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

ITA 1214/PUN/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6891 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2019
• 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
• Assessee Lawyers: ARISES OUT OF PASSED
• Keywords: Unexplained expenditure
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT . / ITA NO.1214/PUN/2017 / ASSESSMENT YEAR : 2013-14 SHRI ABDULKADER INAYATHUSEIN BOHARI, PROP. BURHANI TRADERS, AMBA BAZAR, SHIRPUR, TAL. SHIRPUR, DHULE 425 405 PAN : ABAPB5561C VS. ITO, WARD-1, DHULE (APPELLANT) (RESPONDENT) / ORDER PER R.S.SYAL, VP : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSE D BY THE CIT(A)-1, NASHIK ON 06-03-2017 IN RELATION TO THE ASSESSMENT YEAR 2013-14. 2. IT IS A RECALLED MATTER IN AS MUCH AS THE EARLIER EX PARTE ORDER PASSED BY THE TRIBUNAL ON 20-06-2018 WAS SUBSEQ UENTLY RECALLED FOR A FRESH HEARING. APPELLANT BY SHRI PRAYAG JHA & SHRI PRATEEK JHA RESPONDENT BY SHRI RAJESH GAWALI DATE OF HEARING 30-04-2019 DATE OF PRONOUNCEMENT 30-04-2019 ITA NO.1214/PUN/2017 MR. ABDULKADER INAYATHUSEIN BOHARI 2 3. THE FIRST ISSUE RAISED IN THIS APPEAL IS AGAINST THE CONFIRMATION OF ADDITION OF RS.10.00 LAKH. 4. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSE E IS ENGAGED IN THE BUSINESS OF PLYWOOD AND FURNITURE GOODS ON RETAIL BASIS. A SURVEY ACTION U/S.133A OF THE INCOME-TAX ACT, 19 61 (HEREINAFTER ALSO CALLED THE ACT) WAS CARRIED OUT ON 21-11 - 2012. DURING THE COURSE OF SUCH SURVEY, THE ASSESSEE SURRENDERED AN ADDITIONAL INCOME OF RS.10.00 LAKH ON ACCO UNT OF UNEXPLAINED EXPENDITURE ON FOREIGN TRIP TO IRAQ, DEPOSITS IN RECURRING DEPOSIT ACCOUNTS, INVESTMENT IN PURCHASE OF TWO PLOTS, INVESTMENT IN PURCHASE OF TAVERA AND TATA SUMO VEHICLES A ND CERTAIN AMOUNT SPENT ON RENOVATION OF BUSINESS PREMISES ETC . HOWEVER, AT THE TIME OF FILING OF THE RETURN, THE ASSESSEE DID NOT OFFER THIS INCOME FOR TAXATION. THE ASSESSING OFFICER (AO ) MADE THE ADDITION OF RS.10.00 LAKH, WHICH CAME TO BE ECHOE D IN THE FIRST APPEAL. THE ASSESSEE IS AGGRIEVED BY THE CONFIR MATION OF THE ADDITION. 5. I HAVE HEARD BOTH THE SIDES AND GONE THROUGH THE RELE VANT MATERIAL ON RECORD. THE ASSESSEE WAS SUBJECTED TO SURVE Y ACTION U/S 133A OF THE ACT ON 21.11.2012. HIS STATEMENT WAS RECOR DED ITA NO.1214/PUN/2017 MR. ABDULKADER INAYATHUSEIN BOHARI 3 DURING THE COURSE OF SURVEY, WHOSE COPY HAS BEEN PLACE D AT PAGES 1 TO 11 OF THE PAPER BOOK. THE ASSESSEE IN RESP ONSE TO QUESTION NO.13 STATED THAT NO CASH BOOK ETC. WAS MAINTAINED B Y HIM. FROM QUESTION NOS. 16 TO 23, THE ASSESSEE ADMITTE D THAT HE MADE TRIP TO MECCA MADINA AND HIS WIFE AND DAUGHTER ALSO MA DE TRIP TO IRAQ IN JUNE, 2012. EXPENDITURE WAS STATED TO BE RS.25,000/- EACH TOTALING RS.50,000/-. HE FURTHER ADMITTE D TO HAVE OPENED R.D. ACCOUNT IN THE NAME OF HIS MINOR DAUGHTE R, MS. NAFISA. INVENTORY OF STOCK WAS PREPARED BY THE OFF ICERS OF THE DEPARTMENT. THE ASSESSEE ADMITTED THE VALUE OF INVENTO RY AT RS.15,34,777/-. HE ALSO ADMITTED THAT HE PURCHASED TWO VEHICLES, NAMELY, TAVERA AND TATA SUMO AND 1/4 TH OF THE PRICE WAS CONTRIBUTED BY HIM. 6. IT IS PERTINENT TO NOTE THAT THE HONBLE SUPREME COURT IN CIT VS. S. KHADER KHAN SON (2013) 352 ITR 480 (SC) HAS HELD THAT STATEMENT U/S.133A HAS NO EVIDENTIARY VALUE BECAUSE THE AUTHORISED OFFICER CANNOT ADMINISTER OATH BUT ONLY RECORD A STATEMENT. THE HONBLE SUPREME COURT FURTHER HELD THAT NO ADMISSION MADE DURING SUCH STATEMENT, BY ITSELF, BE MADE THE BASIS FOR ADDITION. ON A PERTINENT QUERY, THE LD. AR CANDID LY ITA NO.1214/PUN/2017 MR. ABDULKADER INAYATHUSEIN BOHARI 4 ADMITTED THAT THE PLOTS REFERRED TO IN THE STATEMENT WERE, IN FACT, PURCHASED BY HIM. HE FURTHER ADMITTED THAT TWO VEHICLES A ND DEPOSITS IN RD ACCOUNT ETC. REFERRED TO IN THE STATEMENT WERE ASSESSEES OWN TRANSACTIONS. THUS, IT IS MANIFEST THAT THE SURRENDER MADE BY THE ASSESSEE DURING THE COURSE OF SU RVEY ACTION CANNOT BE CONSTRUED AS DE HORS ANY COGENT MATERIAL OR BASED ON A MERE CONFESSION BY THE ASSESSEE UNSUPPORTE D BY ANY CLINCHING MATERIAL. THE LD. AR FAIRLY SUBMITTED THAT HIS GRIEVANCE WAS CONFINED ONLY TO THE EXTENT OF THE ADDITION AND NOT TO THE NON-JURISDICTION OF THE AO TO MAKE ANY ADDITION BASED O N THE SURRENDER MADE BY THE ASSESSEE DURING THE COURSE OF SURVEY. HE PUT FORTH THAT THE ITEMS OF INVESTMENTS/EXPENSES LEADING TO SURRENDER OF RS.10.00 LAKH MADE BY THE ASSESSEE WERE NOT FULLY OUT OF UNDISCLOSED SOURCES AND A PART OF THE SAME WAS O UT OF DISCLOSED SOURCES, WHICH SHOULD BE EXAMINED BY THE AO BEF ORE MAKING ANY ADDITION. IT IS THUS EVIDENT THAT THE SURRENDER MAD E BY THE ASSESSEE DURING THE COURSE OF SURVEY IS NOT BASED ON MERE STATEMENT, BUT ALSO CERTAIN RELEVANT EVIDENCE. HOWEVER, THE EXPLANATION OF THE ASSESSEE IN RESPECT OF SUCH ITEMS NEEDS TO BE TAKEN INTO CONSIDERATION BEFORE MAKING ANY ADDITION. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE ITA NO.1214/PUN/2017 MR. ABDULKADER INAYATHUSEIN BOHARI 5 CASE, I AM OF THE CONSIDERED OPINION THAT THE ENDS OF JU STICE WOULD MEET ADEQUATELY IF THE IMPUGNED ORDER IS SET-ASIDE A ND THE MATTER IS RESTORED TO THE FILE OF AO. I ORDER ACCORDINGLY AN D DIRECT HIM TO DECIDE THE AMOUNT INCLUDIBLE IN THE ASSESSEES TOTA L INCOME, IF ANY, PURSUANT TO SURVEY ACTION AFTER TAKING INTO CONSIDERATION THE EXPLANATION TO BE OFFERED BY THE ASSESSEE IN RESPECT OF FOREIGN TRAVELS, INVESTMENT IN TWO PLOTS, INVESTME NT IN TWO VEHICLES, DEPOSITS MADE IN RD ACCOUNT AND STOCK INVENTORY ETC. TO THE EXTENT, THE ASSESSEE SATISFIES THE AO ABOUT THE AVAILABILITY OF SOURCES OF SUCH AMOUNTS, THE ADDITION SHOULD B E DELETED. NEEDLESS TO SAY, THE ASSESSEE WILL BE ALLOWED AN OPPORTUNITY OF HEARING IN THIS REGARD BEFORE REACHING ANY CONCLUSION. 7. THE ONLY OTHER ISSUE IN THIS APPEAL IS AGAINST THE CONFIRMATION OF ADDITION OF RS.1,20,000/- MADE BY ESTIMATING THE HOUSEHOLD EXPENSES. 8. THE FACTS APROPOS THIS ISSUE ARE THAT THE AO OBSERVED T HAT THE ASSESSEE DID NOT FILE CAPITAL ACCOUNT AND FAMILY DETAILS. CONSIDERING THE SOCIAL STATUS AND STANDARD OF LIVING ETC., THE AO ITA NO.1214/PUN/2017 MR. ABDULKADER INAYATHUSEIN BOHARI 6 ESTIMATED HOUSEHOLD EXPENSES AT RS.1,20,000/- AND MADE ADDITION FOR THE SAME. THE LD. CIT(A) SUSTAINED THE ADDITION. 9. HAVING HEARD BOTH THE SIDES AND GONE THROUGH THE RELEVA NT MATERIAL ON RECORD, IT IS SEEN THAT THE ESTIMATION OF HOUSEHOLD EXPENSES MADE BY THE AO IS PREMISED ON THE FOUNDATION THAT THE ASSESSEE DID NOT FURNISH HIS CAPITAL ACCOUNT WHICH COULD DEMONSTRATE THE AMOUNT OF DRAWINGS. PER CONTRA, WE FIND THA T THE ASSESSEES CAPITAL ACCOUNT HAS BEEN PLACED AT PAGE 41 OF THE PAPER BOOK. FROM SUCH CAPITAL ACCOUNT, IT CAN BE SEEN THAT THE ASSESSEE HAS SHOWN HOUSEHOLD EXPENSES AT RS.84,000/-; EDUCATION FEE (NAFISA) RS.20,000/- AND LIGHT BILL AT RS.11,920/-. IN THIS BACKDROP, IT BECOMES APPARENT THAT THE VIEW POINT OF THE AO THAT THE ASSESSEE DID NOT WITHDRAW ANY AMOUN T OR, AT LEAST, THE INFORMATION IN THIS REGARD WAS NOT AVAILABLE , IS NOT CORRECT. THE AMOUNT OF SUCH WITHDRAWALS ACTUALLY EFFEC TED BY THE ASSESSEE DURING YEAR TOWARDS HOUSEHOLD EXPENSES STANDS AT RS.1,15,920/-, WHICH IS IN CLOSE PROXIMITY TO THE AMOUN T OF ESTIMATION MADE BY THE AO AT RS.1,20,000/-. UNDER THESE CIRCUMSTANCES, I AM SATISFIED THAT NO ADDITION ON THIS SCORE CO ULD ITA NO.1214/PUN/2017 MR. ABDULKADER INAYATHUSEIN BOHARI 7 HAVE BEEN MADE. I, THEREFORE, ORDER TO DELETE THE ADDITION OF RS.1,20,000/-. 10. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH APRIL, 2019. SD/- (R.S.SYAL) / VICE PRESIDENT PUNE; DATED : 30 TH APRIL, 2019 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT (APPEALS)-1, NASHIK 4. THE PR. CIT-1, NASHIK 5. , , SMC / DR SMC, ITAT, PUNE; 6. / GUARD FILE. // TRUE COPY // / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE ITA NO.1214/PUN/2017 MR. ABDULKADER INAYATHUSEIN BOHARI 8 DATE 1. DRAFT DICTATED ON 30-04-2019 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 30-04-2019 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *