Appeal details
Counselvise Citation
[2016] 133 COUNSELVISE.COM (IT) 5474 (ITAT-JAIPUR)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
11 month(s) 23 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
12-02-2016
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
A
Assessment Year
2006-2007
Appeal Filed On
19-02-2015
Judgement Text
VKBZVH, LA- 161@TSIH@15& JH LQJS'K PUN XQIRK] VYOJ VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K (BEFORE SHRI T.R.MEENA, AM AND SHRI LALIET KUMAR, J M) ITA NO.161/JP/2015 ASSESSMENT YEAR : 2006-07 PAN NO. ABRPG 6078L THE INCOME TAX OFFICER, VS. SHRI SURESH CHAND GU PTA, WARD-1(1), ALWAR. ALWAR. VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FOHKKX DH VKSJ LS@ DEPARTMENT BY : SH.KAILASH MANGAL (JCIT) FU/KKZFJRH DH VKSJ LS@ ASSESSEE BY : SH.P.C.PARWAL, C.A. LQUOKBZ DH FRFFK@ DATE OF HEARING : 01/01/2016 ?KKS'K.KK DH FRFFK@ DATE OF PRONOUNCEMTNT: 12/02/2016 VKNS'K ORDER PER T.R.MEENA, AM THE REVENUES APPEAL IS EMANATING FROM THE ORDER OF THE CIT(A), ALWAR ORDER DATED 19.12.2014 FOR ASSESSMENT YEAR 2010-11. THE EFFECTIVE GROUNDS ARE AS UNDER :- 2 1. THAT THE COMMISSIONER OF INCOME TAX (APPEALS), ALWAR HAS ERRED IN LAW AS WELL AS ON THE FACTS AND CIRCUM STANCES OF THE CASE IN RESTRICTING THE ADDITION OF RS.3,20,018 /- TO RS.5,018/- MADE BY THE AO ON ACCOUNT OF EXCESS CASH FOUND DURING THE COURSE OF SURVEY. 2. THAT THE COMMISSIONER OF INCOME TAX (APPEALS), A LWAR HAS ERRED IN LAW AS WELL AS ON THE FACTS CIRCUMSTAN CES OF THE CASE IN DELETING THE ADDITION OF RS.5,50,000/- MADE BY THE AO ON ACCOUNT OF UNRECORDED TRANSACTIONS. 3. THAT THE COMMISSIONER OF INCOME TAX (APPEALS), A LWAR HAS ERRED IN LAW AS WELL AS ON THE FACTS AND CIRCUM STANCES OF THE CASE IN RESTRICTING THE ADDITION OF RS.25,27,00 0/- TO RS.58,005/- MADE BY THE AO ON ACCOUNT OF INVESTMENT IN HOUSE PROPERTY. 2. THE FIRST GROUND OF REVENUES APPEAL IS AGAINST RESTRICTING THE ADDITION RS.5,018/- AS AGAINST THE ADDITION MADE BY THE AO A T RS.3,20,018/-. THE AO OBSERVED THE ASSESSEE IS IN TRADING OF GOLD & SILVE R JEWELLERY AND OTHER ARTICLES. THE ASSESSEE FILED RETURNED ON 25.09.2010 AT RS.23, 16,020/- THE CASE WAS SCRUTINIZED U/S 143(3) OF THE IT ACT. THERE WAS A SURVEY AT THE BUSINESS PREMISES OF THE ASSESSEE ON 10.12.2009. DURING THE COURSE O F SURVEY CASH AND BOOKS OF ACCOUNT WERE VERIFIED BY THE AUTHORISED OFFICERS DU RING THE COURSE OF SURVEY AS PER AO EXCESS CASH OF RS.3,20,018/- WAS FOUND AND S OME LOOSE PAPERS DIARIES AND SLIP PAID WERE FOUND IN WHICH THE ASSESSEE HAD RECO RDED UNACCOUNTED 3 TRANSACTIONS. THE AO FURTHER OBSERVED THAT THE ASS ESSEE HAS NOT DISCLOSED EXCESS CASH FOUND AS INCOME IN THE RETURN. HE GAVE THE R EASONABLE OPPORTUNITY OF BEING HEARD. THE ASSESSEE ALSO HAD REPLIED WHICH HAD BEE N A REPRODUCED BY THE AO ON PAGE 2 AND 3 OF THE ASSESSMENT ORDER. THE ASSESSEE SUBMITTED THAT SURRENDERED ON ACCOUNT OF EXCESS FUND AT RS.3,20,000/- WAS UNDE R DURESS. THE ASSESSEE VERIFIED HIS BOOKS OF ACCOUNT INCLUDING CASH WITHDR AWAL FROM THE BANK AND HAD COME TO CONCLUSION THAT EXCESS CASH WAS ONLY RS.5,0 18/-. THEREFORE, HE RETRACTED FROM THE SURRENDER MADE DURING THE COURSE OF SURVEY PROCEEDING. HE ALSO HAS DRAWN ATTENTION THE CBDT LETTER NO. 280/2/2003 DATE D 23.03.2003 WHEREIN CBDT HAD DIRECTED THE ASSESSING AUTHORITY NOT TWO TAKE F ORCEFUL SURRENDER DURING THE COURSE OF SURVEY. THE ASSESSEE ALSO REFERRED ITAT JAIPUR BENCH DECISION IN CASE OF LAL CHAND AGARWAL VS. ACAIT ITSSA NO.2259/JP/1996 A ND IN CASE OF MUSTAQ AHMED VS. ACIT ITA NO.19/JP/1998. AFTER CONSIDERIN G THE ASSESSEE REPLY THE LD.AO HAS HELD THAT THE ASSESSEE DURING THE COURSE OF SURVEY IN STATEMENT QUESTION NO21 & 27 HAD ACCEPTED INCOME OF RS.3,20,0 18/- FROM UNACCOUNTED SALE FROM 07.10.2009 TO 12.10.2009 FURTHER THE ASSESSEE WHILE ANSWERING THE QUESTION NO. 8 HAD STATED THAT ALL THE CASH AVAILAB LE IN THE PREMISES WAS RELATED 4 TO THE BUSINESS OF THE ASSESSEE. THE CASH RECONCIL IATION MADE BY THE ASSESSEE BEFORE THE AO WAS NOT ACCEPTABLE. HE FURTHER HELD T HAT ASSESSEE MADE MAKE BELIEVE THEORY TO EXPLAIN THE SOURCE OF EXCESS CASH. IT IS DIFFICULT TO BELIEVE THAT CASH WITHDRAWN FROM BANK BEFORE 3 DAYS WAS NOT REMEMBERED AT THE TIME OF STATEMENT BY THE ASSESSEE. THE ASSESSEES SUBMISSION THAT RS. 6 LAC WERE WITHDRAWN FROM THE BANK ACCOUNT M/S.SHRI ANOOP JAIN JEWELLERS MAINTAIN WITH BANK OF RAJ LTD., CHURCH ROAD, ALWAR AND NOT FROM IN DIVIDUAL ACCOUNT OUT OF ABOVE WITHDRAWL AN AMOUNT OF RS.2,85,000/- WERE PAID FOR THE PURPOSE OF WOOD FOR RESIDENTIAL HOUSE WHICH IS ALSO HAS NOT BEEN DEBITE D IN THE CAPITAL ACCOUNT OF THE ASSESSEE. FURTHER HE RELIED UPON IN CASE OF SURJEET SINGH CHHABRA VS. UNION OF INDIA (SC) AND IN CASE OF RAKESH MAHAJAN VS. CIT TAX APPEAL 642 OF 2007 AND HELD THAT DISCLOSURE MADE DURING THE COURSE OF SURVEY IS BINDING OF THE ASSESSEE WHICH IS ALSO UNEXPLAINED. THEREFORE HE MADE ADDITION OF RS.3,20,018/- IN THE INCOME OF ASSESSEE. 3. BEING AGREED BY THE ORDER OF AO THE ASSESSEE CAR RIED THE MATTER BEFORE THE CIT(A) WHO HAS DELETED THE ADDITION BY OBSERVING AS UNDER :- 6.3 I HAVE PERUSED THE ASSESSMENT ORDER AS WELL AS SUBMISSIONS MADE BY THE APPELLANT AND FIND THAT AN ADDITION OF RS.5,50,000/- 5 HAS BEEN MADE BY THE AO ON ACCOUNT OF MISCELLANEOUS UNRECORDED TRANSACTIONS. AO HAS STATED THAT DURING THE COURSE OF SURVEY, A LARGE NUMBER OF LOOSE PAPERS, SLIP PADS, DIARIES ET C. WERE FOUND IN WHICH UNRECORDED TRANSACTIONS RELATING TO BUSINESS WERE FOUND. THE APPELLANT HAS DISCLOSED AN INCOME OF RS.10 LACS ON THIS ACCOUNT. THE APPELLANT HAD ALSO DISCLOSED AN ADDITIONAL INCOME O F RS.5,50,000/- WHICH WAS NOT RECORDED IN THE LOOSE PAPERS, SLIP PA DS, DIARIES ETC. HOWEVER, AT THE TIME OF FILING OF RETURN ONLY AN AD DITIONAL INCOME OF RS.10 LACS HAS BEEN OFFERED FOR TAXATION. AO HAS M ADE THE ADDITION OF RS.5.50 LACS ON THE BASIS OF STATEMENT RECORDED AT THE TIME OF SURVEY. 4. NOW REVENUE IS BEFORE US THE LD.D.R. VEHEMENTLY SUPPORTED THE ORDER OF AO. THE LD.CIT(A) HAS NOT CONSIDERED THAT ASSESSEE HAD MADE UNACCOUNTED SALE FROM 07.10.2009 TO 12.10.2009. THE EXPLANATION GIV EN BY THE ASSESSEE IS AFTER THOUGHT. THEREFORE ADDITION MADE BY THE AO IS TO BE CONFIRMED. AT THE OUTSET LD.A.R. VEHEMENTLY SUPPORTED THE ORDER OF THE CIT(A ) AND ARGUED THAT STATEMENT RECORDED U/S 133A IS NOT BINDING ON THE ASSESSEE. IT DOES NOT HAVE EVIDENTIARY VALUE AS DECIDED BY THE HONBLE SUPREME COURT. FURT HER HE ARGUED THAT THE ASSESSEE IMMEDIATELY AFTER SURVEY HAD RETRACTED FRO M THE SURRENDERED AND EXPLAIN THE CASH FOUND DURING THE COURSE OF SURVEY. THUS HE REQUESTED TO UPHOLD THE ORDER OF THE CIT(A). 6 5. WE HAVE HEARD THE RIVAL CONTENTION AND PERUSED T HE MATERIAL AVAILABLE ON RECORD THE ASSESSEE HAD MADE THE SURRENDERED DURING THE COURSE OF SURVEY BUT IMMEDIATELY HE VERIFIED THE BOOKS OF ACCOUNT AND RE TRACTED FROM THE DISCLOSURE. THE STATEMENT RECORDED DURING THE COURSE OF SURVEY IS NOT BINDING ON THE ASSESSEE AS HELD BY THE HONBLE SUPREME COURT AS SA ME IS NOT BEEN A TAKEN ON OATH. FURTHER WHATEVER CASH FOUND DURING THE COURSE OF SURVEY HAS BEEN RECONCILED BY THE ASSESSEE AND EXCESS CASH OF RS.5, 018/- HAS BEEN CONFIRMED BY THE CIT(A). 6. GROUND NO.2 IS AGAINST DELETING THE ADDITION OF RS.5.5 LAC ON ACCOUNT OF UNRECORDED TRANSACTION AND GROUND NO.3 IS AGAINST R ESTRICTING THE ADDITION FROM RS.25,27,000/- TO 58,005/- DURING THE COURSE OF SUR VEY THE ASSESSEE SURRENDERED AND ADDITIONAL INCOME RS.10 LAC WHICH HAS BEEN DISC LOSED IN HIS INCOME HOWEVER AO ON THE BASIS OF MISCELLANEOUS TRANSACTION WHICH WERE NOT RECORDED IN THE BOOKS OF ACCOUNT WAS ALSO SURRENDERED BUT ASSESSEE RETRACTED AFTER VERIFYING THE LOOSE PAPER FOUND DURING THE COURSE OF SURVEY AND D ISCLOSURE MADE RS.10 LAC. THE LD.A.O. GAVE THE SIMILAR FINDINGS FOR BOTH THE ISSU ES AS GIVEN FOR ADDITION UNDER 7 THE HEAD UNACCOUNTED CASH. THE LD.AO ALSO REFERRED THE RESIDENTIAL HOUSE PROPERTY TO THE VALUATION CELL OF THE DEPARTMENT WH O HAD VALUED THE RESIDENTIAL HOUSE AT RS.19,21,385/- WHEREAS A HAD SHOWN INVESTM ENT IN THE BOOKS OF ACCOUNT AT RS.18,63,380/-. THERE WAS A DIFFERENCE OF RS.58 ,005/-. HOWEVER, THE AO MADE ADDITION OF RS.5,50,000/- ON THE BASIS OF MISCELLAN EOUS UNACCOUNTED TRANSACTIONS AND RS.25,27,000/- ON ACCOUNT OF INVESTMENT HOUSE P ROPERTY. 7. THE LD.CIT(A) DELETED THE BOTH THE ADDITION BY O BSERVING THAT ASSESSEE AS HAS DISCLOSED 10 LAC AN ADDITIONAL INCOME ON ACC OUNT OF LOOSE PAPER/DIARY FOUND DURING THE COURSE OF SURVEY. THE LD.AO FURTHER ADD ITION OF RS.5.5 LAC WAS NOT BASED ON ANY INCRIMINATING DOCUMENTS OR EVIDENCES. THE LD.CIT ALSO HELD THAT WHEN DVO REPORT IS AVAILABLE ON THE RESIDENTIAL HOU SE PROPERTY. THERE IS ONLY DIFFERENCE BETWEEN INVESTMENT MADE BY THE ASSESSEE & VALUATION MADE BY THE DVO AT RS.58,005/-. THEREFORE THIS ADDITION HAS BE EN CONFIRMED PARTLY BY HIM. 8. WE HAVE HEARD THE RIVAL CONTENTION AND PERUSED T HE MATERIAL AVAILABLE ON RECORD. IT IS UNDISPUTED FACTS THAT BOTH THE SURRE NDERED WERE MADE BY THE ASSESSEE DURING THE COURSE OF SURVEY BUT SAME HAD B EEN RETRACTED IMMEDIATELY BY THE ASSESSEE. THE ASSESSEE DISCLOSED AN ADDITION I NCOME ON ACCOUNT OF LOOSE 8 PAPER/DIARY FOUND DURING THE COURSE OF SURVEY IN RE TURN. THERE IS NO BASIS OF THE AO ADD FURTHER AMOUNT OF RS.5.5 LAC. SIMILARLY THE ADDITION MADE UNDER THE HEAD INVESTMENT IN HOUSE PROPERTY IS ALSO BASED ON SURRE NDERED ADMITTED BY THE ASSESSEE. THE AO HAD NOT MADE THIS ADDITION ON THE BASIS OF ANY INCREMENTING DOCUMENTS OF EVIDENCES. THUS WE UPHOLD THE ORDER O F CIT(A). 9. IN THE RESULT THE REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12/02/2016. SD/- SD/- (LALIET KUMAR) (T.R.MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER T;IQJ@ JAIPUR, FNUKAD@ DATE : 12 /02/2016 *BASANT* VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO :- 1- VK;DJ VF/KDKJH] OKMZ&1@1] VYOJ A 2- JH LQJS'K PUN XQIRK] VYOJ A 3- VK;DJ VK;QDR] 4- VK;DJ VK;QDR VIHYL~] 5- FOHKKXH; IZFRFUF/K] T;IQJ@ THE D.R. ITAT, JAIPUR 6- XKMZ QKBZY@ THE GUARD FILE (IN ITA NO.161/JP/2015) VKNS'KKUQLKJ LGK;D IATHDKJ@ ASSISTANT REGISTRAR
