The DCIT, Circle-2, Surat V. M/s. Shanti Enterprise, Surat

ITA 2104/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1207 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 05-07-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 26-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJINDER SINGH

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD ,.., BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI S.S. GODARA, JUDICIAL MEMBER ./ I.T.A. NO.2104/AHD/2011 ( / ASSESSMENT YEAR : 2008-09) THE DY.CIT CIRCLE-2 SURAT / VS. M/S.SHANTI ENTERPRISE SHOP NO.1013, 1014, MILLENIUM TEXTILE MARKET RING ROAD SURAT-395 001 % ./ ./ PAN/GIR NO. : AALFS 5217 L ( %( / APPELLANT ) .. ( )*%( / RESPONDENT ) %(+ / APPELLANT BY : SHRI RAJINDER SINGH, CIT-DR )*%(,+ / RESPONDENT BY : -NONE (WRITTEN SUBMISSION) -, / DATE OF HEARING 05/07/2016 ./0, / DATE OF PRONOUNCEMENT 05/07/2016 / O R D E R PER SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-II, SURAT DATE D 01/06/2011 FOR THE ASSESSMENT YEAR 2008-09. 2. ON THE DATE OF HEARING, NONE APPEARED ON BEHALF OF ASSESSEE BUT HOWEVER AN ADJOURNMENT APPLICATION WAS FILED. WE ALSO FIND THAT ITA NO.2104/AHD /2011 DCIT VS. M/S.SHANTI ENTERPRISE ASST.YEAR 2008-09 - 2 - ASSESSEE HAD FILED WRITTEN SUBMISSIONS WHICH ARE ON RECORD. WE THEREFORE REJECT THE ADJOURNMENT APPLICATION AND PR OCEED TO DECIDE THE APPEAL EX-PARTE , QUA THE ASSESSEE, ON THE BASIS OF DETAILS AVAILAB LE ON RECORD. 2.1. THE RELEVANT FACTS AS CULLED OUT FROM THE MATE RIALS ON RECORD ARE AS UNDER:- 2.2. ASSESSEE IS A PARTNERSHIP-FIRM STATED TO BE CA RRYING ON THE BUSINESS OF BUILDERS. ASSESSEE FILED ITS RETURN OF INCOME F OR AY 2008-09 ON 22/09/2008 DECLARING TOTAL LOSS OF RS.2,15,00,468/- . THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER ASSESSMENT WAS FRAMED U/S.143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED T O AS 'THE ACT') VIDE ORDER DATED 31/12/2010 AND THE TOTAL INCOME WAS DET ERMINED AT RS.5,79,25,232/-. AGGRIEVED BY THE ORDER OF THE AS SESSING OFFICER (AO), ASSESSEE CARRIED THE MATTER BEFORE THE LD.CIT(A), W HO VIDE ORDER DATED 01/06/2011 (IN APPEAL NO.CAS-II/215/2010-11/88) DE CIDED THE APPEAL IN FAVOUR OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF THE LD.CIT(A), REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED F OLLOWING GROUNDS:- [1] ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW, THE LD.CIT(A)-II, SURAT HAS ERRED IN DELETING THE ADDIT ION OF RS.7,94,25,700/- ON ACCOUNT OF ESTIMATED ON-MONEY SUPPRESSION OF SALE PROCEED IN THE BOOKS OF ACCOUNT OF ASSESSEE. [2] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD.CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFF ICER. ITA NO.2104/AHD /2011 DCIT VS. M/S.SHANTI ENTERPRISE ASST.YEAR 2008-09 - 3 - 2.3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, A ND PERUSING THE DETAILS FURNISHED BY THE ASSESSEE, AO NOTICED THAT ASSESSEE HAD SHOWN A LOSS OF RS.2.15 CRORES. HE ALSO NOTICED THAT SURV EY PROCEEDINGS WERE CONDUCTED IN THE CASE OF ASSESSEE ON 18/02/2010, WH EREIN ASSESSEE HAD DECLARED ON-MONEY OF RS.7,20,00,000/- AND THE SAL ES AS ON 18/02/2010 BASED UPON THE IMPOUNDED TRIAL BALANCE THE SALES WA S RS.13,82,62,000/-. AO ALSO NOTED THAT DURING THE ASSESSMENT PROCEEDING S FOR AY 2007-08, IT WAS FOUND THAT ASSESSEE WAS COLLECTING ON-MONEY W HILE SELLING SHOPS AND THEREFORE ADDITION ON ACCOUNT OF ON-MONEY WAS MADE ON THE BASIS OF UNIFORM SALE RATE OF RS.4,000/- PER SQ.FT. AO A SKED THE ASSESSEE TO SHOW-CAUSE AS TO WHY THE ESTIMATION OF ON-MONEY N OT BEEN MADE. THE SUBMISSIONS OF THE ASSESSEE WERE NOT FOUND ACCEPTAB LE TO THE AO. THEREAFTER, ON THE BASIS OF DISCLOSURE MADE BY THE ASSESSEE DURING THE COURSE OF SURVEY PROCEEDINGS, SALE INSTANCE IN AY 2 007-08 AND TAKING INTO ACCOUNT THE NORMAL TREND ON REAL ESTATE BUSINE SS, AO ESTIMATED THE ON-MONEY AT RS.7,94,25,700/-. AGGRIEVED BY THE O RDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE THE LD.CIT(A), WHO DELETE D THE ADDITION BY HOLDING AS UNDER:- 4. DECISION: 4.1. I HAVE DULY CONSIDERED THE SUBMISSION O F THE APPELLANT AND FIND THAT THE ADDITION ON ACCOUNT OF ESTIMATED ON-MONEY' OF 7,94,25,700/- HAS BEEN MADE BY THE ASSESSING OFFICER ON THE BASIS OF SIMIL AR ADDITION MADE IN THE A.Y.2007-08, WHICH WAS UPHELD AT THE APPELLATE STAG E. THE APPELLANT HAD, AGAINST THE ABOVE APPELLATE ORDER FILED APPEAL BEFO RE THE ITAT VIDE ITA NO. 390/AHD/2011, WHICH HAS BEEN DECIDED VIDE ORDER DTD .25.5.2011, WHEREIN THE HON'BLE 'A' BENCH OF THE ITAT, AHMEDABAD BY REL YING UPON THE ORDER OF 'D' ITA NO.2104/AHD /2011 DCIT VS. M/S.SHANTI ENTERPRISE ASST.YEAR 2008-09 - 4 - BENCH OF THE ITAT, AHMEDABAD IN ITA NO.469/AHD/2009 IN THE A.Y.2005-06 IN THE CASE OF THE APPELLANT, WHEREIN SIMILAR ADDIT ION WAS DELETED, HAS ALLOWED THE APPEAL OF THE APPELLANT ON THE LINES OF DECISIO N GIVEN IN A.Y.2005-06. THE HON'BLE BENCH, IN AY 2005-06 DELETED THE ADDITION O F 3,01,58,459/- MADE ON ACCOUNT OF SUPPRESSION OF SALES BY ESTIMATING THE S ELLING RATE OF SHOPS, AND ALSO UPHELD BOOK RESULTS OF THE APPELLANT. FOLLOWIN G THE ORDER DTD.22.02.2011 OF THE 'D' BENCH OF THE ITAT, AHMEDABAD IN A.Y.2005 -06, THE 'A' BENCH OF THE ITAT HAS DELETED THE SIMILAR ADDITION MADE IN A.YRS 2004-05 & 2007-08, AND UPHELD THE BOOK RESULTS OF THE APPELLANT VIDE THE A BOVE ORDER DTD.27.5.2011. I, THEREFORE, FIND THAT THE ISSUES INVOLVED IN THE ASS ESSMENT UNDER APPEAL HAVE BEEN DECIDED IN FAVOUR OF THE APPELLANT VIDE ORDER OF THE ITAT IN A.YRS 2004- 05, 2005-06 & 2007-08. I, FOLLOWING THE ABOVE DECISION, DELETE THE ADDITIO N OF 7,94,25,700/- MADE ON ACCOUNT OF ESTIMATED ON-MONEY TO THE INCOME OF TH E APPELLANT, AND ALSO UPHOLD THE BOOK RESULT OF THE APPELLANT. THE FIRST GROUND OF APPEAL, THEREFORE, STANDS ALLOWED. 2.4. AGGRIEVED BY THE ORDER OF LD.CIT(A), REVENUE I S NOW IN APPEAL BEFORE US. 2.5. BEFORE US, LD.CIT-DR TOOK US THROUGH THE OBSE RVATIONS OF THE AO AND STRONGLY SUPPORTED THE ORDER OF AO. 3. WE HAVE HEARD THE LD.CIT-DR, PERUSED THE MATERIA L AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. WE FIND THAT THE LD.CIT(A) WHILE DELETING THE ADDITION HAS NOTED THAT THE ADDITION MADE ON ACCOUNT OF ON-MONEY IN AY 2007-08 WAS DEL ETED AND THE ISSUE WAS DECIDED IN FAVOUR OF ASSESSEE BY THE TRIB UNAL (ITAT AHMEDABAD) IN ITA NO.390/AHD/2011 VIDE ORDER DATED 25/05/2011. HE HAS FURTHER NOTED THAT SIMILAR ADDITIONS WERE MADE IN AYS 2004-05, 2005-06 & 2007-08 WHICH WERE ALSO DELETED BY THE TR IBUNAL. HE ITA NO.2104/AHD /2011 DCIT VS. M/S.SHANTI ENTERPRISE ASST.YEAR 2008-09 - 5 - THEREFORE, RELYING ON THE DECISION OF THE TRIBUNAL, DELETED THE ADDITION IN THE YEAR UNDER CONSIDERATION. BEFORE US, REVENUE H AS NOT BROUGHT ANY MATERIAL ON RECORD TO DEMONSTRATE THAT THE AFORESAI D ORDER OF THE TRIBUNAL (ITAT AHMEDABAD) HAS BEEN SET ASIDE BY HIGHER AUTHO RITIES NOR COULD POINT OUT ANY DISTINCTIVE FEATURE IN THE PRESENT CA SE AND THAT OF EARLIER YEARS. WE THEREFORE FIND NO REASON TO INTERFERE WI TH THE ORDER OF THE LD.CIT(A). THUS, THIS GROUND OF REVENUE IS DISMISS ED. 4. IN THE RESULT, REVENUES APPEAL IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 05 /0 7 /2016 SD/- SD/- .. () () ( S.S. GODARA ) ( ANIL CHATURVEDI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 05/ 07 /2016 4..,.../ T.C. NAIR, SR. PS !'#$%$' / COPY OF THE ORDER FORWARDED TO : 1. %( / THE APPELLANT 2. )*%( / THE RESPONDENT. 3. 567 8 / CONCERNED CIT 4. 8 ( ) / THE CIT(A)-II, SURAT 5. 9:) 67 , 670 , 5 / DR, ITAT, AHMEDABAD 6. <=- / GUARD FILE. / BY ORDER, *9 ) //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD