The DCIT, Circle-2, Surat V. Smt. Pooja Sanjay Todi, Surat

ITA 2105/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9688 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 19-01-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 26-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: G C DAXINI
• Keywords: Unexplained investment; Corroborative evidences; Tax effect
• Section: 133A; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH (BEFORE SHRI S.K. YADAV, JUDICIAL MEMBER & SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER) ITA. NO: 1822 & 2105/AHD/2011 (ASSESSMENT YEAR: 2008-09) SMT. POOJA SANJAY TODI PROP. OF M/S. ANITA FASHION AND SAREES, 710, SILK PLAZA MARKET, B/S ANMOL MARKET, RING ROAD, SURAT V/S DY. COMMISSIONER OF INCOME TAX, CIRCLE-2, SURAT (APPELLANT) (RESPONDENT) DY. COMMISSIONER OF INCOME TAX, CIRCLE-2, SURAT V/S SMT. POOJA SANJAY TODI PROP. OF M/S. ANITA FASHION AND SAREES, 710, SILK PLAZA MARKET, B/S ANMOL MARKET, RING ROAD, SURAT (APPELLANT) (RESPONDENT) PAN: ABBPT 9853A APPELLANT BY : SHRI MEHUL SHAH, AR RESPONDENT BY : SHRI G.C. DAXINI, SR. D.R. ( )/ ORDER DATE OF HEARING : 19 -01-201 6 DATE OF PRONOUNCEMENT : 22 -01-2016 ITA NO.1822 & 2105/AHD/2011 . A.Y. 2008-0 9 2 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. 2105/AHD/2011 & 1822/AHD/2011 ARE THE CROSS APPEALS BY THE REVENUE AND THE ASSESSEE AGAINST THE VERY SAME ORDE R OF LD. CIT(A)- II, SURAT DATED 06.06.2011 PERTAINING TO A.Y. 2008- 09. 2. BOTH THESE APPEALS WERE HEARD TOGETHER AND ARE DISP OSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 3. AT THE VERY OUTSET, THE COUNSEL FOR THE ASSESSEE PO INTED OUT THAT THE REVENUES APPEAL NEEDS TO BE DISMISSED AS IN THE SA ME, THE TAX EFFECT IS LESS THAN RS. 10 LACS. THE D.R. FAIRLY CONCEDED TO THIS. 4. WE HAVE CAREFULLY CONSIDERED THE GROUNDS OF APPEAL VIS--VIS THE TAX EFFECT, WE FIND FORCE IN THE CONTENTION OF THE LEAR NED COUNSEL. THE TAX EFFECT IS LESS THAN RS. 10 LACS AND IS, THEREFORE, COVERED BY THE CBDT CIRCULAR NO. 21/2015 DATED 10.12.2015 WHEREIN THE B OARD HAS FIXED MONETARY LIMIT FOR FILING OF THE APPEALS BEFORE THE APPELLATE TRIBUNAL AS MORE THAN RS. 10 LACS. FOLLOWING THE ABOVE MENTIONE D CIRCULAR OF THE CBDT, APPEAL FILED BY THE REVENUE IS DISMISSED. 5. COMING TO THE APPEAL OF THE ASSESSEE THE ONLY GRIEV ANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 20 LACS ON ACCOUNT OF UNACCOUNTED INVESTMENT U/S. 6 9 OF THE ACT. 6. BRIEFLY STATED THE FACTS OF THE CASE ARE IN THIS CA SE, THERE WAS A SURVEY ACTION U/S. 133A OF THE ACT ON 19.09.2007 AND IN TH E COURSE OF THE SURVEY ACTION THERE WAS A DISCLOSURE OF INCOME OF R S. 40,01,008/-. ITA NO.1822 & 2105/AHD/2011 . A.Y. 2008-0 9 3 HOWEVER WHILE SCRUTINIZING THE RETURN OF INCOME, IT WAS FOUND THAT THE ASSESSEE HAS DECLARED TOTAL INCOME AT RS. 20,61,920 /-. THE ASSESSEE WAS ASKED TO EXPLAIN WHY THE INCOME FROM BUSINESS I N THE COMPUTATION OF TOTAL INCOME IS SHOWN AT RS. 20,23,0 30/- WHEN THE DISCLOSURE WAS OF RS. 40,01,008/-. THE ASSESSEE FIL ED A DETAILED REPLY VIDE LETTER DATED 06.12.2010 WHEREIN IT WAS STRONGL Y MENTIONED THAT THE DISCLOSURE OF RS.40,01,008/- WAS WRONGLY MENTIO NED IN FACT THE ACTUAL DISCLOSURE SHOULD HAVE BEEN 20,01,008/- AND THE SAME HAS BEEN OFFERED FOR TAXATION. IT WAS FURTHER CONTENDED THAT NO ASSETS WERE FOUND. THEREFORE IT CANNOT BE SAID THAT THERE WERE UNEXPLAINED INVESTMENT OVER AND ABOVE WHAT HAS BEEN OFFERED IN THE RETURN OF INCOME. THE A.O SIMPLY RUBBISHED THE CONTENTION OF THE ASSESSEE. THE A.O WAS OF THE FIRM BELIEF THAT TO A SPECIFIC QUEST ION, THERE WAS A DISCLOSURE OF RS. 40 LACS AND THE ASSESSEE OUGHT TO HAVE HONORED THE DISCLOSURE. ACCORDINGLY THE A.O TREATED RS. 20 LACS WHICH HAS NOT BEEN OFFERED FOR TAXATION BY THE ASSESSEE IN THE COMPUTA TION OF INCOME AS UNACCOUNTED INVESTMENT U/S. 69 OF THE ACT. AGGRIEVE D BY THIS THE ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) BUT W ITHOUT ANY SUCCESS. 7. BEFORE US, THE COUNSEL FOR THE ASSESSEE REITERATED WHAT HAS BEEN STATED BEFORE THE LOWER AUTHORITIES. PER CONTRA THE D.R. STRONGLY RELIED UPON THE ASSESSMENT ORDER AND THE STATEMENT MADE DU RING THE COURSE OF SURVEY. 8. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE RIV AL SUBMISSIONS. WE HAVE ALSO GONE THROUGH THE ORDER OF THE AUTHORITIES BELOW AND THE RELEVANT DOCUMENTARY EVIDENCES BROUGHT ON RECORD. W E FIND THAT THE ENTIRE DISPUTE REVOLVES AROUND QUESTION NO. 24 ASKE D DURING THE COURSE OF SURVEY OPERATIONS. IT WOULD BE PERTINENT TO MENTION HERE ITA NO.1822 & 2105/AHD/2011 . A.Y. 2008-0 9 4 THAT THE SAID STATEMENT WAS GIVEN BY SHRI SANJAY RA M AVTAR TODI HUSBAND OF THE ASSESSEE AND NOT BY THE ASSESSEE. TH E ENGLISH TRANSLATION OF WHICH IS INCORPORATED IN THE ASSESSM ENT ORDER AND WHICH READS AS UNDER:- QUES NO. 24 PLEASE SPECIFY ABOUT ANY UNRECORDED INCOME THAT IS EARNED BY YOU, YOUR FAMILY MEMBERS OR YOUR BUSINESS CONCERNS. ANS. 24 MY WIFE SMT. POOJA S. TODI, USED TO FILE HER RETURN OF INCOME ON HER OWN AND SHE HAS STARTED A PROPRIETARY CONCERN IN F.YR. 2007-08 WHICH CARRIES ON BUSINESS OF TRADING IN DRESS MATERIAL AND SAREES. IN THIS, I HA VE INVESTED RS. 15,00,000/- AND CLOSING STOCK OF RS. 20,01,008/- IS HELD BO TODAYS DATE. I HAVE EARNED RS. 5,00,000/- THROUGH SUCH TURNOVER. IN THIS WAY, I ON BEHALF OF MY WIFE SMT. POOJA S. TODI DECLARE RS. 40,01,008 IN THE NAME OF M/S. A NITA FASHIONS AND SAREES, HER PROPRIETOR CONCERN WHICH HAS NOT BEEN RECORDED IN A NY BOOKS OF ACCOUNTS, AS INCOME FOR F.YR. 2007-08. ANY INCOME TAX LIABILITY ARISING OUT OF SUCH BUSINESS WILL BE PAID BY MY WIFE ON THE BASIS OF SUCH INCOME . 9. AS MENTIONED ELSEWHERE THE STATEMENT WAS GIVEN BY T HE HUSBAND OF THE ASSESSEE AND NOT BY THE ASSESSEE. THERE IS NOTH ING ON RECORD TO SUGGEST THAT THE ASSESSEE AUTHORIZED HER HUSBAND TO MAKE DISCLOSURES ON HER BEHALF. 10. IT WOULD BE PERTINENT TO MENTION HERE THAT IN THE V ERY SAME GODOWN STOCKS OF THREE OTHER FIRMS WERE ALSO KEPT N AMELY (I) ANITA FASHION PVT. LTD. (II) ANITA SAREES PROPRIETOR SANJ AY TODI AND (III) ANITA FASHION PROPRIETOR HUF. THIS FACT IS RELEVANT BECAU SE THE STOCK WHICH WAS FOUND AT THE TIME OF SURVEY BELONGED TO THESE T HREE CONCERNS AND ASSESSEE IS THE FORTH PROPRIETORY CONCERN. ITA NO.1822 & 2105/AHD/2011 . A.Y. 2008-0 9 5 11. NEITHER FROM THE ASSESSMENT ORDER NOR FROM THE ORDE R OF THE FIRST APPELLATE AUTHORITY, IT IS CLEAR AS TO WHY TH E ENTIRE ADDITION HAVE BEEN MADE IN THE HANDS OF THE ASSESSEE WHEN THREE O THER BUSINESS CONCERNS WERE KEEPING THEIR STOCKS AT THE VERY SAME GODOWN. THERE IS NOT EVEN A WHISPER OF THE STOCK BELONGING TO THE OT HER THREE CONCERNS. 12. EXCEPT FOR THE STATEMENT OF THE HUSBAND OF THE ASSE SSEE THERE IS NO CORROBORATIVE EVIDENCE BROUGHT ON RECORD TO SUGG EST THAT THE ASSESSEE HAD IN FACT UNDISCLOSED/UNEXPLAINED INVEST MENTS IN THE STOCKS. 13. WITHOUT THERE BEING ANY CORROBORATIVE EVIDENCE BROU GHT ON RECORD, IT WOULD BE INJUSTICE TO THE ASSESSEE IF TH E IMPUGNED ADDITION IS SUSTAINED. IN OUR CONSIDERED OPINION SINCE THE REVE NUE HAS FAILED TO BRING ON RECORD DIRECT CORROBORATIVE EVIDENCES TO J USTIFY THE ADDITION, FINDINGS OF THE LD. CIT(A) ARE SET ASIDE AND THE A. O IS DIRECTED TO DELETE THE ADDITION OF RS. 20 LACS. 14. APPEAL FILED BY THE ASSESSEE IS ACCORDINGLY ALLOWE D. ORDER PRONOUNCED IN OPEN COURT ON 22- 01 - 2016. SD/- SD/- (S. K. YADAV) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT.