M/s. Pooja Electronics, Valsad V. The Income Tax Officer, Ward -3, Valsad

ITA 1994/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0894 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 24-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S D CHHEDA
• Keywords: Business income; Income from undisclosed sources; Loose papers
• Section: 143(3); 133A; 131; 12; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD BEFORE SHRI S.S. GODARA, JM, & SHRI MANISH BORAD, AM. ITA NO.1994/AHD/2013 & 338/AHD/2016 ASST. YEAR: 2009-10 M/S POOJA ELECTRONICS, 24, 1 ST FLOOR, KSHITIZ APARTMENT, TITHAL ROAD, VALSAD. VS. ITO, WARD-3, VALSAD. APPELLANT RESPONDENT PAN AAQFM 6588B APPELLANT BY SHRI S. D. CHHEDA, AR RESPONDENT BY SHRI KEYUR PATEL, SR.DR. DATE OF HEARING: 27/6/2016 DATE OF PRONOUNCEMENT: 3/8/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER . THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGAI NST TWO SEPARATE ORDERS OF LD. CIT(A), VALSAD, DATED 14.6.2 013 AND DATED 2/12/2015 FOR ASST. YEAR 2009-10, PASSED AGAINST OR DER U/S 143(3) OF THE IT ACT, 1961 (IN SHORT THE ACT) AND ORDER U/S 2 71(1)(C) OF THE ACT DATED 28.12.2011 & 17.1.2014 RESPECTIVELY FRAMED BY ITO-WD-3, VALSAD. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN ITA NO.199 4/AHD/2013: ITA NO. 1994/A/13 & 338/A/16 ASST. YEAR 2009-10 2 1. THE LEARNED CIT (A) HAS ERRED IN LAW & IN FACTS TO CONFIRM ADDITION OF RS.11,68,685/- AS ADDITIONAL INCOME WITHOUT GOING INTO FACTS T HAT THE AMOUNT ACCOUNTED IN THE BOOKS OF RESPECTIVE FIRMS AND NO INCOME HAS REMAINED UNAC COUNTED IN THE BOOKS OF FIRM. 2. THE LEARNED CIT (A) HAS ERRED IN LAW & FACT HOLD ING THAT VERACITY OF COLLECTION ACCOUNT IS IN DOUBT & CANNOT BE RELIED THAT THE ABOVE AMOUNT I S ALREADY INCLUDED IN SALES. 3. THE LEARNED CIT (A) HAS ERRED IN LAW & IN FACTS TO HELD THAT CONTENTS OF BOTH PAGES I.E. B.F. 17 & PAGE NO.109 & 121 ARE NOT SAME I.E. COLLE CTION & CASH SUMMARY HAS NO CO- RELATION & FAILED TO APPRECIATE THAT CASH GENERATED IS OUT OF CASH SALES EFFECTED. 4. THE LEARNED CIT (A) HAS ERRED IN LAW & IN FACTS TO HOLD THAT ADDITION IS MADE ON STRONG EVIDENCE. 5. THE LEARNED CIT (A) HAS FAILED TO HOLD THAT ADD ITION IS ON THE BASIS OF SURMISES & CONJUNCTION & CANNOT BE BASIS FOR ADDITION. 6. THE LEARNED CIT (A) HAS ERRED IN LAW & IN FACTS TO HELD THAT INCOME OF THE FIRM M/S POOJA CABLE DUNGRA OF RS. 3,44,895/- CANNOT BE ADDED IN T HE HAND OF THE APPELLANT & SPECIALLY WHEN THE ABOVE INCOME HAS BEEN ALREADY RECORDED IN THE BOOKS OF M/S POOJA CABLE, DUNGRA. 7. THE APPELLANT CRAVES LEAVE TO ADD. AMEND, ALTER OR DELETE ANY OR AIL THE ABOVE 'ROUNDS OF APPEAL. - 3. BRIEFLY STATED FACTS OF THE CASES ARE THAT ASSES SEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF CABLE C ONNECTION AND ELECTRONICS. SURVEY ACTION U/S 133A OF THE ACT WAS CARRIED ON 27.3.2009 AND STATEMENT ON OATH WAS RECORDED ON 30. 03.2009 OF MR. KHIMJIBHAI H. CHAVDA, PARTNER OF ASSESSEE FIRM M/S POOJA ELECTRONICS. IN THE STATEMENT RECORDED U/S 131 OF T HE ACT, PARTNER OF THE FIRM DECLARED ADDITIONAL UNACCOUNTED INCOME OF RS.19,98,685/- ON THE BASIS OF LOOSE PAPERS. HOWEVER, IN THE RETURN O F INCOME FILED ON 1.1.2010 PURSUANT TO SURVEY ACTION, ASSESSEE DECLAR ED TOTAL INCOME AT RS.5,52,140/-. THE CASE WAS SELECTED FOR SCRUTIN Y ASSESSMENT AND NOTICE U/S 143(2) OF THE ACT WAS SERVED ON THE ASSE SSEE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS OBSERVED T HAT ASSESSEE ITA NO. 1994/A/13 & 338/A/16 ASST. YEAR 2009-10 3 HAD SHOWN ONLY RS.8,30,000/- AS BUSINESS INCOME INS TEAD OF RS.19,98,685/-. ASSESSEE GAVE DETAILED SUBMISSIONS WHICH DID NOT CONVINCE LD. ASSESSING OFFICER. ASSESSMENT WAS COMP LETED ON 28.12.2011 BY ASSESSING THE INCOME AT RS.18,52,825/ - AFTER MAKING ADDITION ON ACCOUNT OF UNACCOUNTED INCOME DECLARED BUT NOT SHOWN IN THE RETURN OF INCOME AT RS.11,68,685/- (BEING EX CESS AMOUNT DECLARED DURING SURVEY AT RS.19,98,685/- AS AGAINST AMOUNT SHOWN IN THE RETURN OF INCOME AT RS.8,30,000/-) AND DISALLOW ANCE OF SALARY EXPENSES AT RS.1,32,000/-. 4. AGGRIEVED ASSESSEE WENT IN APPEAL BEFORE LD. CIT (A) AND GOT PART RELIEF AS LD. CIT(A) DELETED THE DISALLOWANCE OF SALARY EXPENSES OF RS.1,32,000/-. LD. CIT(A) SUSTAINED THE ADDITION OF RS.11,68,685/- BY OBSERVING AS UNDER :- 5.3 DECISION :- I HAVE CONSIDERED THE OBSERVATIONS OF THE AO IN THE ASSESSMENT ORDER AS WELL AS THE CONTENTION RAISED B Y THE AR OF THE APPELLANT IN THE WRITTEN SUBMISSION. THE AO HAS GIVEN DETAILED REASO NS IN THE ASSESSMENT ORDER WHY HE MADE THE IMPUGNED ADDITION. HE RELIED ON THE DOCUMENTS IMPOUNDED DURING THE COURSE OF SURVEY AND THE STATEMENTS RECO RDED U/S.131 OF THE ACT FOLLOWED BY ANOTHER DECLARATION IN THE FORM OF LETT ER DATED. 31.03.2009 WHEREIN THE APPELLANT UNIVOCALLY CONFIRMED THE DECLARATION OF R S. 19,99 LAKHS. THE SURVEY U/S 133A WAS CONDUCTED ON 27.03.2009. THE DISPUTE AROUS ED HERE WAS THOUGH THE APPELLANT MADE DISCLOSURE OF CONCEALED INCOME OF RS . 19,98,685/- BUT OFFERED INCOME OF RS.8,30,000/- ONLY IN THE R/I. THE AO MAD E ADDITION THE BALANCE AMOUNT OF RS. 11,68,685/-. ON THE OTHER HAND THE ID . AR SUBMITTED THAT THE DETAILS IN BF-17/PAGE-109 AND BF-17/PAGE-121 ARE SAME. THER EFORE, ONLY RS.8,30,000/- IS TAKEN AS UNDISCLOSED INCOME IN THE RETURN INSTEA D RS. 19,98,685/- DECLARED DURING THE SURVEY ACTION. FURTHER, THE ID. AR CONTE NDED THAT THE AO HAS MADE ADDITION PURELY ON THE BASIS OF STATEMENTS MADE BY THE ',' APPELLANT. I HAVE CAREFULLY PERUSED THE DOCUMENTS RECOVERED DURING SU RVEY ACTION PARTICULARLY, BF- 17/PAGE-L09 AND BF-17/PAGE-121 BASED ON WHICH THE A DDITIONS MADE BY THE AO. BF-17/PAGE-109 CONTAINS MONTHLY CASH COLLECTION FRO M APRIL 2008 TO FEBRUARY 2009 TOTALING RS. 8,30,000/- FOR POOJA ELECTRONICS, . VALSAD. THERE IS NO DISPUTE ON ITA NO. 1994/A/13 & 338/A/16 ASST. YEAR 2009-10 4 THIS AMOUNT WHICH THE APPELLANT HAS OFFERED FOR TAX ATION. BF-17/PAGE-121 CONTAINS MONTHLY CASH COLLECTION FOR POOJA ELECTRONICS FOR THREE AREAS - ABRAMA, TITHAL ROAD AND VAPI-DUNGRA FOR THE PERIOD APRIL 2008 TO M ARCH (25TH.) 2009. AREA- WISE CASH COLLECTION IS AS UNDER, I) ABRAMA RS.5,67,720/- II) TITHAL ROAD RS.2,56,070/- III) VAPI-DUNGRA RS.3,44,895/- (THE CASH COLLECTION FOR VAPI-DUNGRA IS FOR THE PER IOD FROM JANUARY 2009 TO 25 TH . MARCH 2009). INTERESTINGLY, THE COLLECTION FOR MA RCH 2009 RECORDED FOR 3 DAYS I.E FOR 13 TH ., 24 TH & 25 TH . AND ONLY FOR VAPI-DUNGRA. THE SURVEY U/S. 133A WAS CONDUCTED ON 27 TH MARCH 2009. AS STATED ABOVE, THE APPELLANT TOOK PL EA BEFORE THE AO THAT THE DETAILS IN BF-17/PAGE-109 AN D BF-17/PAGE-121 ARE SAME AND THERE FOR THE ADDITION OF THE AMOUNT IN PA GE 121 AMOUNTS TO DOUBLE ADDITIONS. BEFORE ME ALSO THE ID. AR TOOK THE SIMIL AR PLEA. HE ALSO TOOK ANOTHER STAND THAT OUT OF RS. 11,68,685/-, COLLECTION FROM VAPI-DUNGRA OF RS.3,44,895/- PERTAINS TO POOJA CABLES - A SEPARATE ENTITY AND AC COUNTED FOR. TO SUPPORT THIS STAND, THE ID. AR PURPORTED SUBMITTED SO CALLED LED GER A/C. OF POOJA CABLES BEFORE ME. BEFORE I DECIDE WHETHER THE AMOUNTS REFL ECTED IN BOTH THE PAGES BF- 17/PAGE-109 AND BF-17/PAGE-121 ARE SAME OR NOT, LET ME EXAMINE THE VERACITY OF THE LEDGER A/C COPY OF POOJA CABLE SUBMITTED BEF ORE ME. I HAVE EXAMINED THOROUGHLY THE LEDGER COPY. THIS MONTHLY STATEMENT COLLECTION LEDGER A/C. WERE NOT PRODUCED BEFORE THE SURVEY PARTY, NOR BEFORE TH E AO DURING THE ASSESSMENT. THE AUTHENTICITY OF LEDGER COPY PRODUCED BEFORE ME CANNOT BE ESTABLISHED BECAUSE NEITHER VERIFIED BY THE CHARTERED ACCOUNTAN T NOR BY THE APPELLANT. IT IS JUST A COMPUTER PRINTOUT REPLICATING THE FIGURES IN PAGE BF-17/PAGE-121. I HAVE ALSO EXAMINE 2 PAGES OF MONTH SUMMARY STATEMENT OF POOJA CABLE - ABRAMA & DUNGRA VAPI SUBMITTED BEFORE ME. CLOSE SCRUTINY OF THESE TWO PAGES REVEALS THAT THE NAME OF THE CONCERN VARIES I.E. IN ONE PAG E THE NAME IS POOJA CABAL-II, ABRAMA AND IN THE OTHER PAGE THE NAME MEN TIONED IS POOJA CABLE DUNGRA, VAPI. THE PROFIT AND LOSS A/C. OF THE CONCERN - POOJA CABLE, DUNGRA-VAPI ALSO DO NOT SUGGEST THE AMOUNT OF RS.3, 44,895/- RECORDED IN BF- 17/PAGE-121 IS INCLUDED IN THE SALES/RECEIPT. THERE IS ANOTHER ANOMALY NOTICED FROM THE TWO MONTHLY STATEMENTS OF POOJA CABAL-II, ABRAMA & POOJA CABLE DUNGRA, VAPI THAT IF THE AMOUNTS THEREIN ARE TOTALED, IT COMES TO RS. 9,12,612/- WHICH IS MUCH MORE THAN THE COLLECTION S HOWN IN THE P&L A/C. MOREOVER, THE P&L A/C PREPARED BY THE APPELLANT WAS MUCH AFTER THE SURVEY WAS CONDUCTED AND THE RELIED UPON DOCUMENTS WERE IM POUNDED. THEREFORE, I ITA NO. 1994/A/13 & 338/A/16 ASST. YEAR 2009-10 5 HAVE NO HESITATION TO HOLD THAT THE VERACITY OF THO SE SO CALLED TWO PAGES SHOWING MONTHLY COLLECTION IS SERIOUSLY IN DOUBT AN D CANNOT BE RELIED. 5.3.1 IN THIS BACKGROUND, NOW I DEAL WITH THE SUB STANTIVE ISSUE I.E. WHETHER THE AMOUNTS REFLECTED IN BOTH THE PAGES BF-17/PAGE-109 AND BF-17/PAGE-121 ARE SAME OR NOT ? AS MENTIONED EARLIER THERE IS NO DISP UTE IN THE AMOUNT OF RS.8,30,000/- IN PAGE BF-17/PAGE-109. THAT LEAVE SP ACE TO FOCUS ON THE CONTENTS IN PAGE BF-17/PAGE-121. AS INDICATED IN PA RA ABOVE, BF-17/PAGE-121 CONTAINS MONTHLY CASH COLLECTION FOR POOJA ELECTRON ICS FOR THREE AREAS - ABRAMA, TITHAL ROAD AND VAPI-DUNGRA FOR THE PERIOD APRIL 2008 TO MARCH (25TH.) 2009. AREA-WISE CASH COLLECTION IS AS UNDER , I. ABRAMA RS. 5,67,720/- II. TITHAL ROAD RS.2,56,070/- III. VAPI-DUNGRA RS.3,44,895/- (THE CASH COLLECTION FOR VAPI-DUNGRA IS FOR THE PER IOD FROM JANUARY 2009 TO 25 TH . MARCH 2009). INTERESTINGLY, THE COLLECTION FOR MA RCH 2009 RECORDED FOR 3 DAYS I.E FOR 13 TH , 24 TH & 25 TH . AND ONLY FOR VAPI-DUNGRA. MONTHLY CASH COLLECTION REFLECTED IN PAGE BF-I7/PAGE-IO9 DO NOT TALLY WITH THE MONTHLY FIGURE IN PAGE BF-I7/PAGE-I2I. AGAIN, THE SUM TOTAL OF BOTH THE PAGES ALSO DIFFER (EVEN IF VAPI-DUNGRA FIGURE IS IGNORED). THERE IS N O COMMON BOND AMONG THE FIGURES IN BOTH THE PAGES. THEREFORE, I AM CONVINCE D TO OPINE, AFTER DUE DILIGENCE OF BOTH THE PAGES, THAT THE CONTENTS (I.E . THE AMOUNTS) IN THESE PAGES ARE NOT THE SAME. THEREFORE, THE AO IS JUSTIFIED IN MAKING SUCH ADDITION KEEPING IN VIEW OF THE FACTS THAT I) THE ADDITION M ADE IS BASED ON STRONG EVIDENCES, II) THERE IS A VOLUNTARY DISCLOSURE BY T HE APPELLANT NOT ONCE BUT TWICE, III) THERE IS NOTHING ON RECORDS THAT THE DI SCLOSURE WAS MADE WITH UNDUE PRESSURE, IV) THE ID. AR OSCILLATED HIS STANDS BOTH DURING ASSESSMENT AND APPELLATE PROCEEDING, AND V) THE ID. AR FAILED TO J USTIFY WITH ANY COGENT RELIABLE EVIDENCES THAT THE AMOUNTS IN BOTH THESE P AGES ARE SAME. THUS, THIS GROUND OF APPEAL IS DISMISSED. 5. AGGRIEVED, ASSESSEE IS NOW IN APPEAL BEFORE THE TRIBUNAL. ASSESSEE HAS RAISED 7 GROUNDS OF APPEAL BUT THE ISS UE IS LIMITED AGAINST THE ADDITION CONFIRMED BY LD. CIT(A) AT RS .11,68,685/- AND NOT ACCEPTING THE FACT THAT INCOME OF THE SISTER CO NCERN M/S POOJA CABLE DUNGRA OF RS. 3,44,895/- BEING ADDED IN THE H ANDS OF THE ITA NO. 1994/A/13 & 338/A/16 ASST. YEAR 2009-10 6 ASSESSEE EVEN WHEN THE INCOME STANDS ALREADY DECLAR ED IN THE BOOKS OF M/S CABLE DUNGRA. REMAINING GROUNDS ARE EI THER SUPPORTING THE ABOVE ISSUE OR OF GENERAL IN NATURE. WE WILL DE AL THESE ISSUES TOGETHER. 6. LD. AR SUBMITTED THAT A SURVEY ACTION-U/S .133A OF THE INCOME TAX WAS CARRIED OUT. MR. KHIMJIBHAI H. CHAVDA, THE PARTNER OF THE FIRM HAS DECLARED ADDITIONAL BUSINESS INCOME OF RS. 19.9 8.685/- ON THE BASIS OF LOOSE PAPERS, BEING BF/ 17, PAGE NO. 109 & BF/ 17, PAGE NO. 121,WHICH APPEARING AT PAGES 9 & 10 OF THE PAPER BO OK DATED 27.6.2016.THE PAGE NO.121 OF ABOVE SHOWS THE MONTHL Y COLLECTION OF TWO FIRM FOR THREE SEPARATE AREAS. THE PAGE NO 109 SHOWS CONSOLIDATED CASH GENERATED OUT OF ABOVE MONTHLY CO LLECTION. IN PARA 2.1 OF ASSESSMENT ORDER THE LEARNED ASSESSING OFFIC ER HAS OBSERVED THAT THE APPELLANT HAS DECLARED ONLY INCOME OF RS. 8.30 LAKH AS AGAINST DECLARED INCOME OF RS. 19.98 LAKHS. THE ABO VE OBSERVATION IS INCORRECT AS RS. 8.30 LAKH WAS SHOWN SEPARATELY IN P & L ACCOUNT WHEREAS BALANCE WAS INCLUDED IN SALES ACCOUNT. THE DECLARATION OF RS. 11,68,685/- CONSIST MONTHLY COLLECTION OF TWO COMPANIES I.E. M/S POOJA ELECTRONICS & M/S POOJA CA BLE, DUNGRA FOR RS.11,68,685. THE APPELLANT HAS DULLY RECORDED MONT HLY COLLECTION IN RESPECTIVE FIRMS, WHICH IS REGULAR INCOME OF THE AP PELLANT AND THERE IS NO QUESTION OF ANY INCOME NOT DECLARED IN BOOKS OF ACCOUNTS. THE COPY OF LEDGER ACCOUNT OF M/S POOJA ELECTRONICS, VA LSAD & POOJA CABLE, DUNGRA WHICH STOOD FILED BEFORE THE LOWER AU THORITIES IS ITA NO. 1994/A/13 & 338/A/16 ASST. YEAR 2009-10 7 ATTACHED HEREWITH WHICH CLEARLY SHOWS THAT THE INCO ME OF THE LOOSE PAPER HAS BEEN DULLY ACCOUNTED (PAPER BOOK PAGES 10 -12 AND PAGES 18-24) OUT OF TOTAL RS. 11,68,685/- OF MONTHLY COLLECTION STATEMENT, RS. 3,44,895/- PERTAINS TO POOJA CABLE, DUNGRA, A SEPAR ATE FIRM AND THE AMOUNT HAS BEEN DULY RECORDED IN THAT FIRM AND THER E IS NO QUESTION OF TAXING THE SAME AMOUNT IN HANDS OF POOJA ELECTRO NICS. THE COPY OF IT RETURN COPY ALONG WITH P & L ACCOUNTS & BALANCE SHEET ARE PART OF PAPER BOOK. YOUR HONOUR WOULD OBSERVE THAT COLLECTI ON OF POOJA CABLE REFLECTED ON PAGE NO. 109 OF SEIZED PAPER IS DULLY ACCOUNTED IN THE BOOKS AND THERE IS NO QUESTION OF UNACCOUNTED INCOM E. THE LEARNED A.O. HAS HELD THAT THE ABOVE AMOUNT IS NOT SHOWN SE PARATELY BUT IGNORED THE FACT THAT IT WAS DULLY INCLUDED IN SALE S & HENCE THERE IS NO QUESTION OF SEPARATE DISCLOSURE. THE LEARNED A.O FA ILED TO UNDERSTAND THAT THERE CANNOT BE ADDITION ON THE BASIS OF STATE MENT ONLY THE LEARNED A.O FAILED TO UNDERSTAND THAT ALL THE INCOM E DECLARED IS DULY ACCOUNTED IN BOOKS OF ACCOUNT AND JUST BECAUSE NET PROFIT IS LESS DUE TO EXPENSES IT CANNOT BE CONSIDERED AS UNACCOUNTED INCOME. THE LEARNED A.O. HAS ADDED THE ABOVE AMOUNT ON THE GROU ND OF STATEMENT U/S 131 AND WITHOUT ANYTHING CONTRARY FOU ND. THE ADDITION IS PURELY ON THE BASIS OF SURMISES & CONJUNCTION AN D CANNOT BE UPHELD. THE LEARNED A.O. HAS ADDED THE ABOVE AMOUNT ON THE GROUND OF STATEMENT U/S 131 AND COMPLETELY IGNORED THE FAC TUAL EVIDENCES. ITA NO. 1994/A/13 & 338/A/16 ASST. YEAR 2009-10 8 WITHOUT PREJUDICE TO ABOVE PROPOSITIONS, THERE CANN OT BE AGAIN AN ADDITION WHEN ASSESSEE HAVE ALREADY OFFERED RS. 8,3 0,000/- AS UNDISCLOSED INCOME DURING SURVEY U/S133A AS CASH IN COME. 7. ON THE OTHER HAND, LD. DR SUPPORTED THE ORDERS O F LOWER AUTHORITIES. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THROUGH THIS APPEAL ASSESSEE HAS 7 GROUN DS WHICH REVOLVES AROUND 2 ISSUES DECIDED AGAINST THE ASSESS EE BY LD. CIT(A) CONFIRMING ADDITION OF RS.11,68,685/- AND NOT ACCEP TING THE SUBMISSIONS THAT RS.3,44,895/- OF PART OF MONTHLY C OLLECTION IS NOT RELATED TO ASSESSEE BUT TO ANOTHER SISTER CONCERN M /S POOJA CABLE, DUNGRA-VAPI. WE OBSERVE THAT DURING THE COURSE OF S URVEY PROCEEDINGS U/S 133A OF THE ACT CARRIED OUT IN THE BUSINESS PREMISES OF THE ASSESSEE ON 27.3.2009, PARTNER OF THE FIRM M R. KHIMJI CHAVDA IN HIS STATEMENT GIVEN U/S 131 OF THE ACT SURRENDER ED GROSS INCOME OF RS.19,98,685/- WHICH COMPRISED OF CASH INCOME FROM APRIL, 2008 TO FEBRUARY, 2009 TOTALLING TO RS.8,30,000/- APPEARING AT PAGE 8 OF PAPER BOOK BEARING PAGE NO. 121 BEING PART OF SURVE Y DOCUMENTS AND RS.11,68,685/- BEING TOTAL OF 3 COLUMNS PERTAIN ING TO GROSS COLLECTION OF CABLE BUSINESS, IN THE NAME OF POOJA- 1, POOJA CABLE-2 (ABRAMA) AND POOJA CABLE (DUNGRA) AND IT WAS PART O F ANOTHER GROUP SISTER CONCERN M/S POOJA CABLES AND THESE DETAILS U NDER THREE COLUMNS ARE APPEARING AT PAGE -109 BF-17 OF SURVEY DOCUMENTS. THE TOTAL OF THESE TWO ITEMS RS.8,30,000/- AND RS.11, 68,685/- COMES TO RS.19,98,685/-. ITA NO. 1994/A/13 & 338/A/16 ASST. YEAR 2009-10 9 9. WE FURTHER OBSERVE THAT IN THE FINANCIAL STATEME NTS OF ASSESSEE FROM M/S POOJA ELECTRONICS WHICH WERE PLACED BEFORE THE LOWER AUTHORITIES, MORE SPECIFICALLY GOING THROUGH THE PR OFIT AND LOSS ACCOUNT AT PAGE 24 OF THE PAPER BOOK, WE FIND THAT UNDER THE DIRECT INCOME ASSESSEE HAS SHOWN GROSS COLLECTION AT RS.9, 61,870/- WHICH INCLUDES GROSS MONTHLY COLLECTION OF RS.5,67,720/- OF POOJA-II (ABRAMA) AND RS.2,56,070/- OF COLLECTION OF POOJA-I AND ON THE SAME PROFIT AND LOSS ACCOUNT UNDER THE INDIRECT INCOME A SSESSEE HAS OFFERED THE INCOME OF RS.8,30,000/- AND AFTER CLAIM ING INCIDENTAL EXPENSES INCLUDING REMUNERATION OF PARTNERS NET PRO FIT HAS BEEN OFFERED TO TAX. WE FURTHER OBSERVE THAT THE GROSS C OLLECTION OF RS.3,44,895/- FROM POOJA CABLE, DUNGRA, VAPI HAS BE EN SHOWN AS DIRECT INCOME IN THE PROFIT AND LOSS ACCOUNT OF POO JA CABLES, DUNGRA, VAPI APPEARING AT PAGE 21 OF THE PAPER BOOK AND THE INCOME HAS BEEN OFFERED TO TAX IN THE REGULAR RETURN FILED BY POOJA CABLES FOR ASST. YEAR 2009-10. 10. SUMMARIZING THE ABOVE OBSERVATIONS, WE FIND THA T ASSESSEE HAS GIVEN ALL NECESSARY INFORMATION BEFORE THE ASSE SSING AUTHORITY AND ALSO TAKING INTO ACCOUNT THE STATEMENT GIVEN BY THE PARTNER OF POOJA ELECTRONICS THE IMPUGNED AMOUNT OF RS.19,98,6 85/- IS FIRST OF ALL BIFURCATED INTO TWO PARTS OUT OF WHICH RS.8,30, 000/- IS A CASH AMOUNT RECEIVED SHOWN AT PAGE 109 OF THE SURVEY REC ORDS AND PAGE 8 OF THE PAPER BOOK AND RS.11,68,685/- AS THE GROSS MONTHLY COLLECTION OF THE ASSESSEE FIRM AND THE SISTER CONC ERN M/S POOJA CABLES, DUNGRA, VAPI APPEARING ON PAGE 12 OF THE SU RVEY RECORDS ITA NO. 1994/A/13 & 338/A/16 ASST. YEAR 2009-10 10 AND PAGE 9 OF THE PAPER BOOK. THERE IS NO DISPUTE F OR THE AMOUNT OF RS.8,30,000/- WHICH HAS BEEN DULY SHOWN IN THE PROF ITS AND LOSS ACCOUNT AND ACCEPTED BY THE REVENUE. AS FAR AS THE REMAINING AMOUNT OF RS.11,68,685/- IS CONCERNED AS WE DISCUSS ED ABOVE, THIS AMOUNT PERTAINS TO MONTHLY COLLECTION RECEIVED DURI NG THE COURSE OF REGULAR BUSINESS ACTIVITIES CARRIED OUT BY THE ASSE SSEE AND ASSESSEE IS ELIGIBLE TO CLAIM EXPENSES AGAINST THIS GROSS CO LLECTION AND OUT OF RS.11,68,685/- ASSESSEE HAS SHOWN RS.8,23,790/- UND ER THE FIRM M/S POOJA ELECTRONICS I.E. ASSESSEE WHICH FORMS PART OF TOTAL GROSS COLLECTION SHOWN FOR THE YEAR AT RS.9,61,870/-. THE REMAINING AMOUNT OF RS.3,44,895/- WHICH IS RECEIVED BY M/S POOJA CAB LES, DUNGRA, VAPI, HAS BEEN INCLUDED BY THE ASSESSEE IN THE GROS S COLLECTION OF RS.11,57,850/-. IN NUT SHELL ASSESSEE HAS DIRECTLY OFFERED RS.8,30,000/- AS INCOME AND RS.11,68,685/- AS GROSS COLLECTION/SALES IN THE POOJA ELECTRONICS AND M/S POOJA CABLES AND A FTER CLAIMING NECESSARY EXPENSES, REMUNERATION AND INTEREST TO PA RTNERS HAS OFFERED THE PROFIT FOR TAXES. THE ONLY ALLEGATION B Y REVENUE WAS OF NOT INCLUDING OF RS.11,68,685/- IN THE TOTAL INCOME BY THE ASSESSEE EVEN AFTER DECLARATION DURING THE COURSE OF SURVEY FAILS AT THIS JUNCTURE AS IT HAS BEEN SHOWN IN THE REGULAR BOOKS OF ACCOUNT AND OFFERED TO TAX BY WAY OF INCLUDING GROSS SALES/COLLECTION SHOWN IN TH E PROFIT AND LOSS ACCOUNT WHICH IS PART AND PARCEL OF THE RETURN OF I NCOME SUBMITTED. IN THE RESULT, THE IMPUGNED ADDITION OF RS.11,68,685/- IS DELETED. ACCORDINGLY GROUND NOS. 1 & 6 ARE ALLOWED. 11. GROUND NOS. 2,3,4, 5 & 7 ARE OF GENERAL NATURE, WHICH NEED NO ADJUDICATION. ITA NO. 1994/A/13 & 338/A/16 ASST. YEAR 2009-10 11 12. NOW WE TAKE UP ASSESSEES APPEAL IN ITA NO. NO. 338/AHD/ 2016 WHEREIN FOLLOWING GROUNDS HAVE BEEN RAISED :- 1 THE LEARNED CIT (A) HAS ERRED IN LAW & NOT CONSID ERING THE FACT THAT THE SATISFACTION OF THE ASSESSING OFFICER ABOUT THE CONCEALMENT OF P ARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME IS ESSENTI AL BEFORE LEVYING ANY PENALTY U/S 271(L)(C) AND ERRED IN LAW & IN FACTS IN NOT FOLLOW ING APEX COURT JUDGMENT IN THE CASE OF CIT V. ATUL MOHAN BINDAL [2009] 317 ITR 1. 2. THE LEARNED CIT (A) HAS ERRED IN LAW & NOT CONSI DERING THE FACT THAT THE PENALTY CANNOT BE LEVIED FOR DIFFERENT CHARGE THAN FOR WHIC H IT IS INITIATED & NOT FOLLOWING THE JUDGMENT OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS LALJI LAKHDHIR 85ITR77GUJHC. 3. THE LEARNED CIT (A) HAS ERRED IN LAW & NOT CONSI DERING THE FACT THAT PENALTY IS NOT LEVIABLE WHERE THE EXPLANATION IS UNPROVED BUT NOT DISPROVED & NOT FOLLOWING THE JUDGMENT OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF NATIONAL TEXTILES VS. CIT 249 ITR 125 GUI HC. 4. THE LEARNED CIT (A) HAS ERRED IN LAW & NOT CONSI DERING THE FACT THAT EXPLANATION 1 IS NOT APPLICABLE WHEN THERE IS NO EXPLANATION FOUND S ATISFACTORY & NOT FOLLOWING THE JUDGMENT OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT V. S. P. BHATT (1974) 97 ITR 440 GUJ HC 5. THE LEARNED A. O. HAS ERRED IN LAW AND FACTS TO LEVY PENALTY OF RS. 3,61,125/- U/S 271(1)(C). 6. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR DELETE ANY OR ALL THE ABOVE GROUNDS OF APPEAL. 13. ASSESSEE HAS RAISED SIX GROUNDS IN THIS APPEA L BUT THE EFFECTIVE GROUND IS NO.5 WHEREIN ASSESSEE IS AGGRIE VED AGAINST THE ORDER OF LD. CIT(A) CONFIRMING PENALTY OF RS. 3,61 ,125/- U/S 271(1)(C) OF THE ACT ON THE CONCEALED INCOME OF RS.11,68,685/ -. WE HAVE DELETED THE IMPUGNED ADDITION OF RS.11,68,685/- WHI LE DEALING WITH QUANTUM APPEAL IN ITA NO.1994/AHD/2013. WE OBSERVE THAT SINCE THE QUANTUM APPEAL HAS ALREADY BEEN DECIDED IN FAVOUR O F ASSESSEE AFTER DELETING THE IMPUGNED ADDITION, THERE REMAINS NO REASON TO VISIT THE ASSESSEE WITH PENALTY U/S 271(1)(C) OF THE ACT. WE DELETE THE ITA NO. 1994/A/13 & 338/A/16 ASST. YEAR 2009-10 12 IMPUGNED PENALTY OF RS.3,61,125/- AND ALLOW THIS GR OUND OF APPEAL OF ASSESSEE. 14. OTHER GROUNDS ARE OF GENERAL NATURE, WHICH NEED NO ADJUDICATION. 15. IN THE RESULT, BOTH THE APPEALS OF ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD AUGUST, 2016 SD/- SD/- (S. S. GODARA) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 3/8/2016 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD ITA NO. 1994/A/13 & 338/A/16 ASST. YEAR 2009-10 13 1. DATE OF DICTATION: 02/08/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 03/08/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 3/8/16 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: