Mukesh Kumar Sharma, Chandigarh V. DCIT, Chandigarh

ITA 19/CHANDI/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60852 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-05-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 06-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K SAINI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A CHANDIGARH BEFORE SHRI T.R. SOOD, AM AND MS. SUSHMA CHOWLA, JM ITA NO. 19/CHD/2012 ASSESSMENT YEAR: 2008-09 MUKESH KUMAR SHARMA V. D.C.I.T. SCO 83-84 CIRCLE 4(1), CHANDIGARH SECTOR 34A CHANDIGARH PAN: AMLPS 9906 N (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI PRIKSHIT AGGARWAL RESPONDENT BY: SHRI N.K. SAINI DATE OF HEARING: 14.05.2012 DATE OF PRONOUNCEMENT: 21.5.2012 ORDER PER T.R. SOOD, A.M IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLOWI NG GROUNDS: 2 THAT ON THE FACTS AND IN THE CIRCUMSTANCES AND LEGAL POSITION OF THE CASE, THE WORTHY CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER WHEREIN HE HAD ERRED IN MAKING AN ADDITION OF RS. 4,00,000/- ON ACCOUNT OF ALLEGED UNACCOUNTED CASH EVEN WHEN THE SAME WAS DULY ACCOUNTED IN THE BOOKS AND EVEN FURTH ER WHEN THE SAME WAS ALSO COVERED WITHIN OTHER SURRENDER OF RS. 83.5 1 LAKHS ON ACCOUNT OF ADDITIONAL INCOME WHICH WAS NOT CREDITED TO BOO KS OF ACCOUNTS BY THE APPELLANT. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES AND LEGAL POSITION OF THE CASE, THE WORTHY CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER WHEREIN HE HAD ERRED IN MAKING AN ADDITION OF RS. 4,00,000/- ON ACCOUNT OF ALLEGED UNACCOUNTED CASH DEPOSIT IN BANK EVEN WHEN THE SAME WAS DULY RECORDED IN BOOKS A ND EVEN FURTHER WHEN THE SAME WAS ALSO COVERED WITHIN OTHER SURRENDER OF RS. 83.50 LAKHS ON ACCOUNT OF ADDITIONAL INCOME WHICH WAS NOT CREDITE D TO BOOKS OF ACCOUNTS BY THE APPELLANT. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES AND LEGAL POSITION OF THE CASE, THE WORTHY CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER WHEREIN HE HAD ERRED IN MAKING AN ADDITION OF RS. 10,00,000/- ON ACCOUNT OF ALLEGED UNACCOUNTED CASH PAYMENT FOR PURCHASE OF PROPERTY EVEN WHEN THE SAME WAS DULY RE CORDED INBOOKS AND EVEN FURTHER WHEN THE SAME WAS ALSO COVERED WIT HIN OTHER SURRENDER OF RS. 83.50 LAKHS ON ACCOUNT OF ADDITIONAL INCOME WHICH WAS NOT CREDITED TO BOOKS OF ACCOUNTS BY THE APPELLANT. 2. AFTER HEARING BOTH THE PARTIES WE FIND THAT A SU RVEY WAS CONDUCTED IN THE PREMISES OF THE ASSESSEE WHEREIN A DIARY AND SOME O THER DOCUMENTS AS WELL 2 AS UNACCOUNTED CASH WAS FOUND. ON THE BASIS OF DIA RY, THE ASSESSEE SURRENDERED AN INCOME OF RS. 83.50 LAKHS. FURTHER THE SURRENDER WAS MADE ON ACCOUNT OF CASH FOUND DURING SURVEY - RS. 4.00 LAK HS, CASH DEPOSITED IN THE BANK RS. 4.00 LAKHS AND CASH PAYMENT AGAINST AGR EEMENT TO PURCHASE PROPERTY RS. 10.00 LAKHS. HOWEVER, WHEN THE RETU RN WAS FILED ALL OF THESE AMOUNTS WERE NOT INCLUDED IN THE INCOME. INITIALLY IT WAS STATED THAT SINCE SOME EXPENSES WERE ALSO INCURRED AGAINST THE RECEIPT OF RWS. 83.50 LAKHS THEREFORE, ONLY NET INCOME WAS ACCOUNTED FOR AND OTHER SUMS OF RS. 4.00 LAKHS ON ACCOUNT OF CASH RS. 4.00 LAKHS ON ACCOUNT OF DEPO SIT IN THE BANK A ND RS. 10.00 LAKHS ON ACCOUNT OF PAYMENT AGAINST THE AGRE EMENT TO SELL WERE REQUIRED TO BE TELESCOPED. WHEN THE ASSESSING OFFICER CONFR ONTED THE ASSESSEE WITH THE SUBMISSIONS RECORDED DURING THE SURVEY IT WAS A GREED THAT THE GROSS RECEIPTS RECORDED IN THE DIARY AMOUNTING TO RS. 83. 50 LAKHS INCOME FROM IMMIGRATION BUSINESS MAY BE ADDED TO THE INCOME OF THE ASSESSEE. HOWEVER, BENEFIT OF TELESCOPING WAS SOUGHT IN THREE OTHER AD DITIONS. THE ASSESSING OFFICER DID NOT AGREE WITH THE SAME AND HE MADE THE ADDITIONS OF RS. 83.50 LAKHS AS WELL AS THE ADDITIONS ON ACCOUNT OF THREE OTHER ITEMS AMOUNTING TO RS. 18.00 LAKHS. 3. ON APPEAL THE ACTION OF THE ASSESSING OFFICER WA S CONFIRMED BY THE LD. CIT(A). 4. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE MAINL Y SUBMITTED THAT ONCE THE INCOME OF RS. 83.50 LAKHS WAS ADDED TO THE INCO ME OF THE ASSESSEE WHICH HAS BEEN ACCEPTED BY THE ASSESSEE THEN NATURALLY TH E INCOME WAS AVAILABLE IN FORM OF VARIOUS ASSETS INCLUDING AVAILABILITY OF CA SH FOR EXPLAINING THE CASH AS WELL AS THE DEPOSIT IN THE BANK AND THE PAYMENTS ON ACCOUNT OF AGREEMENT TO SELL. ACCORDINGLY THIS AMOUNT SHOULD BE TELESCOPED AGAINST THE SURRENDERED INCOME. 5. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE RE FERRED TO VARIOUS PORTIONS OF THE SUBMISSIONS RECORDED DURING SURVEY AND SUBMI TTED THAT THE ASSESSEE HAS 3 CLEARLY SURRENDERED THESE THREE ITEMS SEPARATELY AN D THEREFORE, THE ADDITIONS WERE CORRECTLY UPHELD BY THE LD. CIT(A) AND IN THIS REGARD HE STRONGLY RELIED ON PARA 3.3.9 OF THE APPELLATE ORDER. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS CAREFULLY AN D FIND FORCE IN THE SUBMISSIONS OF THE LD. COUNSEL OF THE ASSESSEE. AF TER INITIAL HESITATION THE ASSESSEE HAS CLEARLY ACCEPTED THE INCOME OF RS. 83. 50 LAKHS WHICH WAS ON ACCOUNT OF VARIOUS RECEIPTS SHOWN IN THE DIARY MAI NTAINED FOR IMMIGRATION BUSINESS AND THESE RECEIPTS WERE NOT RECORDED IN TH E BOOKS OF ACCOUNT. HOWEVER, ONCE THIS ADDITION HAS BEEN ADDED BY THE A SSESSING OFFICER NATURALLY THIS SUM WOULD BE AVAILABLE TO EXPLAIN VARIOUS ASSE TS AGAINST THIS INCOME. NATURALLY IT CANNOT BE PRESUMED THAT WHOLE OF THE I NCOME HAS BEEN SPENT BY THE ASSESSEE. ON A SPECIFIC ENQUIRY BY THE BENCH T HE REVENUE COULD NOT SHOW THAT THE ASSESSEE HAD UTILIZED THIS AMOUNT FOR EXPL AINING ANY OTHER ASSETS, THEREFORE, IN OUR OPINION, THIS AMOUNT WAS AVAILAB LE TO EXPLAIN THE CASH DURING SURVEY AMOUNTING TO RS. 4.00 LAKHS, RS. 4.00 LAKHS DEPOSITED IN THE BANK AND RS. 10.00 LAKHS PAID ON ACCOUNT OF AGREEMENT TO SE LL FOR PURCHASE CERTAIN PROPERTIES. THEREFORE, THESE AMOUNTS SHOULD HAVE BEEN TELESCOPED AGAINST THE INCOME OF RS. 83.50 LAKHS. ACCORDINGLY WE ALLO W THE BENEFIT OF TELESCOPING AND DELETED THE ADDITION OF RS. 18.00 LAKHS ON ACCO UNT OF ADDITION OF SAID THREE ITEMS. ACCORDINGLY WE SET ASIDE THE ORDER OF LD. C IT(A). 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED ON 21.5.2012 SD/- SD/- (SUSHMA CHOWLA) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT M EMBER DATED: 21.5 .2012 SURESH COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT/THE C IT(A)/ THE DR 4