Monika Juneja, Patna V. DCIT, Patna

ITA 19/PAT/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1194 (ITAT-PATNA)
• Duration Of Justice: 2 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 17-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R AJESH KR MISHRA
• Assessee Lawyers: N K LAL

Judgement Text

1 ITA NO. 19/PAT/2014. IN THE INCOME TAX APPELLATE TRIBUNAL, PATNA BENCH, PATNA. BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. (S.M.C.) I.T.A. NO. 19/PAT/2014. ASSESSMENT YEAR : 2008 - 09. MONIKA JUNEJA, DY. COMMISSIONER OF INCOME - TAX, PATNA. VS. CIRCLE - 5, PATNA. APPELLANT. RESPONDENT. APPELLANT BY : SHRI N .K. LAL. RESPONDENT BY : SHRI RA JESH KR. MISHRA . DATE OF HEARING : 01 - 08 - 2016 DATE OF PRONOUNCEMENT : 19 TH AUGUST, 2016 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(APPEALS) DATED 28 - 11 - 2003 AND PERTAINS TO ASSESSMENT YEAR 2008 - 09. THE GROUNDS OF APPEA L READ AS UNDER: 1. FOR THAT THE FINDINGS RECORDED BY THE LD. A.O. ARE UNFOUNDED AND ARE BASED ON CONJECTURES AND SURMISES. 2. FOR THAT LD. CIT(A) HAS ALSO ERRED IN RECORDING A FINDING DIFFERENT FROM THAT RECORDED BY THE LD. A.O. 3. FOR THAT THE SEIZED MATERIAL HAS NOT BEEN APPRECIATED EITHER PROPERLY OR IN RIGHT PERSPECTIVE BY BOTH THE LD. A.O. AS WELL AS THE LD. CIT(A). 2. BRIEF FACTS OF THE CASE ARE THAT A LOOSE PAPER WAS FOUND DURING THE SURVEY ON WHICH NAME OF HANUMAN TRADING COMPANY, KOLKATA IS WRITTEN. FURTHER, IT IS MENTIONED THAT NINE PAYMENTS OF RS.49,750/ - HAVE BEEN MADE AND A PAYMENT 2 ITA NO. 19/PAT/2014. OF RS.20,000/ - IN CASH HAS BEEN MADE. SINCE THE APPELLANT FAILED TO GIVE ANY EXPLANATION REGARDING THE SAME, THE ADDITION OF THIS AMOUNT WAS MADE. 3. BEFORE THE LEARNE D CIT(APPEALS) IT WAS SUBMITTED THAT THIS PAPER DOES NOT BEAR DATE, NAME OR ADDRESS OF THE APPELLANT. DURING THE YEAR UNDER CONSIDERATION, NOT A SINGLE PURCHASE WAS MADE BY THE APPELLANT FROM KOLKATA. THEREFORE, THE ADDITION WAS MADE WITHOUT DUE VERIFICATI ON AND ON ASSUMPTION. CONSIDERING THE ABOVE, LEARNED CIT(APPEALS) HELD AS UNDER : I HAVE CONSIDERED THE FACTS OF THE CASE. THE ABOVE PAPER WAS IMPOUNDED FROM THE POSSESSION OF THE APPELLANT. THE APPELLANT WAS REQUIRED TO GIVE DETAILS OF THE SAME. NEITHER IN THE ASSESSMENT PROCEEDINGS NOR IN THE APPELLATE PROCEEDINGS, THE APPELLANT HAS COME OUT WITH RELEVANT DETAILS. IT APPEARS THAT THE APPELLANT HAS PURCHASED NINE BANK DRAFTS IN CASH OF RS.49,750/ - . THE DEMAND DRAFT CAN BE PURCHASED IN CASH FOR LESS THAN RS.50,000/ - ONLY. THE FACTS CLEARLY SUGGEST THAT IT IS AN UNDISCLOSED TRANSACTION BE IT IN THE NATURE OF PURCHASES OF GOODS OR INVESTMENT OR TAKING ENTRY OF LOAN ETC. FROM KOLKATA. THE APPELLANT WAS REQUIRED TO COME OUT WITH COMPLETE FACTS IN THIS REGARD A ND JUSTIFY THE TRANSACTION. HOWEVER, SINCE EVEN THE INITIAL ONUS HAS NOT BEEN DISCHARGED, THE ADDITION MADE BY THE AO IS QUITE IN ORDER AND THE SAME IS UPHELD. 4. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. 5. I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. LEARNED COUNSEL OF THE ASSESSEE REFERRED TO THE COPY OF SEIZED MATERIAL PLACED IN PAPER BOOK PAGE NO.1. THAT T HE SAID PAPER DOES NOT BEAR THE DATE NOR NAME AND ADDRESS OF THE ASSESSEE AND NOT EVEN ITEMS ETC. THAT NOT ANY SINGLE PURCHASE HAD BEEN SHOWN FROM KOLKATA. THAT THE ASSESSEE IS A WHOLESALER AND IN VIEW OF NATURE OF GOODS DEALT BY HIM KOLKATA IS NOT A MARKET FROM WHERE THE PURCHASE CAN BE MADE. HENCE LEARNED COUNSEL PLEADED THAT THE SAID ADDITION ON ACCOUNT OF UNAC COUNTED PURCHASES IS BASED ON MERE SUSPICION WITHOUT ESTABLISHING ANY RELEVANCE THEREIN. IN THIS REGARD LEARNED COUNSEL PLACED RELIANCE UPON THE DECISION OF 3 ITA NO. 19/PAT/2014. HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. M/S DHINGRA MEAL WORKS 328 ITR 384. 6. PER CONTRA L EARNED D.R. RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 7. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSED THE RECORDS. IT IS UNDISPUTED THAT DURING THE COURSE OF SURVEY, MATERIAL WAS SEIZED BY THE REVENUE DEPARTMENT WHICH MENTIONS 497 50 9 HANUMAN TRADING CO . , KOLKATA . IT IS THE INFERENCE OF THE REVENUE THAT THE ASSESSEE HAS PAID THE SAID AMOUNT BY PURCHASING DRAFT OF LESS THAN RS.50,000/ - EACH FOR UNACCOUNTED PURCHASES MADE FROM HANUMAN TRADING COMPANY, KOLKATA. THE ASSESSEES SUB MISSION IN THIS REGARD IS THAT THE SAID AMOUNT CANNOT BE PRESUMED TO BE PURCHASED AS THE ASSESSEE HAD NOT MADE ANY TRANSACTION OF SALE AND PURCHASE WITH PARTIES FROM KOLKATA AND THE CONCERNED PARTY DOES NOT DEAL WITH THE GOODS DEALT WITH BY THE ASSESSEE. F URTHER MORE LEARNED COUNSEL OF THE ASSESSEE HAS PLACED RELIANCE UPON THE CASE LAWS FOR THE PROPOSITION THAT THE STATEMENT OBTAINED DURING SURVEY OPERATION CANNOT BE THE SOLE BASIS FOR ADDITION. 8. I FIND THAT IN THIS CASE THE ADDITION IS NOT BASED UPON THE STATEMENT OBTAINED DURING SURVEY. HENCE THE CASE LAWS RELIED UPON BY THE LEARNED COUNSEL OF THE ASSESSEE DO NOT SUPPORT THE CASE OF THE ASSESSEE. THE ASSESSEE HAS ONLY TRIED TO REBUT THE REVENUES INFERENCE FROM THE SAID JOTTINGS IN THE SAID DOCUMENT THA T THE SAME IS NOT PURCHASED FROM HANUMAN TRADING COMPANY, KOLKATA. HOWEVER, NOWHERE IN THE SUBMISSIONS THE ASSESSEE HAS EXPLAINED AS TO WH AT THOSE JOTTINGS IN THE SEIZED DOCUMENT ACTUALLY STAND FOR. NO CASE HAS BEEN MADE OUT THAT THE SAID JOTTINGS ARE NO T IN THE HAND WRITING OF THE ASSESSEE OR ITS EMPLOYEES. IN SUCH CIRCUMSTANCES, IN MY CONSIDERED OPINION, INTEREST OF JUSTICE DEMANDS THAT THE ISSUE BE REMITTED TO THE FILE OF THE AO. ACCORDINGLY THIS ISSUE STANDS REMITTED TO THE FILE OF THE AO. THE AO IS D IRECTED TO GIVE THE ASSESSEE AN OPPORTUNITY TO GIVE EXPLANATION REGARDING THE CONTENTS OF THE SEIZED PAPER AND JOTTINGS AND THEREAFTER DECIDE AS PER LAW. 4 ITA NO. 19/PAT/2014. 9. IN THE RESULT, THIS APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 19 TH DAY OF AUGUST, 2016. SD/ - ( SHAMIM YAHYA) ACCOUNTANT MEMBER. DATED: 19 TH AUGUST , 2016. COPY FORWARDED TO : 1. MONIKA JUNEJA, PROP.: M/S S.S. & COMPANY, JUNEJA MARKET, JHAUGANJ, PATNA CITY. 2. D.C.I.T., CIRCLE - 5, PATNA. 3. C.I.T. - , PATNA. 4. CIT(APPEALS), - , PATNA. 5. D.R., ITAT, PATNA. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, PATNA BENCH, PATNA. WAKODE.