Arun Gupta, Hyderabad V. ACIT, Circle -6(1), Hyderabad

ITA 1522/HYD/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1412 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 08-10-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D SUDHAKARA RAO
• Assessee Lawyers: A V RAGHURAM
• Keywords: Search and seizure
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SMT. ASHA VIJAYARAGHAVAN, J.M. AND SHRI B.R.BASKARAN, A.M. ITA NO.1519/HYD/2012 : ASSESSMENT YEAR 2 003-04 ITA NO.1520/HYD/2012 : ASSESSMENT YEAR 2 004-05 ITA NO.1521/HYD/2012 : ASSESSMENT YEAR 2 005-06 ITA NO.1522/HYD/2012 : ASSESSMENT YEAR 2 006-07 ITA NO.1523/HYD/2012 : ASSESSMENT YEAR 2 007-08 SHRI ARUN GUPTA, HYDERABAD ( PAN - ACWPG 9807 B ) V/S. ASSTT COMMISSIONER OF INCOME - TAX CIRCLE 6(1), HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY : S HRI A.V.RAGHURAM RESPONDENT BY : S HRI D.SUDHAKARA RAO, CIT - DR DATE OF HEARING 27.12 .2012 DATE OF PRONOUNCEMENT 04.01.2013 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED THESE APPEALS CHALLENGING THE ORDERS PASSED BY LEARNED CIT(A)-IV, HYDERABAD AND THEY RELATE TO THE ASSESSMENT YEARS 2003- 04 TO 2007-08. THE SOLITARY AND IDENTICAL ISSUE URGED IN ALL THESE APPEALS RELATE TO THE ADDITION OF RS.40,000/- MADE IN ALL THE YEAR S TOWARDS LOW WITHDRAWALS MADE FOR DOMESTIC EXPENSES. ACCORDINGLY, ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE FACTS RELATING THERETO ARE STATED IN BRIEF . THE ASSESSEE WAS SUBJECTED TO SEARCH AND SEIZURE OPERATION BY THE DE PARTMENT ON 14.12.207 AND CONSEQUENT THERETO, THE ASSESSMENTS OF THE YEARS UN DER CONSIDERATION WERE ITA NO.1519/HYD/2012 & 4 ORS SHRI ARUN GUPTA, HYDERABAD 2 COMPLETED U/S 153A OF THE ACT. WHILE COMPLETING TH E ASSESSMENT, THE ASSESSING OFFICER VERIFIED THE DETAILS OF WITHDRAWALS MADE BY THE ASSESSEE FOR DOMESTIC EXPENSES AND HE CONSIDERED IT TO BE LOW FOR A FAMIL Y CONSISTING OF FOUR MEMBERS. ACCORDINGLY HE ADDED A SUM OF RS.40,000/- IN EACH O F THE YEARS TOWARDS LOW WITHDRAWALS. THOUGH THE ASSESSEE CHALLENGED THE SA ID ADDITIONS BY FILING APPEAL BEFORE LEARNED CIT(A), HE COULD NOT SUCCEED. HENCE THE ASSESSEE HAS COME ON APPEAL BEFORE US FOR ALL THE YEARS REFERRED SUPRA. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE DEPARTMENT DID NOT UNEARTH ANY INCRIMINATING MATERIAL TO PROVE THAT THE WITHDRAWALS MADE BY THE ASSESSEE WAS NOT SUFFICIENT TO MEET THE DOMESTI C EXPENSES. ACCORDINGLY, BY PLACING RELIANCE ON THE DECISION DATED 17-6-2011 RE NDERED BY DELHI SPECIAL BENCH OF ITAT IN THE CASE OF ALL CARGO GLOBAL LOGISTICS L TD, THE LD COUNSEL FOR THE ASSESSEE CONTENDED THAT THE ESTIMATED ADDITIONS MAD E WITHOUT THE SUPPORT OF ANY OF THE SEIZED MATERIALS IS NOT SUSTAINABLE. IN THE ALTERNATIVE, THE LD A.R SUBMITTED THAT THE WITHDRAWALS MADE BY THE ASSESSEE AND HIS F AMILY MEMBERS WAS SUFFICIENT TO COVER UP DOMESTIC EXPENSES AND ACCORDINGLY CONTE NDED THAT THERE IS NO REQUIREMENT TO MAKE ANY ADDITION ON MERITS ALSO. 4. ON THE CONTRARY, THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE LEARNED CIT(A) HAS DULY CONSIDE RED THE ARGUMENTS OF THE ASSESSEE WITH REGARD TO THE WITHDRAWALS MADE BY THE ASSESSEE AS WELL AS HIS FAMILY MEMBERS AND ACCORDINGLY REACHED THE CONCLUSI ON THAT THE ASSESSING OFFICER WAS RIGHT IN MAKING ADDITION TOWARDS LOW WITHDRAWAL S. HE FURTHER SUBMITTED THAT THE RATIO OF SPECIAL BENCH DECISION REFERRED ABOVE SHALL NOT STRICTLY APPLY TO THE IMPUGNED ADDITION. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND C AREFULLY PERUSED THE RECORD. WE NOTICE THAT THE SPECIAL BENCH, IN THE C ASE OF ALL CARGO GLOBAL LOGISTICS LTD (SUPRA), HAS GIVEN IMPORTANCE TO THE SEIZED MAT ERIALS WITH REGARD TO THE ITA NO.1519/HYD/2012 & 4 ORS SHRI ARUN GUPTA, HYDERABAD 3 COMPLETED ASSESSMENTS, WHEREAS IN THE INSTANT CAS E, THE ADDITIONS TOWARDS LOW WITHDRAWALS HAVE BEEN MADE BOTH IN PENDING ASSESSME NTS AND COMPLETED ASSESSMENTS. HENCE, THE QUESTION WHETHER THE RATI O OF SPECIAL BENCH DECISION (REFERRED SUPRA) SHALL APPLY TO THE FACTS OF INSTAN T CASE IS A DEBATABLE ONE. ON MERITS, WE FIND THAT THE TAX AUTHORITIES HAVE ESTIM ATED THE AMOUNT OF ADDITION, UNIFORMLY AT RS.40,000/- IN ALL THE YEARS. AS CONT ENDED BY THE LEARNED AUTHORISED REPRESENTATIVE , THE TAX AUTHORITIES HAVE NOT GIVEN ANY BASIS FOR ARRIVING AT THE FIGURE OF RS.40,000/-. BOTH THE ASSESSING OFFICER AND THE LEARNED CIT(A) HAVE TABULATED THE WITHDRAWALS MADE BY THE ASSESSEE AND HIS FAMILY MEMBERS AND WE NOTICE THAT THERE IS SOME DIFFERENCE IN EACH OF THE TABULATION. AT THE SAME TIME, THE ASSESSEE ALSO COULD NOT BRING ANY MATERIAL ON R ECORD TO SHOW THAT THE WITHDRAWALS MADE BY HIM AND HIS FAMILY MEMBERS ARE SUFFICIENT TO MEET THE DOMESTIC EXPENSES. UNDER THESE CIRCUMSTANCES, WE A RE ALSO CONSTRAINED TO MAKE AN ESTIMATE OF ADDITION TOWARDS LOW WITHDRAWALS IN ORDER TO PUT THE DISPUTE IN REST. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO RESTRICT THE ADDITION TO RS.20,000/-, I.E., 50% OF THE ADDITIONS MADE BY THE ASSESSING OFFICER AND IN OUR VIEW IT WOULD MEET THE ENDS OF JUSTICE. WE ORDER A CCORDINGLY. 6. IN THE RESULT, ALL THE APPEALS OF THE ASSE SSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 04.01.2013 SD/- SD/- ( ASHA VIJAYARAGHAVAN ) ( B,R.BASKARAN ) JUDICIAL MEMBER ACCOUTNANT MEMBER DATED/- 04 TH JANUARY, 2013 COPY FORWARDED TO: 1. SHRI ARUN GUPTA, A - 108 JOURNALIST COLONY, JUBILEE HILLS, HYDERABAD 2. ASSTT. COMMISSIONER OF INCOME-TAX CIRCLE 6(1), H YDERABAD ITA NO.1519/HYD/2012 & 4 ORS SHRI ARUN GUPTA, HYDERABAD 4 3. 4 5. COMMISSIONER OF INCOME - TAX (APPEALS) - IV, HYDERABAD COMMISSIONER OF INCOME-TAX III, HYDERABAD DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S.