Talwarsons Jewellers, Chandigarh V. ACIT, Chandigarh

ITA 1314/CHANDI/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68515 (ITAT-CHANDIGARH)
• Duration Of Justice: 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 22-07-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 18-12-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AMARVEER SINGH
• Keywords: Depreciation; Income from undisclosed sources; Document seized; Valuation report; Documents seized
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITAS NO. 1313 TO 1317/CHD/2012 ASSESSMENT YEAR : 2004-05 TO 2006-07 & 2009-10 TO 2 010-2011 TALWARSONS JEWELLERS VS. A.C.I.T. CENTRAL CIRCLE-I I SCF 14-15 CHANDIGARH SECTOR 22-D CHANDIGARH AACFT 0915 B ITA NO. 81/CHD/2013 ASSESSMENT YEAR : 2010-2011 D.C.I.T VS. TALWARSONS JEWELLERS CENTRAL CIRCLE II SCF 14-15 CHANDIGARH SECTOR 22-D CHANDIGARH (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI VED JAIN RESPONDENT BY: SHRI AMARVEER SINGH DATE OF HEARING 16.9.2013 DATE OF PRONOUNCEMENT 30.9.2013 O R D E R PER BENCH THE APPEALS BY THE ASSESSEE AND THE REVENUE ARE DIRECTED AGAINST THE ORDER DATED 20.11.2012 OF THE LD. CIT(A), GURGAON. ITA NO. 1313/CHD/2012 ASSESSEES APPEAL 2 IN THIS APPEAL THE ASSESSEE HAS RAISED FOLLOWING GROUNDS. 1 ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORD ER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)[CI T(A)] UNDER SECTION 153 A/143(3) IS BAD BOTH IN THE EYE OF LAW AND ON FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW IN REJECTING TH E CONTENTION OF THE ASSESSEE THAT THE PROCEEDINGS INITIATED UNDER SECT ION 153A AND ORDER PASSED BY THE LEARNED ASSESSING OFFICER (AO) UNDER SECTION 153A/143(3) IS WITHOUT JURISDICTION. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW IN REJECTING TH E CONTENTION OF THE 2 ASSESSEE THAT THE ORDER PASSED BY THE LEARNED AO UN DER SECTION 153A IS BAD AND LIABLE TO BE QUASHED AS THE SAME HAS BEEN F RAMED CONSEQUENT TO A SEARCH WHICH ITSELF WAS UNLAWFUL AND INVALID I N THE EYES OF LAW. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW IN REJECTING TH E CONTENTION OF THE ASSESSEE THAT THE PROCEEDINGS INITIATED UNDER SECTI ON 153A ARE LIABLE TO BE QUASHED IN THE ABSENCE OF A VALID SEARCH. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) AHS ERRED, BOTH ON FACTS AND IN LAW IN REJECTING TH E CONTENTION OF THE ASSESSEE THAT THE PROCEEDINGS INITIATED UNDER SECTI ON 153A AGAINST THE APPELLANT AND THE ASSESSMENT FRAMED UNDER SECTION 1 53A/143(3) ARE IN VIOLATION OF THE STATUTORY CONDITIONS OF THE ACT AN D THE PROCEDURE PRESCRIBED UNDER THE LAW AND AS SUCH THE SAME IS BA D IN THE EYE OF LAW AND LIABLE TO BE QUASHED. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW IN REJECTING TH E CONTENTION OF THE ASSESSEE THAT THE PROCEEDINGS INITIATED UNDER SECTI ON 153 A ARE BAD IN LAW IN THE ABSENCE OF ANY INCRIMINATING MATERIAL BE LONGING TO THE ASSESSEE BEING FOUND DURING THE COURSE OF THE SEARC H. 7. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW IN REJECTING TH E CONTENTION OF THE ASSESSEE THAT THE ASSESSMENT FRAMED UNDER SECTION 1 53 A IS BAD AND LIABLE TO BE QUASHED AS NO VALID NOTICE UNDER SECTI ON 153 A AS REQUIRED UNDER THE LAW HAS BEEN ISSUED AND SERVED ON THE ASS ESSEE. (II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW IN REJECTING TH E CONTENTION OF THE ASSESSEE THAT THE NOTICE ISSUED FOR FILING THE RETU RN IN THE STATUS OF INDIVIDUAL / LOCAL AUTHORITY IS BAD IN LAW AND ACCO RDINGLY THE PROCEEDINGS IN CONSEQUENCE THEREOF ARE LIABLE TO BE QUASHED. 8. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW IN REJECTING TH E CONTENTION OF THE ASSESSEE THAT THE NOTICE ISSUED UNDER SECTION 153A BY THE AO IS BAD IN LAW AND AS SUCH THE ASSESSMENT FRAMED IN CONSEQUENC E THEREOF IS LIABLE TO BE QUASHED. 9. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW IN REJECTING TH E CONTENTION OF THE ASSESSEE THAT THE PROCEEDINGS INITIATED UNDER SECTI ON 153 A AND THE ASSESSMENT ORDER PASSED BY THE AO IS BEYOND THE LIM ITATION PERIOD PRESCRIBED UNDER THE LAW AND AS SUCH IS LIABLE TO B E QUASHED. 10. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW IN REJECTING TH E CONTENTION OF THE ASSESSEE THAT THE ASSESSMENT FRAMED UNDER SECTION 1 43(3) READ WITH SECTION 153A OF THE ACT WITHOUT THE ISSUE OF VALID NOTICE UNDER SECTION 143(2) IS BAD IN LAW AND LIABLE TO BE QUASHED. 11(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN CONFIRMING THE DISALLOWANCE OF AN AMOUNT OF RS. 1,56,600/- ON ACCOUNT OF CAR EXPENSES , CAR INSURANCE AND DEPRECIATION ON CAR. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEA RNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN CONFIRMING THE ABOVE DISALLOWANCE ON AN ESTIMATE WITHOUT THERE BEING ANY BASIS FOR THE S AME. THAT THE ABOVE DISALLOWANCE HAS BEEN MADE DESPITE T HE FACT THAT THE EXPENSES HAVE BEEN INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSES OF BUSINESS. 12(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ORDER PASSED BY THE LEA RNED AO REJECTING THE CONTENTION OF THE ASSESSEE THAT IT AMOUNTS TO REVIE WING THE ASSESSMENT PROCEEDINGS FOR THE YEAR UNDER CONSIDERATION WITHOU T THERE BEING ANY ADVERSE MATERIAL ON RECORD. 3 (II) THAT THE ABOVE SAID ADDITIONS ARE OTHERWISE UN TENABLE SINCE REASSESSMENT UNDER SECTION 153 A CONSEQUENT TO SEAR CH IS TO BE CONFINED ONLY TO THE INCRIMINATING MATERIAL BELONGI NG TO THE ASSESSEE FOUND DURING THE COURSE OF THE SEARCH. 13. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN IGNORING THE FACT THAT THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION HAVE BE EN SCRUTINIZED UNDER SECTION 143(3) AND AS SUCH THE LEARNED AO WAS NOT JUSTIFIED IN REVIEWING ITS OWN ORDER. 3 DURING THE COURSE OF HEARING OUT OF ABOVE GROUNDS , ONLY GROUND NO. 11 WAS PRESSED BEFORE US AND ALL OTHER G ROUNDS WERE NOT PRESSED, THEREFORE, GROUNDS NO. 1 TO 10, 12 & 13 ARE DISMISSED AS NOT PRESSED. 4 GROUND NO. 11 AFTER HEARING BOTH THE PARTIES WE FIND THAT A SEARCH WAS CONDUCTED IN THE PREMISE OF THE A SSESSEE AND ASSESSMENT HAS BEEN COMPLETED U/S 153A R.W.S 14 3(3) OF I.T. ACT. DURING THIS YEAR THE ASSESSING OFFICER M ADE ADDITION ON ACCOUNT OF PERSONAL USAGE OF VEHICLE BECAUSE IT WAS NOTICED THAT THE PARTNERS OF THE FIRM SHRI ANIL TALWAR AND SMT. NINA TALWAR DO NOT OWN ANY VEHICLES, THEREFORE, PERSONA L USAGE COULD NOT BE DENIED. THE ADDITION HAS BEEN MADE AT 1/5 TH OF THE EXPENSES AMOUNTING TO RS. 2,16,662/-. 5 ON APPEAL THE ADDITION HAS BEEN CONFIRMED BY THE LD. CIT(A). 6 BEFORE US, THE LD. COUNSEL OF THE ASSESSEE SUBMIT TED THAT ORIGINAL ASSESSMENT IN THIS CASE WAS COMPLETED U/S 143(3) AND COPY OF THE ORDER IS PLACED AT PAGE 20-22 OF THE PA PER BOOK. HE REFERRED TO ORIGINAL ASSESSMENT ORDER AND POINTE D OUT THAT A SUM OF RS. 60,000/- WAS DISALLOWED ON ACCOUNT OF P ERSONAL USAGE OF TELEPHONE AND CAR EXPENSES INCLUDING CAR DEPRECIATION. THIS MEANS THAT THE ASSESSING OFFICE R HAS TAKEN A PARTICULAR VIEW FOR A PARTICULAR ISSUE AND THEREF ORE, LATER ON ASSESSMENT IN PURSUANCE TO THE SEARCH THE ASSESSING OFFICER HAS NO AUTHORITY TO REVIEW HIS EARLIER DECISION. 7 ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SU BMITTED THAT SECTION 153A VERY CLEARLY GIVES POWER TO THE A SSESSING OFFICER TO ASSESS OR REASSESS THE TOTAL INCOME. 8 WE HAVE HEARD THE RIVAL SUBMISSIONS CAREFULLY AND FIND THAT A SUM OF RS. 60,000 WAS DISALLOWED IN THE ORIG INAL 4 ASSESSMENT ORDER PASSED U/S 143(3) VIDE ORDER DATED 18.12.2006. THIS MEANS THAT HE ASSESSING OFFICER H AS TAKEN A PARTICULAR VIEW. NO DOUBT SECTION 153A TALKS OF TH E POWER OF ASSESSING OFFICER TO ASSESS OR REASSESS THE INCOME BUT AFTER ABATEMENT OF THE ASSESSMENT PROCEEDINGS WHAT CAN BE PERHAPS REASSESSED ARE THE ITEMS ON WHICH NO VIEW HAS BEEN TAKEN ORIGINALLY. ONCE A PARTICULAR ISSUE HAS BEEN DELIB ERATED BY THE ASSESSING OFFICER IN THE ORIGINAL ASSESSMENT PROCEE DINGS THEN A DIFFERENT VIEW CAN NOT BE TAKEN IN THE ASSESSMENT U/S 153A PARTICULARLY IN THE ABSENCE OF ANY MATERIAL TO THE CONTRARY OTHERWISE THAT WOULD AMOUNT TO REVIEW OF THE ASSESS MENT WHICH IS NOT PERMISSIBLE UNDER LAW. THEREFORE, WE FIND F ORCE IN THE SUBMISSIONS OF THE LD. COUNSEL OF THE ASSESSEE AND DELETE THE ADDITION ON ACCOUNT OF VEHICLE MAINTENANCE. 9 IN THE RESULT, APPEAL OF THE ASSESSEE IN ITA NO. 1313/CHD/2012 IS PARTLY ALLOWED. ITA NO. 1314/CHD/2012 ASSESSEES APPEAL 10 IN THIS APPEAL ALSO THE ASSESSEE HAS RAISED VARI OUS GROUNDS BUT ONLY ISSUE IN GROUND NO. 11 WAS PRESSED BEFORE US, THEREFORE, OTHER GROUNDS ARE DISMISSED AS NOT PRESSED BEFORE US. 11 IN GROUND NO. 11 DISALLOWANCE OF 1/5 TH OF VEHICLE MAINTENANCE EXPENDITURE HAS BEEN MADE BY THE ASSESS ING OFFICER. 12 IN THIS CASE ALSO THE FACTS ARE IDENTICAL AS IN THE CASE FOR ASSESSMENT YEAR 2004-05 IN ITA NO. 1313/CHD/2012 WH ICH WE HAVE DISCUSSED ABOVE. IN THIS CASE ALSO THE ASSESS ING OFFICER HAS DISALLOWED A SUM OF RS. 1,69,280/- BEING 1/5 TH OF VEHICLE EXPENSES ON ACCOUNT OF PERSONAL USAGE. ONCE THE A DDITION HAS BEEN MADE IN THE ASSESSMENT ORDER U/S 143(3) TH EN THERE IS NO JUSTIFICATION FOR ADDITION IN THE ASSESSMENT MADE U/S 153A, THEREFORE, FOLLOWING OUR ORDER IN ITA NO. 13 13/CHD/2012 IN PARA NO. 8, WE DELETE THIS ADDITION. 13 IN THE RESULT, ITA NO. 1314/CHD/2012 IS PARTLY A LLOWED. 5 ITA NO. 1315/CHD/2012 ASSESSEES APPEAL 14 IN THIS APPEAL ALSO THE ASSESSEE HAS RAISED VARI OUS GROUNDS BUT ONLY ISSUE IS REGARDING DISALLOWANCE OF VEHICLE MAINTENANCE EXPENSES OF RS. 2,79,630/- WAS PRESSED BEFORE US. 15 IN THIS CASE HOWEVER, NO ADDITION WAS MADE ORIGI NALLY. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT NO A DDITION WAS MADE BECAUSE THE ASSESSEE HAD PAID FBT ON ACCOUNT O F CAR EXPENSES. 16 ON THE OTHER HAND, THE LD. DR FOR THE REVENUE R ELIED ON THE ORDER OF THE LD. CIT(A). 17 AFTER EXAMINING RIVAL SUBMISSIONS WE FIND THAT P ERUSAL OF ASSESSMENT ORDER PASSED U/S 143(3) DATED 18.9.2008 SHOWS THAT NO DISCUSSION WAS MADE IN RESPECT OF THIS ISSU E IN ASSESSMENT ORDER. FURTHER THERE IS NO EVIDENCE BEF ORE US TO SHOW THAT FBT WAS PAID IN RESPECT OF CAR EXPENSES. HOWEVER, AT THE SAME TIME WE FURTHER FIND THAT DISALLOWANCE HAS BEEN MADE AT 1/5 TH OF THE TOTAL EXPENSES. CHANDIGARH BENCH OF THE TRIBUNAL HAS CONSISTENTLY HELD THAT DISALLOWANCE OF 1/10 TH OF EXPENSES ON ACCOUNT OF VEHICLE EXPENSES IS REASONA BLE TOWARDS PERSONAL USAGE. THEREFORE, WE SET ASIDE T HE ORDER OF THE LD. CIT(A) AND DIRECT THE AO TO DISALLOW ONLY 1/10 TH OF VEHICLE MAINTENANCE TOWARDS PERSONAL USAGE. 18 IN THE RESULT, ITA NO. 1315/CHD/2012 IS PARTLY A LLOWED. ITA NO. 1316/CHD/2012 ASSESSEES APPEAL 19 IN THIS APPEAL THE ASSESSEE HAS RAISED VARIOUS G ROUNDS. BUT AT THE TIME OF HEARING GROUNDS NO. 11 & 12 WERE PRESSED BEFORE US, THEREFORE, WE DISMISS ALL OTHER GROUNDS HAS NOT PRESSED. 20 GROUND NO. 11 AFTER HEARING BOTH THE PARTIES W E FIND THAT DURING ASSESSMENT PROCEEDINGS THE AO NOTICED T HAT THE ASSESSEE HAS CLAIMED DEPRECIATION ON CAR @ 50%. T HE DEPRECIATION CLAIMED WAS RS. 42,23,937/-. THE ASSE SSING OFFICER NOTICED THAT DEPRECIATION ON CAR USED FOR B USINESS 6 PURPOSES WAS ONLY 15%, THEREFORE, HE ALLOWED DEPRE CIATION @ 15% AND DISALLOWED BALANCE AMOUNT OF RS. 29,58,694/ -. 21 BEFORE LD. CIT(A), FOLLOWING SUBMISSIONS WERE MA DE: THE ASSESSING OFFICER HAS DISALLOWED A SUM OF RS. 2 9,58,694/- ON ACCOUNT OF DEPRECIATION ON THE GROUND THAT THE DEPR ECIATION ON TWO VEHICLES CLAIMED AT 50% SHALL BE ALLOWED AT THE RAT E OF 15%. IN THIS REGARD IT IS SUBMITTED THAT AS PER THE AMENDMENT MA DE TO INCOME TAX RULES AN ASSESSEE IS ENTITLED TO DEPRECIATION AT TH E RATE OF 50% IN RESPECT OF NEW COMMERCIAL VEHICLES ACQUIRED ON OR A FTER 1 ST ON OR AFTER 1 ST DAY OF JANUARY, 2009 BUT BEFORE 1 ST DAY OF OCTOBER, 2009, REFERENCE IS INVITED TO NEW APPENDIX 1 TO INCOME TAX RULES, C LAUSE III(3) (VIA). THE ASSESSEE HAS PURCHASED TWO VEHICLES DURING THE YEAR OF WHICH THE DETAILS WERE SUBMITTED TO THE ASSESSING OFFICER. TH E ASSESSING OFFICER HAS ASSUMED THAT THIS CLAUSE IS NOT APPLICABLE. NOT NO. 6 BELOW THE NEW APPENDIX 1 WHERE COMMERCIAL VEHICLE HAS BEEN DEFINE D AS UNDER: 6. COMMERCIAL VEHICLE MEANS HEAVY GOODS VEHICLE . HEAVY PASSENGER MOTOR VEHICLE; LIGHT MOTOR VEHICLE. MED IUM GOODS VEHICLE AND MEDIUM PASSENGER MOTOR VEHICLE BUT D OES NOT INCLUDE MAXI CAB, MOTOR CAB, TRACTOR AND ROAD-R OLLER. THE EXPRESSION HEAVY GOODS VEHICLE HEAVY PASSENGER MO TOR VEHICLE LIGHT MOTOR VEHICLE, MEDIUM GOODS VEHICLE, MEDIUM PASSENGER MOTOR VEHICLE, MAXI CAB, MOTOR-CAB, TRACTOR AN D ROAD ROLLER SHALL THE MEANINGS RESPECTIVELY ASSIGNED TO THEM IN SECTION 2 OF THE MOTOR VEHICLES ACT, 1988(59 OF 1988) ON GOING THROUGH THE ABOVE YOUR HONOUR WILL NOTICE THAT THE COMMERCIAL VEHICLE INCLUDE NOT ONLY HEAVY GOODS VEHICLE BUT AL SO INCLUDE LIGHT MOTOR VEHICLES. THE DEFINITION IS QUITE COMPREHENSIVE. WH EREVER EXCLUSION IS REQUIRED IT HAS BEEN STATED SO. FURTHER IN THE NOTE IT HAS BEEN SPECIFICALLY STATED THAT THE LIGHT MOTOR VEHICLE SH ALL HAVE THE MEANING ASSIGNED TO IT IN SECTION 2 OF THE MOTOR VEHICLES A CT, 1988. AS PER SECTION 2(21) OF THE MOTOR VEHICLES ACT, 1988 THE LIGHT MOT OR VEHICLE HAS BEEN DEFINED- 2(21) LIGHT MOTOR VEHICLE MEANS A TRANSPORT VEHIC LE OR OMNI BUS THE GROSS VEHICLE WEIGHT EITHER OF WHICH OR A MOTOR CAR OR TRACTOR OR ROAD ROLLER THE UNLADED WEIGHT OF ANY OF WHICH, DOES NOT EXCEED 7500 KG. THE REASONING GIVEN BY THE ASSESSING IS NOT ACCORDA NCE WITH THE RULES REGARDING DEPRECIATION. ACCORDINGLY IT IS SUBMITTED THAT THE DISALLOWANCE MADE BY THE ASSESSING OFFICE ON THIS ACCOUNT IS TO BE DELETED. 22 THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS DID NOT FIND ANY FORCE IN THEM. ACCORDING TO HIM COMMERCIA L VEHICLES WOULD MEAN VEHICLES USED FOR CARRYING GOODS OR HE AVY PASSENGER VEHICLES. HOWEVER, THE CARS CANNOT BE IN CLUDED IN THE DEFINITION OF COMMERCIAL VEHICLE. ACCORDINGLY HE CONFIRMED THE DISALLOWANCE. 23 BEFORE US, THE LD. COUNSEL OF THE ASSESSEE REITE RATED THE SUBMISSIONS MADE BEFORE THE LD. CIT(A). ON THE OT HER HAND, THE LD. DR FOR THE REVENUE STRONGLY SUPPORTED THE O RDER OF THE LD. CIT(A). 7 24 AFTER CONSIDERING THE RIVAL SUBMISSIONS WE FIND NO FORCE IN THE SUBMISSIONS OF THE LD. COUNSEL OF THE ASSESS EE. CLAUSE III(3)(VIA) OF NEW APPENDIX I (EFFECTIVE FOR ASSESS MENT YEAR 2006-07 ONWARD) READS AS UNDER: NEW COMMERCIAL VEHICLE WHICH IS ACQUIRED ON OR AFTE R THE IST DAY OF JAN, 2009 BUT BEFORE THE IST DAY OF OCT, 2009 AN D IS PUT TO USE BEFORE THE IST DAY OF OCT, 2009 FOR THE PURPOSES OF BUSINESS OR PROFESSION. THIS CLAUSE WAS INSERTED FOR A LIMITED PERIOD FOR E NCOURAGING TRANSPORT INDUSTRY SO AS TO INCREASE THE DEMAND OF COMMERCIAL VEHICLES. NORMALLY COMMERCIAL VEHICLES WOULD REFER (AS POINTED OUT BY THE LD. CIT(A)) TO VEHICLES WHICH CARRIES GO ODS OR PASSENGERS. IT IS SIGNIFICANT TO NOTE THAT FOR MOT OR CARS A SPECIFIC RATE OF DEPRECIATION HAS BEEN PRESCRIBED I N THE NEW APPENDIX I UNDER CLAUSE III (2) WHICH READS AS UND ER: MOTOR CARS, OTHER THAN THOSE USED IN A BUSINESS OF RUNNING THEM ON HIRE, ACQUIRED OR PUT TO USE ON OR AFTER THE IST DAY OF APRIL, 1990. 25 THUS IT IS CLEAR THAT DEPRECIATION ON THE CAR HA S BEEN SEPARATELY PROVIDED SPECIFICALLY THROUGH CLAUSE III (2) AND THEREFORE, THERE IS NO NEED TO LOOK AT THE CLAUSE III(3)(VIA), THEREFORE, WE FIND NOTHING WRONG IN THE ORDER OF T HE LD. CIT(A) AND CONFIRM THE SAME. 26 GROUND NO. 12 THE ISSUE INVOLVED IN THIS GROUN D IS IDENTICAL TO THE ISSUE INVOLVED IN ASSESSMENT YEAR 2006-07 IN ITA NO. 1315/CHD/2012 WHICH WE HAVE ADJUDICATED ABO VE IN PARA NO. 17. FOLLOWING THE SAME WE SET ASIDE THE O RDER OF THE LD. CIT(A) AND DIRECT THE AO TO DISALLOW VEHICLE M AINTENANCE ONLY TO THE EXTENT OF 10%. 27 IN THE RESULT, ITA NO. 1316/CHD/2012 IS PARTLY A LLOWED. ITA NO. 1317/CHD/2012 ASSESSEES APPEAL 28 IN THIS APPEAL THE ASSESSEE HAS RAISED FOLLOWING GROUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) [C IT(A)] UNDER SECTION 143(3) IS BAD BOTH IN THE EYE OF LAW AND ON FACTS. 2(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW, IN CONFIRMING T HE ADDITION OF AN AMOUNT OF RS. 3,34,965/- MADE BY THE AO AS INCOME E ARNED BY THE ASSESSEE ON UNDISCLOSED SALE OF RS. 17,21,300/- 8 (II) THAT THE ABOVE ADDITION HAS BEEN CONFIRMED DE SPITE THE SAME BEING MADE ARBITRARY REJECTING THE EXPLANATION GIVE N BY THE ASSESSEE. (III) THAT THE ABOVE ADDITION IS UNTENABLE IN THE A BSENCE OF ANY SUPPORTING MATERIAL OR EVIDENCE TO PROVE THE ALLEGA TION THAT THE ASSESSEE HAS MADE UNACCOUNTED SALES. 3(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW, IN CONFIRMING T HE ADDITION OF AN AMOUNT OF RS. 4,58,106/- AS PROFIT EARNED ON UNDISC LOSED SALE OF RS. 23,54,094/- (II) THAT THE ABOVE ADDITION HAS BEEN CONFIRMED DES PITE THE SAME BEING MADE ARBITRARILY REJECTING THE EXPLANATION GI VEN BY THE ASSESSEE. (III) THAT THE ABOVE ADDITION IS UNTENABLE IN THE A BSENCE OF ANY SUPPORTING MATERIAL OR EVIDENCES TO PROVE THE ALLEG ATION THAT THE ASSESSEE HAS MADE UNACCOUNTED SALES. 4(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW, IN CONFIRMING T HE DISALLOWANCE OF A SUM OF RS. 44,28,349/- MADE BY THE AO AS EXCESS DEP RECIATION CLAIMED DURING THE YEAR. (II) THAT THE ABOVE DISALLOWANCE HAS BEEN MADE IGNO RING THAT THE ASSESSEE IS ENTITLED TO DEPRECIATION AT THE RATE OF 50% IN RESPECT OF NEW COMMERCIAL VEHICLES ACQUIRED ON OR AFTER 1 ST DAY OF JANUARY, 2009 BUT BEFORE 1 ST DAY OF OCTOBER, 2009 IN TERMS OF NEW APPENDIX I TO INCOME TAX RULES, CLAUSES III(3)(VIA). 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW, IN CONFIRMING T HE DISALLOWANCE OF AN AMOUNT OF RS. 6,66,761/- MADE BY THE AO ON ACCOUNT OF PERSONAL USE OF THE CAR. 29 GROUND NO. 1 IS OF GENERAL NATURE AND DOES NOT R EQUIRE ANY SEPARATE ADJUDICATION. 30 GROUND NO. 2 AFTER HEARING BOTH THE PARTIES WE FIND THAT A SEARCH WAS CONDUCTED IN THE PREMISES OF THE ASSES SEE AND EXCESS STOCK AND CASH ETC. WAS FOUND. THE ASSESSEE SURRENDERED A SUM OF RS. 6 CRORERS. DURING THE ASS ESSMENT PROCEEDINGS THE ASSESSING OFFICER OBSERVED THAT CER TAIN DOCUMENTS WERE FOUND PARTICULARLY DOCUMENT NO. A18 AND A22 WERE FOUND AND SEIZED. THESE DOCUMENTS WERE CONSTR UED AS KATCHA SLIPS FOR SALE OF JEWELLERY TO THE TUNE OF R S. 23,84,300/- AS PER FOLLOWING DETAIL: A-22/PAGE 144 RS. 52,500 A-18/PAGE 176 RS. 1,51,200 A-18/PAGE 177 RS. 3,18,400 A-18/PAGE 178 RS. 7,17,600 A-18/PAGE 179 RS. 7,17,600 A-18/PAGE 180 RS. 4,27,000 TOTAL RS. 23,84,300 31 THE ASSESSEE WAS CONFRONTED WITH THESE DOCUMENTS AND ASKED TO EXPLAIN WHY THESE SALES HAVE NOT BEEN INCO RPORATED IN 9 REGULAR BOOKS OF ACCOUNT. IT WAS MAINLY STATED THA T THESE DOCUMENTS ARE UNDATED AND PERTAIN TO THE JEWELLERY GIVEN ON APPROVAL OR WERE SIMPLE ESTIMATES AND CANNOT BE CON STRUED AS SALES. THE ASSESSING OFFICER AFTER CONSIDERING THE SUBMISSIONS OBSERVED THAT DESCRIPTION OF THE DOCUMENTS CLEARLY POINT OUT THAT THE SALES HAVE BEEN MADE BY THE ASSESSEE AND T HESE DOCUMENTS CANNOT BE CONSTRUED MERELY AS ESTIMATES. IT WAS FURTHER OBSERVED THAT THERE WAS NO DIFFERENCE IN TH E NOTING FOR SALE VOUCHERS AND THE NOTINGS IN THE SAID DOCUMENTS . HANDWRITING WAS CONFIRMED BY THE ASSESSEE. HOWEVER , DURING THE ASSESSMENT PROCEEDINGS SOME SALE BILLS WERE PRO VIDED. SOME SALE BILLS IN RESPECT OF SALE BILL FOR RS. 6 ,45,000/- AND RS. 18,000/- RECORDED AT PAGE 178 & 179 OF THE DOCU MENTS WERE FURNISHED BEFORE THE ASSESSING OFFICER, THEREF ORE, AFTER REDUCING THESE AMOUNTS THE ASSESSING OFFICER CONCLU DED THAT BALANCE AMOUNT OF RS. 17,21,300/- SALES WERE MADE O UTSIDE THE BOOKS. HE APPLIED GP RATE OF 19.46% ON THESE SALES AND ADDED A SUM OF RS. 3,34,965/- TO THE INCOME OF THE ASSESSEE. 32 BEFORE THE LD. CIT(A) THE SUBMISSIONS MADE BEFOR E THE ASSESSING OFFICER WERE REITERATED. IT WAS FURTHER CONTENDED THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAK ING INDEPENDENT ADDITION ON THIS ACCOUNT BECAUSE THE PR OFIT, IF ANY, ON SUCH UNDISCLOSED SALES, WOULD ULTIMATELY FORM PA RT OF STOCK WHICH HAS BEEN SURRENDERED BY THEASSESSEE. THE LD. CIT(A) DID NOT FIND FORCE IN THE SUBMISSIONS AND CONFIRMED THE ADDITION. 33 BEFORE US, THE LD. COUNSEL OF THE ASSESSEE MAINL Y SUBMITTED THAT EVEN IF THE ASSESSEE HAD CARRIED SOM E UNDISCLOSED SALES THE PROFIT FROM THE SAME SHALL BE ASSUMED TO HAVE BEEN INVESTED IN THE EXCESS STOCK FOUND DURING THE SEARCH. THE ASSESSEE HAD ALREADY SURRENDERED A SUM OF RS 6 CRORES THEREFORE, THIS ADDITION SHOULD HAVE BEEN T ELESCOPED WITH THE ADDITION ON ACCOUNT OF SURRENDER. 34 ON THE OTHER HAND, THE LD. DR FOR THE REVENUE S TRONGLY SUPPORTED THE ORDER OF THE LD. CIT(A). 35 WE HAVE HEARD THE RIVAL SUBMISSIONS CAREFULLY. THE LD. CIT(A) HAS ADJUDICATED THIS ISSUE VIDE PARA 6.1 WHI CH IS AS UNDER: 10 6.1 I HAVE CAREFULLY CONSIDERED THE ASSESSEES SUB MISSION AND THE IMPUGNED ASSESSMENT ORDER AT PARA 5. IT IS SEEN THAT CERTAIN DOCUMENTS BEARING IDENTIFICATION MARKS A-18 AND A-2 2 WERE SEIZED WHICH WERE FOUND TO BE KACHA SLIPS RECORDING SALES OF J EWELRY TO THE TUNE OF RS. 23,84,300/-. COPIES OF THESE DOCUMENTS PAGES 17 6-180 OF A-18 AND PAGE 144 OF A-22 HAVE BEEN SCANNED AND MADE PART OF THE IMPUGNED ORDER. THE EXPLANATION OF THE ASSESSEE WAS THAT THE DOCUMENTS WERE UNDATED ESTIMATES AND NOT ACTUAL SALES OF THE UNREC ORDED SALES, EXCEPT RS. 6,45,000 AND RS. 18,000/- RECORDED ON PAGES 178 AND 179 OF A-18 WHICH WERE SUPPORTED WITH COPIES OF SALE BILLS BUT THAT THE BALANCE WERE JUST APPROVALS / ESTIMATES OF JEWELRY ON THE REQUES T OF THE CUSTOMERS. IT WAS THEREFORE THE AOS CASE THAT THE TRANSACTIONS R ECORDED IN THE OTHER SEIZED DOCUMENTS WERE SALES OUTSIDE THE BOOKS OF AC COUNTS IN THE BACKDROP OF SIMILAR NOTINGS IN THE OTHER SLIPS BEIN G ADMITTED TO BE SALES. THEREFORE BY APPLYING THE AVERAGE GP RATE OF THE CU RRENT YEAR AND LAST THREE YEAR ON SALE OF JEWELRY , THE UNDISCLOSED GRO SS PROFIT WAS COMPUTED AT RS. 3,34,965/-. IT WAS THE ASSESSEES CASE THAT SEPARATE ADDITION ON THIS ACCOUNT WAS NOT JUSTIFIED WHEN ADDITION IS ALREADY MADE ON ACCOUNT OF EXCESS INVESTMENT IN THE BUSINESS. FURTHER THAT IN THE ADD ITIONAL INCOME SURRENDERED DURING THE COURSE OF SEARCH THE ASSESSE E HAD STATED THAT THE UNDISCLOSED INCOME HAD BEEN EARNED FROM DEALING S OUTSIDE THE BOOKS OF ACCOUNT. THAT THE ADDITIONAL INCOME OFFERE D OF RS. 6 CRORES INCLUDED TRANSACTIONS NOT RECORDED IN THE REGULAR B OOKS OF ACCOUNTS. ON A PERUSAL OF THE BREAK-UP OF THE INCOME SURRENDERED BY THE ASSESSEE U/S 132(4), IT IS SEEN THAT RS. 5,75,07,859/- WAS SURRE NDERED ON ACCOUNT OF EXCESS STOCK OF GOLD AND DIAMOND JEWELRY WHILE RS. 16,82,509/- WAS ON ACCOUNT OF EXCESS CASH FOUND FORM THE BUSINESS AS W ELL AS RESIDENTIAL PREMISES. THE BALANCE OF RS. 8,27,572/- WAS INCOME SURRENDERED BY SHRI ANIL TALWAR WHICH HAD BEEN WITHDRAWN FROM THE FIRM. NO DOUBT ASSESSEE HAS SURRENDERED ADDITIONAL INCO ME ON ACCOUNT OF UNRECORDED BUSINESS TRANSACTIONS, IN FACT AGAINS T THE EXCESS GOLD / DIAMONDS FOUND. THUS I WOULD THINK THAT THE UNRECOR DED SALE TRANSACTIONS OF RS. 3,34,965/- BY NO STRETCH OF IMA GINATION CAN BE SAID TO BE COVERED IN THE ADDITIONAL INCOME SURRENDERED, UN LESS THE ASSESSEE IS ABLE TO CORRELATE TO A REASONABLE EXTENT THE EXCESS GOLD JEWELRY WITH THE SALES AS PER THE SLIPS, OR THAT THE SALE PROCEEDS HAVE BEEN UTILIZED FOR PURCHASING SUCH PARTICULAR ITEMS OF THE STOCK. IT I S ALSO PERTINENT TO NOTE HERE THAT THE ASSESSEE DID NOT REPLY TO THE SPECIFI C SHOW CAUSE ISSUED BY THE LD. AO. THESE UNRECORDED SALE CANNOT BE THEREFO RE COVERED UNDER THE SURRENDERED AMOUNT IN THE ABSENCE OF CLEAR EXPL ANATION BY THE ASSESSEE. CONSEQUENTLY, I HAVE NO REASON NOT TO SUS TAIN THE ADDITION, OVER AND ABOVE THE SURRENDER, AS MADE BY THE LD. AO . 36 THE LD. CIT(A) HAS CLEARLY GIVEN REASONS WHY PRO FIT ON UNDISCLOSED SALE TRANSACTION CANNOT BE TELESCOPED W ITH THE AMOUNT OF SURRENDER ON ACCOUNT OF UNDISCLOSED STOC K. WE ARE SATISFIED WITH THIS REASONING BECAUSE EVEN BEFORE U S NO CO- RELATION WAS MADE BETWEEN UNRECORDED SALE AND STOCK FOUND DURING SEARCH. ACCORDINGLY WE CONFIRM THE ORDER O F THE LD. CIT(A). 37 GROUND NO. 3 AFTER HEARING BOTH THE PARTIES WE FIND THAT ANOTHER DOCUMENTS IDENTIFIED AS A-13 FOUND AT THE R ESIDENCE OF THE ASSESSEE. THIS DOCUMENT ALSO REFLECTED TRANSAC TION WHICH WAS NOT RECORDED IN THE REGULAR BOOKS OF ACCOUNT. ON ENQUIRY IT WAS SUBMITTED AS UNDER: 11 AS ALREADY EXPLAINED, THESE DOCUMENTS RELATES TO M R. SUKHDEV BEDI WHO WAS A RESIDENT OF ONTARIO AND ONE OF THE A CQUAINTANCE OF MR. ANIL TALWAR, PARTNER OF THE ASSESSEE FIRM. MR. SUKHDEV BEDI WAS ENGAGED IN THE IMPORT OF DIAMOND JEWELLERY FROM INDIA THROUGH ONE OF THE COMMON FRIENDS OF MR. ANIL TALWAR (MR. V .K. KAPOOR OF BOMBAY). MR. SUKHDEV BEDI USED TO CONSULT MR. ANIL TALWAR WITH REGARD TO PRICING OF VARIOUS ITEMS OF JEWELLERY HIS EXPENSES ON SUCH SALES AND THE PROFIT MARGIN HE WANTED TO EARN ON THESE SALES. THIS WAS SO BECAUSE MR. ANIL TALWAR HAD WIDE EXPERI ENCE IN THIS BUSINESS OF EXPORTS TO CANADA AS HE WAS EARLIER ENG AGED IN THE EXPORTS OF DIAMOND JEWELLERY TO CANADA MR. SUKHDEV BEDI WANTED TO SUE HIS EXPERT ADVISE ON VARIOUS ISSUES INVOLVIN G HIS BUSINESS IN CANADA AND AS SUCH LEFT HIS PAPERS WITH HIM FOR FURTHER CONSULTATION. NEITHER THE ASSESSEE NOR MR. ANIL TA LWAR HAD MADE ANY SALES TO HIM OR HAD ANY FINANCIAL DEALINGS WITH MR. SUKHDEV BEDI. IT IS FURTHER MOST RESPECTFULLY SUBMITTED THAT THER E IS NO MENTION OF EITHER MR. ANIL TALWAR OR OF THE ASSESSEE ON THESE DOCUMENTS. THESE DOCUMENTS CLEARLY SHOW THAT THESE DOCUMENTS B ELONGS TO MR. SUKHDEV BEDI AS HIS NAME IS MENTIONED ON THE TO P OF THESE DOCUMENTS BELONGS TO MR. SUKHDEV BEDI AS HIS NAME I S MENTIONED ON THE TOP OF THESE PAPERS. NO CIRCUMSTANTIAL EVID ENCE WAS FOUND FROM THE POSSESSION OF THE ASSESSEE TO SUPPORT THE ALLEGATION OF THE DEPARTMENT. THE A E HAS DISCHARGED THE PRIMARY ONUS WHICH LAID ON HIM TO REBUT THE DOCUMENT FOUND IN HIS POSS ESSION. ANY ALLEGATION MADE BY THE DEPARTMENT HAS TO BE PROVED WITH CIRCUMSTANTIAL EVIDENCE SUPPORTING THE MAIN DOCUMEN T. THERE IS NO ROOM FOR PRESUMPTION UNDER THE INCOME TAX ACT. EVEN FOR ARGUMENT SAKE AND WITHOUT PREJUDICE TO OUR ABOVE SUBMISSIONS, IF IT IS PRESUMED THAT THE ASSESSEE HA VE BEEN MAKING SALES OUTSIDE THE BOOKS OF ACCOUNT, THE GROSS PROFI T EARNED BY THE ASSESSEES FROM SUCH SALES SHOULD EXCEED THE AMOUNT OF DISCLOSURE OF UNACCOUNTED INCOME MADE BY THE ASSESSEE. THE GR OSS PROFIT EARNED BY THE ASSESSEE MUST BE REFLECTED BY CERTAIN ASSETS FOUND FROM THE POSSESSION OF THE ASSESSEE. IN THE PRESEN T CASE, THE ASSESSEE HAS DISCLOSED SUBSTANTIAL AMOUNT OF INCOME INVESTED IN EXCESS STOCK FOUND FROM, THE PREMISES OF THE ASSESS EE. ADVERSE INFERENCE AGAINST THE ASSESSEE CAN ONLY BE TAKEN IF THE GROSS PROFIT EARNED BY HIM INCLUDING INVESTMENT MADE IN SUCH TRANSACTION EXCEED THE INCOME SURRENDERED BY THE AS SESSEE U/S 132(4). NO COGNIZANCE OF THE INCOME EARNED BY THE ASSESSEE AND DISCLOSED U/S 132(4) CAN BE TAKEN TWICE, ONCE BY WA Y OF INCOME EARNED BY HIM BY DOING BUSINESS OUTSIDE THE BOOKS O F ACCOUNT AND SECONDLY WHEN THIS INCOME IS INVESTED FOR ACCUMULAT ION OF UNACCOUNTED STOCKS. IT IS ONLY THE UNDISCLOSED INC OME WHICH IS TAXABLE IN THE HANDS OF THE ASSESSEE. THE ASSESSING OFFICER DID NOT FIND FORCE IN THE ABO VE SUBMISSIONS BECAUSE THE DOCUMENTS CONTAINED DETAILS OF SALES OF JEWELLERY WHICH WAS ALSO BUSINESS OF THE ASSESS EE. FURTHER THE ASSESSEE HAD ADMITTED THAT IT USED TO EXPORT DI AMOND JEWELLERY TO CANADA. SHRI SUKHDEV BEDI ALSO BELONG S TO CANADA. THE ASSESSING OFFICER ALSO FOUND NO FORCE IN THE SUBMISSIONS THAT NO SEPARATE ADDITION SHOULD BE MAD E ON ACCOUNT OF PROFIT ON THESE UNDISCLOSED SALES IN VI EW OF THE SURRENDER MADE BY THE ASSESSEE IN THE ABSENCE OF CO -RELATION. ACCORDINGLY HE ADDED THE PROFIT ON ACCOUNT OF THESE UNRECORDED TRANSACTION AMOUNTING TO RS. 4,58,106/-. 12 38 BEFORE THE LD. CIT(A) SIMILAR SUBMISSIONS WERE M ADE AS IN RESPECT OF GROUND 2 AND THE LD. CIT(A) REJECTED TH E SUBMISSIONS ON THE SAME LOGIC AS GIVEN IN RESPECT O F GROUND NO. 2. 39 BEFORE US, THE LD. COUNSEL OF THE ASSESSEE MADE SIMILARLY SUBMISSIONS AS IN RESPECT OF GROUND NO. 2. 40 ON THE OTHER HAND, THE LD. DR FOR THE REVENUE S TRONGLY SUPPORTED THE ORDER OF THE LD. CIT(A). 41 AFTER EXAMINING THE RIVAL SUBMISSIONS WE FIND TH AT THE LD. CIT(A) HAS ADJUDICATED THIS ISSUE VIDE PARA 7.1 WHI CH IS AS UNDER: 7.1 I HAVE CAREFULLY CONSIDERED SUBMISSION OF THE A SSESSEE AND THE IMPUGNED ASSESSMENT ORDER AT PARA 6. SCANNED COPY O F THE SEIZED PAGES 54, 55, 57,58,59,OF A-1 ARE MADE PART OF THE IMPUGN ED ORDER. THE EXPLANATION OFFERED AT THE TIME OF THE ASSESSMENT P ROCEEDINGS WERE REJECTED SINCE AO HELD THAT THE ASSESSEE WAS UNABLE TO ESTABLISH THE NEXUS BETWEEN THE PROFIT ON SALES MADE AS RECORDED ON THESE DOCUMENTS AND INVESTMENT IN THE UNACCOUNTED STOCK. APPLYING T HE GP RATE OF 19.46% ON THE EQUIVALENT FOREIGN EXCHANGE RATE IN I NDIAN RUPEES AS ON THE DATE OF SEARCH AND THE AMOUNT OF RS. 4,58,106/- WAS ADDED BACK. I FIND THAT THE SUBMISSION MADE BEFORE ME IS THE SAME AS IN GROUND OF APPEAL NO. 16. THIS UNACCOUNTED TRANSACTION DETERMI NED BY THE AO CANNOT BE TAKEN UNDER THE UMBRELLA OF THE ADDITIONA L INCOME SURRENDERED UNLESS SUBSTANTIATED BY CO-RELATING THE SALES WITH THE STOCK. THEREFORE FOR REASONS CITED BY THE LD. AO IN ASSESSMENT ORDER , IN THE ABSENCE OF ANY CORROBORATION ON THE PART OF THE ASSESSEE, THE ADDITION IS CONFIRMED. WE FIND NO REASON TO DISTURB HIS FINDINGS IN THE AB SENCE OF ANY CORRELATION BETWEEN UNDISCLOSED SALES AND UNDISCLOS ED STOCK. ACCORDINGLY WE CONFIRM THE ORDER OF THE LD. CIT(A) . 42 GROUND NO. 4 THIS ISSUE IS IDENTICAL TO THE IS SUE RAISED IN GROUND NO. 11 IN ASSESSMENT YEAR 2009-10 IN ITA NO. 1316/CHD/2012. THE FACTS AS WELL AS THE CONTENTION S OF BOTH THE PARTIES ARE IDENTICAL AND THEREFORE, FOLLOWING THAT ORDER WE CONFIRM THE ORDER OF THE LD. CIT(A) IN RESPECT OF THIS ISSUE REGARDING RESTRICTION OF CAR DEPRECIATION TO 15%. 43 GROUND NO. 5 THIS ISSUE IS IDENTICAL TO GROUND NO. 11 FOR ASSESSMENT YEAR 2006-07 IN ITA NO. 1315/CHD/2012. THE FACTS AND CONTENTIONS OF BOTH THE PARTIES ARE IDENTICAL W HICH WAS MADE IN RESPECT OF THAT ORDER AND THEREFORE, FOLLO WING THAT ORDER, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND DIRECT THE AO TO MAKE DISALLOWANCE OF 1/10 TH OF VEHICLE MAINTENANCE. 44 IN THE RESULT, ITA NO. 1317/CHD/2012 IS PARTLY A LLOWED. 13 ITA NO. 81/CHD/2013 REVENUES APPEAL 45 IN THIS APPEAL THE REVENUE HAS RAISED THE FOLLOW ING GROUNDS: 1 WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS FACTS BY DELETING THE ADDITION OF RS. 2,08,35,789/- ON ACCOUNT OF UNEXPL AINED INVESTMENT U/S 69B IN STOCK (GOLD) WHEN THE SAME WA S NOT OBJECTED TO BY THE ASSESSEE IN THE COURSE OF SEARCH . 2 WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION O N ACCOUNT OF EXCESS STOCK (GOLD) BY ACCEPTING THE ARGUMENTS OF M ETHOD OF VALUATION WHILE SIMILAR METHOD VALUATION OF STOCK ( DIAMOND) IS ACCEPTED BY THE ASSESSEE. 46 AFTER HEARING BOTH THE PARTIES WE FIND THAT A SE ARCH WAS CONDUCTED IN THE PREMISES OF THE ASSESSEE. DURING SEARCH SOME INCRIMINATING DOCUMENTS AS WELL EXCESS STOCK A ND CASH WERE FOUND. ULTIMATELY THE ASSESSEE SURRENDERED A SUM OF RS. 6 CRORES FOR ASSESSMENT YEAR 2010-11 IN THE STATEME NT RECORDED U/S 132(4) OF I.T. ACT. THE BREAK UP OF T HE SURRENDER IS AS UNDER: A INCOME SURRENDERED ON ACCOUNT OF EXCESS STOCK OF GOLD AND DIAMOND JEWELLERY RS. 5,75,07,859/- B INCOME SURRENDERED ON ACCOUNT OF EXCESS CASH FOUND FROM THE BUSINESS AS WELL AS RESIDENTIAL PREMISES OF PARTNER OF ASSESSEE FIRM. RS. 16,82,509/- C INCOME SURRENDERED AND UTILIZED BY SHRI ANIL TALWAR BY WITHDRAWING THE SAME FROM FIRM. RS. 8,27,572/- TOTAL INCOME SURRENDERED U/S 132(4) RS. 6,00,18,00 0/- DURING THE ASSESSMENT PROCEEDINGS THE ASSESSING OFF ICER NOTED THAT ON THE DATE OF SEARCH I.E. 24.7.2009 THE TRADING ACCOUNT WAS PREPARED IN RESPECT OF GOLD AND DIAMOND JEWELLERY. THE TRADING ACCOUNT WHICH WAS ACCEPTED BY THE ASSESSEE READS AS UNDER: GOLD JEWELLERY OPENING STOCKS GOLD JEWELLERY 95021303.00 SALES GOLD JEWELLERY 86055394.96 PURCHASES GOLD JEWELLERY 74570901.31 CLOSING STOCKS GOLD JEWELLERY 101049782.39 LABOUR 1162448.00 GROSS PROFIT 19% 16350525.04 TOTAL 187105177.35 TOTAL 187105177.35 DIAMONDS 14 OPENING STOCKS DIAMOND 49837060.00 DIAMOND 21299410.05 PURCHASES DIAMOND 11140830.00 CLOSING STOCKS DIAMOND 43938361.95 GROSS PROFIT 20% 4259882.00 TOTAL 65237772.00 TOTAL 65237772.00 THERE WAS SOME MORE ADJUSTMENT REQUIRED TO BE MADE IN DIAMOND STOCK WHICH HAS BEEN EXTRACTED BY THE ASSE SSING OFFICER AS UNDER: CALCULATION OF S TOCK OF DIAMONDS AS ON 23.7.09 AMOUNT (RS) VALUE OF STOCK AS PER TRADING ACCOUNT PREPARED AT THE TIME OF SEARCH 43938362 LESS: VALUE OF STONES INCLUDED IN ABOVE 248874 (OPENING BALANCE AS ON 1.4.2009) 43689488 ADD: VALUE OF DIAMONDS STUDDED IN PLATINUM JEWELLERY 2910703 (BASED ON TRADING ACCOUNT PREPARED UPTO THE DATE OF SEARCH VALUE OF DIAMOND STOCK AS ON 23.7.2009 AS PER BOOKS RS. 46600191 IT WAS OBSERVED THAT STOCK AS PER TRADING ACCOUNT O N THE DATE OF SEARCH SHOULD HAVE BEEN RS. 14,76,49,973/- AS PE R FOLLOWING DETAIL: GOLD JEWELLERY RS. 101049782/- DIAMONDS RS. 46600191/- ACTUAL TOTAL STOCK FOUND WAS RS. 22,61,93,681/- AS PER FOLLOWING DETAIL: GOLD JEWELLERY RS. 135837,331/- DIAMONDS RS. 90356350/- 47 ACCORDINGLY TO THE ASSESSING OFFICER EXCESS STO CK ON THE DATE OF SEARCH WAS RS. 7,83,43,708 (RS. 22,61,93,68 1 MINUS RS. 14,76,49,973). THEREFORE, THE ASSESSEE WAS AS KED TO EXPLAIN THE DISCREPANCY IN THE SURRENDER AMOUNT AND THE ACTUAL COST. THE ASSESSEE FILED REPLY IN THE LETTER DATED 21.11.2011 WHICH IS AS UNDER: THE DIFFERENCE IN THE STOCK AS CALCULATED BY THE A PPROVED VALUER AND AS SHOWN IN THE BOOKS OF ACCOUNT CAN BE CORRECT LY WORKED OUT ONLY ON THE BASIS OF DIFFERENCE IN THE WEIGHT AS P ER BOOKS AND AS PHYSICALLY FOUND AT THE TIME OF SEARCH. THIS IS SO BECAUSE THE ASSESSEE HAS MAINTAINED DAY TO DAY STOCK IN RESPECT OF 18 CT AND 22 CT GOLD JEWELLERY. 15 MOREOVER, THE APPROVED VALUER HAS VALUED THE STOCK FOUND AT THE TIME OF SEARCH ON THE BASIS OF MARKET VALUE AS ON T HE DATE OF SEARCH WHEREAS THE METHOD OF ACCOUNTING FOLLOWED BY THE ASSESSEE TO VALUE ITS STOCK CONSISTENTLY AND REGULA RLY IS ON THE BASIS OF COST OR MARKET PRICE WHICH EVER IS LESS. THE TRADING ACCOUNT PREPARED AT THE TIME OF SEARCH BY APPLYING THE GP RATE OF THE LAST YEAR ONLY DEPICTS THE VALUE OF THE CLOSING STOCK AT COST AND NOT AT THE MARKET RATE AS HAS BEEN ADOPTED BY T HE APPROVED VALUER. THEREFORE, THE CORRECT AND THE ONLY SCIEN TIFIC METHOD TO CALCULATE THE EXCESS STOCK IS TO THE FIRST FIND OUT THE EXCESS QUANTITY OF STOCK FOUND FROM THE BUSINESS PREMISES OF THE ASSESSEE AND THEN VALUE THE SAME ON THE RATES AS AD OPTED BY THE APPROVED VALUER. IN OTHER WORDS, THE WEIGHT OF THE EXCESS STOCK AS VALUED AT THE MARKET RATE AT THE TIME OF SEARCH WILL GIVE THE CORRECT VALUE OF EXCESS STOCK IN THE HANDS OF THE A SSESSEE. 48 THE ASSESSING OFFICER OBSERVED THAT METHODOLOGY ADOPTED TO ARRIVE AT THE EXCESS STOCK WAS BASED ON THE PREP ARATION OF TRADING ACCOUNT ON THE DETAILS FURNISHED BY THE ASS ESSEE FIRM AND THE PROCESS OF DETERMINING CLOSING STOCK SHOWN IN THE ABOVE TRADING RESULTS AND AS INVENTORISED BY THE DE PARTMENTAL VALAUER IN THE PRESENCE OF ASSESSEE AND THE SAME WA S ACCEPTED BY THE ASSESSEE. THEREFORE, THE EXCESS ST OCK WAS DETERMINED AT RS. 7,83,43,708/- AND AFTER REDUCING THE AMOUNT OF SURRENDER ON ACCOUNT OF EXCESS STOCK AMOUNTING TO RS. 5,75,07,919/-. THE EXCESS UNDISCLOSED STOCK WAS DE TERMINED AT RS. 2,08,35,789/- AND THE SAME WAS ADDED TO THE INCOME OF THE ASSESSEE. 49 ON APPEAL BEFORE THE LD. CIT(A) IT WAS MAINLY SU BMITTED THAT THE ASSESSEE WAS FOLLOWING THE METHOD OF VALUA TION OF CLOSING STOCK AS COST OR MARKET VALUE WHICHEVER IS LOWER, THEREFORE, WHEN THE FIGURE OF UNDISCLOSED STOCK WA S DETERMINED ON THE BASIS OF GP RATE, NATURALLY THE STOCK AS PER PROVISIONAL TRADING ACCOUNT WOULD BE AT COST PRICE . IT WAS POINTED OUT THAT DURING SEARCH STOCK WAS VALUED AT MARKET PRICE. THIS BECOMES FURTHER CLEAR FROM THE FACT THA T IF PHYSICAL QUANTITIES ARE COMPARED NO DIFFERENCE IS THERE. THE LD. CIT(A) FOUND FORCE IN THE SUBMISSIONS AND DELETED THE ADDI TION. 50 BEFORE US, THE LD. COUNSEL OF THE ASSESSEE REITE RATED THE SUBMISSIONS MADE BEFORE THE LD. CIT(A). HE REFERRE D TO PAGE 79 OF THE PAPER BOOK WHICH IS A COPY OF QUESTIONNAI RE ISSUED BY THE ASSESSING OFFICER TO THE ASSESSEE WHICH MENT IONED PHYSICAL QUANTITIES OF THE VARIOUS ITEMS OF STOCK F OUND DURING THE SEARCH. THEN HE REFERRED TO PAGE 112 THROUGH W HICH REPLY WAS GIVEN BY THE ASSESSEE. THE COMPARISON OF THE QUESTIONNAIRE AND THE REPLY WOULD SHOW THAT IN RESP ECT OF 22 16 CARAT GOLD JEWELLERY, EXCESS STOCK WAS 55.000 GMS. SIMILARLY EXCESS STOCK IN RESPECT OF 22 CARAT BULLION WAS 98 97 GMS. IN RESPECT OF 18 CARAT JEWELLERY THERE WAS NO EXCESS S TOCK IN FACT THERE WAS SHORTAGE OF 2.90GMS. THESE EXCESS STOCKS HAVE BEEN VALUED AS PER REGISTERED VALUER AND COMPARISON OF THESE WOULD SHOW THAT THERE IS NO DIFFERENCE. 51 ON THE OTHER HAND, THE LD. DR FOR THE REVENUE S UBMITTED THAT VALUATION OF CLOSING STOCK FOUND DURING SEARCH BY PREPARING THE PROVISIONAL TRADING ACCOUNT IS ALSO O N MARKET VALUE AND THEREFORE, ANALYSE GIVEN BY THE ASSESSEE , IS NOT CORRECT. HE STRONGLY SUPPORTED THE ORDER OF THE AS SESSING OFFICER. 52 WE HAVE HEARD THE RIVAL SUBMISSIONS CAREFULLY . THE LD. CIT(A) HAS DECIDED THE ISSUE VIDE PARA 5.1 WHICH IS AS UNDER: I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE ASSESSEE AND THE IMPUGNED ASSESSMENT ORDER AT PARA 4.1 TO 4.4. THE COPIES OF THE PANCHNAMAS AS WELL AS THE VALUATION REPORT FILE D BY THE ASSESSEE HAVE ALSO BEEN SEEN. IT IS NOT DISPUTED T HAT THE ASSESSEE IS MAINTAINING COMPLETE BOOKS OF ACCOUNT I NCLUDING STOCK RECORD. IT IS ALSO NOT IN DISPUTE THAT THE E XCESS STOCK WORKED OUT AT THE TIME OF THE SEARCH WAS ACCEPTED B Y THE ASSESSEE. HOWEVER THE ISSUE IS THE MANNER OF VALUATION OF THE EXCESS STOCK, AS THE QUANTITATIVE DETAILS OF THE GOLD AND DIAMOND JEWELLERY ARE NOT IN DISPUTE. IT IS THE CASE OF THE AO THAT THE EXCESS STOCK DETERMINED WAS BASED OF TR ADING A/C DRAWN UP ON BASIS OF DETAILS FURNISHED BY THE ASSESSEE AND THAT THE CLOSING STOCK INVENTORIED BY THE DEPARTMENTAL VALUER WAS IN THE PRESENCE OF THE ASSESSEE WHO HAD NO OBJECTION TO THE APPOINTMENT OF THE GOVERNMENT APPR OVED VALUER FOR VALUATION PURPOSE. ON THE OTHER HAND, THE ASSESSEE HAS CONTEN DED THAT HE HAD ONLY ACCEPTED THE APPOINTMENT OF THE GOVERNMENT APPROVED VALUER. IT TRANSPIRES THAT THE TRADING RESULT OF GOLD WAS BASED ON THE GP RATE OF LAST FIN ANCIAL YEAR AT 19.46%, WHEREIN THE STOCK HAD BEEN VALUED AT COST PRICE AS PER METH OD OF ACCOUNTING REGULARLY FOLLOWED WHILE THE VALUER VALUED THE EXCESS STOCK A T MARKET PRICE. THE METHOD OF VALUATION OF THE CLOSING STOCK FOLLOWED WAS STATED TO BE COST OR MARKET WHICHEVER IS LOWER. SO IT WAS SUBMITTED THAT THE EXCESS BE FIRST LY DETERMINED TO WHICH THE VALUE ADOPTED BY THE VALUER COULD BE APPLIED. 1 FIND THAT THE ASSESSMENT ORDER IS SILENT ON THE METHOD OF THE VALUATION OF THE STOCK. THE AL TERNATE PLEA OF THE ASSESSEE IS THAT AT THE YEAR END, THE EXCESS STOCK VALUE WILL G ET SET OFF IN ANY CASE. BE THAT AS IT MAY, I AM INCLINED TO ACCEPT THE ARGU MENTS OF THE ASSESSEE, THAT AS THE VALUE OF THE STOCK FOR THE PURPOSE OF TRADING ACCOU NT HAS BEEN WORKED OUT BY TAKING THE INVENTORY AT COST VALUE, NOT THE MARKET VALUE, SO FOR MAKING A COMPARISON THE VALUE SHOULD BE ARRIVED AT BY THE SAME METHOD. IN O THER WORDS, THE BOOK VALUE OF THE STOCK IS VALUED AT COST WHEREAS THE PHYSICAL STOCK IS VALUED AT MARKET VALUE. NO DOUBT THE DETAILS FOR DRAWING UP THE TRADING ACCOUN T AS ON THE DATE OF SEARCH WAS PROVIDED BY THE ASSESSEE AND THE GP RATE IS ALSO NO T IN DISPUTE. IT IS THEREFORE ONLY FAIR THAT WHEN THE QUANTITATIVE DETAILS ARE NOT IN DISPUTE, THE DIFFERENCE SHOULD BE NECESSARILY WORKED OUT FOLLOWING IDENTICAL SCALE. T HE FACT ALSO REMAINS THAT THE METHOD OF ACCOUNTING REGULARLY FOLLOWED BY THE ASSE SSEE REQUIRES TO BE ADOPTED. IN THIS CASE, THERE IS NO REJECTION OF THE BOOKS OF ACCOUNTS, NOR ANY ADVERSE FINDINGS ON THE SYSTEM OF ACCOUNTING FOLLOWED BY THE ASSESSE E. COMING TO THE ISSUE OF DIFFERENCE IN THE STOCK OF G OLD, THE EXCESS STOCK OF GOLD @ RS.1380 PER GM FOR 22 CT AS WELL AS GOLD BULLION ME LTED AS TAKEN BY THE VALUER, WORKS OUT TO 9952.20 GMS (9897 GMS OF 18 CT AND 55.20 GMS OF 22 CT) WHICH IS THE ACCEPTED DIFFERENCE IN WEIGHT AS PER V ALUATION AND AS PER BOOKS. 17 ASIDE, THE 18 CT GOLD WHERE IN NO DIFFERENCE WAS FO UND (IN FACT THE BOOKS SHOWED 2.904 GM MORE) WAS VALUED BY THE VALUER @ RS.1200 P ER GM. ON THEREFORE APPLYING THE RATE AS DONE BY THE VALUER, THE VALUE COMES TO RS. 13,58,37,331/-. I FIND THAT THE VALUE OF THE GOLD AS PER THE BOOKS OF ACCOUNT H AS BEEN WORKED OUT AT RS. 10,10,49,782/- THE ENSUING DIFFERENCE, THUS, COMES TO RS. 3,47,87,549/~. HOWEVER, ON APPLYING THE COST PRICE TO THE EXCESS GOLD STOCK , THE VALUE COMES TO RS. 1,37,51,760/-. THUS THE DIFFERENCE WHICH HAD BEEN A DDED BY THE LD AO OF RS. 2,08,35,789/- IS THEREFORE FOUND TO BE ARISING DUE TO DIFFERENCE ON ACCOUNT OF VALUATION ONLY AS ASSESSEE HAS VALUED HIS STOCK AT COST WHILE THE VALUER HAS VALUED AT THE MARKET RATE AT THE TIME OF SEARCH. THIS EXC ESS STOCK VALUE THEREOF, OF RS. 1,37,51,760/- IS FOUND TO BE CORRESPONDING TO AMOUN T SURRENDERED BY THE ASSESSEE ON ACCOUNT OF EXCESS STOCK OF GOLD. AS REGARDS THE SURRENDER ON ACCOUNT OF EXCESS ADIA MOND OF RS. 4,37,56,159/- THE SAME IS NOT IN DISPUTE. CONSEQUENTLY THE ASSESSEE DESERVES TO SUCCEED IN T HIS GROUND OF APPEAL. WE FIND THAT THE LD. CIT(A) HAS CORRECTLY ADJUDICAT ED THE ISSUE. IF THE PHYSICAL QUANTITY OF THE STOCK WHICH WERE FO UND DURING SEARCH IS COMPARED WITH THE STOCK RECORDED THEN THE ASSESSEE HAS ALREADY VALUED THE EXCESS STOCK ON THE VALUE WH ICH WAS APPLIED BY THE VALUER. IF THE QUESTIONNAIRE ISSUED BY THE ASSESSING OFFICER (COPY PLACED AT PAGE 79 OF THE PA PER BOOK) WHICH MENTION THE DETAILS MEASUREMENT OF THE TOTAL STOCK WHICH IS AS UNDER: SL. NO. DESCRIPTION OF ITEMS WEIGHT AS PER VALUATION REPORT WEIGHT AS PER BOOKS VALUE (IN RS.) AS PER VALUATION REPORT VALUE (IN RS.) AS PER BOOKS 1. 22 CARAT GOLD JEWELLERY 53353.200 53298 GMS 7,36,27,416 2. GOLD BULLION 22 CARAT 10250.000 353 GMS 1,41,45,000 3. 18 CARAT GOLD JEWELLERY 34024.096 34027 GMS 4,08,28,915 4. LABOUR CHARGES 22 CARAT GOLD 21,35,000 5. LABOUR CHARGES 18 CARAT GOLD 51,00,000 10,10,49,782 6. STONES 5,00,000 7. DIAMONDS 7715.66 CENTS 9,03,56,350 4,66,00,191 TOTAL 22,66,93,681 14,76,49,973 IF THE ABOVE DETAILS ARE COMPARED WITH REPLY GIVEN BY THE ASSESSEE ON 20.11.2011 WHERE THE FOLLOWING WORKING HAS BEEN GIVEN: A EXCESS STOCK OF 22 CARAT GOLD JEWELLERY WEIGHT AS PER VALUATION REPORT 53353.000 GMS WEIGHT AS PER BOOKS 53298.000 GMS EXCESS STOCK 55.000 GMS VALUE OF EXCESS STOCK OF 22 CT GOLD JEWELLERY 18 @ RS. 1380 PER GRAM AS ADOPTED BY REGISTERED VALUER RS. 75900.00 B. GOLD BULLION 22 CARAT WEIGHT AS PER VALUATION REPORT 10250.000 GMS WEIGHT AS PER BOOKS 353.000 GMS EXCESS STOCK 9897.00 GMS VALUE OF EXCESS STOCK OF 22 CT GOLD BULLION @RS. 1380 PER GRAM AS ADOPTED BY REGISTERED VALUER RS. 1,36,57,860.00 C. 18 CT GOLD GEWELLERY 34024.096 GMS WEIGHT AS PER VALUATION REPORT 34024.096 GMS WIGHT AS PER BOOKS 34027.000 GMS EXCESS STOCK (-)2.904 GMS EXCESS STOCK NIL TOTAL EXCESS STOCK OF GOLD AND GOLD JEWELLERY FOUN D SURRENDERED BY THE ASSESSEE U/S 132(4) RS. 1,37, 51,760.00 THE ABOVE CLEARLY SHOW THAT THE ASSESSEE HAS MADE S URRENDER OF THE EXACTLY SAME QUANTITY WHICH WAS FOUND IN EXC ESS AND WHICH WERE ADMITTED BY THE REVENUE VIDE LETTER DATE D 23.9.2011 (COPY PLACED AT PAGE 79 OF PAPER BOOK). FURTHER VALUE HAS BEEN APPLIED AS PER VALUE RATE APPLIED BY THE VALUER. THE ASSESSEE HAS GIVEN FOLLOWING WORKING OF THE TOT AL AMOUNT OF SURRENDER IN THE LETTER DATED 21.11.2011 WHICH IS AS UNDER: THE DETAILS OF THE INCOME SURRENDERED BY THE ASSESS EE U/S 132(4) IS AS UNDER:- A. INCOME SURRENDERED ON ACCOUNT OF EXCESS STOCK OF GOLD JEWELLERY RS. 1,37,51,760.00 B. INCOME SURRENDERED ON ACCOUNT OF EXCESS STOCK OF DIAMOND RS. 4,37,56,159.00 C. INCOME SURRENDERED ON ACCOUNT OF EXCESS CASH FOUND FROM THE BUSINESS AS WELL AS RESIDENTIAL PREMISES OF PARTNERS OF ASSESSEE FIRM RS. 16,82,509.00 D. INCOME SURRENDERED AND UTILISED BY SH. ANIL TALWAR BY WITHDRAWING THE SAME FROM FIRM RS. 8,27 ,572.00 TOTAL INCOME SURRENDERED U/S 132(4) RS. 6,00,00,0 00.00 THE ABOVE MATCHES WITH THE SURRENDER OF RS. 6 CRORE S MADE BY THE ASSESSEE DURING SEARCH U/S 132(4). THEREFORE, THERE IS NO DIFFERENCE IN THE STOCK FOUND DURING THE SEARCH AND THE AMOUNT OF SURRENDER MADE BY THE ASSESSEE. IN THESE CIRCUM STANCES WE FIND NOTHING WRONG WITH THE ORDER OF THE LD. CIT(A) AND CONFIRM THE SAME. 19 53 IN THE RESULT, APPEAL OF THE REVENUE IN ITA NO. 81/CHD/2013 IS DISMISSED. 54 IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED AND APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.9.2013 SD/- SD/- (SUSHMA CHOWLA) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 30.9.2013 SURESH COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT/THE C IT(A)/THE DR