Sri.M.Faizal, Calicut V. ITO, Calicut

ITA 259/COCH/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68934 (ITAT-COCHIN)
• Duration Of Justice: 3 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 02-09-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 06-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: LATHA V KUMAR
• Assessee Lawyers: A V MURALIDHARAN

Judgement Text

1 ITA NO. 259/COCH/2013 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T.A NO. 259/COCH/2013 (ASSESSMENT YEAR 2008-09) M FAISAL VS THE ITO, WD.2(3) MULLAMBALATH HOUSE CALICUT KODUVALLY, CALICUT PAN : AATPF9520H (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.V. MURALIDHARAN RESPONDENT BY : SMT. LATHA V KUMAR DATE OF HEARING : 02-09-2013 DATE OF PRONOUNCEMENT : 05-09-2013 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF CIT(A), KOZHIKODE DATED 28-02-3013 FOR THE ASSESSMENT YEAR 2008-09. 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS ADDIT ION OF RS.29 LAKHS AS UNDISCLOSED INCOME. 3. SHRI A.V. MURALIDHARAN, THE LD.REPRESENTATIVE FO R THE ASSESSEE SUBMITTED THAT ON 07-11-2007SULTHAN BATHERY POLICE SEIZED RS.30 LAKHS 2 ITA NO. 259/COCH/2013 FROM THREE PERSONS. THE ABOVE SAID THREE PERSONS C LAIMED THAT THE MONEY BELONGED TO THE ASSESSEE. THE ASSESSEE WAS ALSO EX AMINED BY THE DIRECTOR OF INVESTIGATION AND BY THE ASSESSING OFFI CER. THE ASSESSEE ACCEPTED THAT THE MONEY BELONGED TO HIM. ACCORDING TO THE LD.REPRESENTATIVE, THE ASSESSEE SOLD GOLD JEWELLERY TO DULHAN FINE JEWELLERY NAGARATHPET, BANGALORE AND THE SALE PROCE EDS WERE BROUGHT TO CALICUT THROUGH THE ABOVE SAID PERSONS. THE ASSESS ING OFFICER WANTED THE SOURCE FOR THE ASSESSEE TO INVEST IN THE GOLD JEWEL LERY. ACCORDING TO THE LD.REPRESENTATIVE, THE ASSESSEE IS A GOLDSMITH BY P ROFESSION. HE USED TO PURCHASE SMALL QUANTITIES OF JEWELLERIES AND THE SA ME WAS SOLD AT A JEWELLERY SHOP IN BANGALORE. ON A QUERY FROM THE B ENCH, WHETHER ANY EVIDENCE IS AVAILABLE TO INDICATE THE PURCHASE AND SALE OF JEWELLERY, THE LD.REPRESENTATIVE SUBMITTED THAT NO EVIDENCE IS AVA ILABLE SINCE THE ASSESSEE IS A SMALL TIME GOLDSMITH AND THERE IS NO BILL FOR PURCHASE AND SALE OF GOLD JEWELLERY. THE LD.REPRESENTATIVE SUBM ITTED THAT THE ASSESSEE HAS EXPLAINED BEFORE THE ASSESSING OFFICER THE SOUR CE FOR PURCHASE OF GOLD JEWELLERY. THE ASSESSING OFFICER DISBELIEVED AND M ADE ADDITION OF RS.29 LAKHS. ACCORDING TO THE LD.REPRESENTATIVE, THE EXP LANATION OFFERED BY THE ASSESSEE HAS TO BE ACCEPTED. 4. ON THE CONTRARY, SMT. LATHA V KUMAR, THE LD.DR S UBMITTED THAT THE ASSESSEES EXPLANATION BEFORE THE ASSESSING OFFICER WAS EXAMINED 3 ITA NO. 259/COCH/2013 CAREFULLY AND THE ASSESSING OFFICER FOUND THAT ONE OF THE CREDITORS CLAIMED THAT THE MONEY WAS BORROWED FROM ASSESSEES BROTHER AND IT WAS GIVEN TO THE ASSESSEE AS LOAN. ACCORDING TO THE LD.DR, THIS CLAIM IS VERY STRETCHED AND UNBELIEVABLE. IF THE ASSESSEE ACTUALLY REQUIRE D THE MONEY, HE WOULD HAVE BORROWED THE SAME FROM HIS BROTHER. WHAT IS T HE OCCASION FOR THE ASSESSEE TO MAKE A MIDDLEMAN TO BORROW MONEY FROM H IS OWN BROTHER AND ADVANCE THE VERY SAME AMOUNT FOR MAKING INVESTMENT. THE CLAIM OF THE ASSESSEE IS THAT ONE OF THE CREDITORS SOLD THE LAND ED PROPERTY TO MAKE THE ADVANCE IS ALSO UNBELIEVABLE. THEREFORE, ACCORDING TO THE LD.DR, THE CIT(A) HAS RIGHTLY CONFIRMED THE ADDITION. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THOUGH T HE ASSESSEE CLAIMS THAT HE PURCHASED GOLD ORNAMENTS IN THE NEIGHBOURHO OD AND SOLD THE SAME IN BANGALORE, THERE IS NO MATERIAL TO SUBSTANT IATE EITHER THE PURCHASE OR SALE OF GOLD. HOWEVER, FROM THE ASSESSMENT ORDE R IT APPEARS THAT THE ASSESSING OFFICER CALLED FOR THE DETAILS FORM DULHA N FINE JEWELLERS, BANGALORE AND IT WAS FOUND THAT DULHAN FINE JEWELLE RS PURCHASED GOLD FROM THE ASSESSEE FOR AN AMOUNT OF RS.33,30,000 AND THE PAYMENT WAS MADE THROUGH CHEQUE. WHEN THE PAYMENT WAS MADE BY CHEQUE TO THE ASSESSEE AGAINST SALE OF JEWELLERY, IT IS NOT KNOWN HOW THE ASSESSEE WAS ABLE TO GET RS.30 LAKHS IN CASH AT BANGALORE SO AS TO BRING THE SAME TO 4 ITA NO. 259/COCH/2013 CALICUT THROUGH INDIVIDUAL CARRIERS. THIS FACT IS UNEXPLAINED BY THE ASSESSEE. IN VIEW OF THIS UNSATISFACTORY EXPLANATI ON OFFERED BY THE ASSESSEE TO BRING RS.30 LAKHS FROM BANGALORE TO CAL ICUT THROUGH THREE DIFFERENT INDIVIDUALS, THIS TRIBUNAL IS OF THE CONS IDERED OPINION THAT THE ASSESSING OFFICER HAS RIGHTLY DISBELIEVED THE STATE MENT MADE BY FIVE PERSONS, WHO CLAIM THEMSELVES THAT THEY HAVE ADVANC ED MONEY FOR PURCHASE OF JEWELLERIES. AS RIGHTLY SUBMITTED BY T HE LD.DR, THERE IS NO OCCASION FOR A MIDDLEMAN TO BORROW MONEY FROM ASSES SEES OWN BROTHER AND LOAN THE SAME TO THE ASSESSEE FOR MAKING INVEST MENT IN THE GOLD JEWELLERY. THIS KIND OF EXPLANATION CLEARLY SHOWS THAT THE ASSESSEE IS SUPPRESSING THE MATERIAL FACT. THEREFORE, THIS TRI BUNAL DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LOWER AUTHORITY. ACC ORDINGLY, THE SAME IS CONFIRMED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 05 TH SEPTEMBER, 2013. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 05 TH SEPTEMBER, 2013 PK/- 5 ITA NO. 259/COCH/2013 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH