Smt. Pooja Sanjay Todi, Surat V. The Dy.CIT.,Circle-2, Surat

ITA 2482/AHD/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8921 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 21-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 21-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Corroborative evidences
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH (BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER) ITA. NO: 2482/AHD/2013 (ASSESSMENT YEAR: 2008-09) POOJA SANJAY TODI 710, SILK PLAZA MARKET, B/H. ANMOL MARKET, RING ROAD, SURAT-395002 V/S INCOME TAX OFFICER, WARD- 7 (2), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: ABBPT9853A APPELLANT BY : SHRI MEHUL SHAH, AR RESPONDENT BY : SHRI K. MADHUSUDAN, SR. D.R. ( )/ ORDER DATE OF HEARING : 21 -03-201 7 DATE OF PRONOUNCEMENT : 22 -03-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. AGGRIEVED BY THE ORDER OF THE LD. CIT(A)-II, SURAT DATED 01.08.2013 PERTAINING TO A.Y. 2008-09, THE ASSESSEE HAS PREFER RED AN APPEAL BEFORE US ITA NOS. 248 2/AHD/2013 . A.Y. 2008-09 2 QUESTIONING THE CONFIRMATION OF THE PENALTY OF RS. 6,00,000/- LEVIED U/S. 271(1)(C) OF THE ACT. 2. THE ROOTS FOR THE LEVY OF PENALTY LIE IN THE ASSESS MENT ORDER DATED 29.12.2010 MADE U/S. 143(3) OF THE ACT. THE RETURNE D INCOME OF RS. 20,61,924/- WAS ASSESSED AT RS. 52,61,920/- WHICH I NCLUDED ADDITION ON ACCOUNT OF UNDER-STATEMENT OF DISCLOSED INCOME OF R S. 20,00,000/-. 3. PENALTY PROCEEDINGS WERE SEPARATELY INITIATED BY TH E A.O AND AFTER ISSUING A SHOW CAUSE NOTICE AND CONSIDERING THE REPLY OF THE ASSESSEE, THE A.O. WAS NOT SATISFIED WITH THE REPLY OF THE ASSESSEE AND PR OCEEDED BY LEVYING PENALTY OF RS. 6,00,000/-. 4. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) B UT WITHOUT ANY SUCCESS. 5. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE IMPUGNED ADDITION MADE BY THE A.O. ON WHICH PENALTY HAS BEEN LEVIED AND HAS BEEN DELETED BY THE TRIBUNAL VIDE ORDER DATED 22.01.2016 . 6. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTHORI TIES BELOW. WE HAVE ALSO GONE THROUGH THE ORDER OF THE TRIBUNAL DATED 2 2.01.2016 IN ITA NOS. 1822 & 2105/AHD/2011. WE FIND FORCE IN THE CONTENTI ON OF THE LD. COUNSEL. THE TRIBUNAL HAS DELETED THE IMPUGNED ADDITIONS AND THE RELEVANT FINDING OF THE TRIBUNAL READ AS UNDER:- ITA NOS. 248 2/AHD/2013 . A.Y. 2008-09 3 8. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS. WE HAVE ALSO GONE THROUGH THE ORDER OF THE AUTHORITIES BELO W AND THE RELEVANT DOCUMENTARY EVIDENCES BROUGHT ON RECORD. WE FIND TH AT THE ENTIRE DISPUTE REVOLVES AROUND QUESTION NO. 24 ASKED DURING THE CO URSE OF SURVEY OPERATIONS. IT WOULD BE PERTINENT TO MENTION HERE THAT THE SAID ST ATEMENT WAS GIVEN BY SHRI SANJAY RAM AVTAR TODI HUSBAND OF THE ASSESSEE AND N OT BY THE ASSESSEE. THE ENGLISH TRANSLATION OF WHICH IS INCORPORATED IN THE ASSESSMENT ORDER AND WHICH READS AS UNDER:- QUES NO. 24 PLEASE SPECIFY ABOUT ANY UNRECORDED INCOME THAT IS EARNED BY YOU, YOUR FAMILY MEMBERS OR YOUR BUSINESS CONCERNS. ANS. 24 MY WIFE SMT. POOJA S. TODI, USED TO FILE HER RETURN OF INCOME ON HER OWN AND SHE HAS STARTED A PROPRIETARY CONCERN IN F.YR. 2007-08 WHICH CARRIES ON BUSINESS OF TRADING IN DRESS MATERIAL AND SAREES. IN THIS, I HA VE INVESTED RS. 15,00,000/- AND CLOSING STOCK OF RS. 20,01,008/- IS HELD BO TODAYS DATE. I HAVE EARNED RS. 5,00,000/- THROUGH SUCH TURNOVER. IN THIS WAY, I ON BEHALF OF MY WIFE SMT. POOJA S. TODI DECLARE RS. 40,01,008 IN THE NAME OF M/S. A NITA FASHIONS AND SAREES, HER PROPRIETOR CONCERN WHICH HAS NOT BEEN RECORDED IN A NY BOOKS OF ACCOUNTS, AS INCOME FOR F.YR. 2007-08. ANY INCOME TAX LIABILITY ARISING OUT OF SUCH BUSINESS WILL BE PAID BY MY WIFE ON THE BASIS OF SUCH INCOME. 9. AS MENTIONED ELSEWHERE THE STATEMENT WAS GIVE N BY THE HUSBAND OF THE ASSESSEE AND NOT BY THE ASSESSEE. THERE IS NOTHING ON RECORD TO SUGGEST THAT THE ASSESSEE AUTHORIZED HER HUSBAND TO MAKE DISCLOSURES ON HER BEHALF. 10. IT WOULD BE PERTINENT TO MENTION HERE THAT IN THE VERY SAME GODOWN STOCKS OF THREE OTHER FIRMS WERE ALSO KEPT NAMELY (I) ANIT A FASHION PVT. LTD. (II) ANITA SAREES PROPRIETOR SANJAY TODI AND (III) ANITA FASHI ON PROPRIETOR HUF. THIS FACT IS RELEVANT BECAUSE THE STOCK WHICH WAS FOUND AT THE T IME OF SURVEY BELONGED TO THESE THREE CONCERNS AND ASSESSEE IS THE FORTH PROP RIETARY CONCERN. 11. NEITHER FROM THE ASSESSMENT ORDER NOR FROM TH E ORDER OF THE FIRST APPELLATE AUTHORITY, IT IS CLEAR AS TO WHY THE ENTIRE ADDITIO N HAVE BEEN MADE IN THE HANDS OF THE ASSESSEE WHEN THREE OTHER BUSINESS CONCERNS WER E KEEPING THEIR STOCKS AT THE VERY SAME GODOWN. THERE IS NOT EVEN A WHISPER OF TH E STOCK BELONGING TO THE OTHER THREE CONCERNS. ITA NOS. 248 2/AHD/2013 . A.Y. 2008-09 4 12. EXCEPT FOR THE STATEMENT OF THE HUSBAND OF TH E ASSESSEE THERE IS NO CORROBORATIVE EVIDENCE BROUGHT ON RECORD TO SUGGEST THAT THE ASSESSEE HAD IN FACT UNDISCLOSED/UNEXPLAINED INVESTMENTS IN THE STO CKS. 13. WITHOUT THERE BEING ANY CORROBORATIVE EVIDENCE BROUGHT ON RECORD, IT WOULD BE INJUSTICE TO THE ASSESSEE IF THE IMPUGNED ADDITI ON IS SUSTAINED. IN OUR CONSIDERED OPINION SINCE THE REVENUE HAS FAILED TO BRING ON RECORD DIRECT CORROBORATIVE EVIDENCES TO JUSTIFY THE ADDITION, FI NDINGS OF THE LD. CIT(A) ARE SET ASIDE AND THE A.O IS DIRECTED TO DELETE THE ADDITIO N OF RS. 20 LACS. 7. SINCE, THE FOUNDATION HAS BEEN REMOVED, THE SUPER S TRUCTURE MUST FALL. WE, THEREFORE, SET ASIDE THE FINDINGS OF THE LD. CIT(A) AND DIRECT THE A.O. TO DELETE THE PENALTY OF RS. 6,00,000/-. 8. APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 22 - 03- 20 17 SD/- SD/- (RAJPAL YADAV) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 22/03/2017 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD