Shri Mukesh Kumar Jain, Bhind V. A.C.I.T., Circle-2, Gwalior

ITA 22/AGR/2012

• Counselvise Citation: 2220314 RSA 2012
• Duration Of Justice: 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 13-01-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SOHAIL AKHTAR
• Assessee Lawyers: MANUJ SHARMA
• Section: 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, SMC, AGRA BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO.22/AGR/2012 ASSESSMENT YEAR: 2009-10 SHRI MUKESH KUMAR JAIN, VS. A.C.I.T., CIRCLE-2, PROP. SHIKHA TRADERS. GWALIOR. DEV NAGAR COLONY, DISTT. BHIND (M.P.) (PAN: AIDPJ 3435 H). ( APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANUJ SHARMA, ADVOCATE RESPONDENT BY : SHRI. SOHAIL AKHTAR, JR. D.R. DATE OF HEARING : 23.01.2012 DATE OF PRONOUNCEMENT : 23.01.2012 ORDER THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST T HE IMPUGNED ORDER DATED 18.11.2011 PASSED BY THE LD. CIT(A), GWALIOR FOR TH E ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS :- 1. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE THE COMMISSIONER OF INCOME TAX (APPEAL) ERRED IN LAW & FACTS IN TREATING THE CASE OF THE ASSESSEE AS A CASE OF SEAR CH WHILE NO SEARCH U/S 132(1) WAS CONDUCTED/INITIATED AT ASSESSEES PR EMISES WHILE THE CONDITIONS & SATISFACTION FOR AUTHORIZING THE SEARC H WERE NOT FULFILLED. THE SAID SO CALLED SEARCH WAS PRIMA FACIE ILLEGAL & NULL & VOID & CONSEQUENTLY THE ASSESSMENT MADE U/S 153A(B) READ W ITH SECTION 144 MAY BE ANNULLED. ITA NO.22/AGR/2012 A.Y. 2009-10 2 2. THE AFORESAID ASSESSMENT MAY BE DECLARED AS VOID AS THE MANDATORY NOTICE U/S 143(2) WAS NOT SERVED ON THE A SSESSEE BY 30.09.2010. 3. THE WARRANT OF AUTHORIZATION FOR SEARCH U/S 132( 1) & THE PANCHNAMA TESTIFY THE JOINT NAMES AND THE COMMISSIO NER OF INCOME TAX (APPEAL) ERRED IN CONFIRMING THE ASSESSMENT MAD E IN INDIVIDUAL CAPACITY & SAME BE DECLARED AS VOID AS HELD IN VAND ANA VERMA VS. CIT [ALLAHABAD HC]. 4. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) WAS NOT JUSTIFI ED IN CONFIRMING THE ADDITION FOR THE OLD UNSECURED LOANS ` 321,760/- COMING DOWN FROM PAST YEARS. 5. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, MODIFY, SUBSTITUTE OR DELETE ANY GROUND AT THE TIME OF OR B EFORE HEARING OF APPEAL. 2. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT HE IS NOT PRESSING GROUND NOS.1, 2, 3, & 5 AND REQUESTED THAT THE SAME MAY BE DISMISSED AS WITHDRAWN. NO OBJECTION HAS BEEN RAISED BY THE LD. DEPARTMENTAL REPRESENTATIVE. THEREFORE, I DISMISS THE ISSUES INVOLVED IN GROUND NOS.1, 2, 3 & 5. 3. THE LD. COUNSEL FURTHER STATED THAT HE IS ONLY P RESSING GROUND NO.4 AND HE ARGUED THAT THE ADDITION OF UNSECURED LOAN OF ` 3,21,760/- HAS WRONGLY BEEN MADE BY THE REVENUE AUTHORITIES BECAUSE THESE UNSECURED LOANS ARE THE OLD UNSECURED LOANS WHICH THE ASSESSEE IS SHOWING IN ITS RETURN O F INCOME FROM THE ASSESSMENT YEARS 2006-07, 2007-08 & 2008-09. THEREFORE, THESE UNSECURED LOANS AS REGARDS TO SHRI PUSHPENDRA JAIN AND SHRI SITARAM JAIN ITSEL F ARE EXPLAINED AND THE REVENUE AUTHORITIES HAS WRONGLY MADE THE ADDITION IN DISPUT E. THE LD. COUNSEL FOR THE ITA NO.22/AGR/2012 A.Y. 2009-10 3 ASSESSEE ALSO DREW MY ATTENTION TOWARDS ONE SMALL P APER BOOK FILED BY HIM CONTAINING PAGE NOS.1 TO 40 IN WHICH HE HAS ATTACHE D ACKNOWLEDGEMENT, COMPUTATION OF INCOME, BALANCE SHEET, TRADING, PROF IT & LOSS ACCOUNT, CAPITAL ACCOUNT & AUDIT REPORT OF SHRI MUKESH JAIN FOR THE ASSESSMENT YEARS 2006-07, 2007-08 & 2008-09 AND AFFIDAVIT OF SHRI SITARAM JAI N & SHRI PINTU CONFIRMING LOANS. HE ESPECIALLY DREW MY ATTENTION TOWARDS PAG E NOS. 9, 23 & 37 OF THE PAPER BOOK WHICH SHOWING THE BALANCE SHEETS AS ON 31.03.2 006, 31.03.2007 & 31.03.2008 I.E. RELATING TO THE ASSESSMENT YEARS 20 06-07 TO 2008-09. HE REQUESTED THAT THE ADDITION IN DISPUTE MAY BE DELET ED BY ALLOWING THE GROUND RAISED BY THE ASSESSEE. 4. ON THE CONTRARY, THE LD. DEPARTMENTAL REPRESENTA TIVE RELIED UPON THE ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE LEVANT RECORDS AVAILABLE WITH ME, ESPECIALLY THE BALANCE SHEETS OF THE ASSESSMENT YEARS 2006-07, 2007-08 & 2008-09 WHICH THE ASSESSEE HAS ATTACHED ALONGWITH T HE RETURN FILED BY THE ASSESSEE FOR THE SAID ASSESSMENT YEARS. THE ACKNOWLEDGEMENT OF THE SAME THE ASSESSEE HAS ATTACHED IN THE PAPER BOOK FILED BEFORE ME. AFTER PERUSING THE BALANCE SHEETS ATTACHED WITH THE RETURNS FILED BY THE ASSESSEE FOR THE ASSESSMENT YEARS 2006-07, 2007-08 & 2008-09 WHICH PROVES THE UNSECURED LOANS IN DISPUTE, IT IS SEEN THAT THE ITA NO.22/AGR/2012 A.Y. 2009-10 4 SAME RELATE TO THE PREVIOUS YEARS. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES AS WELL AS THE EVIDENCE FILED BY THE ASSESSEE IN TH E SHAPE OF PAPER BOOK, I AM OF THE CONSIDERED OPINION THAT THE REVENUE AUTHORITIES HAS WRONGLY MADE THE ADDITION IN DISPUTE UNDER SECTION 68 OF THE I.T. ACT ON ACCO UNT OF UNEXPLAINED UNSECURED LOANS. THEREFORE, THE ADDITION IN DISPUTE IS NOT S USTAINABLE IN THE EYE OF LAW AND THE SAME DESERVES TO BE DELETED. I DELETE THE SAME BY ACCEPTING THE GROUND NO.4 RAISED BY THE ASSESSEE. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS P ARTLY ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 23.01.2012). SD/- (H.S. SIDHU) JUDICIAL MEMBER DATE: 23 RD JANUARY, 2012 PBN/* COPY OF THE ORDER FORWARDED TO: APPELLANT/RESPONDENT/CIT CONCERNED/CIT(APPEALS) CO NCERNED/D.R., ITAT, AGRA BENCH, AGRA/GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY