Shri Tushar Hasmukhbhai Soni, Anand V. The Income Tax Officer, Ward -3, Anand

ITA 1804/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0309 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 04-10-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 19-06-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: SUNIL H TALATI
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ ITA NO. 1804/AHD/2013 / ASSESSMENT YEAR : 2005-06 SHRI TUSHAR HASMUKHBHAI SONI, G-7, KISHORE PLAZA, STATION ROAD, ANAND-388001 PAN : AZTPS 6277 K VS INCOME TAX OFFICER, WARD 3, ANAND / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI SUNIL H. TALATI, AR REVENUE BY : SMT. SONIA KUMAR, SR DR / DATE OF HEARING : 04/10/2016 / DATE OF PRONOUNCEMENT: 05/10/2016 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV, BA RODA DATED 25.03.2013 FOR ASSESSMENT YEAR 2005-06. 2. GROUND NO.4 IS NOT PRESSED, HENCE DISMISSED. 3. THE OTHER GROUNDS ARE TO THE EFFECT THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING:- I) RS.3,76,502/- U/S 68 OF THE ACT; II) RS.5,61,508/- BEING SHORTAGE IN STOCK AS INCOME OF THE ASSESSEE. 4. APROPOS GROUND NO.1, LD. COUNSEL FOR THE ASSESSE E CONTENDS THAT THE CONFIRMATIONS IN RESPECT OF THE 15 CREDITORS WERE F ILED. BESIDES, IN THE CASE OF SHRI RITESHKUMAR SONI, THE EVIDENCE IN RESPECT O F 14 VIGHAS OF AGRICULTURAL LAND WAS SUBMITTED ALONGWITH HIS CONFIRMATION DURIN G THE COURSE OF REMAND REPORT. IT IS CONTENDED THAT THE ASSESSEE H AVING DISCHARGED ITS PRIMARY ONUS IN TERMS OF SECTION 68; THERE IS NO JU STIFICATION IN THE ADDITION. SMC-ITA NO. 1804/AHD/2013 SHRI TUSHAR HASMUKHBHAI SONI VS. ITO AY : 2005-06 2 4.1 APROPOS GROUND NO.2, LD. COUNSEL FOR THE ASSESS EE CONTENDS THAT DURING THE COURSE OF SURVEY, NO EXCESS STOCK WAS FO UND. THE ACTUAL VERIFICATION OF THE STOCK SHOWED THAT THE BOOKS STO CK WAS MORE THAN THE ACTUAL STOCK WHICH WAS PURCHASED OUT OF BOOKS OF TH E ASSESSEE STANDS ACQUIRED FROM THE KNOWN SOURCES. THEREFORE, THERE I S NO JUSTIFICATION IN HOLDING THE SHORTAGE AS INCOME OF THE ASSESSEE. IN ALTERNATIVE, IT IS CONTENDED THAT THE AMOUNT MAY BE TREATED AS UNDISCL OSED SALES AND GP OF 10% MAY BE APPLIED. 5. LD. DR, ON THE OTHER HAND, CONTENDS THAT APROPOS THE CASH CREDITS THE ASSESSEE DID NOT FILE ANY CREDIBLE EVIDENCE IN DISC HARGE OF ITS ONUS. EXCEPT PAN, NO OTHER EVIDENCE IN RESPECT OF 14 CREDITORS W AS FOUND WHOSE CASH DEPOSITS ARE BELOW RS.20,000/-. IN ABSENCE OF ANY EVIDENCE ABOUT THE CREDITWORTHINESS, THE ADDITION HAS BEEN RIGHTLY MAD E. 5.1 APROPOS THE ADDITION IN THE CASE OF SHRI RITESH SONI, THE AMOUNT IN QUESTION IS NOT SALE OWNED BY HIM BUT IS A JOINT FA MILY HOLDING. BESIDES, HE DID NOT FILE ANY EVIDENCE TO SHOW THAT THE AGRICULT URAL INCOME WAS GENERATED. BESIDES, TILL THE DECISION OF THE APPEA L AFTER SIX YEARS, NEITHER AMOUNT HAS BEEN REPAID NOR ANY INTEREST HAS BEEN GI VEN. THEREFORE, THE ASSESSEE HAS FAILED TO DISCHARGE ITS ONUS. 5.2 APROPOS SECOND GROUND, ORDER OF LD. CIT(A) WAS RELIED ON. 6. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. APROPOS GROUND NO.1, I SEE NO INFIRMITY IN THE ORDERS OF TH E AUTHORITIES BELOW INASMUCH AS THE ASSESSEE FAILED TO DISCHARGE ITS ON US IN TERMS OF SECTION 68 SMC-ITA NO. 1804/AHD/2013 SHRI TUSHAR HASMUKHBHAI SONI VS. ITO AY : 2005-06 3 IN RESPECT OF CASH DEPOSITS BELOW RS.20,000/-. SIMI LARLY, IN THE CASE OF SHRI RITESH SONI, NO CREDIBLE EVIDENCE HAS BEEN FILED TO SUGGEST THAT SHRI RITESH SONI HAD ANY CREDITWORTHINESS TO ADVANCE THIS AMOUN T, WHICH IS FURTHER CORROBORATED BY THE FACT THAT EVEN AFTER SIX YEARS NO REPAYMENT OR PAYMENT OF INTEREST WAS MADE. IN VIEW THEREOF THE ADDITION IS UPHELD AND THE GROUND NO.1 IS THUS DISMISSED. 6.1 APROPOS GROUND NO.2, IT IS A CASE OF SHORTAGE O F STOCK AND NOT EXCESS STOCK. IN VIEW THEREOF, I FIND MERIT IN THE ALTERN ATIVE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE SHORTAGE OF STOCK MAY BE TREATED AS UNDISCLOSED SALES AND GP OF 10% THEREON, I.E., RS.5 6,150/- MAY BE ADDED. IN VIEW THEREOF, THE ADDITION IS RESTRICTED TO RS.56,1 50/- AND THIS GROUND IS ACCORDINGLY PARTLY ALLOWED. 7. IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLOW ED. ORDER PRONOUNCED IN THE COURT ON 5 TH OCTOBER, 2016 AT AHMEDABAD. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 05/10/2016 *BIJU T. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD