Sh. Bodh Raj, Pathankot V. The Income Tax Officer, Pathankot

ITA 119/ASR/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0700 (ITAT-AMRITSAR)
• Duration Of Justice: 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 24-05-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 22-02-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A N MISHRA
• Assessee Lawyers: SH AMRIK SINGH MALHOTRA
• Section: 44AD; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR(SMC). BEFORE SH. A.D. JAIN, JUDICIAL MEMBER ITA NO.119(ASR)/2016 ASSESSMENT YEAR:2011-12 PAN: AATPR0677F SHRI BODH RAJ, PARTNER VS. INCOME TAX OFFICER, M/S. SHEHA ELECTRICALS WARD 6(1), PATHANKOT. PATHANKOT. (APPELLANT) (RESPONDENT) APPELLANT BY: SH.SH. AMRIK SINGH MALHOTRA, ADV. RESPONDENT BY: SH. A.N. MISHRA, DR DATE OF HEARING: 24/05/2016 DATE OF PRONOUNCEMENT: 25/05/2016 ORDER THIS IS THE ASSESSEES APPEAL FOR THE ASSESSMENT Y EAR 2011-12, AGAINST THE ORDER, DATED 05.11.2015, PASSED BY THE LD. CIT(A), AMRITSAR. THE ASSSESSEE HAS RAISED THE FOLLOWING GROUNDS OF A PPEAL: 1. THAT THE AO HAS ERRED IN MAKING AN ADDITION OF RS.5,16,000/- TO THE RETURNED INCOME OF THE APPELLA NT ON THE BASIS OF SURMISES AND CONJECTURES LIKEWISE CIT(A) I S NOT JUSTIFIED WHILE CONFIRMING THE SAME. 2. THAT THE AO HAS NOT APPRECIATED THE FACTS OF THE CASE, EXPLANATION OFFERED AND PROCEEDED TO MAKE THE ADDIT ION ARBITRARILY AND LIKEWISE CIT(A) IS NOT JUSTIFIED W HILE UPHELD THE SAME. 3. THAT THE CIT(A) HAS GROSSLY ERRED IN NOT APPREC IATING THE FACT THAT CREDIT ENTRIES OF RS.5,16,000/- IN FACT R ELATED TO THE FIRM M/S. SHEHA ELECTRICALS, SINCE THE SAME WERE MA DE IN SB A/C THOUGH IN THE NAME OF APPELLANT, YET AN ASSETS OF THE FIRM. MORESO, WHEN THE AMOUNT DEPOSITED WAS WITHDRA WN ITA NO.119(ASR)/2016 ASSTT. YEAR: 2011-12 2 FROM THE CASH IN HAND WITH THE FIRM FOR WHICH REQUI SITE CASH BOOK ENTRIES WERE DULY FURNISHED. 4. THAT THE ASSESSING AUTHORITY HAS GROSSLY ERRED I N NOT APPRECIATING THE FACT THAT HE IS MAKING AN ASSESSM ENT OF THE FIRM AND NOT OF THE FIRM IN WHICH HE IS A PARTNER A ND LIKEWISE CIT(A) IS NOT JUSTIFIED WHILE CONFIRMING THE SAME. 5. THAT THE ASSESSING AUTHORITY HAS GROSSLY ERRED I N LAW IN NOT DISCUSSING ANYTHING WITH REGARD TO THE INCOME DECLA RED BY THE ASSESSEE WHICH WAS ACTUAL SUBJECT MATTER OF THE ASSESSMENT UNDER APPEAL. 6. THAT THE ASSESSING AUTHORITY HAS GROSSLY ERRED I N INVOKING SECTION 68 OF THE ACT LIKEWISE CIT(A) IS NOT JUSTI FIED WHILE CONFIRMING THE SAME. 7. THAT THE CIT(A) HAS GROSSLY ERRED IN NOT CONSIDE RING OR DISCUSSING OF THE JUDGMENT OF THE HONBLE P & H HIG H COURT IN THE CASE OF SMT. SHANTA DEVI VS. CIT (1988) 171 ITR 532. 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PARTNER IN THE FIRM M/S. SHEHA ELECTRICALS FROM WHERE HE IS GETTING RE MUNERATION AND INTEREST ON HIS CAPITAL INVESTMENT, BESIDES HAVING BUSINESS AT RS.9,545/- U/S 44AD OF THE INCOME TAX ACT, 1961. THE CASE OF T HE ASSESSEE WAS SELECTED FOR SCRUTINY AND IN THE ASSESSMENT PROCEE DINGS, THE ASSESSEE RELIED TO ALL THE QUERIES RAISED BY THE AO. HOWEVER , THE AO MADE AN ADDITION OF RS.5,16,000/- ON THE BASIS OF CONJECTUR ES AND SURMISES. ON APPEAL, THE LD. CIT(A) CONFIRMED THE SAME. 3. THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED B EFORE US THAT THE ASSESSEE IS WILLING TO PRODUCE THE COMPLETE CASH BO OK AND OTHER BOOKS OF ACCOUNT BEFORE THE AUTHORITIES BELOW. HE FURTHER C ONTENDED THAT THESE COULD NOT BE PRODUCED, AS THE CASH BOOK WAS WITH RE GARD TO THE FIRM ITA NO.119(ASR)/2016 ASSTT. YEAR: 2011-12 3 WHEREAS, THE CASH WAS THAT OF THE PARTNER. HE, THER EFORE, REQUESTED THAT THE MATTER MAY BE REMITTED TO THE FILE OF THE A.O. FOR PRODUCTION OF CASH BOOK AND OTHER BOOKS. 4. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDE RS OF THE AUTHORITIES BELOW. 5. HAVING HEARD THE RIVAL CONTENTIONS IN THE LIGHT OF THE MATERIAL AVAILABLE ON RECORD, THE ISSUE IN DISPUTE IS REMITT ED TO THE FILE OF THE ASSESSING OFFICER IN VIEW OF NON- PRODUCTION OF COM PLETE CASH BOOK AND OTHER BOOKS OF ACCOUNT OF THE FIRM M/S. SHEHA ELECT RICALS BEFORE THE AUTHORITIES BELOW. THE ASSESSING OFFICER IS DIRECTE D TO DECIDE THE ISSUE DENOVO, IN VIEW OF THE OBSERVATIONS MADE HEREINABOV E. THE ASSESSEE IS DIRECTED PRODUCE ALL THE RELEVANT MATERIAL AND EXTE ND FULL CO-OPERATION IN THE FRESH PROCEEDINGS BEFORE THE A.O. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25/05/ 2016. SD/- (A.D. JAIN) JUDICIAL MEMBER /SKR/ DATED: 25/05/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. BODH RAJ, PATHANKOT 2. THE ITO WARD 6(1), PATHANKOT 3. THE CIT(A), ASR. 4. THE CIT, ASR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER