DCIT, Cir.-3, Malegaon V. Shri Rameshwar Lalchand Attal, Nashik

ITA 1100/PUN/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7555 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 10-02-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 16-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HEMANT KUMAR LEUVA
• Assessee Lawyers: B S WANKHEDE
• Keywords: Search and seizure
• Section: 143(3); 153A; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER I.T.A. NO. 1100/PN/2009 : A.Y. 2003-04 DY. CIT CIR. 3, MALEGAON APPELLANT VS. SHRI RAMESHWAR LALCHAND ATTAL 4077 MAIN ROAD, YEOLA, DIST. NASIK PAN ADAPA 9850 H RESPONDENT APPELLANT BY: SHRI HEMANT KUMAR LEUVA RESPONDENT BY: B.S. WANKHEDE ORDER PER SHAILENDRA KUMAR YADAV, JM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE CIT-(A)-I NASIK DATED 1-7-2009 FOR A. Y. 2003- 04 ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE CIT(A) HAS ERRED IN GIVING RELIEF OF RS. 6,26,000/- Y INCORRECTLY HOLDING THAT THERE WAS DOUBLE ADDITION OF SAME AMOU NT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN NOT ASCERTAINING THE FACTS BEFORE GIVI NG RELIEF, WHICH HE SHOULD HAVE AS A FACT FINDING AUTHORITY. 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSEE AN INDIVIDUAL IS ENGAGED IN THE BUSINESS OF TRADING IN ONION. THERE WAS A SEARCH AND SEIZURE ACTION U/S 132(1) OF THE A CT ON 6-8-2003 IN THE CASES OF ATTAL GROUP TO WHICH THE ASSESSEE B ELONGS. FOR THE PAGE 2 OF 4 ITA NO. 1100/PN/2009 RAMESHWAR L ATTAL A.Y. 2003-04 YEAR UNDER CONSIDERATION, THE ASSESSEE FILED THE OR IGINAL RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 34,28,451/-. IN RESPONSE TO NOTICE U/S 153A OF THE ACT THE ASSESSEE FILED ANOTH ER RETURN DECLARING TOTAL INCOME OF RS. 46,35,402/- DECLARING INCOME FROM BUSINESS AT RS. 46,47,042/-. THE ADDITIONAL INCOME OF RS. 12,18,591/- WAS INCLUDED THE PROFIT ON RECORDED SALES OF RS. 6,26,000/-. THE ASSESSING OFFICER HAS ASSESSED INCOME AT RS. 86,33,906/- WHICH INCLUDED ADDITION OF RS. 39,7 0,819/- TOWARDS ALLEGED UNDISCLOSED SALES OF RS. 45,96,819/ - AFTER REDUCING GROSS PROFIT/COMMISSION OF RS. 6,26,000/- OFFERED T O TAX ON SAID SALES IN THE RETURN OF INCOME. SUBSEQUENTLY, VIDE ORDER U/S 154 OF THE ACT THE ASSESSING OFFICER ADDED RS. 6,26,000/- TO THE INCOME ASSESSED U/S 153A R.W.S. 143(3) OF THE ACT. THE AS SESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). 3. BEFORE THE CIT(A) IT WAS SUBMITTED THAT THE ASSE SSEE HAS OFFERED GROSS PROFIT/COMMISSION OF RS. 6,26,000/- I N RESPECT OF SALES OF ONION BELONGING TO THE AGRICULTURISTS EFFECTED B Y HIM TO VARIOUS DEALERS. IT WAS ALSO POINTED OUT THAT THE EXPLANAT ION TO THE ABOVE EFFECT WAS FILED WITH THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IT WAS ALSO CLAIMED THAT NO SUCH UNDISCLOSED COMMISSIONS OR GROSS PROFIT WAS FOUND R ECORDED IN THE SEIZED MATERIAL WHICH WOULD HAVE COMPELLED THE ASSE SSEE TO OFFER THE SAME TO TAX IN RETURN OF INCOME. THE ASSESSEE T HEREFORE, CLAIMED PAGE 3 OF 4 ITA NO. 1100/PN/2009 RAMESHWAR L ATTAL A.Y. 2003-04 THAT THE GROSS PROFIT/COMMISSION DECLARED WAS TOWAR DS SALES IN RESPECT OF GOODS BELONGING TO THE AGRICULTURISTS. THE ASSESSEE ALSO SUBMITTED THE DETAILS OF UNRECORDED SALE BILLS. AFT ER TAKING INTO CONSIDERATION ALL THESE FACTS AND THE DETAILED SUBM ISSIONS MADE ON BEHALF F THE ASSESSEE, THE CIT(A) FOUND THAT THERE WAS NO MISTAKE APPARENT FROM RECORD AS CLAIMED BY THE ASSESSING OF FICER IN THE ORDER U/S 153A R.W.S. 143(3) OF THE ACT AND DIRECTE D THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS. 6,26,000/-. THIS ACTION OF THE CIT(A) HAS BEEN CHALLENGED BY THE REVENUE BEFORE US . 4. AFTER HEARING THE PARTIES AND PERUSING THE MATER IAL ON RECORD, WE FIND THAT THE GROSS PROFIT/COMMISSION WAS OFFERE D TO TAX BY THE ASSESSEE IN RESPECT OF SALES OF RS. 45,96,849/- EFF ECTED BY HIM ON BEHALF OF HIS AGRICULTURISTS FRIENDS. THE ASSESSE E HAS THEREFORE, CORRECTLY OFFERED TO TAX THE COMMISSIONS/GROSS PROF IT OF RS. 6,26,000/- RELATED TO THE ABOVE MENTIONED SALES . THERE WAS NO MATERIAL ON RECORD TO PROVE THAT THE SAID COMMISSIO N WAS FOUND RECORDED IN THE SEIZED MATERIAL OTHER THAN THE UNRE CORDED SALES EFFECTED ON BEHALF OF AGRICULTURISTS, WHICH COMPELL ED THE ASSESSEE TO OFFER THE SAME TO TAX. THE ASSESSEE HAS OFFERED TH E SAID COMMISSION IN RESPECT OF THE SALES EFFECTED BY HIM ON BEHALF O F HIS AGRICULTURISTS FRIENDS WHICH WERE FOUND NOTED IN THE SEIZED MATERI AL. IN THIS VIEW OF THE MATTER, THE CI(A) HAS CORRECTLY FOUND THAT T HERE WAS NO MISTAKE APPARENT FROM RECORD AS CLAIMED BY THE ASSE SSING OFFICER IN PAGE 4 OF 4 ITA NO. 1100/PN/2009 RAMESHWAR L ATTAL A.Y. 2003-04 THE ORDER U/S 153A R.W.S. 143(3) OF THE ACT. WE AC CORDINGLY UPHOLD THE ORDER OF THE CIT(A) ON THIS COUNT. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 23 RD FEBRUARY 2011. SD/- SD/- (G.S. PANNU) ACCOUNTANT MEMBER (SHAILENDRA KUMAR YADAV) JUDICIAL MEMBER PUNE DATED THE 23 RD FEBRUARY 2011 ANKAM COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT (A) AURANGABAD 4. THE CIT AURANGABAD 4. THE D.R, B BENCH, PUNE 5. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE