Shri Idan Das Poptani, V. D.C.I.T,

ITA 219/JAB/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5714 (ITAT-JABALPUR)
• Duration Of Justice: 2 year(s) 8 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-04-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 24-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D R LATHORIYA
• Assessee Lawyers: ABIJEET SHRIVASTAVA; SANJAY SHRIVASTAVA
• Keywords: Loose papers
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH, JABALPUR BEFORE SHRI N.S. SAINI , HONBLE ACCOUNTANT MEMBER AND SHRI N.K. CHOUDHRY , HONBLE JUDICIAL MEMBER ITA NO. 2 19 / J AB /201 3 (ASST. YEAR : 200 6 - 0 7 ) IDAN DAS POPTANI , PROP. M/S. SHRI NARAYAN STORES, STATION ROAD, KATNI . VS. DCIT, CIRCLE - KATNI . PAN NO. AKPPP 1433 F (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ABIJEET SHRIVASTAVA & SHRI SANJAY SHRIVASTAVA A R DEPARTMENT BY : S HRI D.R. LATHORIYA - DR DATE OF HEARING : 0 4 / 0 4 /201 6 . DATE OF PRONOUNCEMENT : 0 4 / 04 /201 6 . O R D E R PER N.S. SAINI , ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) , JABALPUR , DATED 2 8 /0 3 /201 3 . 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS. 1,09,000/ - MADE B Y THE ASSESSING OFFICER ON THE BASIS OF ORDER FORM FOUND DURING THE COURSE OF SURVEY. 3 . BRIEF FACTS OF THE CASE ARE THAT DURING THE COURSE OF SURVEY UNDER SEC. 133A CARRIED OUT AT THE BUSINESS PREMISES ON 26/10/2005 , THE ASSESSEE SUBMITTED THAT THE LOOSE P APERS IN THE FORM OF ORDER FROM , THE VALUE OF WHICH IS RS. 1,09,000/ - , SOME OF THE GOODS HAVE BEEN RECEIVED 2 ITA NO. 21 9 / JAB /201 3 AND MAXI M UM HAS NOT BEEN RECEIVED TILL DATE AND TO PURCHASE MENTAL PE A CE, THE ASSESSEE SURRENDERED RS. 1,09,000/ - FOR TAXATION TREATING THE INCOME FROM THE CURRENT YEAR AS UNDISCLOSED SOURCE . IN THE RETURN OF INCOME FILED , THE ASSESSEE DID NOT INCLU D E RS. 1,09,000/ - IN THE INCOME , WHICH WAS SURRENDERED DURING THE COURSE OF SURVEY . ON A QUERY RAISED BY THE ASSESSING OFFICER, IT WAS SUBMITTED THAT ALL THESE ARE ORDER FORM RELATED TO WHICH EITHER STOCK HAS ALREADY RECEIVED OR STOCK IS YET TO BE RECEIVED. AS STOCK ALREADY RECEIVED HAS BEEN PHYSICALLY VERIFIED BY THE DEPARTMENT DURING THE COUR S E OF SURVEY UNDER SEC. 133A AND STOCK YET TO BE RECEIVED DOES NOT HAVE ANY KIND OF UNDISCLOSED INVESTMENT OF ASSESSEE , AS THERE IS NO EVIDENCE FROM THE LOOSE PAPERS THAT THE ASSESSEE HAS SENT ANY AMOUNT OF ADVANCE. IT WAS FURTHER SUBMITTED THAT THERE IS NO EVIDEN CE OF ANY UNDISCLOSED INVESTMENT ON ACCOUNT OF LOOSE PAPERS FOUND IN THE FORM OF ORDER. HENCE, IT WAS SUBMITTED T HAT RS. 1,09,000/ - WAS WRONGLY SURRENDERED BY THE ASSESSEE AND THE SAME HAS NOT BEEN OFFERED FOR TAXATION WHILE FILING OF RETURN. IT WAS FURTHER SUBMITTED THAT SEC. 133A ENABLES THE INCOME TAX AUTHORITY ONLY TO RECORD ANY STATEMENT OF ANY PERSON , WHICH MA Y BE USED BUT DOES NOT AUTHORIZE FOR TAKING ANY SWORN IN STATEMENT . SEC. 133A DOES NOT EMPOWER AN ITO TO EXAMINE ON OATH IN CONTRADICTION TO THE POWER UNDER SEC. 132(4) WHICH ENABLES THE AUTHORIZED OFFICER TO EXAMINE A PERSON ON OATH , AND ANY STATEMENT MADE BY SUCH PERSON DURING SUCH EXAMINATION CAN ALSO BE USED IN EVIDENCE UNDER THE INCOME TAX ACT. THEREFORE, THE ADMISSION MADE DURING SUCH STATEMENT UNDER SEC. 133A CANNOT BE MADE THE BASIS OF ANY ADMISSION AND THE ASSESSEE RELIED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. KHADER KHAN SON [(2008) 300 ITR 157 (MAD.)] . THE ASSESSEE FURTHER RELIED ON THE DECISION OF THIS BENCH OF THE TRIBUNAL AT JABALPUR IN THE CASE OF ITO , SAGAR VS. PRAKASH WASHWANI AND SUBMITTED THAT ON 23/10/2009 THE ASSESSEE SURRENDERED EXCESS STOCK AND LOOSE PAPERS DURING SURVEY . THE ASSESSEE EXPLAINED THE SAME SUBSEQUENTLY AND RETRACTED FROM HIS STATEMENT . THE ASSESSING OFFICER, HOWEVER , MADE THE ADDITION 3 ITA NO. 21 9 / JAB /201 3 OBSERVING THAT THAT DIFFERENCE IN STOCK WAS EXPLAINED SUBSEQUENTLY. LOOSE PAPERS DID NOT SHOW ANY INCRIMINATING MATERIAL AGAINST ASSESSEE. STATEMENT DURING SURVEY HAS NO EVIDENTIARY VALUE. THERE IS NO CORROBORATIVE MATERIAL TO MAKE ADDITION. ADDITION C ANNOT BE SUSTAINED . HOWEVER, THE ASSESSING OFFICER DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEE AND CONFIRMED THE ADDITION ON THE BASIS OF ADMISSION MADE BY THE ASSESSEE DURING THE COURSE OF SURVEY , WHICH WAS CONFIRMED IN APPEAL BY THE COMMISSIONER OF INCOME TAX (APPEALS). 4 . THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIES AND THE DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDERS OF THE LOWE R AUTHORITIES . 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERUSING THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL AVAILABLE ON RECORD, WE FIND THAT IN THE INSTANT CASE, THE ADDITION OF RS. 1,09,000/ - CAME TO BE MADE IN THE HANDS OF THE ASSESSEE ON THE BASIS OF ORDER FORM FOUND DURING THE COURSE OF SURVEY AND THE ASSESSEE SURRENDERED AN AMOUNT OF RS. 1,09,000/ - IN THE STATEMENT RECORDED DURING THE COURSE OF SURVEY UNDER SEC. 133A OF THE ACT. THE ASSESS EE IN THE RETURN OF INCOME FILED, RETRACTED THE STATEMENT BY NOT INCLUDING THE AMOUNT OF RS. 1,09,000/ - . THE ASSESSING OFFICER MADE THE ADDITION ONLY ON THE GROUND THAT THE ASSESSEE HAS ADMITTED THE INCOME OF RS. 1,09,000/ - FROM UNDISCLOSED SOURCE AT THE TIME OF SURVEY AND THE SAME WAS CONFIRMED BY THE COMMISSIONER OF INCOME TAX (APPEALS). WE FIND THAT THE HON'BLE SUPREME COURT IN THE CASE OF KHADER KHAN SON (SUPRA) HAS HELD THAT IN VIEW OF THE SCOPE OF AMBIT OF MATERIALS C OLLECTED DURING THE COURSE OF SURVEY, THE ACTION UNDER SEC. 133A WOULD NOT HAVE ANY EVIDENTIARY VALUE AND THAT IT COULD NOT BE SAID SOLELY ON THE BASIS OF THE STATEMENT GIVEN BY ONE OF THE PARTNERS OF THE ASSESSEE - FIRM THAT THE DISCLOSED INCOME WAS ASSESSA BLE AS LAWFUL INCOME OF THE ASSESSEE. WE FIND THAT IN THE INSTANT CASE ALSO , THE BASIS OF MAKING THE ADDITION IS THE 4 ITA NO. 21 9 / JAB /201 3 STATEMENT MADE BY THE ASSESSEE DURING THE COURSE OF SURVEY UNDER SEC. 133A OF THE ACT AS UN DISCLOSED INCOME OF RS. 1,09,000/ - , BESIDES THERE IS NO CORROBORATIVE MATERIAL TO SHOW THAT THE ASSESSEE IN FACT HAD EARNED THAT INCOME WHICH WAS NOT DISCLOSED TO THE DEPARTMENT. THEREFORE, WE FIND THAT THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) IN CONF I RMING THE ADDITION OF RS. 1,09,000/ - IN THE HANDS OF THE ASSESSEE , CANNOT BE SUSTAINED IN LAW. WE, THEREFORE, SET ASIDE THE ORDER OF THE LOWER AUTHORITIES AND DELETE THE ADDITION OF RS. 1,09,000 / - AND ALLOW THE GROUND OF APPEAL OF THE ASSESSEE. 6 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE HEARING ON MONDAY , THE 0 4 TH DAY OF APRIL , 201 6 AT JABALPUR . S D/ - SD/ - ( N.K. CHOUDHRY ) (N.S.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER D ATED : 0 4 TH APRIL , 201 6 . VR/ - COPY TO: 1. THE ASSESS E E. 2. THE REVENUE. 3. THE CIT 4. THE CIT(A) 5. THE D.R . 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY, ITAT, JABALPUR.