ACIT, UDAIPUR V. M/s. Mumal Marbles Ltd., UDAIPUR

ITA 16/JODH/2003

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54350 (ITAT-JODHPUR)
• Duration Of Justice: 8 year(s) 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 28-11-2011
• Assessment Year: 1994-1995
• Appeal Filed On: 17-01-2003
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R KOKANI
• Assessee Lawyers: SURESH GANG; ADITYA GANG

Judgement Text

1 ITA 16-03 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH JODHPUR. ( BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ) ITA NO. 16/JODH/2003 ASSTT. YEAR : 1994-95. THE ACIT, CIRCLE-2, VS. M/S. MUMAL MARBLES LTD. , UDAIPUR. NH-8, VILLAGE AMBERI, UDAIPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI G.R. KOKANI RESPONDENT BY : SHRI SURESH GANG & SH RI ADITYA GANG DATE OF HEARING : 28.11.2011. DATE OF PRONOUNCEMENT : 30.11.2011. ORDER DATED : 30.11.2011. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY DEPARTMENT AGAINST THE ORDER OR LD. CIT (A) RELATING TO ASSESSMENT YEAR 1994-95. 2. FIRST GROUND IS AGAINST DELETING THE ADDITION OF RS. 23,610/- REPRESENTING UNACCOUNTED PAYMENT. 3. THE ASSESSING OFFICER MADE ADDITION OF RS. 23,61 0/- ON THE BASIS OF NOTING RECORDED AT PAGE 2 OF ANNEXURE A-1/2. THE ASSESSIN G OFFICER MADE THIS ADDITION BY OBSERVING THAT IN THE PAPER FOUND IT HAS BEEN WRITT EN THAT MATERIAL HAS BEEN RECEIVED BY CONCERNED PERSON ON 12.8.1993. THE CONTENTION OF T HE ASSESSEE THAT THE ASSESSEE COMPANY GOT COMPLETED CERTAIN JOB WORK FROM M/S. SH EETAL MARBLE, UDAIPUR AS PER CHALLAN DATED 5.8.1993 AND SINCE THE BILL FROM THE CONCERNED PARTY WAS NOT RECEIVED BY 2 THE DATE OF SEARCH, NO ENTRY WAS MADE IN THE BOOKS OF ACCOUNT. IT WAS POINTED OUT THAT LATER ON M/S. SHEETAL MARBLES ISSUED INVOICE BEARIN G NO. 125 DATED 31.12.93 FOR RS. 23,610/- AND ON THIS BASIS THE PAYMENT WAS MADE BY CHEQUE DATED 9.8.1994. ACCORDINGLY IMPUGNED ADDITION WAS MADE. HOWEVER, THE LD. CIT ( A) BY OBSERVING THAT THE PARTY HAS RAISED THE BILL AND PAYMENT HAS BEEN MADE THROUGH A CCOUNT PAYEE CHEQUE AT LATER STAGE I.E. AFTER THE DATE OF SEARCH, THEREFORE, THERE IS NO QUESTION OF DISBELIEVING THE EXPLANATION. ACCORDINGLY HE DELETED THE ADDITION. 4. AFTER CONSIDERING THE ORDERS OF THE ASSESSING OF FICER AND LD. CIT (A), WE FIND NO INFIRMITY IN THE FINDING OF LD. CIT (A) WHO HAS GIV EN FINDING OF FACT. ACCORDINGLY, WE CONFIRM HIS FINDING WHICH REMAINED UNCONTROVERTED. 5. NEXT ISSUE IS RELATING TO DELETION OF ADDITION O F RS. 68,317/- OUT OF TOTAL ADDITION OF RS. 1,18,083/- MADE BY ASSESSING OFFICER ON THE BASIS OF ENTRY ON PAGE 20 OF ANNEXURE A-1/8. 6. THE ASSESSING OFFICER NOTED THAT AT PAGE 20 OF A NNEXURE A-1/8 THE TRANSACTION OF RS. 1,18,083/- HAS BEEN NOTED WHICH IS NOT INCORPOR ATED IN THE CASH BOOK AND TRIAL BALANCE FILED BY ASSESSEE. IT WAS CONTENDED BEFORE ASSESSI NG OFFICER THAT THIS AMOUNT DO NOT CONTAIN ANY DATE, NARRATION, SIGNATURE AND APPEARS TO BE SOME ROUGH NOTING MADE BY THE STAFF MEMBER OF THE ASSESSEE COMPANY. HOWEVER, THE ASSESSING OFFICER REJECTED THE CONTENTION OF THE ASSESSEE AND MADE THE ADDITION OF RS. 1,18,083/-. 7. DETAILED SUBMISSIONS WERE FILED BEFORE LD. CIT ( A) WHO AFTER CONSIDERING THE SUBMISSIONS ALLOWED THE ISSUE IN PART IN FAVOUR OF THE ASSESSEE. FINDINGS OF LD. CIT (A) HAVE BEEN RECORDED IN PARA 22 OF HIS ORDER AT PAGE 9 ARE AS UNDER :- 22. THE CONTENTIONS RAISED HAVE BEEN CONSIDERED. THE THRUST OF THE ARGUMENTS OF THE LD. COUNSEL IS THAT THE EXPENS ES OF RS. 3 1,18,083/- MENTIONED ON PAGE 20 OF ANNEXURE A-1/8 I S A PART OF THE EXPENSES OF RS. 1,18,083/- MENTIONED ON PAGE 13 OF THE ANNEXURE. I HAVE PERUSED PAGE 13 OF THE ANNEXURE. ON THIS PAG E CETAIN AMOUNTS HAVE BEEN MENTIONED UNDER THE HEADS AMOUNT S, ADVANCED AND PAYMENT. THE TOTAL OF THE AMOUNT MENTIONED UNDER THE HEAD AMOUNT IS RS. 1,18,535/-, WHICH AC CORDING TO THE APPELLANT HAS BEEN INCORPORATED IN THE MEMORANDUM O F CASH BOOK AND, THEREFORE, DULY CONSIDERED WHILE COMPUTING INC OME IN THE RETURN OF THE APPELLANT COMPANY. THE AMOUNT OF RS. 1,18,083/- MENTIONED ON PAGE 20 OF THE ANNEXURE IS A TOTAL OF RS. 6,800/-, RS. 12,283/-, RS. 10,000/-, RS. 10,000/-, RS. 10,000/- RS. 50,000/- AND RS. 19,000/-. CERTAIN NAMES HAVE BEEN MENTIONED AG AINST THE AMOUNTS OF RS. 6,800/-, RS. 2,283/- AND RS. 10,000/ -. AGAINST THE 2 ND AND 3 RD AMOUNT OF RS. 10,000/- AND RS. 10,000/-, 20.6 AND 4.7 HAVE BEEN MENTIONED WHICH INDICATES THAT THEY PERTA IN TO DATE 20 TH JUNE AND 4 TH JULY. I FIND THAT ON PAGE 3 OF THE ANNEXURE, AN A MOUNT OF RS. 10,000/- HAS BEEN MENTIONED WITH THE DATE OF 20.6.93. SIMILARLY PAGE 6 CONTAINS THE AMOUNT OF RS. 10,000/ - WITH THE DATE OF 04.07.93. AS POINTED OUT BY THE LD. COUNSEL, TH E ENTRIES OF PAGE 3 AND 6 HAVE BEEN SEPARATELY CONSIDERED BY THE A.O. AND ADDITIONS HAVE BEEN MADE. CONSEQUENTLY I HOLD THAT THE TWO AM OUNT OF RS. 10,000/- AND RS. 10,000/- MENTIONED ON PAGE 20 ARE THE SAME AS MENTIONED ON PAGE 3 AND 6 AND THE ASSESSING OFFICER WAS NOT JUSTIFIED IN INCLUDING THE SAME AGAIN IN THE TOTAL INCOME. THE TOTAL ADDITION OF RS. 20,000/- OUT OF THE ADDITION OF RS. 1,18,083/- IS, THEREFORE, DELETED. THESE FINDINGS ARE FINDING OF FACT WHICH NEITHER CO ULD BE CONTROVERTED NOR ANY OTHER MATERIAL BROUGHT ON RECORD. THEREFORE, WE SEE NO R EASON TO INTERFERE WITH THIS FINDING. ACCORDINGLY WE CONFIRM THE FINDINGS OF LD. CIT (A) ON THIS ISSUE. 4 8. NEXT ISSUE RELATES TO DELETING THE ADDITION OF R S. 3,81,100/- MADE BY THE ASSESSING OFFICER ON THE BASIS OF SEIZED DOCUMENT ANNEXURE A- 1/23. 9. THE ASSESSING OFFICER FOUND A DIARY IN THE ANNEX URE CONTAIN ENTRIES TOTALING TO RS. 3,81,100/-. IT WAS EXPLAINED BEFORE HIM THAT THE C ASH BOOK PREPARED REPRESENTS UNACCOUNTED EXPENSES, CAPITAL EXPENSES, ADVANCES GI VEN AND COVERED AGAINST SUPPLIES OF GOODS. IT WAS CONTENDED THAT IN MOST OF THE CASES THE TRANSACTIONS WERE ADVANCES GIVEN IN CASH TO THE SUPPLIER AND WHENEVER PAYMENTS HAVE BEE N EFFECTED TO THE SUPPLIERS BY CHEQUE, THE AMOUNT HAS BEEN RETURNED BACK TO THE EX TENT TO WHICH IT HAS BEEN GIVEN. THE ASSESSING OFFICER HELD THAT ASSESSEE HAS NOT BEEN A BLE TO ESTABLISH THAT ABOVE AMOUNT OF RS. 3,81,100/- REPRESENTED SUCH CASH RECEIVED FROM SUPPLIERS. THEREFORE, HE MADE THE ADDITION. 10. IT WAS CONTENDED BEFORE LD. CIT (A) THAT FOR AS SESSMENT YEAR 1993-94 AN ADDITION OF RS. 8.60 LACS WAS MADE BY THE ASSESSING OFFICER ON THE SAME BASIS WHICH HAS BEEN DELETED BY LD. CIT (A), COPY OF ORDER WAS ALSO FILE D. FOLLOWING THE ORDER OF LD. CIT (A) FOR EARLIER YEAR, THE LD. CIT (A) FOUND THAT THIS A DDITION IS ALSO NOT LIABLE TO BE SUSTAINED. ACCORDINGLY HE DELETED THE ADDITION. 11. AFTER CONSIDERING THE ORDERS OF THE ASSESSING O FFICER AND LD. CIT (A) AND THE ORDER OF THE TRIBUNAL FOR ASSESSMENT YEAR 1993-94 D ECIDED IN ITA NO. 224/JODH/1997 DATED 26.8.2011, IT IS SEEN THAT IDENTICAL ADDITION OF RS. 8.60 LACS WAS MADE FOR ASSESSMENT YEAR 1993-94 ON THE BASIS OF SAME ANNEXU RE. THE LD. CIT (A) DELETED THE ADDITION AND THE ORDER OF LD. CIT (A) HAS BEEN AFFI RMED BY TRIBUNAL RECORDING ITS FINDING IN PARA 8. SINCE IDENTICAL ISSUE HAS ALREADY BEEN DECIDED IN EARLIER YEAR AND THE LD. CIT (A) HAS FOLLOWED THE SAME, THEREFORE, WE SEE NO REA SON TO INTERFERE WITH THE FINDING OF LD. 5 CIT (A) FOR THE YEAR UNDER CONSIDERATION ALSO. ACC ORDINGLY, WE CONFIRM THE ORDER OF LD. CIT (A) ON THIS ISSUE ALSO. 12. REMAINING ISSUE IS AGAINST ALLOWING RELIEF OF R S. 50,702/- FROM THE ADDITION MADE BY ASSESSING OFFICER UNDER SECTION 69C. 13. THIS WAS A ALTERNATE GROUND BEFORE LD. CIT (A) THAT VARIOUS OTHER ADDITIONS HAVE BEEN MADE AND, THEREFORE, DOUBLE ADDITION SHOULD NO T HAVE BEEN MADE. 14. AFTER EXAMINING VARIOUS GROUNDS AND TAKING INTO CONSIDERATION THAT VARIOUS ADDITIONS HAVE ALREADY BEEN SUSTAINED AND WHICH ARE DOUBLE ADDITION ON THE BASIS OF SAME MATERIAL AND AFTER CALCULATING ALL THOSE AMOUNTS AN D ADDITION, THE LD. CIT (A) ALLOWED A RELIEF OF RS. 50,702/-. THIS RELIEF WAS ALLOWED BY LD. CIT (A) FOLLOWING THE ORDER OF TRIBUNAL IN THE CASE OF M/S. NISHANT HOUSING DEVELO PMENT PVT. LTD. VS. ACIT, 52 ITD 103 WHEREIN IT IS HELD THAT IF CERTAIN ADDITIONS HA VE BEEN MADE ON ACCOUNT OF BUSINESS AND CERTAIN EXPENSES HAVE BEEN INCURRED, THEN SOME SET OFF HAS TO BE ALLOWED. ACCORDINGLY, HE EXAMINED VARIOUS ADDITIONS AND ARRIVED AT A FINDING THAT CERTAIN EXPENSES WERE INCURRED TO EARN THIS INCOME, WHICH WERE ALSO NOT DISCLOSED. AC CORDINGLY HE ALLOWED RS. 50,702/- AS MENTIONED ABOVE. THE FINDINGS OF LD. CIT (A) REMAI NED UNCONTROVERTED. THEREFORE, IN OUR VIEW, LD. CIT (A) WAS CORRECT IN ALLOWING THE A LTERNATE GROUND IN FAVOUR OF THE ASSESSEE. ACCORDINGLY, WE CONFIRM THE ORDER OF LD. CIT (A) ON THIS ISSUE ALSO. 15. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISM ISSED. 16. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 30 .11.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR, 6 COPY FORWARDED TO :- THE ACIT, CIRCLE-2, UDAIPUR. M/S. MUMAL MARBLES LTD., UDAIPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 16/JODH/2003) BY ORDER, AR ITAT JODHPUR.