Murtuza Inayathusein Bohari, Dhule V. Income-tax Officer, Dhule

ITA 1212/PUN/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7579 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 15-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: YASHWANT TANDALE
• Keywords: Retraction
• Section: 143(3); 133A

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER . / ITA NO.1212/PUN/2017 / ASSESSMENT YEAR : 2013-14 SHRI MURTUZA INAYATHUSEIN BOHARI, PROP. RAJ ELECTRICALS, AMBA BAZAR, SHIRPUR, TAL. SHIRPUR, DHULE 425 405. PAN : ABAPB5543L. . / APPELLANT V/S THE INCOME TAX OFFICER, WARD 1, DHULE. . / RESPONDENT ASSESSEE BY : SHRI PRAYAG JHA. REVENUE BY : SHRI YASHWANT TANDALE. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY ASSESSEE IS EMANATING OUT OF THE ORDE R OF COMMISSIONER OF INCOME TAX (APPEALS) 1, NASHIK DATED 06.03.2017 FOR A.Y. 2013-14. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RE CORD ARE AS UNDER :- ASSESSEE IS AN INDIVIDUAL STATED TO BE PROPRIETOR OF RAJ ELECTRICALS WHICH IS ENGAGED IN DEALING IN ELECTRICAL GOODS. IN THIS CASE , DEPARTMENT HAD CONDUCTED SURVEY U/S 133A OF THE ACT ON 21.11.201 2 WHEREIN THE DISCREPANCY WITH RESPECT TO EXCESS STOCK AND EXCESS C ASH WAS FOUND. / DATE OF HEARING : 19.09.2019 / DATE OF PRONOUNCEMENT: 25.10.2019 2 ASSESSEE HAD VOLUNTARILY AGREED FOR THE ADDITIONAL INCOME OF RS.5 LAKHS IN ADDITION TO THE REGULAR INCOME. ASSESSEE THEREAFTER IN THE RETURN OF INCOME FILED ELECTRONCIALLY FOR A.Y. 2013-14 DECLARED THE TOTA L INCOME OF RS.4,86,290/-. THE CASE WAS SELECTED FOR SCRUTINY AND T HEREAFTER ASSESSMENT WAS FRAMED U/S 143(3) OF THE ACT VIDE ORDER D ATED 11.03.2016 AND THE TOTAL INCOME WAS DETERMINED AT RS.11,0 6,290/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATT ER BEFORE LD.CIT(A), WHO VIDE ORDER DATED 06.03.2018 (IN APPEAL NO.NS K/CIT(A)- 1/715/2015-16) DISMISSED THE APPEAL OF THE ASSESSEE. AGG RIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE CARRIED THE MATTER BEFORE THE TRIBUNAL. SINCE THERE WAS NO APPEARANCE ON BEHALF OF ASSESSEE, THE TRIBU NAL VIDE ORDER DATED 22.06.2018 IN ITA NO.1212/PUN/2017 DISMISSED THE A PPEAL OF THE ASSESSEE. THEREAFTER, ASSESSEE MOVED AN M.A. PRAYING FO R RECALLING OF THE ORDER. AFTER CONSIDERING THE SUBMISSIONS OF ASSESSEE, THE TRIBUNAL IN M.A.NOS.14 & 15/PUN/2019 VIDE ORDER DATED 01.03.2019 REC ALLED THE ORDER PASSED IN ITA NO.1212/PUN/2017 FOR A.Y. 2013-14. THUS, THE ASSESSEE IS NOW IN APPEAL IN 2 ND ROUND. THE GROUNDS RAISED BY THE ASSESSEE READS AS UNDER : 1. THE LEARNED CIT(A) ERRED IN. CONFIRMING THE ADD ITION OF RS.5,00,000/- MADE BY THE A.O. WITHOUT APPRECIATING THE SAID ADDITION WAS NOT JUSTIFIED IN LAW. 2. THE LEARNED CIT(A) ERRED IN HOLDING THAT THE ADD ITION OF RS.5,00,000/- WAS JUSTIFIED ON THE GROUND THAT IN THE COURSE OF SURVEY STATEMENT RECORDED U/S 133A, THE ASSESSEE HA D DECLARED ADDITIONAL INCOME OF RS.5,00,000/- ON BEING UNABLE TO EXPLAIN THE SOURCES OF STOCK AND CASH FOUND ON DATE OF SURVEY A ND HENCE, HE CANNOT GO BACK ON HIS DECLARATION ONCE THE INCOM E WAS DECLARED IN THE SURVEY STATEMENT. 3. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THA T IN THE BALANCE SHEET AND RETURN OF INCOME FILED POST SURVEY, THE S OURCES OF THE STOCK AND CASH WERE DULY EXPLAINED BY THE ASSESSEE AND THE DEPT. HAD NOT POINTED OUT ANY DISCREPANCY IN THE SOURCES EXPLAINED BY THE ASSESSEE AND HENCE, THE ADDITION MADE SOLELY ON THE BASIS OF THE DECLARATION MADE IN THE STATEMENT U/S 133A WAS NOT JUSTIFIED IN LAW. 3 4. THE LEARNED CIT(A) FURTHER ERRED IN CONFIRMING T HE ADDITION OF RS.1,20,000/- MADE BY ESTIMATING HOUSEHOLD EXPENSES WITHOUT APPRECIATING THAT THE ASSESSEE HAD ALREADY DECLARED RETURNED INCOME OF RS.4.86 LACS WHICH WAS MORE THAN ENOUGH TO EXPLA IN THE SOURCE OF HOUSEHOLD EXPENDITURE AND HENCE, THE ABOVE ADDIT ION MADE ON THE BASIS OF PRESUMPTION AND SURMISES WAS NOT JUSTI FIED IN LAW. 3. ALL THE GROUNDS BEING INTER-CONNECTED ARE CONSIDERED TOGETHE R. 4. AO NOTED THAT DURING THE COURSE OF SURVEY U/S 133 A OF THE ACT DISCREPANCY WITH REGARD TO DISCREPANCY IN STOCK OF RS.11 ,69,932/- AND EXCESS CASH OF RS.70,462/- WAS FOUND. ASSESSEE HAD VO LUNTARILY AGREED TO DECLARE THE ADDITIONAL INCOME OF RS.5,00,000/-. AO NOTED THAT HOWEVER IN THE RETURN OF INCOME FILED BY THE ASSESSEE, SU BSEQUENT TO SURVEY ASSESSEE HAD NOT INCLUDED THE ADMITTED ADDITIONAL INCOME OF RS.5 LAKHS. THE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHY THE ADDITIONAL INCOME ADMITTED DURING THE COURSE OF SURVEY HAS NOT OFFER ED TO TAX IN THE RETURN OF INCOME. IN THE ABSENCE OF ANY SATISFACTORY EXP LANATION, AO NOTED THAT THE ADDITIONAL INCOME OFFERED BY THE ASSESSEE WAS VOLUNTARY AND THERE WAS NOTHING TO SHOW THAT THE ADMISSION WAS EXTRACTED UNDER ANY UNDUE INFLUENCE OR COERCION. HE THEREFORE HELD THE A DDITIONAL INCOME ADMITTED BY THE ASSESSEE DURING THE COURSE OF SU RVEY BE BROUGHT TO BE TAX AND THUS MADE ADDITION OF RS.5 LAC. AO ALSO NOTED THAT ASSESSEE HAS NOT FILED CAPITAL ACCOUNT AND FAMILY DETAILS A ND HE WAS THEREFORE OF THE VIEW THAT HOUSEHOLD EXPENSES COULD NOT BE EXAMINED PROPERLY AND THEREFORE HE ESTIMATED THE DRAWINGS OF THE ASSESSEE AT RS.1,20,000/- AND MADE ITS ADDITION. AGGRIEVED BY THE ORDE R OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO UPHELD T HE ADDITIONS MADE BY THE AO. AGGRIEVED BY THE ORDER OF LD.CIT(A), ASS ESSEE IS NOW IN APPEAL. 4 5. BEFORE ME, LD.A.R. REITERATED THE SUBMISSIONS MADE BEFORE AO AND LD.CIT(A) AND FURTHER SUBMITTED THAT THE ADDITION OF RS.5 LAK HS HAS BEEN MADE MERELY ON THE BASIS OF ADMISSION OF ADDITIONAL INCOME BY THE ASSESSEE DURING THE COURSE OF SURVEY. HE SUBMITTED THA T THE STATEMENT RECORDED DURING THE COURSE OF SURVEY DOES NOT CARRY ANY EVIDENTIARY VALUE AND FOR WHICH HE PLACED RELIANCE ON THE DECISION OF HO NBLE APEX COURT IN THE CASE OF CIT VS. M/S. S. KHADAR KHAN SON RE PORTED IN 300 ITR 157. HE FURTHER SUBMITTED THAT APART FROM MAKING TH E ADDITION OF RS.5 LAKHS, AO HAS ALSO MADE ADDITION OF RS.1,20,000/- ON ACC OUNT OF LOW HOUSEHOLD EXPENSES WHICH IS ALSO NOT BASED ON EVIDENC E. HE THEREFORE SUBMITTED THAT ADDITION BE DELETED. HE ALTERNA TIVELY SUBMITTED THAT WHEN THE ADDITION HAS ALREADY BEEN MADE OF RS.5 LAKH S, FURTHER ADDITION OF RS.1,20,000/- IS UNCALLED FOR, MORE SO AS THERE IS NO BASIS FOR ITS ADDITION AND THEREFORE THE ADDITION BE DELETED. LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF AO AND LD.CIT(A). 6. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL ON RECORD. I FIND THAT LD.CIT(A) AFTER CONSIDERING THE DECISION CITED BY THE ASSESSEE AND VARIOUS OTHER DECISIONS CITED IN THE ORDER HAS NOTED THAT THERE WAS NO RETRACTION OF ADDITIONAL INCOME BY THE ASSES SEE NOR ANY MATERIAL HAS BEEN PLACED BY ASSESSEE TO SHOW THAT THE ADDITIONAL INCOME WAS ADMITTED BY COERCION OR UNDUE PRESSURE. HE HAS TH US CONCLUDED THAT NON-DECLARATION OF ADMITTED INCOME WAS A WELL PLANNED DEVISE TO FRUSTRATE THE EFFORTS OF THE DEPARTMENT TO UNEARTH UNAC COUNTED INCOME. THESE FINDINGS OF LD.CIT(A) HAS NOT BEEN CONTROVERTED BY A SSESSEE. IN SUCH A SITUATION, I FIND NO REASON TO INTERFERE WITH THE ORDER OF LD.CIT(A) AS FAR AS ADDITION OF RS.5 LAC IS CONCERNED. WITH RESPECT T O ADDITION OF RS.1,20,000/- ON ACCOUNT OF LOW HOUSE HOLD EXPENSES, I AM OF THE VIEW 5 THAT ONCE THE ADDITION OF RS.5 LAKHS HAS BEEN MADE IN TH E PRESENT CASE, IT WOULD TAKE CARE OF THE ADDITION OF LOW HOUSEHOLD EXPENSE S OF RS.1,20,000/- AND IN SUCH A SITUATION, SEPARATE ADDITION O N ACCOUNT OF LOW HOUSEHOLD EXPENSES IS NOT CALLED FOR AND THEREFORE, I D IRECT TO DELETE THE ADDITION OF RS.1,20,000/-. THUS, THE GROUNDS OF THE AS SESSEE ARE PARTLY ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTL Y ALLOWED. ORDER PRONOUNCED ON 25 TH DAY OF OCTOBER, 2019. SD/ - ( ANIL CHATURVEDI ) ' / ACCOUNTANT MEMBER PUNE; DATED : 25 TH OCTOBER, 2019. YAMINI #$%&'(' % / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-1, NASHIK. PR. CIT-1, NASHIK. '#$ %%&',) &', *+ / DR, ITAT, SMC PUNE; $-.// GUARD FILE. / BY ORDER // TRUE COPY // // 012%3&4 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE.