Shri Ashish Kumar Tayal, V. The ACIT 5 (1),

ITA 207/IND/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2491 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 7 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2009
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 16-12-2009
• Assessment Year: misc
• Appeal Filed On: 25-04-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN
• Assessee Lawyers: PIYUSH MANDOVRA
• Keywords: Depreciation

Judgement Text

PAGE 1 OF 5 I.T.A.NO. 207/IND/2008 - ASHISH KUMAR TAYAL, INDORE. IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH : INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI V.K. GUPTA, ACCOUNTANT MEMBER PAN NO. : AATPT3879P I.T.A.NO. 207/IND/2008 A.Y. : 2004-05 SHRI ASHISH KUMAR TAYAL, ACIT, PROP, M/S.GODAVARI COTTON, VS 5(1), C/O K.R.MANDOVRA & CO., 2, WHITE CHURCH COLONY, INDORE. INDORE. APPELLANT RESPONDENT APPELLANT BY : SHRI PIYUSH MANDOVRA, A.R RESPONDENT BY : SMT.APARNA KARAN, SR. DR DATE OF HEARING : 16/12/2009 O R D E R PER V.K. GUPTA, A.M. THIS APPEAL FILED BY THE ASSESSEE ARISES OUT OF ORD ER OF THE LD. CIT(A) DATED 05.02.2009, FOR THE ASSESSMENT YEAR 20 04-05. 2. WE HAVE HEARD BOTH THE PARTIES AND HAVE ALSO PERUSE D THE MATERIAL AVAILABLE ON RECORD. 3. IN GROUND NO.1, THE ASSESSEE IS AGGRIEVED BY THE D ECISION OF THE LD. CIT(A) IN CONFIRMING THE ADDITION OF RS. 1,12,3 00/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF LOW HOUSE HOLD WITH DRAWALS. PAGE 2 OF 5 I.T.A.NO. 207/IND/2008 - ASHISH KUMAR TAYAL, INDORE. 4. THE FACTS, IN BRIEF, ARE THAT THE A.O. ESTIMATED HO USE HOLD EXPENSES @ RS. 10,000/- PER MONTH AND MADE AN ADDIT ION OF RS. 1,12,300/- AFTER DEDUCTING THE HOUSE HOLD WITHDRAWA LS SHOWN BY THE ASSESSEE. 5. IN APPEAL, THE ASSESSEE SUBMITTED THAT ACTUAL WITHD RAWALS OF THREE MEMBERS OF THE ASSESSEE FAMILY TAKEN TOGETHER WERE RS. 62,418/- AND NOT RS. 7700/- AS OBSERVED BY THE ASSESSING OFF ICER. THE ASSESSEE ALSO JUSTIFIED THE QUANTUM OF WITHDRAWALS HAVING RE GARD TO VARIOUS FACTS I.E., THE SIZE OF FAMILY, LOCATION AND JOINT FAMILY RESIDING TOGETHERLY. THE LD. CIT(A), HOWEVER, ANALYZED THE MONTH-WISE DETAIL S OF HOUSE HOLD WITHDRAWALS AND FOUND THAT NO FUNDS WERE WITHDRAWN BY ANY OF THE FAMILY MEMBERS DURING THE MONTHS OF JULY, OCTOBER A ND NOVEMBER, 2003. HENCE, THE FACTUAL INFERENCE WAS THAT HOUSE H OLD EXPENSES HAD BEEN MET OUT OF UNDISCLOSED INCOME. THE LD. CIT(A) FURTH ER ANALYZED THE INCOME RETURNED BY THE ASSESSEE AND HAVING REGARD T O SUCH INCOME, HELD THAT ESTIMATION MADE BY THE ASSESSING OFFICER WAS R EASONABLE. HENCE, HE CONFIRMED HIS ACTION. STILL AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 6. THE LEARNED COUNSEL NARRATED THE FACTS, REITERATED THE SUBMISSIONS MADE BEFORE THE REVENUE AUTHORITIES AND PLACED STRONG RELIANCE ON THE ORDER OF THE TRIBUNAL IN THE CASE O F SHRI SUNIL KUMAR TAYAL VS. ACIT, IN I.T.A.NO. 760/IND/2006 ORDER DAT ED 31.12.2008, PAGE 3 OF 5 I.T.A.NO. 207/IND/2008 - ASHISH KUMAR TAYAL, INDORE. WHEREIN THE WITHDRAWALS OF RS. 61,000/- WERE FOUND SUFFICIENT TO MAINTAIN THE FAMILY. HENCE, THIS ISSUE WAS COVERED IN FAVOUR OF THE ASSESSEE BY THIS ORDER OF THE TRIBUNAL. 7. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHER H AND, CONTENDED THAT THE FACTS OF THIS CASE WERE DIFFEREN T FROM THE FACTS OF THAT CASE, HENCE, THE SAID DECISION OF THE TRIBUNAL WAS NOT APPLICABLE HERE. 8. THE LD. DEPARTMENTAL REPRESENTATIVE FURTHER PLACED RELIANCE ON THE ORDER OF THE LD. CIT(A). 9. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY BOTH THE SIDES, MATERIAL ON RECORD AND THE ORDERS OF THE AUTHORITIE S BELOW. 10. IT IS NOTED THAT IN THE PRESENT CASE, THE LD. CIT(A ) HAS ANALYZED MONTH-WISE WITHDRAWALS AND INCOME OFFERED BY THE AS SESSEE IS SUBSTANTIALLY HIGHER AS COMPARED TO THE CASE OF SUN IL KUMAR TAYAL. HENCE, THE SAID DECISION IS NOT APPLICABLE BEING FA CTUALLY DIFFERENT. WE ARE FURTHER OF THE VIEW THAT IN VIEW OF SPECIFIC SH ORTCOMINGS POINTED OUT BY THE LD. CIT(A), WHICH HAVE REMAINED UN-CONTROVER TED, THE DECISION OF LD. CIT(A) IS CORRECT IN LAW. HOWEVER, WE FIND THA T THE A.O. MADE AN ADDITION OF RS. 1,12,300/- BY WRONGLY TAKING THE WI THDRAWALS BY THE ASSESSEES JOINT FAMILY AT RS. 7700/-, WHICH ARE, I N FACT, RS. 62,418/-. HENCE, THE ASSESSEE DESERVES A FURTHER CREDIT OF RS . 55,000/- APPROXIMATELY. ACCORDINGLY, WE CONFIRM THE DECISION OF THE LD. CIT(A) PAGE 4 OF 5 I.T.A.NO. 207/IND/2008 - ASHISH KUMAR TAYAL, INDORE. IN PRINCIPLE AND DIRECT THE A.O. TO GIVE CREDIT OF RS. 55,000/- TO THE ASSESSEE AND, THUS, ADDITION ON THIS ACCOUNT IS RES TRICTED TO RS. 67,300/-. THUS, THIS GROUND OF THE ASSESSEE IS PARTLY ALLOWED . 11. IN GROUND NO.2, THE ASSESSEE IS AGGRIEVED BY THE D ECISION OF THE LD. CIT(A) IN CONFIRMING THE ACTION OF A.O. IN REGA RD TO AD HOC DISALLOWANCES MADE BY THE ASSESSING OFFICER OUT OF VEHICLE EXPENSES, DEPRECIATION AND TELEPHONE EXPENSES. 12. THE FACTS, IN BRIEF, ARE THAT THE A.O. DISALLOWED 2 0% OF TELEPHONE EXPENSES, VEHICLE RUNNING EXPENSES AND DE PRECIATION ON ACCOUNT OF ELEMENT OF PERSONAL USE. ON APPEAL, THE LD. CIT(A) ALSO CONFIRMED THIS ACTION OF THE A.O. STILL AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. THE LEARNED COUNSEL SUBMITTED THAT THE R ATE OF DISALLOWANCE BEING 20% WAS ON HIGHER SIDE. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, PLACED STRONG RELIANCE ON THE ORDER OF THE CIT(A). 13. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY BOTH THE SIDES, MATERIAL ON RECORD AND THE ORDERS OF THE AUTHORITIE S BELOW. 14. IT IS NOTED THAT WHILE SUSTAINING THE ADDITION ON A CCOUNT OF LOW HOUSE HOLD WITHDRAWALS, EXPENSES ON OUTINGS, SOCIAL IZING ETC. HAVE ALSO BEEN CONSIDERED, HENCE, 20% OF DISALLOWANCE, OUT OF THESE EXPENSES APPEARS TO BE ON HIGHER SIDE. ACCORDINGLY, IN OUR V IEW, 10 % OF SUCH PAGE 5 OF 5 I.T.A.NO. 207/IND/2008 - ASHISH KUMAR TAYAL, INDORE. EXPENSES SHOULD ONLY BE DISALLOWED ON ACCOUNT OF EL EMENT OF PERSONAL USE. THUS, THIS GROUND OF THE ASSESSEE IS ALSO PART LY ALLOWED. 15. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STA NDS PARTLY ALLOWED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 16 TH DECEMBER, 2009. SD/- SD/- (JOGINDER SINGH) (V. K. GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 16 TH DECEMBER, 2009. CPU* 161718