The ITO,S.K.Ward-4, Sabarkantha V. M/s. Balaji Enterprise, Modasa

ITA 2058/AHD/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 1670 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 18-03-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 15-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: U S RAINA SRDR
• Assessee Lawyers: MUKESH M PATEL
• Keywords: Unexplained expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI D.K. TYAGI, HONBLE JUDICIAL MEMBER AND SHRI A.N.PHAUJA, HONBLE ACCOUNTANT MEMBER ITA NO.2058/AHD/2010 ASSESSMENT YEAR:2007-08 DATE OF HEARING:18.3.11 DRAFTED:21.3.11 INCOME TAX OFFICER, SABARKANTHA WARD-4, MODASA V/S. M/S. BALAJI ENTERPRISE, OPP: TALUKA PANCHAYAT, MALPUR ROAD, MODASA PAN NO.AAHFB0548D (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI U.S. RAINA, SR-DR RESPONDENT BY:- SHRI MUKESH M PATEL, AR O R D E R PER D.K. TYAGI, JUDICIAL MEMBER:- THIS IS REVENUES APPEAL AGAINST THE ORDER OF COMM ISSIONER OF INCOME- TAX(APPEALS)-VI, AHMEDABAD IN APPEAL NO. CIT(A)-X/2 20/ITO.WD-4.S.K./09- 10 DATED 24-02-2010 FOR THE ASSESSMENT YEAR 2007-08 . 2. THE REVENUE HAS TAKEN FOLLOWING GROUNDS:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.69,600/- MADE ON ACCOUNT OF STAMP DUTY EXPENS ES BY THE A.O. 1.1 THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACT THAT DURING THE COURSE OF SURVEY PROCEEDINGS T HE ASSESSEE HAS CATEGORICALLY STATED THAT THE SAID EXPENSES DOES NO T RECORDED IN THE BOOKS OF ACCOUNTS. ITA NO.2058/AHD/2010 A.Y. 2007-08 ITO WD4, MODASA V. M/S BALAJI ENTERPRISE PAGE 2 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.8,29,500/- MADE ON ACCOUNT OF DIFFERENCE BETW EEN MARKET VALUE OF LAND AND THE VALUE RECORDED BY THE ASSESSEE. 2.2 THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACTS THAT DURING THE COURSE OF SURVEY PROCEEDINGS THE ASSESSEE HAS CATEGORICALLY STATED THAT THE SAID EXPENSES DOES NO T RECORDED IN THE BOOKS OF ACCOUNTS. 3. THE FIRST GROUND RELATES TO ADDITION OF RS.69,60 0/- ON ACCOUNT OF ADDITIONAL STAMP DUTY. THE ASSESSING OFFICER WHILE MAKING THIS ADDITION HAS OBSERVED AS UNDER:- 1. DURING THE COURSE OF SURVEY PROCEEDINGS WHICH IS CA RRIED OUT ON 7-12- 2006, STATEMENT OF SHRI VINODBHAI MANIBHAI PATEL PA RTNER OF THE FIRM WAS RECOVERED U/S.131 OF THE IT ACT IN WHICH HE HAS REPLIED IN ANSWER NO.11 THAT THE AMOUNT OF RS.69600/- WHICH IS PAID F OR ACCOUNT AND THEREFORE I AM AGREED TO PAY TAX ON IT/. THAT PARTNER OF THE FIRM SHRI VINODBHAI MANIBHAI PA TEL AGREED IN STATEMENT RECORDED THAT AN AMOUNT OF RS.69600/- HAD NOT BEEN RECORDED IN THE BOOK OF ACCOUNT AND AGREED TO PAY T HE TAX ON RS.69600/-. BUT AT THE TIME OF FILING THE RETURN OF INCOME FOR AY 27-80 ASSESSEE DID NOT SHOW THIS AMOUNT IN THE RETU RN OF INCOME. THEREFORE RS.69600/- IS ADDED TO THE TOTAL INCOME O F THE ASSESSEE AS UNEXPLAINED EXPENDITURE U/S.69C OF THE IT ACT ON ACCOUNT OF ADDITIONAL STAMP DUTY PAID SUB REGISTRAR MODASA. I AM SATISFIED THAT THE ASSESSEE HAS CONCEALED THE PARTI CULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOM E. THEREFORE, PENALTY ICE U/S.271(1) IT ACT IS ISSUED. IN APPEAL LD. CIT(A) HAS DELETED THIS ADDITION BY O BSERVING AS UNDER:- KEEPING IN VIEW THE AFORESAID FACTS AND CIRCUMSTAN CES; AS ENUMERATED IN DETAIL BY THE APPELLANT IN ITS WRITTEN SUBMISSIO N ABOVE; IT IS ABUNDANTLY CLEAR THAT THE ADDITION IN QUESTION DOES NOT PERTAI N TO THE YEAR UNDER CONSIDERATION BUT PERTAINS TO THE A.Y 2006-07, THER EBY, THE ADDITION IN QUESTION IN THE YEAR UNDER CONSIDERATION IS NOT CAL LED FOR, HENCE, DELETED. HOWEVER, THE ASSESSING OFFICER IS DIRECTED TO TAKE APPROPRIATE ACTION; IF REQUIRED, IN THE RELEVANT YEAR. WITH THE RESULT, THE APPEAL IS PARTLY ALLOWED ON THIS ACCOUNT. SINCE LD. CIT(A) HAS GIVEN RELIEF TO THE ASSESSEE O N THE FACTUAL FINDING THAT THE ADDITION IN QUESTION DOES NOT PERTAIN TO THE YE AR UNDER APPEAL, WE FIND NO ITA NO.2058/AHD/2010 A.Y. 2007-08 ITO WD4, MODASA V. M/S BALAJI ENTERPRISE PAGE 3 INFIRMITY IN THE ORDER PASSED BY LD. CIT(A) AND SAM E IS HEREBY UPHELD. THIS GROUND OF REVENUES APPEAL IS DISMISSED. 4. GROUND NO.2 RELATES TO ADDITION OF RS.8,29,500 O N ACCOUNT OF DIFFERENCE BETWEEN MARKET VALUE OF LAND AND THE VALUE RECORDED BY ASSESSEE. THE ASSESSING OFFICER WHILE MAKING THIS ADDITION HAS OB SERVED AS UNDER:- DURING THE SURVEY PROCEEDING A LETTER OF SUB REGIS TRAR MODASA WAS FOUND WHICH IS INVOLVED AS PER THE ANNEXURE A07 PAG E NO.1 WHEREIN MARKET VALUE AS PER JANTRI IS STATED RS.1658300/-, BUT ASSESSEE HAS SHOWN SALE PRICE AT RS.829500 AS PER SALE DEED NO 1 397 DATED 6-8- 2005. THUS DIFFERENCE OF MARKET VALUE AS PER JANTTR I AND SALE PRICE SHOWN BY THE ASSESSEE WAS FIND OUT AT RS.829500/-. DURING THE COURSE OF SURVEY PROCEEDINGS WHICH IS CA RRIED OUT ON 7-12- 2006. AS STATEMENT OF SHRI VINODBHAI MANIBHAI PATEL PARTNER OF THE FIRM WAS RECOVERED U/S.131 OF THE IT ACT IN WHICH HE HAS REPLIED IN ANSWER NO.11 THAT WE HAVE MADE THE SALE DEED AS PER SURVEY . WHICH WAS LATE ON CONVERT INTO CITY SURVEY AND THEREFORE WE HAVE T O PAY ADDITIONAL STAMP DUTY. WHICH WE HAVE PAID STAMP DUTY OF RS.696 00 AND RS.829500 BY AGREED TO SUB REGISTRAR MODASAS ORDER WITHOUT ANY ARGUMENT TO AVOID THE LITIGATION WITH THE STATE GOV ERNMENT. THEREFORE, I AM READY TO PAY TAX ON SAID EXPENDITURE. THUS A PARTNER OF THE FIRM SHRI VINODBHAI MANIBHAI PATEL AGREED IN STATEMENT RECORDED THAT ON ACCOUNT OF RS 829500/- H AS NOT BEEN RECORDED IN THE BOOKS OF ACCOUNT AND AGREED TO PAY THE TAX ON RS.829500/- IS ADDED TO THE TOTAL INCOME OF THE ASS ESSEE ON ACCOUNT OF DIFFERENCE OF MARKET VALUE OF LAND AS UNEXPLAINED E XPENDITURE U/S.69C OF THE IT ACT I AM SATISFIED THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE P ARTICULARS OF INCOME. THEREFORE, PENALTY NOTICE U/S.271(1) OF THE IT ACT IS ISSUED. 5. BEFORE LD. CIT(A) IT WAS CONTENDED BY THE ASSESS EE THAT THE PURCHASE DOCUMENT ON WHICH ADDITION HAS BEEN MADE BY ASSESSI NG OFFICER IS DATED 06- 08-2005 WHICH FALLS IN THE PREVIOUS YEAR I.E. 2005- 06 RELEVANT TO ASSESSMENT YEAR 2006-07 AND THEREFORE IS NOT RELEVANT FOR ASSE SSMENT YEAR 2007-08. THIS PLEA WAS ACCEPTED BY LD. CIT(A) AND ADDITION WAS DE LETED. ITA NO.2058/AHD/2010 A.Y. 2007-08 ITO WD4, MODASA V. M/S BALAJI ENTERPRISE PAGE 4 6. SINCE THE DOCUMENT ON THE BASIS OF WHICH ADDITIO N WAS MADE BY ASSESSING OFFICER DID NOT PERTAIN TO ASSESSMENT YEA R UNDER APPEAL WE FIND THAT LD. CIT(A) HAS RIGHTLY DELETED THIS ADDITION A ND THE ORDER PASSED BY HIM IS HEREBY UPHELD. THIS GROUND OF REVENUE IS ALSO DISMI SSED. 7. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 31/03/2011 SD/- SD/- (A.N.PHAUJA) (D.K. TYAGI) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, DATED : 31/03/2011 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)-VI, AHMEDABAD 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD