED BY THE ASSESSEE THAT UNDER VDIS, THE ASSE SSEE HAS DECLARED THE GOLD ORNAMENTS/JEWELLERY AND DIAMONDS. THE DEC LARATION WAS ACCEPTED UNDER VDIS AND LATER ON GOLD JEWELLERY WAS CONVERTE D INTO GOLD BULLION AND THE GOLD BULLION AND DIAMONDS WERE SOLD AND THE SAL E PROCEEDS WERE INTRODUCED IN THE BOOKS OF ACCOUNT. THE AO HAS RAI SED A TECHNICAL OBJECTION BY STATING THAT THE ITEMS DECLARED UNDER VDIS WERE NOT THE SAME, WHICH WERE SOLD AND THE SALE PROCEEDS WERE INTRODUC ED IN THE BOOKS OF ACCOUNT. 4. WHEN THE MATTER REACHED THE HONBLE HIGH COURT O F KARNATAKA, THE HON'BLE JURISDICTIONAL HIGH COURT HAS REMANDED THE MATTER BACK TO THE AO TO GIVE A SPECIFIC FINDING AS TO, WHETHER THE ITEMS SOLD WERE THE SAME WHICH WERE DISCLOSED UNDER VDIS? 5. IN THE REMAND PROCEEDINGS, THE ASSESSEE HAS FURN ISHED THE DETAILS OF ITEMS SOLD AND THE EVIDENCE OF CONVERSION OF THE GOLD , SILVER AND DIAMOND JEWELLERY INTO GOLD BULLION. THE WEIGHT OF GOLD BULLION IS THE SAME. THE AO DID NOT ACCEPT THE CONTENTIONS OF THE ASSESS EE AND AGAIN MADE THE ITA NO.107/BANG/2016 PAGE 4 OF 5 ADDITION. THOUGH THE ASSESSEE HAS TRIED TO EXPLAIN THE FACTS WITH DETAILS, BUT IT WAS NOT ACCEPTABLE TO THE CIT(APPEALS). 6. BEFORE THE TRIBUNAL, THE ASSESSEE HAS FILED A CO PY OF THE VALUATION REPORT, VDIS CERTIFICATE, COPY OF SALE OF GOLD BULL ION AND DIAMONDS AND THE EVIDENCE OF CONVERSION OF GOLD JEWELLERY INTO GOLD BULLION. FROM THIS EVIDENCE, THE ASSESSEE HAS TRIED TO EXPLAIN THAT TH E SAME QUANTITY OF GOLD AND DIAMOND WHICH WAS DECLARED UNDER VDIS WAS SOLD. 7. PER CONTRA, THE LD. DR STRONGLY OPPOSED THE CONT ENTIONS OF THE ASSESSEE AND PLACED HEAVY RELIANCE UPON THE ORDER O F THE CIT(APPEALS). 8. HAVING CAREFULLY EXAMINED THE ORDERS OF LOWER AU THORITIES AND DOCUMENTS PLACED ON RECORD IN THE LIGHT OF RIVAL SU BMISSIONS, WE FIND THAT THE SAME QUANTITY OF GOLD AND DIAMOND WHICH WERE DE CLARED UNDER VDIS WAS SOLD. THOUGH THE ASSESSEE HAS DECLARED THE GOL D AND DIAMOND JEWELLERY IN DIFFERENT FORM UNDER VDIS, BUT IN SALE BILL THE ASSESSEE HAS SOLD GOLD AND DIAMONDS SEPARATELY. THE ASSESSEE HAS FIL ED EVIDENCE WITH RESPECT TO CONVERSION OF GOLD JEWELLERY INTO GOLD B ULLION AND DIAMONDS. 9. SINCE THE SAME QUANTITY WHICH WAS DISCLOSED UND ER VDIS WAS SOLD, WE FIND NO JUSTIFICATION IN MAKING THE ADDITION ON INTRODUCTION OF SALE PROCEEDS IN THE BOOKS OF ACCOUNT. ONCE THE REVENUE HAS ACCEPTED THE DECLARATION UNDER VDIS AND ACCEPTED THE TAX DEPOSIT ED BY THE ASSESSEE, IT SHOULD NOT HAVE MADE A FURTHER ADDITION ON ACCOUNT OF INTRODUCTION OF SALE ITA NO.107/BANG/2016 PAGE 5 OF 5 PROCEEDS OF THE SAID JEWELLERY IN THE BOOKS OF ACCO UNT. WE THEREFORE FIND NO MERIT IN THE ADDITION MADE BY THE REVENUE AUTHOR ITIES. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE CIT(APPEALS) AND DELETE THE ADDITION. 10. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF JUNE, 2016. SD/- (SUNIL KUMAR YADAV ) JUDICIAL MEMBER BANGALORE, DATED, THE 30 TH JUNE, 2016. /D S/ COPY TO: 1. APPELLANT 2. RES PONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.