M/s. Tara Trading Corporation, New Delhi V. ITO, New Delhi

ITA 131/DEL/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61631 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 3 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 21-02-2012
• Assessment Year: 1994-1995
• Appeal Filed On: 11-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: REENA S PURI
• Assessee Lawyers: ASHWANI TANEJA
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `H : NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI K.D. RANJAN, ACCOUNTANT MEMBER ITA NO.131/DEL./2010 (ASSESSMENT YEAR : 1994-95) M/S TARA TRADING CORPORATION, VS. ITO, WARD 20(1 ), 25/146, SHAKTI NAGAR, NEW DELHI. NEW DELHI. (PAN/GIR NO.AAAFT3676R) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ASHWANI TANEJA, ADV. REVENUE BY : REENA S. PURI, CIT(DR) ORDER PER U.B.S. BEDI, J.M. THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY CIT(A) XXII, NEW DELHI DATED 04.09.2009 RELEVANT TO ASSESSMENT Y EAR 1994-95. 2. THE FACTS IN THIS CASE ARE THAT THE ASSESSMENT H AS BEEN COMPLETED U/S 143(3) ON A TOTAL INCOME OF RS. 5,05,719/-. THIS IS A CASE OF F IRM CONSISTING OF TWO PARTNERS I.E. FATHER AND SON. THIS CASE HAD A CHEQUERED HISTORY AND ASSE SSMENT ORDER FRAMED EARLIER WAS SET ASIDE AND REMANDED BACK TO A.O. BY ITAT. THERE WAS A SURVEY CONDUCTED AT THE PREMISES OF THE ASSESSEE ON 13-1-1994. DURING THE SURVEY O PERATION INVENTORY OF STOCK WAS DRAWN AND EXCESS STOCK OF RS. 5,04,999/- WAS FOUND. THE MANAGING PARTNER OF THE FIRM SURRENDERED THE EXCESS STOCK AS HIS ADDITIONAL INCO ME FOR THE A.Y. 1994-95. HOWEVER, HE CHANGED HIS MIND AND MADE A PETITION BEFORE CIT-V A ND REDUCED THE DECLARED ADDITIONAL INCOME TO RS. 75,000/- ON ACCOUNT OF EXCESS STOCK A GAINST THE EARLIER DECLARATION OF RS. 5,04,999/-. THE ASSESSEE FILED ITS RETURN FOR THE A . Y. 1994-95 ON 18-10-1994. IN THIS RETURN, THE ASSESSEE DID NOT OFFER THE VALUE OF EXC ESS STOCK SURRENDERED AT THE TIME OF SURVEY. THE ASSESSEE REITERATED BEFORE THE A.O. IN THE COURSE OF ASSESSMENT PROCEEDINGS I.T.A. NO.131/DEL.2010 (A.Y. : 1994-95) 2 THAT THE INVENTORY TAKEN AT THE TIME OF THE SURVEY WAS NOT PROPER. ON THE OBJECTIONS OF THE ASSESSEE, THE A.O. HELD THAT THE VALUATION MADE AT THE TIME OF SURVEY WAS NOT PROPER AND HE WORKED OUT THE VALUE OF STOCK IN THE FOLLOWING M ANNER: 2.1 THE TOTAL ADDITION OF STOCK FOUND ON THE DATE OF SURVEY IS THUS CALCULATED AS BELOW TO BE INCLUDED AS THE INCOME FROM UNDISCLOSED SOURC ES:- A) TOTAL VALUE OF EXCESS STOCK FOUND ON THE DATE OF SURVEY RS. 5,04,999/- AS PER RECASTED TRADING ALE DULY SIGNED BY BO TH THE PARTNERS AND THE AUTHORIZED OFFICER: LESS: A) EXCESS VALUE TAKEN OF G.I. STEEL TUBES (230454 - 84420): RS. 1,46,034 B) EXCESS VALUE OF SYNTAX TANK: RS. 20,060 C) EXCESS VALUE OF FEVICOL RS. 61,500 RS. 2,27,594/- EXCESS STOCK FOUND: RS. 2,77,405/- LESS: DECLARED IN THE RETURN OF INCOME RS. 7 5,000/- RS.2,02,405/- THUS THE STOCK WORTH RS. 2,02,405/- WAS FOUND TO BE IN EXCESS WHICH REMAINED UNANSWERED BY THE ASSESSEE DURING THE SURVEY OPERAT ION AS WELL AS ASSESSMENT PROCEEDINGS. I, THEREFORE, TREAT THIS VALUE OF EXCE SS STOCK AS INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCES AND SHALL BE ADDED TO THE TOTAL INCOME (ADDITION: RS. 2,02,405/-). 2.2 THE ASSESSEE WAS NOT SATISFIED WITH THIS RELIE F GRANTED BY THE AO AND HE FILED AN APPEAL BEFORE THE CIT(A). THE CIT(A) REMANDED THE I SSUE TO THE AO FOR FRESH CONSIDERATION WITH THE FOLLOWING OBSERVATIONS. THE ASSESSEE POINTED OUT A NUMBER OF MISTAKES AND DISCREPANCIES IN THE STOCK INVENTORY PREPARED. THE PETITION OF THE ASSESSEE WA S FORWARDED TO THE ITO AND THE ITO, WARD-19(6), NEW DELHI VIDE HIS LETTER NO. ITO/ W-19(6)/93-94/829 DT. 15-3- 94 SUBMITTED A DETAILED REPORTED TO THE CIT. WHILE FRAMING THE SAID ASSESSMENT ORDER THE A.O. FAILED TO LOOK INTO THE SAID REPORT. 2.3 CONSEQUENT TO THE ABOVE REMAND BY THE CIT(A) T HE A.O. TOOK UP THE ASSESSMENT OF THE ASSESSEE. THE A.O. ADDRESSED A LETTER DT. 18 -1-2001 TO THE ASSESSEE IN WHICH THE A.O. CALLED FOR EVIDENCE IN SUPPORT OF THE CLAIM MA DE BY THE ASSESSEE REGARDING VALUATION I.T.A. NO.131/DEL.2010 (A.Y. : 1994-95) 3 OF STOCK. IT HAS ALREADY BEEN REFERRED TO THE FACT THAT THE ASSESSEE AFTER THE SURVEY HAD WRITTEN A LETTER DT. 8-2-94 TO THE CIT POINTING OU T THAT THE INVENTORY DONE BY THE SURVEY TEAM WAS NOT PROPER. THE ASSESSEE HAD ALSO FLIED AN AFFIDAVIT CONFIRMING THE FACTS AS WERE STATED IN THE PETITION/LETTER FILED BEFORE THE CIT. THE ASSESSEE IN REPLY TO THE LETTER OF THE A.O. CALLING FOR EVIDENCE RELIED ON THE PETITION/LE TTER DT. 28-2-94 FILED BEFORE THE CIT AS WELL AS AFFIDAVIT FILED BEFORE THE CIT. AFTER CONSI DERING THE ABOVE, THE A.O. NOTICED THAT IN THE REPORT FILED BY THE ITO BEFORE CIT(A) IN THE APPELLATE PROCEEDINGS BY THE ASSESSEE FROM THE ORIGINAL ORDER OF THE A.O., HE HAD RELIED ON THE REPORT OF THE ITO DT. 15-3-94 FILED BEFORE THE CIT IN RESPONSE TO THE PETITION DT . 28-2-94 OF THE ASSESSEE. THE A.O. ON THE BASIS OF THE REPORT OF THE IT0. DT. 15-3-94 HEL D THAT THERE WAS NO DISCREPANCY IN THE INVENTORY PREPARED AT THE TIME OF THE SURVEY AND HE CONSEQUENTLY MADE AN ADDITION OF RS. 5,04,999/-. 2.4 ON APPEAL BY THE ASSESSEE THE CIT(A) CONFIRMED THIS ORDER OF THE A.O. GIVING RISE TO THE APPEAL BY THE ASSESSEE BEFORE THE TRIBU NAL. THE ITAT SET ASIDE THE ORDER AND REMANDED THE MATTER BACK TO THE A.O. IN APRIL, 2007 . 3. THE ASSESSING OFFICER TOOK UP THE FRESH PROCEEDI NGS AND DETERMINED THE TOTAL INCOME AT RS.5,05,720/- VIDE ORDER DATED 26.12.2008 , AGAINST WHICH ASSESSEE PREFERRED APPEAL AND SUBMITTED THAT THE LD.CIT(A) GAVE RELIEF OF RS.61,500/- ON ACCOUNT OF FEVICOL STOCK AND RS.20,060/- WAS GRANTED WITH RESPECT TO S YNTAX TANK WHEREAS CIT(A) DID NOT GAVE ANY RELIEF WITH RESPECT TO GI PIPES OR ADOPTIO N OF GP RATE. SO, MATTER SHOULD BE AGAIN REMANDED TO ASSESSING OFFICER FOR RECONSIDERA TION. 4. AS AGAINST SUCH ORDER OF CIT(A), ASSESSEE HAS CO ME UP IN FURTHER APPEAL AND FURNISHED PAPER BOOK GIVING VARIOUS DETAILS AND PLE ADED TO DELETE THE IMPUGNED ADDITION AS MADE BY THE ASSESSING OFFICER AND TO THE EXTENT CONFIRMED BY THE CIT(A). 5. LD.DR SUBMITTED THAT THE ASSESSEE IS SHIFTING HI S STAND BY MAKING SOME CLAIM BEFORE APPELLATE AUTHORITIES AND TAKING DIFFERENT S TAND BEFORE THE ASSESSING OFFICER WHEN MATTER IS REMANDED BACK NOT ONLY ON ONE OCCASION, B UT ON MORE THAN ONE OCCASION, LD.DR SUBMITTED THAT THERE IS NO BASIS AND REASONIN G IN THE POINTS RAISED IN THE APPEAL OF I.T.A. NO.131/DEL.2010 (A.Y. : 1994-95) 4 THE ASSESSEE AND ORDER OF THE CIT(A) SHOULD BE CON FIRMED AS WHATEVER RELIEF WAS AVAILABLE TO THE ASSESSEE, SAME WAS GRANTED BY THE CIT(A) AND IN CASE THIS BENCH STILL FEELS THAT ANY FURTHER RELIEF SHOULD BE CONSIDERED BY THE ASSESSING OFFICER IN DE NOVO PROCEEDINGS, THEN LD.AR OF THE ASSESSEE SHOULD BE A SKED TO GIVE SPECIFIC MENTION ABOUT ITEMS, DETAILS AND THEIR COSTING BY FILING PROPER P APERS IN THE PAPER BOOK SO THAT SAME COULD BE SUBMITTED TO THE ASSESSING OFFICER FOR REC ONSIDERING THE ISSUE AND ASSESSEE SHOULD NOT BE ALLOWED TO TAKE A SHIFTING STAND BEFO RE THE ASSESSING OFFICER. ON THIS, TIME WAS GIVEN TO THE LD.AR OF THE ASSESSEE ON LAST DATE OF HEARING TO FILE HIS FRESH PAPER BOOK MAKING THE STAND CLEAR AND PLEADED THAT SUCH PAPER BOOK SHOULD BE SENT BY LD.DR. TO THE ASSESSING OFFICER FOR RECONSIDERATION OF THE ISSUE AFRESH TO WHICH LD.DR AGREED. 6. WE, AFTER HAVING CONSIDERED RIVAL SUBMISSIONS, R ELEVANT FACTS, CIRCUMSTANCES AND MATERIAL ON RECORD, FIND IT JUST AND PROPER TO SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND RESTORE THE MATTER BACK ON THE FILE OF THE ASSESSIN G OFFICER WITH THE DIRECTION TO RECONSIDER THE ISSUE AGITATED IN THE APPEAL AFRESH BY LOOKING INTO THE CLAIM OF THE ASSESSEE AS MADE BEFORE THE TRIBUNAL AND FOR THAT M ATTER, LD.DR SHALL SEND COPY OF PAPER BOOK FILED LATELY BEFORE THE TRIBUNAL, TO THE ASSES SING OFFICER, IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. WE H OLD AND DIRECT ACCORDINGLY. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE GETS PARTLY ACCEPTED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 20.04.2012 (K.D. RANJAN) ACCOUNTANT MEMBER (U.B.S. BEDI ) JUDICIAL MEMBER DATED : APRIL 20, 2012 SKB COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A)-XXII, NEW DELHI. 5. CIT(ITAT) DEPUTY REGISTRAR, ITAT I.T.A. 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