Shri Gunvant K. Sapra, Nadiad V. The Income tax Officer, Ward-4, Nadiad

ITA 2452/AHD/2005

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9245 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2009
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 20-08-2009
• Assessment Year: 2002-2003
• Appeal Filed On: 28-11-2005
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA
• Assessee Lawyers: D K PARIKH
• Keywords: Revised return
• Section: 133A

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, B-BENCH,AHMED ABAD. BEFORE :SHRI MAHAVIR SINGH, JUDICIAL MEM BER, AND SHRI D.C.AGRAWAL, ACCOUNTANT MEMBER. ITA NO.2452/AHD/2005 (ASSESSMENT YEAR 2002-2003) GUNVANT K SAPRA 8 JALDHARA SOCIETY, PIJ ROAD, NR TRIMURTI SOCIETY, NADIAD. VERSUS THE INCOME TAX OFFICER, WARD-4, NADIAD. (APPELLANT) (RESPONDENT) PAN: AGMPS 1279 D FOR THE APPELLANT: SHRI D.K. PARIKH , AR FOR THE RESPONDENT SHRI C.K. MISHRA, DR ORDER PER SHRI D.C. AGRAWAL: THIS IS AN APPEAL FILED BY THE ASSESSEE RAISING FOLLOWING GROUNDS. 1.THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-IV, BARODA, IS BAD IN LAW AND BE QUASH ED. THE ADDITIONS/DISALLOWANCE MADE BE DELETED AND RETURNED INCOME BE ACCEPTED NOW. 2.THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) E RRED IN SUSTAINING ADDITION TO THE EXTENT OF RS.69,945/- OU T OF ADDITION OF RS.1,53,687/-, MADE BY THE ASSESSING OFFICER BEING DIFFERENCE IN STOCK WORKED OUT AT THE TIME OF SURVEY AND AS DISCLOSED I N RETURN. IT IS SUBMITTED THAT ADDITION MADE BY THE ASSESSING OFFIC ER AND SUSTAINED BY CIT(A) OF RS. 69,945/- IS UNWARRANTED AND SAME BE D ELETED IN TOTO. 3.THE LEARNED CIT(A)HAS ERRED IN HOLDING THE ACTION OF THE ASSESSING OFFICER OF TREATING INCOME DECLARED OF RS. 9980 WHI LE FILING RETURN AS CONCEALED INCOME. YOUR APPELLANT SUBMIT THAT INCOM E DISCLOSED IN REVISED RETURN BE ACCEPTED AS VOLUNTARY. IT BE HEL D SO NOW. 4.THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE AD DITION MADE BY THE ASSESSING OFFICER OF RS. 9.773 BEING PROFIT ESTIMAT ED @ 7.5% OF SALES. IT IS SUBMITTED THAT ADDITION MADE IN UNWARRANTED AND SAME BE DELETED NOW. 2 ITA NO.2452/AHD/2005 (ASSESSMENT YEAR 2002-03) 5.THE LEARNED CIT(A) HAS ERRED IN UPHOLDING THE ACT ION OF THE ASSESSING OFFICER OF CHARGING INTEREST U/S 234B/C OF THE ACT. IT IS SUBMITTED THAT CHARGING OF INTEREST IS NOT JUSTIFIED AND SAME BE D ELETED NOW. FURTHER, THE CIT(A) HAS NOT GIVEN ANY FINDING REGARDING LEVY OF INTEREST U/S 234D. THE SAME BEING INCORRECTLY CHARGED BY THE AS SESSING OFFICER BE DELETED NOW. 2. OUT OF ABOVE GROUNDS THE ASSESSEE HAS NOT PRESSE D GROUND NO. 3 AND 4 AND THEREFORE THEY ARE REJECTED AS NOT PRESSED. GR OUND NO. 5 IS CONSEQUENTIAL AND THEREFORE DOES NOT REQUIRE ANY SEPARATE ADJUDIC ATION. SIMILARLY, GROUND NO. 1 IS GENERAL IN NATURE AND DOES NOT REQUIRE ANY SPE CIFIC ADJUDICATION. ONLY EFFECTIVE GROUND THAT SURVIVES IS GROUND NO. 2. TH E FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL, RUNNING A PROPERTY C ONCERN NAMELY ,M/S. MARUTI TILES AND STONE SUPPLIERS AT NADIAD. HE IS TRADING IN MOSAIC /GLAZE TILES, MARBLE TILES KOTASTONE AND SANITARY ITEMS. A SURVE Y UNDER SECTION 133A WAS CARRIED OUT ON 12-12-2001 AT THE BUSINESS PREMISES OF THE ASSESSEE. A STOCK INVENTORY WAS PREPARED BY THE SURVEY TEAM AND AFTE R COMPARING WITH THE STOCK AS RECORDED IN THE BOOKS, THE ASSESSEE MADE A DISC LOSURE OF RS. 4,04,486/-. AFTER FURTHER CONSIDERING SOME MORE PURCHASE BILLS, THE DISCLOSURE WAS REDUCED TO RS. 2,46,719/-. THE ASSESSEE FILED A RETURN OF INCOME ON 29-08-2002 DECLARING AN INCOME OF RS. 3,86,980/- WHICH WAS REV ISED ON 12-04-2003 ON AN INCOME OF RS. 3,96,860/-. DURING THE COURSE OF ASS ESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS INC REASED THE STOCK BY A SUM OF RS. 69,945/- ON ACCOUNT OF CERTAIN BILLS PRESENTED AFTER A GAP OF 33 MONTHS. IT WAS CLAIMED BEFORE HIM THAT THESE BILLS WERE LOST A ND WERE DISCOVERED SUBSEQUENTLY. THE ACTUAL PAYMENT WAS MADE THROUGH BANKING CHANNELS AND THEREFORE CREDIT TO THIS EXTENT WAS AVAILABLE TO TH E ASSESSEE. THE ASSESSING OFFICER, HOWEVER, DID NOT AGREE AND REJECTED THE CL AIM. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ALSO CONFIRMED THE DECISION OF ASSESSING OFFICER IN REJECTING THE CLAIM OF RS. 69, 945/- BEING THE GOODS PURCHASED BUT THE BILLS NOT ACCOUNTED FOR IN THE B OOKS. 3. BEFORE US IT WAS CLAIMED BY LD. A.R. FOR THE ASS ESSEE, REFERRING TO THE COPY OF THE BANK ACCOUNT FILED IN THE PAPER BOOK W HEREIN A SUM OF RS.33,543/- 3 ITA NO.2452/AHD/2005 (ASSESSMENT YEAR 2002-03) WAS DEBITED ON 23-11-2001. ANOTHER SUM OF RS. 34, 479/- WAS DEBITED ON 8- 10-2001. IT WAS CLAIMED THAT THEY REFERRED TO PAYM ENT MADE FOR PURCHASE OF GOODS NOT RECORDED IN THE REGULAR BOOKS BY MISTAKE. HE REFERRED TO THE PAGE 51 OF THE PAPER BOOK WHICH RELATED TO A BILL ISSUED BY REGULAR STONE INDUSTRIES FOR PURCHASE BY THE ASSESSEE FOR A SUM OF RS. 33,48 8/-,AND PAYMENT OF TRANSPORTATION CHARGES FOR A SUM OF RS. 8960/-. HE SUBMITTED THAT SUM OF RS. 33,488/- WAS PAID BY THE ASSESSEE AND THE SAME IS D EBITED IN THE BANK ACCOUNT INCLUDING THEREWITH A SUM OF RS. 55/- FOR DRAFT COM MISSION MAKING A TOTAL OF RS. 33,543/-. IT IS DEBITED IN THE BANK ACCOUNT ON 23-11-2001. HE FURTHER SUBMITTED THAT THE SUM OF RS. 27,496/- WAS ALSO EXP LAINABLE. IN THIS REGARD, WE REFER TO FOLLOWING NOTE SUBMITTED BY HIM IN THE PAP ER BOOK. AS REGARDS ADDITION OF RS. 69,945/- RETAINED BY THE C.I.T. (APPEALS) THE LEARNED C.I.T. (APPEALS) ERRED IN NOT APPRECIATING THAT THERE WAS A VALID PURCHASE BILL OF RS.33,488/- AND ON WHICH THERE WAS A TRANSPORT EXPENSES OF RS.8,960/- BEING TRANSPORT EXPENSES AND CARTING FOR WHICH THERE WERE VALID VOUCHERS INCLUDING TRANSPORT RECEI PTS FOR TRUCK NO. RJ- 33 G 309 FOR RS. 8,960/-. DETAILS ARE AT PAGE NO. 48 OF THE PAPER BOOK AND THEREFORE, TOTAL AMOUNT OF RS. 42,448/- OUGHT T O HAVE BEEN REDUCED FROM THE EXCESS STOCK BECAUSE THE AFORESAID BILL OF REGHUVIR STONE INDUSTRIES ALONG WITH CARTING CHARGES WAS NOT TAKEN INTO ACCOUNT IN CALCULATING THE INVENTORY AS PER BOOKS. IT IS RESP ECTFULLY SUBMITTED THAT SINCE AMOUNT OF RS. 33,488/- HAS BEEN PAID BY WAY O F DRAFT AS PER BANK RECEIPT AT PAGE 49 OF THE PAPER BOOK AND CARTING RECEIPT AT PAGE 50 A S WELL AS SALES TAX NUMBERED INVOICE AT PAGE-51, WHICH WAS FURTHER CORROBORATED WITH THE FACT THAT THE AMOUNT OF RS. 3 3,543/- HAS BEEN DEBITED BY BANK ON 23-11-2001 AS PER BANK STATEMENT S AT PAGE 52, THE C.I.T. (APPEALS) WAS NOT JUSTIFIED IN HOLDING THAT THE AFORESAID AMOUNT APPEARS TO BE AFTERTHOUGHT. IT BE SO HELD THAT THE PURCHASES ARE GENUINE AND THERE CANNOT BE AFTERTHOUGHT AS FAR AS PAYMENT THROUGH BANK DRAFT ON 23-11-2001 IS CONCERNED. THE LEARNED ASSESSING OFFICER ALSO IN 4 ITA NO.2452/AHD/2005 (ASSESSMENT YEAR 2002-03) PARA-4 HAS NOT ACCEPTED THE EXPLANATION REGARDING R S.69,945/- FOR THE REASON THAT DETAILS AND TRANSPORT VOUCHERS WERE NOT BROUGHT TO THE NOTICE OF THE DEPARTMENT DURING THE COURSE OF SURVE Y. IT IS SUBMITTED THAT THE ABOVE BILLS AND TRANSPORT CHARGES CANNOT B E DOUBTED AND THE SAME OUGHT TO HAVE BEEN CONSIDERED BY THE AUTHORITI ES BELOW. 4. LEARNED DR ON THE OTHER HAND RELIED ON THE ORDER OF THE AUTHORITY BELOW. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT CLAIM MADE BY THE ASSESSEE REQUIRES TO BE VERIFIED BY THE ASSESSI NG OFFICER. WE RESTORE THE MATTER TO HIS FILE. IF PURCHASES ARE GENUINE AND B Y MISTAKE HAVE BEEN OMITTED FROM BEING TAKEN IN THE REGULAR BOOKS, THE CLAIM SH OULD BE ALLOWED. 5. AS A RESULT, APPEAL BY THE ASSESSEE IS ALLOWED P ARTLY, BUT FOR STATISTICAL PURPOSES. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DATED 28 TH AUGUST, 2009. SD/- SD/- (MAHAVIR SINGH) (D .C. AGRAWAL) JUDICIAL MEMBER ACCOUN TANT MEMBER AHMEDABAD; DATED: 28/08/2009 ANKIT* COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) CONCERNED 4. THE CIT, 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, ASSTT. REGISTRAR/ DEPUTY REGISTRAR ITAT, AHMEDABAD BENCHES, AHMEDABAD.