SHRI GURUBAKSH CHUG, V. THE ACIT 4(2),

ITA 189/IND/2008

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 5856 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 30-11-2010
• Assessment Year: misc
• Appeal Filed On: 15-04-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K MITRA
• Assessee Lawyers: H P VERMA; ASHISH GOYALCA
• Keywords: Loose papers; Principle of natural justice; Source of fund; Additional evidence
• Section: 143(3); 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH : INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND S HRI R.C.SHARMA, ACCOUNTANT MEMBER PAN NO. : ABCPC1530E I.T.A.NO. 189/IND/2008 A.Y. : 2004-05 GURUBAX CHUGH, ACIT, PROP. ROYAL RADIOS, VS 4(2), INDORE. INDORE. APPELLANT RESPONDENT APPELLANT BY : SHRI H.P.VERMA, ADV. AND SHRI ASHISH GOYAL,C.A. RESPONDENT BY : SHRI P.K. MITRA, SR. DR O R D E R PER R. C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) DATED 18.1.2008 FOR THE ASSESSMENT YEAR 2004-05 IN THE MATTER OF ORDER PASSED U/S 143(3) OF THE INCOME-TAX ACT, 1961. 2. FACTS IN BRIEF ARE THAT THERE WAS SURVEY AT ASSESSE ES BUSINESS PREMISES ON 6.2.2004. THE ASSESSEE RUNS A PROPRIETA RY BUSINESS CONCERN STYLED AS M/S. ROYAL RADIOS DEALING IN ELECTRONICS ITEM. A SURVEY U/S 133A WAS CONDUCTED AT THE BUSINESS PREMISES OF M/S. ROYA L RADIOS ON 6.2.2004 AND ITS SISTER CONCERNS. DURING THE SURVEY, STOCK I NVENTORY WAS PREPARED AND -: 2: - 2 SHORTAGE OF STOCK TO THE TUNE OF RS. 1,55,200/- WAS FOUND. BESIDES PAPERS RELATING TO INVESTMENTS TOWARDS PURCHASE OF FOUR SH OPS IN THE NAME OF FAMILY MEMBERS OF THE ASSESSEE WERE ALSO FOUND. IT WAS ALS O FOUND THAT BOOKS OF ACCOUNT ETC. WERE WRITTEN UP TO 15.11.2003 ONLY. SO ME OTHER INCRIMINATING LOOSE PAPERS INVENTORISED AS ANNEXURE BS-11 WERE AL SO FOUND. DURING THE SURVEY NOTE BOOKS INVENTORISED AS ANNEXURE B-1 TO B -6 WERE ALSO FOUND IN WHICH SALES TO THE TUNE OF RS. 27,23,107/- WERE REC ORDED WHICH WERE EFFECTED BY THE ASSESSEE OUT OF HIS BOOKS OF ACCOUN T DURING THE PERIOD 10.1.2004 TO 6.2.2004. 3. BEING NOT SATISFIED WITH THE ASSESSEES REPLY, THE AO MADE AN ADDITION ON ACCOUNT OF INVESTMENT MADE IN THE BUSIN ESS OUTSIDE THE REGULAR BOOKS OF ACCOUNT, INVESTMENT IN PURCHASE OF FOUR SH OPS AND ON ACCOUNT OF INCRIMINATING LOOSE PAPERS. BEFORE THE CIT(A), THE ASSESSEE FILED AN ADDITIONAL EVIDENCE IN THE FORM OF SALE DEEDS OF PR OPERTIES AT MEGHDOOT VIEW AND SAVING BANK ACCOUNT OF SEVEN PERSONS, WHO PORTRAYED TO HAVE PURCHASED PROPERTIES AT MARKET PRICE. HOWEVER, THE CIT(A) DID NOT ACCEPT THE ADDITIONAL EVIDENCE BY STATING THAT THE ASSESSE E HAS NOT STATED THE CIRCUMSTANCES AND THE CONDITIONS ALONGWITH APPLICAT IONS FOR ADMISSION OF ADDITIONAL EVIDENCE IN WHICH HE HAS NOT BEEN ABLE T O FURNISH THE SAME BEFORE THE AO. AS PER THE LD. CIT(A), THE ASSESSEE WAS UNA BLE TO MAKE A JUSTIFIABLE -: 3: - 3 CASE OF ADMISSION OF ADDITIONAL EVIDENCE. AGGRIEVED BY THE ABOVE ORDER OF THE CIT(A). THE ASSESSEE IS IN FURTHER APPEAL BEFOR E US AND IS MAINLY AGGRIEVED FOR ACTION OF THE CIT(A) FOR NOT ACCEPTIN G THE ADDITIONAL EVIDENCE SO FILED. 4. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND FOUND FROM THE RECORD THAT ADDITIONAL EVIDENCE SO FILED BEFORE THE CIT(A) GOES TO THE ROOT OF THE ADDITIONS SO MADE. IN THE INTEREST OF J USTICE, THE LD. CIT(A) SHOULD HAVE ACCEPTED THE SAME AND SHOULD HAVE CALLED THE R EMAND REPORT FROM THE AO BY MAKING PROPER ENQUIRIES. THE CIT(A)S ACTION TO DENY THE ADDITIONAL EVIDENCE SO FILED IS AGAINST THE NATURAL JUSTICE. F ROM THE RECORD, WE FURTHER FOUND THAT IN THE PAPER BOOK THE ASSESSEE HAS PLACE D COPIES OF THE PURCHASE DEED OF IMMOVABLE PROPERTIES, WHICH WERE ALSO FILED BEFORE THE CIT(A), BUT HE DECLINED TO ACCEPT THE SAME UNDER RULE 46A. THE ASSESSEE HAS ALSO FILED COPIES OF SALE DEEDS OF IMMOVABLE PROPERTIES ( 3 DE EDS ) AND ALSO BANK ACCOUNT TO EXPLAIN THE SOURCE OF FUND. THE DETAILS OF INCOME OF SEVEN CO- OWNERS AS DISCLOSED TO THE INCOME TAX DEPARTMENT WA S ALSO FILED. WE HAD ALSO GONE THROUGH THE AFFIDAVIT PLACED ON RECORD GI VING THE FACTS AS TO WHY THESE DOCUMENTS COULD NOT BE SUBMITTED BEFORE THE A O. THESE DOCUMENTS ARE EITHER REGISTERED DOCUMENTS WITH GOVERNMENT DEP ARTMENTS OR ALREADY DISCLOSED TO THE INCOME TAX DEPARTMENT. AS ALL THES E EVIDENCES ARE HAVING -: 4: - 4 MATERIAL BEARING OVER THE ISSUES INVOLVED, IN THE I NTEREST OF JUSTICE, WE RESTORE THE ENTIRE APPEAL TO THE FILE OF AO AND THE ASSESSEE IS DIRECTED TO FILE THE ADDITIONAL EVIDENCE, WHICH WERE FILED BEFORE TH E CIT(A) AND THE AO IS DIRECTED TO MAKE NECESSARY ENQUIRY AND TO DECIDE TH E APPEAL AFRESH. AT THIS JUNCTURE, WE MAKE IT CLEAR THAT THE ASSESSEE IS TO APPROACH TO AO WITHIN 2 MONTHS FROM THE RECEIPT OF THE ORDER OF THE TRIBUNA L WITHOUT WAITING FOR ANY NOTICE FROM THE AO. THE ASSESSEE IS ALSO DIRECTED T O COOPERATE WITH THE AO FOR EARLY COMPLETION OF THE ASSESSMENT. WE DIRECT A CCORDINGLY. 5. IN THE RESULT, THE APPEAL IS DISPOSED OF IN TERMS I NDICATED ABOVE. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 30 TH NOVEMBER, 2010. SD/- SD/- (JOGINDER SINGH) ( R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 30 TH NOVEMBER, 2010. CPU* 30