Shri Dharmesh Kanjibhai Damania, Nani Daman V. The Income Tax Officer, Vapi Ward-4, Daman

ITA 1525/AHD/2015

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2510 (ITAT-SURAT)
• Duration Of Justice: 6 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 23-01-2022
• Assessment Year: 2010-2011
• Appeal Filed On: 27-05-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANUPMA SINGLA
• Keywords: Retraction
• Section: 143(3); 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA No.1525/AHD/2015 (AY 2010-11) (Hearing in Virtual Court) Dharmesh Kanjibhai Damania, Prop. Raj Wines, Sea face Road, Nani Daman – 396210. PAN: ABIPD 1579 N Vs The Income Tax Officer, Ward-4, Valsad. Appellant/ Revenue Respondent/ Assessee Assessee by None. Revenue by Ms. Anupma Singla – Sr. DR Date of hearing 24/01/2022 Date of pronouncement 24/01/2022 Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the Assessee is directed against order of ld. Commissioner of Income Tax (Appeals)-Valsad dated 27.03.2015 for the A.Y. 2010-11. Initially, this appeal was adjudicated vide order dated 28.08.2017. The order dated 28.08.2021 was recalled in Miscellaneous Application (MA) No.05/2018 vide order dated 08.01.2021. While recalling the order, the hearing of appeal was fixed on 17.02.2021. The next date of hearing the appeal was communicated to the Shri Sapnesh Sheth – CA/ ld. Authorised Representative (ld.AR) of the assessee. 2. When the matter was fixed for hearing afresh, the ld.AR of the assessee sought adjournment on two occasions. However, vide application dated ITA No.1525/AHD/2015 (AY 2010-11) DharmeshKanjibhaiDamania 2 08.04.2021, the ld.AR of the assessee informed that assessee and his local Counsel is not providing any details despite follow-ups and sought withdrawal of his authority. On filing such application, the ld AR was directed to inform the assessee about withdrawal of his authority. The ld AR filed copy of his letter dated 08.04.2021, sent through courier to the assessee intimating the date of hearing. On receiving such application, the assessee was again served with fresh notice of hearing of more than three occasions through Postal RPAD. Despite the service of notice of hearing of appeal through Postal RPAD, neither the assessee appeared, nor is any application for seeking adjournment is filed. Therefore, we left no option except to decide the appeal on the basis of material available on record. The assessee has raised following grounds of appeal: “1. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Appeals) has erred in confirming the action of assessing officer in making addition of Rs.24,00,000/- on the basis of disclosure made by assessee in the statement recorded at the time of survey although said statement has been retracted by assessee. 2. It is therefore prayed that above addition made by assessing officer and confirmed by Commissioner of Income-tax (Appeals) may please be deleted.” 3. Brief facts of the case are that assessee is proprietor of Raj Wines, filed his return of income for the A.Y. 2010-11 declaring income of Rs.31,68,669/- on 14.01.2010. The case was selected for scrutiny and assessment was completed under section 143(3) on 01.03.2013. The AO during assessment ITA No.1525/AHD/2015 (AY 2010-11) DharmeshKanjibhaiDamania 3 proceedings recorded that a survey under section 133A was conducted in case of assessee on 25.08.2009. During the survey, the assessee admitted unaccounted income of Rs.51 lakhs. However, while filing the return of income, the assessee included only Rs.27 lakhs out of total discloser of Rs. 51 lakhs declared in the course of survey. The assessee was issued show cause notice as to why different of Rs.24 lakhs (Rs. 51 lakhs – Rs.27 lakhs) should not be added to the income of assessee. The AO recorded that no reply was filed by assessee, however, the assessee filed an affidavit on 12.10.2009, wherein the assessee contended that at the time of survey he was under pressure and could not give correct figures to the official of Income Tax Department and realised that only amount of Rs.27 lakhs was not (accounted) shown in the books of accounts. The contention of assessee was not accepted by the AO by taking view that substantial incriminating documents were found at the item of survey having discrepancies and assessee voluntarily made disclosure of Rs.51 lakhs. Thus, AO made addition of Rs.24 lakhs. 4. On appeal before the ld. CIT(A), the assessee filed its detailed submissions. The submission of assessee is recorded in para 5 of the order of ld. CIT(A). In the written submission, the assessee submitted that during the survey, the assessee was under pressure and could not give correct figure to the officer. ITA No.1525/AHD/2015 (AY 2010-11) DharmeshKanjibhaiDamania 4 The assessee immediately filed affidavit retracting the statement. The assessee checked his accounts and found that only Rs.27 lakhs is not shown in the books of accounts and accordingly, assessee offered Rs.27 lakhs in the return of income. The AO made addition of Rs.24 lakhs on account of difference amount of disclosure made in the course of survey. The assessee further stated that addition is made solely on the basis of statement recorded during the course of survey. During the assessment, the AO failed to mention any evidence on record, found during the survey for making addition against the assessee. The assessee also relied upon certain case laws. The ld.CIT(A) after considering the submission of the assessee held that in case of assessee, the disclosure was related with the material found the during the course of survey. The assessee has no case for retraction and dismissed the appeal of assessee. Further aggrieved, the assesse has filed the present appeal before this Tribunal. 5. As recorded above, none appeared on behalf of the assessee, despite the service of notice on more than three occasions through RPAD. Therefore, we are left with no option, except to decide the appeal on the basis of material available on record and on hearing submission of ld.Sr.DR for the Revenue. ITA No.1525/AHD/2015 (AY 2010-11) DharmeshKanjibhaiDamania 5 6. The ld. Sr. DR for the Revenue supported the order of lower authorities. The ld. Sr. DR for the revenue submits that during the course of survey, the assessee voluntarily offered undisclosed income of Rs.51 lakhs. The disclosure were corroborated by incriminating evidence. The assessee made disclosure only on the basis of incriminating evidence. The assessee has not filed even a single document despite the fact that appeal is pending for about more than six years. The assessee neither substantiated its contention before the AO or before the ld. CIT(A). The ld. Sr. DR for the revenue prayed for dismissal of the appeal. 7. We have considered the submission of ld.Sr.DR for the Revenue and perused the order of Lower Authorities. We have also considered the submission made before the ld.CIT(A) as recorded in para 5 of his order. There is no dispute that a survey action was carried out on the business premises of assessee on 25.08.2009. There is no further dispute that during survey, the assessee made disclosure additional income of Rs.51 lakhs. We find that while filing return of income, the assessee offered only Rs.27 lakhs out of Rs.51 lakhs disclosed during the survey. The AO made addition on difference of Rs.24 lakhs while passing the assessment order. Before the ld.CIT(A), the assessee contended that he has retracted from the statement recorded by the survey party by filing affidavit. We find that neither the ITA No.1525/AHD/2015 (AY 2010-11) DharmeshKanjibhaiDamania 6 copy of retracting the statement nor any documents to substantiate the grounds of appeal is filed before us. In absence of any documentary evidence or any contrary submissions, we find merit in the submissions of the ld SR DR for the revenue the assessee neither substantiated its contention nor before ld CIT(A). In view of the above factual discussions, we find no reason to deviate from the finding of ld. CIT(A) which we affirm. 8. In the result, appeal of the assessee is dismissed. Order announced on 24 th January, 2022 while hearing in the virtual hearing in open court. Sd/- Sd/- (Dr ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat, Dated: 24 /01/2022 /SGR* Copy to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR 6. Guard File By order / / TRUE COPY / / Sr. Pvt. Secretary, ITAT, Surat