Sh. Bhagwan Das Agarwal, Agra V. A.C.I.T., Central Citcle, Agra

ITA 176/AGR/2011

• Counselvise Citation: 17620314 RSA 2011
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 31-10-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 16-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Keywords: Search and seizure
• Section: 69A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI B.P. JAIN, ACCOUNTANT MEMBER ITA NO.176/AGR/2011 ASSESSMENT YEAR: 2006-07 SHRI BHAGWANDAS AGARWAL, VS. ASSTT. COMMISSIONER OF INCOME TAX, F-673, KAMLA NAGAR, CENTRAL CIRCLE, AGRA. AGRA. (PAN: ABJPA 0819 K)). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANURAG SINHA, ADVOCATE RESPONDENT BY : SHRI A.K. SHARMA, JR. D.R. DATE OF HEARING : 15.11.2011 DATE OF PRONOUNCEMENT : 16.11.2011 ORDER PER BENCH : THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER O F LD. CIT(A)-II, AGRA DATED 22.02.2011 FOR THE ASSESSMENT YEAR 2006-07. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1(A) BECAUSE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AUTHORITIES BELOW WERE HIGHLY UNJUSTIFIED IN MAKING AND CONFIRMING ADDITION OF ` 30,000/- UNDER SECTION 69A OF THE I.T. ACT, SOLELY ON THE BASIS OF SUSPICION AND SURMISES, IGNORING THE MATER IAL EVIDENCE AS BROUGHT ON RECORDS BY THE APPELLANT. ITA NO.176/AGR/2011 A.Y. 2006-07 2 (B) BECAUSE, CIT(A), AFTER HAVING DELETED THE ADDIT ION MADE UNDER THE SAME SET OF FACTS AND CIRCUMSTANCES IN THE CASE OF HIS NEPHEW SHRI RAJESH AGARWAL OUGHT NOT TO HAVE TAKEN A DIFFERENT STAND IN VIEW OF THE PRINCIPALS OF CONSISTENCY AND FAIR PLAY. (C) BECAUSE, APPELLANT HAS SUFFICIENTLY DISCHARGE D THE BURDEN WHICH LAY UPON IT UNDER THE PROVISIONS OF SECTION 1 32(4A) READ WITH SECTION 69A OF THE ACT. 2(A) BECAUSE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. AUTHORITIES BELOW HAD FALLEN IN ERROR OF FACTS AS WELL AS IN LAW IN ESTIMATING THE HOUSE HOLD WITHDRAWALS AT ` 96,000/- AS AGAINST ` 55,000/- AS FAIRLY SHOWN BY THE ASSESSEE HIMSELF. (B) BECAUSE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE ONUS LAY ON THE ASSESSING OFFICER TO BRING EVIDENCE ON R ECORDS TO JUSTIFY HIS ESTIMATION, THAT ASSESSEE INCURRED EXPENDITURE MORE THAN WHAT IS REPORTED IN ACCOUNTS. (C) BECAUSE, IN VIEW OF THE DECISION OF HONBLE ITA T IN THE CASE OF RAJ KUMAR JAIN VS. ACIT (19) 50 ITD 1 (TM) THE ADDI TION IS BAD IN LAW AND CANNOT BE SUSTAINED. 3. BECAUSE, IN ANY VIEW OF THE MATTER THE ADDITIONS AS WERE MADE IN THE INCOME RETURNED AND TO THE EXTENT SUSTAINED BY THE CIT(A) IS BAD BOTH ON FACTS AS WELL AS IN LAW. 3. IN GROUND NO.1(A), (B), (C), THE BRIEF FACTS ARE THAT A SEARCH AND SEIZURE OPERATION WAS CARRIED UNDER SECTION 132(1) OF THE I NCOME TAX ACT, 1961 AT THE PREMISES OF THE ASSESSEE. DURING THE SEARCH, AS PE R THE ASSESSING OFFICER ONE AC WAS FOUND IN THE ASSESSEES ROOM, WHEN ASKED TO EXP LAIN THE SOURCE OF ACQUISITION OF AC, IT WAS SUBMITTED BEFORE THE ASSESSING OFFICE R THAT THE SAME WAS PURCHASED IN THE YEAR 1995 FROM UNITED REFRIGERATION, FREEGAN J, AGRA. IN SUPPORT OF THIS CLAIM, THE ASSESSEE FURNISHED CERTAIN DETAILS ON LE TTER HEADS OF THIS CONCERN. IT WAS ITA NO.176/AGR/2011 A.Y. 2006-07 3 FURTHER NOTED BY THE ASSESSING OFFICER THAT ON LETT ER HEAD DATE IS MENTIONED AS 30.09.1994 AND DATE OF DELIVERY IS MENTIONED AS 30. 03.1995. THE A.O. OBSERVED THAT M/S UNITED REFRIGERATION IS A REGISTERED DEALE R, BUT THE REASON AS TO WHY THIS LETTER HEAD WAS USED BY THEM FOR SALE OF AC IS NOT ASCERTAINABLE. THEREFORE, THE A.O. WAS OF THE VIEW THAT THIS DOCUMENT IS A FABRIC ATED DOCUMENT AND ACCORDINGLY MADE THE ADDITION OF ` 30,000/-. THE LD. CIT(A)-II, AGRA VIDE PARAGRAPH N O.3.2 OF HIS ORDER CONFIRMED THE ACTION OF THE A.O. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. IT WAS STATED AT BAR BY THE LD. COUNSEL APPEARING FOR THE ASSESSEE SHRI ANURAG SINHA, ADVOCATE THAT ON THE SAME FACTS AND CIRCUMSTANCES I N THE GROUP CASE OF RAJESH KUMAR AGARWAL, THE LD. CIT(A) HAS DELETED THE ADDIT ION AND THE DEPARTMENT IS NOT IN APPEAL BEFORE THE I.T.A.T. ON MERIT SHRI SINHA RELIED UPON THE SUBMISSIONS MADE BEFORE THE LD. CIT(A). 5. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHE R HAND, RELIED UPON THE DECISION OF BOTH THE AUTHORITIES BELOW. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE F ACTS OF THE CASE. ON PERUSAL OF THE LD. CIT(A)S ORDER IN THE CASE OF RAJESH KUM AR AGARWAL AVAILABLE AT PAGE NOS.9 TO 19 OF THE PAPER BOOK, THE LD. CIT(A) VIDE PARAGRAPH NO.33 OF HIS ORDER IN ITA NO.176/AGR/2011 A.Y. 2006-07 4 THAT CASE HAS DELETED THE ADDITION ON THE SAME SET OF CIRCUMSTANCES AND FACTS OF THE CASE. THE DEPARTMENT IS NOT IN APPEAL BEFORE US AN D THE LD. DEPARTMENTAL REPRESENTATIVE HAS NOT BROUGHT ON RECORD ANY SUCH A PPEAL BEFORE US. ON MERIT ALSO, THE EVIDENCE PRODUCED IN SUPPORT OF THE PURCH ASE AND DELIVERY OF THE AC HAS BEEN DISCARDED BY THE ASSESSING OFFICER WITHOUT BRI NGING ON RECORD HOW THE SAID DOCUMENTS IS FABRICATED AND WITHOUT MAKING ANY ENQU IRY FROM THE SAID DEALER. IN SUCH CIRCUMSTANCES AND FACTS OF THE CASE, THE ASSES SING OFFICER IS NOT JUSTIFIED IN MAKING THE ADDITION ON THE SAID ACCOUNT AND ACCORDI NGLY THE ORDER OF THE LD. CIT(A) IS REVERSED ON THE ISSUE. THUS, THE GROUND NO.1(A), (B), (C) OF THE ASSESSEE IS ALLOWED. 7. IN GROUND NO.2(A), (B), (C), THE BRIEF FACTS ARE THAT THE ASSESSING OFFICER ESTIMATED THE HOUSEHOLD WITHDRAWALS AT THE RATE OF ` 8,000/- PER MONTH AS AGAINST DECLARED BY THE ASSESSEE AT ` 41,000/- ON THE BASIS THAT THE ASSESSEES FAMILY CONSISTED OF THE ASSESSEE HIMSELF, HIS WIFE AND CHI LDREN WHO ARE ALSO SCHOOL AND COLLEGE GOING STUDENTS AND THE ASSESSEE IS MAINTAIN ING A.C. SINCE 1995, SANTRO CAR AND OTHER EQUIPMENTS. THE LD. CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE ASSESSING OFFICER WHILE ESTIMATING THE HOUSEHOLD WI THDRAWALS HAS NOT BROUGHT ON ITA NO.176/AGR/2011 A.Y. 2006-07 5 RECORD THE BASIS OF THE ESTIMATION OF THE HOUSEHOLD WITHDRAWALS ESPECIALLY WHEN ALL THE OTHER FAMILY MEMBERS ARE ASSESSED TO TAX WHO MU ST HAVE SHOWN THE WITHDRAWALS FOR HOUSEHOLD EXPENSES IN THEIR RETURN OF INCOME. THEREFORE, IN THE CIRCUMSTANCES AND FACTS OF THE CASE, THE ASSESSING OFFICER IS NOT JUSTIFIED TO ESTIMATE HIGHER HOUSEHOLD WITHDRAWALS AND ACCORDING LY THE ORDER OF THE LD. CIT(A) IS REVERSED ON THE ISSUE. THUS, GROUND NO.2(A), (B ), (C) OF THE ASSESSEE IS ALLOWED. 9. GROUND NO.3 OF THE ASSESSEE IS GENERAL IN NATURE AND, THEREFORE, DO NOT REQUIRE ANY ADJUDICATION. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IN ITA NO .176/AGR/2011 IS ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 16.11.2011). SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 16 TH NOVEMBER, 2011 PBN/* COPY OF THE ORDER FORWARDED TO: APPELLANT/RESPONDENT/CIT CONCERNED/CIT(APPEALS) CO NCERNED/D.R., ITAT, AGRA BENCH, AGRA/GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY