Sh. Gulshan Rai Prop. M/s Ram Parkash & Sons , Jalandhar V. D.C.I.T, Phagwara Circle, Phagwara

ITA 228/ASR/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7119 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 18-01-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 28-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARVINDER KAUR
• Assessee Lawyers: ANIL MIGLANI ADVS
• Keywords: Corroborative evidences
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CAMP BENCH AT JALANDHAR BEFORE SH. N. K. SAINI, HONBLE VICE PRESIDENT AND SH. RAVISH SOOD, JUDICIAL MEMBER ITA NO.228/ASR./2017 : ASSTT. YEAR : 2012-13 ITA NO.125/ASR./2018 : ASSTT. YEAR : 2012-13 SH. GULSHAN RAI PROP. M/S. RAM PRAKASH & SONS G.T. ROAD, PHILLAUR, DISTT. JALANDHAR VS DCIT, CENTRAL CIRCLE-II, JALANDHAR (APPELLANT) (RESPONDENT) PAN NO. AATPR5202L ASSESSEE BY : SH. SUDHIR SEHGAL & SH.. ANIL MIGLANI, ADVS REVENUE BY : SMT. PARVI NDER KAUR, CIT DR DATE OF HEARING : 16.01.2019 DATE OF PRONOUNCEMENT : 17.01.2019 ORDER PER N. K. SAINI, VICE PRESIDENT: THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGAI NST THE SEPARATE ORDERS OF THE CIT(A)-2 DATED 28.2.2017 AND 1.12.2016. 2. AT THE FIRST INSTANCE, WE WILL DEAL WITH APPEAL IN ITA NO. 228/ASR/2017. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEAL R ELATES TO THE CONFIRMATION OF ADDITION OF RS. 3,44,006/- OUT OF THE ADDITION MADE BY THE AO. 3. FACTS OF THE CASE IN BRIEF ARE THAT IN THIS CASE ACTION UNDER SECTION 132(2) OF THE INCOME TAX ACT, 1961 WAS CARRIED OUT ON 27.1 2.2011. THE RESPONSE THE ASSESSEE FILED THE REUTN OF INCOME ON 29.2.2012 DEC LARING TAXABLE INCOME OF RS. 60,15,128/-. DURING THE COURSE OF ASSESSMENT PROCE EDINGS, THE AO NOTICED THAT ON 27.12.2011 DURING PUNJAB ASSEMBLY ELECTION CASH AMOUNTING TO RS. ITA NO. 228/ASR./2017 ITA NO. 125/ASR/2018 2 6,00,000/- WAS SEIZED FROM THE ASSESSEE NEAR PHILLA UR FOR WHICH SATISFACTORY REPLY / EVIDENCE REGARDING THE SOURCE WAS NOT GIVEN . THE AO ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF ABOVE CASH SEIZED. IN RESP ONSE THE ASSEESSEE SUBMITTED THAT IT WAS OUT OF THE CASH IN HAND, HE FURNISHED T HE COPY OF CASH BOOK DATED 27.11.2012 SHOWING CLOSING CASH IN HAND OF RS. 6,28 ,025/- COPY OF SALE BILLS OF PIG IRON WEIGHING 10.170 TONS TOTALING RS. 3,44,006 /-. COPY OF WEIGHMENT SLIP ETC,. THE AO NOTICED THAT THE ASSESSEE WAS HAVING O PENING CASH BALANCE OF RS. 2,84,559/-. HOWEVER, HE DID NOT ACCEPT THE CASH ON ACCOUNT OF CASH SALE OF RS. 3,44,006/- FOR THE REASON THAT THE EXISTENCE OF THE FIRM M/S UBHI AGRO INDUSTRIES AT G.T. ROAD NABHA WAS NOT PROVED. ACCORDINGLY ADDI TION OF RS. 3,44,006/- WAS MADE. 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LEARNED CIT(A) WHO SUSTAINED THE ADDITION BY OBSERVING IN PARA 4.10 OF THE IMPUGNED ORDER AS UNDER:- 4.10 IT IS NOT A CASE OF NORMAL CASH SALE BUT IS A CASE WHERE CASH WAS S EIZED IN THE COURSE OF ASSEMBLY ELECTIONS AND THEREFORE, THE ONUS IS HIGHER ON THE APPELLANT TO PROVE THE SOURCES OF AVAILABLE CASH IN HAND. THE FACT THAT BOOK S OF ACCOUNTS HAVE NOT BEEN REJECTED BY THE AO DOES NOT GIVE SHELTER TO THE APPELLANT AGAINST MAKING AN ADDITION ON SPECIFIC ACCOUNT OF NON GENUINE SALE BOOKED IN THE ACCOUNTS. THE CONTENTION OF THE APPELLANT THAT OPENING & CLOSING STOCK HAS BEEN ACCEPTED BY THE AO AND HAVE NOT BEEN REJECTED DOES NOT MEAN THAT C ASH SALE STATED TO HAVE BEEN MADE BEFORE THE SEIZURE STANDS AUTOMATICALLY VERIFIED. THE FACT THAT CASH SALE STATED TO HAVE BEEN MADE ON THAT DAY, HAS NOT BEEN ACCEPTED BY THE AO AND THAT TOO ON THE BASIS OF FIELD ENQUIRIES MADE AFTE R GOING THROUGH THE EVIDENCE FILED BY THE APPELLANT. THE APPELLANT HAS NOT BEEN ABLE TO BRING ON RECORD ANY FURTHER EVIDENCE TO SUBSTANTIATE HIS EXPLANATION. THE SUPPORTING EVIDENCE FILED BY THE APPELLANT HAS FAILED TO SUBSTANTIATE EVEN THE EXISTENCE OF THE PARTY TO WHOM CASH SALE WAS MADE. AO HAS REJECTED THE CONTENTION OF THE APPELLANT THAT CASH SALE ON THAT DATE WAS MADE AND TO THAT PARTICULAR PARTY NAMELY M/S UBHI AGRO INDUSTRIES. THE JUDICIAL DECISIONS CITED BY THE APPELLANT ARE FOUND TO BE DISTINGUISHABLE ON ACCOUNT OF PECULIAR FACTS OF THIS CASE. THEREFORE, I HOLD THAT AO WAS JUSTIFIED IN TREATING THE AMOUNT OF RS. 3,44,006/- AS UNEXPLAINED CASH. ACCORDINGLY, I CONFIRM THE ADDITION OF RS. 3,44,006/- MADE BY THE AO UNDER THIS HEAD. ITA NO. 228/ASR./2017 ITA NO. 125/ASR/2018 3 5. NOW THE ASSESSEE IS IN APPEAL. 6. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE MAINTAINED THE PROPER BOOKS OF ACCOUNTS IN WHICH THE CASH IN HAND AT RS. 6,28,025/-ON 27.12.2011 WAS REFLECTED. OUT OF THE SAID AMOUNT AS SESSEE WAS TRAVELLING WITH CASH OF RS. 6,00,000/- WHICH WAS HANDED OVER BY THE POLICE TO THE INCOME TAX DEPARTMENT. IT WAS SUBMITTED THAT THERE WAS CASH SA LE OF RS. 3,29,508/- VIDE BILL NO. 395 ON THE SAME DATE I.E. 27.12.2011. IN THE SA ID BILL, AN AMOUNT OF RS. 14,498/- WAS CHARGED ON ACCOUNT OF SALES TAX, SURCH ARGE AND RS. 27,871/- FOR EXCISE DUTY. IT WAS FURTHER SUBMITTED THAT THE COPY OF EXCISE REGISTER WAS FURNISHED BEFORE THE AO AND QUANTITATIVE TALLY WAS ALSO ACCEPTED, THEREFORE, THERE WAS NO REASON TO DOUBT THE CASH SALES PARTICULARLY WHEN BOOKS OF ACCOUNTS HAD NOT BEEN REJECTED. 7. IN HIS RIVAL SUBMISSIONS, THE LEARNED DR STRONGL Y SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND REITERATED THE OBSERVATIO NS MADE THEREIN. 8. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE, IT IS AN ADMITTED FACT THAT THE ASSESSEE MAINTAINED REGULAR BOOKS OF ACCOUNT WHICH WERE PRODUCED BEFORE THE AO AND NO DEFECT WAS POINTED OUT IN THOSE BOOKS. AS SESSEE ALSO FURNISHED THE QUANTITATIVE TALLY AND COPY OF THE BILL NO. 395 DAT ED 27.12.2011 SHOWING THE CASH SALE AMOUNTING TO RS. 3,44,006/-. THE SALE VALUE AR ISING OUT OF THE AFORESAID BILL WAS ENTERED IN THE CASH BOOK, COPY OF WHICH IS PLAC ED AT PAGE NO. 1 OF THE PAPER BOOK. THE ASSESSEE EXPLAINED THAT THE CASH FOUND BY THE POLICE WAS OUT OF THE CASH IN HAND, SAID EXPLANATION OF THE ASSESSEE WAS NOT DOUBTED, HOWEVER, THE ADDITION HAS BEEN MADE ONLY FOR THE CASH SALE BILL. IN OUR OPINION, WHEN THE ITA NO. 228/ASR./2017 ITA NO. 125/ASR/2018 4 BOOKS OF ACCOUNTS INCLUDING THE CASH BOOKS WERE ACC EPTED BY THE AO. THERE WAS NO OCCASION TO DOUBT THE CASH SALE OF THE EXCISABLE GOODS PARTICULARLY WHEN THE ASSESSEE FURNISHED ALL THE RELEVANT DOCUMENTS RELAT ING TO THE SALE VIDE BILL NO. 395. WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS DELETE THE IMPUGNED ADDITION MADE BY THE AO AND SUSTAINED BY THE LEARNE D CIT(A). 9. IN ITA NO. 125/ASR/2018, THE GRIEVANCE OF THE AS SESSEE RELATES TO THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT LEVIED B Y THE AO AND SUSTAINED BY THE LEARNED CIT(A) ON ACCOUNT OF THE AFORESAID REFERRED TO ADDITION. SINCE THE ADDITION SUSTAINED BY THE LEARNED CIT(A) HAS BEEN D ELETED IN THE FORMER PART OF THIS ORDER WHILE DECIDING THE APPEAL OF THE ASSESSE E IN ITA NO. 228/ASR/2017, THEREFORE, THE IMPUGNED PENALTY IS ALSO DIRECTED TO BE DELETED. 10. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED. (ORDER PRONOUNCED IN THE COURT ON 17/01/2019) SD/- SD/- (RAVISH SOOD) (N. K. SAINI) JUDICIAL MEMBER V ICE PRESIDENT DATED: 17/01/2019 *SH* ITA NO. 228/ASR./2017 ITA NO. 125/ASR/2018 5 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR DATE INITIAL 1. DRAFT DICTATED ON 16.01.2019 PS 2. DRAFT PLACED BEFORE AUTHOR 17.01.2019 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.