Jatinder Kumar Prop. Sulekh Chand Sham Lal, MANSA V. The Income Tax Officer, MANSA

ITA 157/ASR/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4554 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 25-04-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 14-03-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S S NEGI
• Assessee Lawyers: J K GUPTA ADV
• Section: 143(3); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N. K. CHOUDHRY, JUDICIAL MEMBER I.T.A. NO. 157/(ASR)/2016 AS SESSMENT YEAR: 2011-12 JATINDER KUMAR, PROP. SULEKH CHAND SHAM LAL, GRAIN MARKET, MANSA [PAN: ABHPG 6210C] VS. ITO, WARD 1 (4), MANSA (APPELLANT) (RESPONDENT) APPELLANT BY : SH. J. K. GUPTA, ADV. (A.R.) RESPONDENT BY: SH. S. S. NEGI, ADDL. CIT (D.R. ) DATE OF HEARING: 25.04.2018 DATE OF PRONOUNCEMENT: 24.05.2018 ORDER PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE ASSESSEE AGITATING THE ORD ER BY THE COMMISSIONER OF INCOME TAX (APPEALS), BATHINDA ('CIT(A)' FOR SHO RT) DATED 15.01.2016, PARTLY ALLOWING THE ASSESSEES APPEAL CONTESTING ITS ASSES SMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 ('THE ACT' HEREINAFTER) DA TED 28.03.2013 FOR THE ASSESSMENT YEAR (AY) 2011-12. 2. AT THE VERY OUTSET, THE LD. AUTHORIZED REPRESENT ATIVE (AR), THE ASSESSEES COUNSEL, WOULD SUBMIT THAT WHILE THE LD. CIT(A) HAS PASSED A VERY REASONABLE ORDER, ALLOWING THE ASSESSEE SUBSTANTIAL RELIEF, HE HAS NOT ACCEPTED THE ASSESSEES CLAIM THAT THE KAGZI REGISTER IMPOUNDED FROM THE AS SESSEES BUSINESS PREMISES (ON 12.09.2012) DURING SURVEY PROCEEDINGS U/S. 133A, DO ES NOT BELONG TO THE BUSINESS ITA NO. 157(ASR)/2016(AY 2011-12) JATINDER KUMAR V. ITO 2 OF THE ASSESSEE. THE SAME HAS BEEN PLANTED, EVEN AS SUBMITTED BEFORE THE LD. CIT(A). IN FACT, THAT IS THE ONLY BOOK/REGISTER, AM ONG SEVERAL, SIMILARLY IMPOUNDED, ENTRIES IN WHICH DID NOT AGREE WITH THE ASSESSEES BOOKS OF ACCOUNT, AND ON THE BASIS OF WHICH THEREFORE ADDITION HAS BEEN MADE IN THE INSTANT CASE. AS SUCH, ACCEPTING THE ASSESSEES THIS CONTENTION WOULD REMO VE THE VERY BASIS OF ADDITION EFFECTED IN ASSESSMENT. IN FACT, THE TRIBUNAL HAD F OR EARLIER YEARS, ACCEPTING SIMILAR CONTENTION, ALLOWED RELIEF TO THE ASSESSEE. ON BEIN G ASKED TO STATE THE BASIS ON WHICH THE ASSESSEE CLAIMS THAT THE KAGZI REGISTER I MPOUNDED FROM HIS BUSINESS PREMISES DID NOT BELONG TO HIM AND, ON THE CONTRARY , IS A PLANT OF A FABRICATED REGISTER BY THE REVENUE - A CLAIM WHICH THE LD. CIT (A) STATES TO BE AN ALLEGATION WITHOUT ANY BASIS, HE PRODUCED THE COPY OF THE ORDE R U/S. 133A(3)(IA) OF THE ACT PREPARED AT THE CONCLUSION OF THE SURVEY (COPY ON R ECORD). THE SAME, LISTING THE SEVERAL DOCUMENTS IMPOUNDED DURING SURVEY, CONTAINS THE ENTRY IN RESPECT OF THE KAGZI REGISTER AS SERIAL NO. 6, WHICH READS AS UNDE R: 6. ONE REGISTER MARKED KAGZI (WRITTEN PAGES 1 TO 19) THE SAME CLEARLY NOTES THE SAID REGISTER TO BEAR 19 PAGES, WHILE THE KAGZI REGISTER SUPPLIED BY THE REVENUE TO THE ASSESSEE SUBSEQUENTL Y, ON BEING REQUESTED FOR, CONTAINS AS MANY AS 39 PAGES. THE SAID REGISTER IS PLACED AS PART OF THE PAPER-BOOK. 3. WE HAVE HEARD THE PARTIES, AND GIVEN OUR CAREFUL CONSIDERATION TO THE MATTER. 3.1 SECTION 292C OF THE ACT, READING AS UNDER, RAIS ES A PRESUMPTION, OF COURSE REBUTTABLE, AS TO THE OWNERSHIP OF THE DOCUMENT FOU ND DURING SURVEY OR SEARCH, AS WELL AS THE TRUTH OF ITS CONTENTS: PRESUMPTION AS TO ASSETS, BOOKS OF ACCOUNT, ETC. 292C. (1) WHERE ANY BOOKS OF ACCOUNT, OTHER DOCUMENTS, MO NEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING ARE OR IS FOUND IN THE PO SSESSION OR CONTROL OF ANY PERSON IN THE ITA NO. 157(ASR)/2016(AY 2011-12) JATINDER KUMAR V. ITO 3 COURSE OF A SEARCH UNDER SECTION 132 OR SURVEY UNDE R SECTION 133A, IT MAY, IN ANY PROCEEDING UNDER THIS ACT, BE PRESUMED (I) THAT SUCH BOOKS OF ACCOUNT, OTHER DOCUMENTS, MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING BELONG OR BELONGS TO SUCH PERSON; (II) THAT THE CONTENTS OF SUCH BOOKS OF ACCOUNT AND OTHE R DOCUMENTS ARE TRUE; AND (III) THAT THE SIGNATURE AND EVERY OTHER PART OF SUCH BOO KS OF ACCOUNT AND OTHER DOCUMENTS WHICH PURPORT TO BE IN THE HANDWRITING OF ANY PARTICULAR PERSON OR WHICH MAY REASONABLY BE ASSUMED TO HAVE BEEN SIGNED BY, OR TO BE IN THE HANDWRITING OF, ANY PARTICULAR PERSON, ARE IN THAT PERSONS HANDWRITING, AND IN THE CASE OF A DOCUMENT STAMPED, EXECUTED OR ATTESTED, T HAT IT WAS DULY STAMPED AND EXECUTED OR ATTESTED BY THE PERSON BY WHOM IT PURPO RTS TO HAVE BEEN SO EXECUTED OR ATTESTED. (2) WHERE ANY BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ASSETS HAVE BEEN DELIVERED TO THE REQUISITIONING OFFICER IN ACCORDANCE WITH THE PROVI SIONS OF SECTION 132A, THEN, THE PROVISIONS OF SUB-SECTION (1) SHALL APPLY AS IF SUCH BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ASSETS WHICH HAD BEEN TAKEN INTO CUSTODY FROM THE PERSON REFERRE D TO IN CLAUSE (A) OR CLAUSE (B) OR CLAUSE (C), AS THE CASE MAY BE, OF SUB-SECTION (1) OF SECT ION 132A, HAD BEEN FOUND IN THE POSSESSION OR CONTROL OF THAT PERSON IN THE COURSE OF A SEARCH UNDER SECTION 132. 3.2 THE BASIS OF THE ASSESSEES REBUTTAL IS THE DIF FERENCE IN THE NUMBER OF PAGES IN THE REGISTER IMPOUNDED AND THAT SUPPLIED SUBSEQUENTLY TO HIM BY THE REVENUE. THE SAME CONTAINS THE ASSESSEES SIGNATURE AT PAGES 1 AND 37 (AT PB PGS. 11 & 45), AFFIXED AT THE TIME OF ITS RECEIPT FROM THE REVENUE . IN THIS REGARD, FIRSTLY, THE CHARGE OF PLANTING A REGISTER IS A VERY SERIOUS CHARGE, WHICH, TO BE ADMITTED, IS TO BE IN THE LEAST SUPPORTED BY AN AFFIDAVIT. TWO, IF INDEED IT WAS, AS ALLEGED, WHY WOULD THE REVENUE, EVEN AS QUERIED DURING THE COURSE OF H EARING, DEFEAT ITS OWN CAUSE BY SUPPLYING A REGISTER CONTAINING A DIFFERENT NUMBER OF PAGES? IT COULD EASILY FABRICATE - AS ALLEGED, A REGISTER CONTAINING 19 PA GES ONLY. FURTHER, WHY DID NOT THE ASSESSEE DISCLAIM THE REGISTER AT THE TIME OF ITS R ECEIPT? THIS, RATHER, WOULD BE THE ITA NO. 157(ASR)/2016(AY 2011-12) JATINDER KUMAR V. ITO 4 FIRST THING THAT A PERSON WOULD STATE, I.E., THAT T HE DOCUMENT BEING SUPPLIED IS NOT THE ONE THAT WAS RECOVERED AND IMPOUNDED FROM ITS P REMISES. NOT ONLY THE ASSESSEE ACCEPTED THE SAME WITHOUT DEMUR, HE - THE REGISTER CONTAINING DETAILS OF PURCHASES AND SALES NOT RECORDED IN HIS REGULAR BOOKS OF ACCO UNT, ON BEING CONFRONTED THEREWITH IN THE ASSESSMENT PROCEEDINGS, PLEADED FO R AN ADDITION BEING MADE ON PEAK BASIS IN-AS-MUCH AS IT IS THE SAME CAPITAL THA T CIRCULATES - THE FUNDS INVESTED IN PURCHASE BEING RECOUPED ON SALE OF THE GOODS. THIS (ARGUMENT) IS, IN FACT, ITSELF A TACIT ADMISSION OF THE REGISTER BELONGING TO THE AS SESSEE. IT IS ONLY IN THE APPELLATE PROCEEDINGS THAT THE ASSESSEE RAISED THIS ISSUE FOR THE FIRST TIME. THE SAME, IN OUR VIEW, HAS THUS BEEN RIGHTLY REJECTED BY THE LD. CIT (A); THE ASSESSEE HAVING FAILED TO REBUT THE STATUTORY PRESUMPTION U/S. 292C, WITH HIS CONDUCT IN FACT POINTING TO THE CONTRARY. AS IT APPEARS, THERE HAS OCCURRED AN ERRO R IN RECORDING THE NUMBER OF PAGES OF THE KAGZI REGISTER, I.E., AT 39 INSTEAD OF 19 IN THE ORDER U/S.133A(3)(IA). THE DECISION BY THE TRIBUNAL FOR THE EARLIER YEARS IS NOT APPLICABLE IN-AS-MUCH AS THE MATERIAL IMPOUNDED FOR THOSE YEARS WAS NOT RECOVERE D FROM THE ASSESSEES BUSINESS PREMISES, BUT FROM THAT OF ANOTHER. IN FACT, FOR TH OSE YEARS, AS DISCUSSED BY THE LD. CIT(A) (AT PARA 2/PAGES 3-4 OF HIS ORDER), THE ASSE SSMENTS WERE REOPENED ON THE BASIS OF THE INFORMATION IN THE POSSESSION OF THE R EVENUE THROUGH COMPLAINTS BY ONE OF THE ASSESSEES EX-EMPLOYEES. THE MATTER, IT MAY BE NOTED, IS PURELY FACTUAL. 3.3 ON THE MERITS OF THE ADDITION MADE, AS ADMITTED BY THE LD. AR (AND PRAYED FOR PER GROUND NO. 4), THERE IS NO SCOPE FOR BEING ALLOWED TELESCOPING BENEFIT QUA THE SAID ADDITION AGAINST INCOME ASSESSED FOR THE E ARLIER YEAR/S IN-AS-MUCH AS THE SAME STANDS SINCE DELETED. WE, ALSO, FOR THE SAME R EASONS AS FOUND FAVOUR WITH THE LD. CIT(A), FIND NO REASON FOR ANY INTERFERENCE WIT H THE IMPUGNED ORDER; THE LD. CIT(A) HAVING BEEN EXTREMELY FAIR IN HIS ASSESSMENT , I.E., BOTH OF THE PROFIT RATE AS ITA NO. 157(ASR)/2016(AY 2011-12) JATINDER KUMAR V. ITO 5 WELL AS OF THE UNDISCLOSED CAPITAL EMPLOYED IN UNAC COUNTED PURCHASES. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON MAY 24, 2018 SD/- SD/- (N. K. CHOUDHRY) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 24.05.2018 /GP/SR. PS. COPY OF THE ORDER FORWARDED TO: (1) THE APPELLANT: JATINDER KUMAR, PROP. SULEKH CHAND S HAM LAL, GRAIN MARKET, MANSA (2) THE RESPONDENT: ITO, WARD 1 (4), MANSA (3) THE CIT(APPEALS), BATHINDA (4) THE CIT CONCERNED (5) THE SR. DR, I.T.A.T TRUE COPY BY ORDER