DCIT, C.C. IV, Kolkata V. Nawal Kishore Soni, Darjeeling

ITA 223/KOL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2661 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-04-2010
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 19-02-2009
• Court: TRIBUNAL
• Department Lawyers: D R SINDHAL
• Assessee Lawyers: S P CHOWDHURY
• Keywords: Search and seizure; Loose papers; Document seized; Additional evidence; Documents seized

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL 'C BENCH : KOLKATA (BEFORE HONBLE SRI D.K.TYAGI, J.M. AND HONBLE SR I B.C.MEENA, A.M.) I.T.A. NO. 223/KOL/2009 ASSESSMENT YEAR : 2004-05 DCIT, CC-IV, KOLKATA VS NAWAL KISHORE SONI (PAN NO. AKWPS 4646 J) (APPELLANT) (RESPONDENT) APPELLANT BY : SR I D.R.SINDHAL. RESPONDENT BY : SRI S.P.CHOWDHURY. O R D E R PER SHRI B.C.MEENA, A.M. THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A) DATED 10.11.2008 FOR THE ASSESSMENT YEAR 20 04-05. 2. GROUND OF APPEAL RAISED IS AS UNDER : ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. C IT(A) HAS ERRED IN HOLDING THAT THE FIGURE OF CLOSING STOCK AS APPE ARING IN THE SEIZED DOCUMENTS SHOULD NOT BE TAKEN INTO ACCOUNT, AND I NSTEAD OF THAT THE FIGURE AS PER AUDITED BOOKS OF ACCOUNTS OF THE ASS ESSEE SHOULD BE CONSIDERED. 3. THE ONLY GROUND INVOLVED IS REGARDING THE DELET ION OF THE ADDITION OF RS.8 LAKHS WHICH WAS MADE ON ACCOUNT OF SEIZED D OCUMENT. THERE WAS A SEARCH AND SEIZURE OPERATION AT THE PREMISES OF TH E ASSESSEE. DURING THE COURSE OF SEARCH CERTAIN LOOSE PAPERS WERE SEIZED . ON THE LOOSE PAPERS SEIZED AT PAGE 32 OF P.L-1, THE TRADING ACCOUNT OF THE BEER FOR THE PERIOD FROM 1.4.03 TO 31.3.04 HAD BEEN DRAWN. AS PER T HESE PAPERS , THE CLOSING STOCK WAS OF RS.36,43,467.72. AS PER THE SUBMISS ION OF THE AUDITED ACCOUNTS, CLOSING STOCK OF THE BEER WAS SHOWN A T RS.28,43,467.72. 2 4. WHILE PLEADING ON BEHALF OF THE REVENUE, THE LE ARNED D.R. SUBMITTED THAT FIRSTLY THE CIT(A) HAS GRANTED RELIEF WITHOU T ANY BASIS. THE CIT(A) HAS ALSO ADMITTED AN ADDITIONAL EVIDENCE WITHOUT GI VING AN OPPORTUNITY TO THE A.O. THERE IS VIOLATION OF RULE 46A FOR WH ICH HE ALSO RELIED ON THE FOLLOWING DECISIONS : 1. CIT VS VALIMOHMED AHMEDBHAI (134 ITR 214) (G UJ) 2. RAI KUMAR SRIMAL VS CIT (102 ITR 525) (CA L) HE ALSO SUBMITTED THAT THE ASSESSEE HAS FAILED TO SUBSTANTIATE HIS CLAIM THAT THERE WAS A MISTAKE REGARDING THE CLOSING STOC K IN THE LOOSE PAPERS. THE RECONCILIATION SUBMITTED AT PAGE 3 OF THE PAPE R BOOK IS ALSO NOT SUPPORTED BY ANY DOCUMENTARY EVIDENCE. HE PLEADE D TO SET ASIDE THE ORDER OF THE CIT(A). 5. ON THE OTHER HAND, THE LEARNED A.R. RELIED ON THE ORDER OF THE CIT(A) AND SUBMITTED THAT THERE WAS AN ARITHMETICA L MISTAKE CREPT INTO THE SEIZED DOCUMENTS WHERE THE CLOSING STOCK H AS BEEN OVER-STATED BY RS.8 LAKHS WHICH HAS BEEN RECTIFIED BY THE AUDIT OR WHILE AUDITING THE ACCOUNTS. THEREFORE, THE ORDER OF THE CIT(A) IS JU STIFIED AND DESERVES TO BE SUSTAINED. 6. AFTER HEARING BOTH THE SIDES, WE FIND THAT THE CIT(A) CONSIDERED AND BELIEVED THE DOCUMENTS WHICH WERE NOT FILED BEFORE THE A.O. THE CIT(A) HAS NOT GRANTED OPPORTUNITY TO THE A.O. AS REQU IRED BY RULE 46A. FURTHER THE RECONCILIATION OF THE VALUE OF THE CLOS ING STOCK OF BEER AS ON 31.3.04 GIVEN AT PAGE 3 OF THE PAPER BOOK IS ALSO N OT SUPPORTED BY ANY INDEPENDENT EVIDENCE. KEEPING THESE FACTS IN VIEW AND TO MEET THE END OF JUSTICE, WE SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE ISSUE TO THE FILE OF THE CIT(A) WITH A DIRECTION TO DECIDE AFTE R PROVIDING ADEQUATE OPPORTUNITY TO THE A.O. IN RESPECT OF THE ADDITION AL EVIDENCES PRODUCED BY THE ASSESSEE. THEREFORE, WE RESTORE THE APPEAL TO THE FILE OF THE CIT(A) FOR DECIDING AFRESH. 3 7. IN THE RESULT, THE DEPARTMENTAL APPEAL IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09.04.2010 SD/- SD/- (D.K.TYAGI) (B.C.MEENA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 09.04.2010 COPY FORWARDED TO :- 1) DCIT, CC-IV, KOLKATA. 2) NAWAL KISHORE SONI, PROP. OF M/S UNITED CORPOR ATION , CHOWK BAZAR,DARJEELING. 3) CIT(A), KOLKATA. 4) CIT, KOLKATA. 5) D.R., ITAT, KOLKATA. (TRUE COPY) BY OR DER ASSISTANT REGISTRAR BCD I.T.AT., KOLKATA.