ACIT, Patiala V. Mahesh Kumar Singla, Patiala

ITA 252/CHANDI/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 5185 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Next Hearing Date: 28-09-2018
• Assessment Year: 2009-2010
• Appeal Filed On: 22-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, B, CHANDIGARH , ! '# $ % & '# , () BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ./ ITA NO. 252/CHD/2016 / ASSESSMENT YEAR : 2009-10 ACIT, CIRCLE, PATIALA MAHESH KUMAR SINGLA, #44, ANAND NAGAR-B, ST.NO.8, PATIALA ./PAN NO: AAOFM7159C / APPELLANT /RESPONDENT & ./ ITA NO. 267/CHD/2016 / ASSESSMENT YEAR : 2009-10 MAHESH KUMAR SINGLA, #44, ANAND NAGAR-B, ST.NO.8, PATIALA ACIT, CIRCLE, PATIALA ./PAN NO: AAOFM7159C / APPELLANT /RESPONDENT ! /ASSESSEE BY : SH. DEEPAK AGGARWAL, ADVOCATE ' ! / REVENUE BY : SH. MANJIT SINGH, SR. DR ALONG WI TH SH. KAMALDEEP SINGH, ACIT # $ % /DATE OF HEARING : 28.09.2018 &'() % / DATE OF PRONOUNCEMENT : 11.10. 2018 (*/ ORDER PER SANJAY GARG, JUDICIAL MEMBER: THESE ARE CROSS APPEALS ONE BY THE REVENUE AND THE OTHER BY THE ASSESSEE FILED AGAINST THE ORDER DATED 19.01.2016 O F THE COMMISSIONER OF INCOME TAX (APPEALS), PATIALA [HEREINAFTER REFERRE D TO AS CIT(A)]. FIRST WE TAKE THE APPEAL OF THE REVENUE IN ITA NO. 252/C HD/2016. 2 ITA NOS. 252 & 267/CHD/2016- SH. MAHESH KUMAR SINGLA, PATIALA ITA NO. 252/CHD/2016 REVENUES APPEAL 2. AT THE OUTSET, THE LD. DR HAS BEEN FAIR ENOUGH TO ADMIT THAT THE TAX EFFECT INVOLVED IN REVENUES APPEAL IS LESS THAN TH E PRESCRIBED LIMIT OF RS. 20 LACS FOR FILING THE APPEAL BEFORE THE TRIBUNAL A S PER CBDT CIRCULAR NO. 3/2018 DATED 11.7.2018. IN VIEW OF THIS, HE SEEKS TO WITHDRAW / NOT TO PRESS THE PRESENT APPEAL IN THE LIGHT OF THE AFORES AID CBDT CIRCULAR DATED 11.7.2018. REQUEST ALLOWED. THE APPEAL OF THE REVENUE IS DISM ISSED AS WITHDRAWN / NOT PRESSED. ITA NO. 267/CHD/2016 ASSESSEES APPEAL 3. NOW COMING TO THE ASSESSEES APPEAL, THE SOLE IS SUE RAISED IN THE APPEAL IS REGARDING THE CLAIM OF LOSS SUFFERED BY T HE ASSESSEE ON ACCOUNT OF THEFT OF TRANSFORMERS. THE LD. CIT(A) DISALLOWED TH E SAID LOSS OBSERVING THAT THE ASSESSEE FAILED TO PROVE THE ACTUAL VALUE OF THE TRANSFORMERS AT THE TIME OF THE SAID THEFT. IN THIS CASE, THE ASSESSEE HAD CLAIMED THE LOSS AS PER THE COST PRICE OF THE TRANSFORMERS. IT WAS EXPLAINE D THAT SINCE THE BOOKS OF THE ASSESSEE WERE LYING IMPOUNDED WITH THE ASSESSIN G OFFICER, HENCE, THE ASSESSEE WAS UNABLE TO FURNISH THE DETAILS REGARDIN G THE BOOK VALUE OF THE TRANSFORMERS AT THE TIME OF THEFT. THE LD. CIT(A), HOWEVER, DID NOT CONSIDER THE ABOVE SUBMISSIONS OF THE ASSESSEE AND HELD THAT BURDEN WAS UPON THE ASSESSEE TO PROVE THE ACTUAL VALUE OF THE TRANSFORMERS AT THE TIME OF THEFT AND THAT THE ASSESSEE WAS NOT SUPPOSED TO SHIFT HIS BURDEN ON THE DEPARTMENT. HE, THEREFORE, DISALLOWED THE ENTIRE LO SS CLAIMED BY THE 3 ITA NOS. 252 & 267/CHD/2016- SH. MAHESH KUMAR SINGLA, PATIALA ASSESSEE AND MADE THE IMPUGNED ADDITION OF RS. 26,8 3,600/- TO THE INCOME OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE HAS COME IN APPEAL BEFORE US. 4. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE IMPUGNED ORDER OF THE CIT(A) AND HAS STATED THAT THE BOOKS OF ACCOUNT EVEN AS ON DATE ARE STILL LYING / IMPOUNDED WITH THE ASSESSING OFFICER, HENCE, THE ASSESSEE WAS UNABLE TO FURNISH THE DETAILS SOUGHT BY THE CIT(A). HE HAS FURTHER SUBMITTED THAT THE FACTUM O F THEFT OF TRANSFORMERS HAS NOT BEEN DISPUTED BY THE DEPARTMENT. IN VIEW OF THIS, THE LD. CIT(A) WAS NOT JUSTIFIED IN DISALLOWING THE ENTIRE CLAIM O F THE LOSS. 5. ON THE LAST DATE OF HEARING I.E. 26.9.2018, A SP ECIFIC QUESTION WAS RAISED BY THE BENCH TO THE LD. DR AS TO DESPITE FRAMING OF THE ASSESSMENT ORDER AND EVEN AFTER PASSING OF THE ORDER BY THE F IRST APPELLATE AUTHORITY, WHY THE BOOKS OF ACCOUNT OF THE ASSESSEE ARE STILL LYI NG IMPOUNDED WITH THE ASSESSING OFFICER. THE CONCERNED ASSESSING OFFICER WAS CALLED UPON TO EXPLAIN IN THIS RESPECT VIDE ORDER DATED 26.9.2018. TODAY, SHRI KAMALDEEP SINGH, THE CONCERNED ASSESSING OFFICER HAS COME PRE SENT AND HAS STATED THAT HE HAS RECENTLY JOINED AND WAS NOT AWARE OF TH E IMPOUNDING OF THE BOOKS BY HIS PREDECESSOR. HOWEVER, AFTER GOING THRO UGH THE RECORDS, HE HAS SUBMITTED THAT THE BOOKS OF ACCOUNT OF THE ASSESSEE ARE LIABLE TO BE RELEASED AND HE HAS GIVEN AN UNDERTAKING THAT THE S AME WILL BE RELEASED AT THE EARLIEST POSSIBLE. 6. NOW COMING THE MERITS OF THE CASE, THE THEFT OF THE TRANSFORMERS HAS NOT BEEN DISPUTED AS THE ASSESSEE HAS FURNISHED SUF FICIENT EVIDENCE IN THIS 4 ITA NOS. 252 & 267/CHD/2016- SH. MAHESH KUMAR SINGLA, PATIALA REGARD. THE ONLY QUESTION IS REGARDING THE QUANTUM OF LOSS SUFFERED BY THE ASSESSEE. THE ASSESSEE COULD NOT FURNISH THE NECESS ARY DETAILS BECAUSE OF THE REASONS THAT HIS BOOKS OF ACCOUNT WERE LYING IM POUNDED WITH THE ASSESSING OFFICER. IN VIEW OF THIS, AS SUBMITTED BY BOTH THE LD. REPRESENTATIVES OF THE PARTIES, IT WILL BE APPROPRI ATE IN THE FACTS AND CIRCUMSTANCES OF THE CASE TO RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER TO DECIDE IT A FRESH AFTER GIVING OPPORTUNI TY TO THE ASSESSEE TO FURNISH THE NECESSARY DETAILS. THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11.10.2018. SD/- SD/- ( $ % & '# / ANNAPURNA GUPTA) () / ACCOUNTANT MEMBER ( / SANJAY GARG) / JUDICIAL MEMBER DATED : 11.10.2018 .. '+ ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. # / / CIT 4. # / ( )/ THE CIT(A) 5. -01 2 , % 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7$ / GUARD FILE '+ # / BY ORDER, 8 ' / ASSISTANT REGISTRAR