Shri Mansukh Nagjibhai Devani, JAMNAGAR V. The Dy. Commr. of Income Tax, Cen. Cir.-2, RAJKOT-GUJARAT

ITA 265/RJT/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2287 (ITAT-RAJKOT)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 09-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YOGESH PANDEY
• Assessee Lawyers: HARISH RANPURA
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH , RAJKOT BEFORE: S H RI PRAMOD KUMAR , ACCOUNTANT MEMBER AND SHR I S. S. GODARA , JUDICIAL MEMBER [CONDUCTED THROUGH E - C OURT AT AHMEDABAD] SHRI MANSUKH NAGJIBHAI DEVANI SHANTI NETAN, 114 - A, INDIRA MARG, VALKESHWARI NAGARI, JAMNAGAR PAN:AAXPD4494Q (APPELLANT) VS THE DCIT, CENTRAL CIRLCE - 2, RAJKOT ( RESPONDENT) REVENUE BY : S H RI YOGESH PANDEY , D . R. ASSESSEE BY: S H RI HARISH RANP URA , A.R. DATE OF HEARING : 03 - 12 - 2 015 DATE OF PRONOUNCEMENT : 12 - 02 - 2 016 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THI S ASSESSEE S APPEAL FOR A.Y. 2012 - 13 , AR ISES FROM ORDER OF THE CIT(A) - 11, AHMEDABAD DATED 24 - 03 - 2015 IN APPEAL NO. CIT(A) - 11 / 552 - R/CC.1/2014 - 15 , IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . I T A NO . 265 / RJT /20 1 5 A SSESSMENT YEAR 2012 - 13 I.T.A NO. 265 /RJT /20 15 A.Y. 2012 - 13 PAGE NO SHRI MA NSUKH NAGJIBHAI DEVANI SHANTI NIKET A N VS. DCIT 2 2. THE ASSESSEE S SOLE SUBSTANTIVE GROUND CHALLENGES THE CIT(A) S ORDER AFFIRMING ASSESSING OFFICER S ACTION IN MAKING ADDITION U/S. 69A OF THE ACT AMOUNTING TO RS. 3,25,000/ - ON ACCOUNT OF UNEXPLAINED CASH SEIZED IN THE COU RSE OF IMPUGNED SEARCH CONDUCTED ON 25 - 08 - 2011. WE COME TO FACTS OF THE CASE NOW. THE ASSESSEE IS ASSESSED AS AN INDIVIDUAL . THE DEPARTMENT CARRIED OUT A SEARCH ON HIS PREMISES ON 25 - 08 - 2011. IT FOUND CASH SUM OF RS. 3,65,000/ - OUT OF WHICH AN AMOUNT OF RS. 3,25,000/ - WERE SEIZED. THE ASSESSEE APPEA RS TO HAVE MADE A STATEMENT DEPOSING THE SAME TO BE HIS UNEXPLAINED CASH. THE ASSESSEE THEREAFTER FILED RETURN STATING TOTAL INCOME AS RS. 10,76,730/ - . THE ASSE SSING OFFICER TOOK UP SCRUTINY. HE NOTICED A SSESSEE S DEVIATION FROM THE SEARCH STATEMENT IN NOT DECLARING THE ABOVE STATED CASH AMOUNT SEIZED. THE ASSESSEE PRODUCED CASH BOOK. HE FILED A LETTER ON 05 - 12 - 2013 INTER ALIA STATING THAT HIS CASHBOOK WAS VERY MUCH VERIFIABLE AND CASH BALANCE THEREIN OF RS. 3,76,425/ - WAS MUCH MORE THAN THE IMPUGNED SUM. HE FURTHER STATED THAT HIS RELEVANT BOOKS OF ACCOUNT WERE INCOMPLETE RESULTING IN FAILURE IN RECONCILIATION BETWEEN THE TWO SUMS. THE ASSESSEE STRONGLY DENIED TO HAVE BEEN HA VING ANY UNDISCLOSED OR UNA CCOUNTE D INCOME. THE ASSESSING OFFICER DID NOT BUY THE SAID EXPLANATION. HE STRONGLY RELIED UPON THE ABOVE STATED SEARCH STATEMENT AND OBSERVED THAT THE SAME WENT HONORARY TO THE FORMER. HE REFERRED TO ASSESSEE S SEARCH ADMISSION FOR MAKING THE IMPUGNED ADDITION OF RS. 3,25,000/ - MADE U/S. 68A OF THE ACT. I.T.A NO. 265 /RJT /20 15 A.Y. 2012 - 13 PAGE NO SHRI MA NSUKH NAGJIBHAI DEVANI SHANTI NIKET A N VS. DCIT 3 3 . THE ASSESSEE PREFERRED APPEAL. THE CIT(A) AFFIRMS ASSESSING OFFICER S FINDINGS IN ORDER UNDER CHALLENGE. 4 . WE HAVE HEARD RIVAL CONTENTION. THE ASSESSEE SUBMITS THAT BOTH TH E AUTHORITIES BELO W HAVE NOWHERE REFERRED TO ANY SPECIFIC MATERIAL ON RECORD SUPPORTING THE IMPUGNED ADDITION WHICH HAS BEEN MADE MERELY ON THE BA S IS OF SEARCH ASSESSMENT. HE QUOTES CASE LAW OF KAILASHBEN MANHAR CHOKSI VS. CIT 220 CTR 138 (GUJ) TO THIS EFFECT. BOARD S DATE D 10 - 03 - 2003 CLEARLY ENVISAGING THAT THE REVENUE S AUTHORITIES SHOULD MAKE MORE ENDEAVOUR IN COLLECTING EVIDENCE RATHER THAN MERELY RECORDING ADMISSION AND CONFESSION DURING SEARCH AND SURVEY ACTION IS FURTHER REFERRED. THE ASSESSEE THEREAFTER SEEKS TO DR AW OUR ATTENTION TOWARDS HIS CASH BOOK ALREADY ON RECORD DEMONSTRATING CASH AMOUNT AS MUCH MORE THAN THE ADDITION SUM. HE ACCORDINGLY PRAYS FOR THE ACCEPTANCE OF THE APPEAL. THE REVENUE STRONGLY SUPPORT S THE IMPUGNED ADDITION AS MADE BY BOTH THE LOWER AU THORITIES. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION . IT EMERGES THAT NEITHER OF THE LOWER AUTHORITIES HAVE QUOTED ANY SPECIFIC EVIDENCE IN ORDER TO SUPPORT THE IMPUGNED ADDITION BY WAY OF BOOKS OF ACCOUNT OR OTHER ENTRIES EXCEPT PLACING STRONGLY RELIAN CE ON ASSESSEE S SEARCH ST ATEMENT. WE FIND THAT BOARD S CIRCULAR HEREINABOVE AS WELL AS HON BLE JURISDICTIONAL HIGH COURT HOLD IN VERY CLEAR TERM TH A T MERE SEARCH STATEMENT IN ABSENCE OF ANY SPECIFIC INCRIMINATING MAT ERIAL CANNOT BE RELIED OR MADE ADDITIO NS OF UNDISCLOSED INCOME. IT HAS FURTHER COME ON RECORD THAT ASSESSEE S BOOKS FINALIZED QUA THE IMPUGNED ASSESSMENT YEAR I.T.A NO. 265 /RJT /20 15 A.Y. 2012 - 13 PAGE NO SHRI MA NSUKH NAGJIBHAI DEVANI SHANTI NIKET A N VS. DCIT 4 ALREADY EXPLAINED THE IMPUGNED CASH SEIZED OF RS . 3,25,000/ - . WE DRAW SUPPORT FROM ALL THIS MATERIAL AS WELL AS CASE LAW TO HOLD THE LOWER AUTHORITIES HAVE ERRED IN MAKING THE IMPUGNED ADDITION. THE SAME STANDS DELETED. 5. THIS ASSESSEE S APPEAL IS ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OUR T ON 12 - 02 - 201 6 SD/ - SD/ - (PRAMOD KUMAR ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 12 /02 /2016 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, RAJKOT