ACIT, BARMER V. Shri Lalit Kumar, BARMER

ITA 254/JODH/2013

• Counselvise Citation: 25423314 RSA 2013
• Duration Of Justice: 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 29-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Keywords: Depreciation; Corroborative evidences
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 254/JODH/2013 (A.Y. 2006-07) ACIT, VS. SHRI LALIT KUMAR, CIRCLE, PROP. M/S. KIRI & COMPANY, BARMER. BARMER. PAN NO. AENPK7315K ASSESSEE BY : SHRI RAJENDRA JAIN DEPARTMENT BY : SHRI N.A. JOSHI- D.R. DATE OF HEARING : 20/09/2013. DATE OF PRONOUNCEMENT : 23/09/2013. O R D E R PER N.K.SAINI, A.M THIS IS AN APPEAL BY THE DEPARTMENT AGAINST THE OR DER DATED 11/01/20047 OF LD. CIT (A), JODHPUR. THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: IN THE FACTS & CIRCUMSTANCES OF THE CASE, THE CIT( A) HAS ERRED IN- 1. DELETING THE TRADING ADDITION OF RS. 6,74,076/- IGNORING THE FACT THAT THE A.OS MADE ABOVE ADDITION ON BASIS OF DEFECT AN D DEFICIENCIES NOTICED IN BOOKS OF ACCOUNTS AND THE CIT(A) ALSO UP HELD THE REJECTION OF THE BOOKS OF ACCOUNTS. 2 2. ALLOWING THE DEPRECIATION AT 100% ON THE BUNK HO USE BY TREATING THEM AS TEMPORARY STRUCTURE IGNORING THE FACT THAT THE BUNK HOUSES ARE PERMANENT STRUCTURES MADE OF HEAVY IRON AND STE EL BODY WITH TONS OF WEIGHT HAVING LONG LIFE OF SEVERAL YEARS. THE MERE PORTABILITY OF BUNK HOUSE BY HEAVY CRANES DOES NOT CONSTITUTE T HE SAME AS TEMPORARY STRUCTURE. 3. TREATING THE CASH CREDIT ENTRIES OF RS. 11,64,86 5/- AS EXPLAINED IGNORING THE FACT THAT ASSESSEE FAILED TO EXPLAIN T HE SOURCE OF THE ABOVE CREDIT ENTRIES AND NO SUPPORTING EVIDENCE PRO DUCED DESPITE SPECIFIC QUERIES. THE ASSESSEE HAS NOT PROVED ANY NEXUS OF THE CREDIT ENTRIES SHOWN AS CASH FROM HOUSE WITH THE BANK WITH DRAWAL WITH ANY EVIDENCE. 4. THAT THE APPELLANT RESERVES ITS RIGHTS TO ADD, A MEND OR ALTER THE GROUNDS OF APPEAL ON OR BEFORE THE DATE THE APPEAL IS FINALLY HEARD. 2 DURING THE COURSE OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE AT THE VERY OUT STATED THAT ASSESSEE ALSO FILED AN APP EAL IN I.T.A.NO. 174/JODH/2013 FOR THE A.Y. 2006-07 AGAINST THE IMPU GNED ORDER PASSED BY THE LEARNED CIT(A), WHEREIN VIDE ORDER DATED 21/ 08/2013, REASSESSMENT FRAMED BY THE ASSESSING OFFICER WAS QU ASHED. THEREFORE, THE APPEAL OF THE DEPARTMENT IS INFRUCTUOUS. 3. LEARNED D.R. IN HIS RIVAL SUBMISSIONS COULD NOT CO NTROVERT THE AFORESAID CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE. 4. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PART IES AND MATERIAL AVAILABLE ON RECORD, IT IS NOTICED THAT THE ASSESSE E FILED AN APPEAL IN I.T.A.NO. 174/JODH/2013 AGAINST THE IMPUGNED ORDER AND CHALLENGED THE 3 VALIDITY OF THE REASSESSMENT FRAMED BY THE ASSESSIN G OFFICER. THE SAID APPEAL HAS BEEN DISPOSED OFF VIDE ORDER DATED 21/08 /2013 AND THE REASSESSMENT FRAMED BY THE ASSESSING OFFICER WAS QU ASHED. THE RELEVANT FINDINGS HAVE BEEN GIVEN IN PARA 6 & 7 IN THE AFORE SAID REFERRED TO ORDER DATED 21/08/2013 FOR THE A.Y. 2006-07, WHICH READ A S UNDER:- 6. FROM A BARE READING OF THE ABOVE SAID REASONS RE CORDED BY THE AO, IT WOULD BE CLEAR THAT HE WAS NOT SURE HOW MUCH INCOME OF THE ASSESSEE ESCAPED THE ASSESSMENT BECAU SE HE SIMPLY MENTIONED THAT DURING THE SURVEY PROCEEDINGS SOME INCRIMINATING DOCUMENTS WERE FOUND, WHICH WERE NOT TALLIED WITH THE BALANCE SHEET/TRADING ACCOUNT OF THE ASSES SEES RETURN. IT IS NOT POINTED OUT THAT WHAT WERE THE E NTRIES WHICH WERE NOT RECORDED IN THE BOOKS OF ACCOUNT AND HOW MUCH INCOME ESCAPED FROM THE ASSESSMENT. IN THE R EASONS RECORDED, THE AO ALSO MENTIONED THAT IN THE A.Y. 20 07-08 I.E. THE SUCCEEDING ASSESSMENT YEAR, ON THE BASIS O F IMPOUNDED RECORD UNDISCLOSED INCOME WAS INVESTIGATE D AND IT WAS ADDED AROUND OF RS. 12,50,000/-. FROM THE A BOVE RECORDING OF THE AO ALSO, IT IS CLEAR THAT HE WAS N OT SURE HOW MUCH UNDISCLOSED INCOME RELEVANT TO THE YEAR UNDER CONSIDERATION WAS FOUND FROM IMPOUNDED RECORD. IN OTHER WORDS, THE AO STATED THAT UNDISCLOSED INCOME WAS PE RTAINING TO THE SUCCEEDING ASSESSMENT YEAR I.E. ASSESSMENT 2 007-08, HOWEVER, NOTHING IS STATED AS REGARDS TO THE ESCAPE MENT OF THE INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERAT ION. 7. WE, THEREFORE, ARE OF THE CONSIDERED VIEW THAT A BOVE SAID REASONS RECORDED BY THE AO WERE NOT SUFFICIENT TO I NITIATE THE PROCEEDINGS U/S 148 OF THE ACT. THEREFORE, REASSESSMENT FRAMED BY THE AO U/S 147 OF THE ACT WA S NOT VALID AND THE SAME IS QUASHED. 5. IN VIEW OF THE ABOVE, WE DO NOT SEE ANY MERIT IN T HIS APPEAL OF THE DEPARTMENT. 4 6. IN THE RESULT, APPEAL IS DISMISSED. (ORDER PRONOUNCED IN THE COURT ON 23 RD SEPTEMBER, 2013). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 23 RD SEPTEMBER, 2013. VR/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR, ITAT, JODHPUR.