DCIT CC-23, New Delhi V. Bishan Singh Didar Singh Jewellers, Delhi

ITA 2665/DEL/2008

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9596 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 22-09-2009
• Assessment Year: 2006-2007
• Appeal Filed On: 08-08-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BK GUPTA
• Keywords: Additional evidence; TDS
• Section: 143(3); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A : NEW DELHI BEFORE SHRI I.P.BANSAL, JM AND SHRI R.C.SHARMA, AM ITA NO.2665/DEL/2008 ASSESSMENT YEAR : 2006-07 DY.COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, NEW DELHI. VS. M/S BISHAN SINGH DIDAR SINGH JEWELLERS, 1381, CHANDNI CHOWK, DELHI 110 006. PAN NO.AAAFB3833G. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI B.K.GUPTA, SR.DR. RESPONDENT BY : SHRI SANJEEV JAIN, CA. ORDER PER R.C.SHARMA, AM : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) DATED 15.5.2008 FOR THE AY 2006-07, IN THE MATTER OF ORDE R PASSED U/S 143(3) READ WITH SECTION 153A. 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. FACTS IN BRIEF ARE THAT ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF MANUFACTURING AND SALE OF JEWELLERY WITH S/S DIDAR SINGH AND HIS SON GURDEEP SINGH AS PARTNERS, WAS SEARCHED BY THE DEPARTMENT ON 20.1.2006 U/S 132 OF THE IT ACT, 1961. DURING THE COURSE OF SEARCH OPERATIONS, SEVERAL BOOKS OF ACCOU NT AND DOCUMENTS WERE SEIZED. THE STATEMENTS OF BOTH THE PARTNERS WERE RECORDED U /S 132(4) AND THE PARTNERS MADE A DISCLOSURE OF RS.1.00 CRORE FOR AND ON BEHAL F OF THE FIRM REPRESENTED BY EXCESS STOCKS, AMOUNT RECOVERABLE FROM CUSTOMERS, A DVANCES MADE AND ARTICLES OF JEWELLERY GIVEN TO THE KARIGARS AND EXCESS VALUE OF JEWELLERY FOUND AT THE RESIDENCE AND IN LOCKERS. ITA-2665/D/2008 2 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS ASKED TO EXPLAIN THE DETAILS OF TRANSACTIONS RECORDED AT PAG E NO.13 OF ANNEXURE A-3/PARTY R-1. THE ENTRIES AT THAT PAGE READ AS UNDER:- ADV. TO 2,50,000 OWNER 4,00,000 CHQ. 1,00,000 7,50,000 CASH WITHDRAWAL 2,00,000 (8 + 2) CHANI 3,00,000 AMARJEET ANAND 5,00,000 R.S. & FIRM 30,00,000 CHEQUE MO 1,00,000 CHEQUE ISS FOR S.AX 50,000 FOR SAFE 15,000 INTT. FOR 2 MONTHS ON 10,00,000 25,000 TOTAL FOR JT. A/C IN SHOP 49,40,000 OUR SHARE 32,93,333 AMRIK 8,00,000 LOAN FROM SETHI & P 10,00,000 50,93,333 CHEQUES BK 900000 + 400000 KS 13,00,000 CHEQUE FROM BSDS 10,82,427 PAID TO PREMJI 2,50,000 PAID CASH 8,50,000 4 + 450000 85,75,760 4. IN RESPONSE TO THAT ASSESSEE VIDE ITS LETTER DAT ED 10.12.2007 HAS SUBMITTED THAT THIS ABOVE ACCOUNT PERTAINS TO THE AY 1998-99. IN ITS EXPLANATION TO THE ABOVE ENTRIES, THE ASSESSEE TRIED TO PROVE THAT THE ENTRY OF RS.13,00,000/- AND RS.10,82,427/- PERTAINS TO THE AY 1998-99. BEING N OT SATISFIED WITH THE ASSESSEES EXPLANATION, AN ADDITION OF RS.1,35,15,760/- WAS MA DE BY THE AO WHICH WAS AGITATED BY THE ASSESSEE BEFORE THE CIT(A). 5. BY THE IMPUGNED ORDER, CIT(A) DELETED THE ADDITI ON AFTER CALLING FOR A REMAND REPORT AND OBSERVING THAT THE DOCUMENT NO.13 OF ANNEXURE A-3 DID NOT ITA-2665/D/2008 3 PERTAIN TO THE PERIOD OF ASSESSMENT IN QUESTION BUT ACTUALLY PERTAIN TO THE PERIOD ENDING ON 31 ST MARCH, 1998 WHICH STANDS ESTABLISHED WITH REFERENC E TO THE BOOKS OF ACCOUNT OF THE PERIOD ENDING ON 31 ST MARCH, 1998. BANK PASS BOOK OF THE FIRM AND PARTNER SHRI DIDAR SINGH CHADHA AND CONFIRMATIO NS OF THE RETIRING PARTNER SHRI KANWALJEET SINGH CHADHA AND HIS FAMILY MEMBERS AS F ILED BEFORE THE AO WERE ALSO PRODUCED. THE CIT(A) FURTHER OBSERVED THAT TH E ASSESSEE HAD FILED DETAILED EXPLANATION ABOUT THE ENTRY OF RS.13 LAKHS (CHEQUE B.K. 9 LACS + K.S. RS.4 LACS) IN THE SEIZED DOCUMENT AS TO HOW THESE TWO CHEQUES WER E CLEARED ON 27.1.2008 FROM THE FIRMS BANK ACCOUNT, A COPY OF WHICH WAS FILED BEFORE THE AO. A PERUSAL OF THE BANK ACCOUNT SHOWS THAT THESE 2 CHEQUES OF RS.9 LACS AND 4 LACS WERE INDEED DEBITED IN THE APPELLANTS BANK ACCOUNT ON 27.1.199 8. THIS CLEARLY SHOWS THAT THESE RELATED TO THE ASSESSMENT YEAR 1998-99 AND WE RE ALSO DULY RECORDED. THE AO HAS NOT GIVEN ANY REASON FOR NOT ACCEPTING THE E XPLANATION OF THE APPELLANT EITHER IN THE ASSESSMENT ORDER OR IN HIS REMAND REP ORT. FROM THE BOOKS OF ACCOUNT OF THE FIRM FOR THE FINANCIAL YEAR 1997-98, WHICH W ERE PRODUCED BEFORE CIT(A), HE OBSERVED THAT IN THE LEDGER ACCOUNT OF STATE BANK O F SAURASHTRA, THE BANK ACCOUNT HAS BEEN CREDITED BY THESE TWO CHEQUES OF RS.4 LACS AND RS.9 LACS. A COPY OF THE RELEVANT PAGE OF THE LEDGER ACCOUNT WAS ALSO VERIFI ED BY HIM. THE LEDGER ACCOUNTS OF MRS. BHUPENDER KAUR CHADHA AND SHRI KANWANLJEET CHADHA WERE ALSO SEEN IN THE LEDGER OF THE FIRM PRODUCED BEFORE CIT(A) AND I T WAS OBSERVED THAT THEIR ACCOUNTS WERE DEBITED ON THE SAME DATE BY RS.9 LACS AND RS.4 LACS RESPECTIVELY. AGGRIEVED BY THE ORDER OF CIT(A), THE REVENUE IS IN FURTHER APPEAL BEFORE US. 6. IN THE GROUNDS OF APPEAL FILED BY THE REVENUE, D ELETION OF ADDITION ON MERIT WAS CHALLENGED AS WELL AS ACTION OF THE CIT(A) FOR ACCEPTING ADDITIONAL EVIDENCE. 7. WE HAVE CONSIDERED THE RIVAL CONTENTIONS, CAREFU LLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND THE REMAND REPORT PLAC ED ON RECORD. FROM THE RECORD, WE FOUND THAT ADDITION OF RS.1.35 CRORES WAS MADE O N THE BASIS OF DOCUMENT ITA-2665/D/2008 4 NO.13 OF ANNEXURE A-3. IT WAS EXPLAINED BEFORE THE AO THAT THIS DOCUMENT PERTAINS TO THE AY 1998-99 DURING WHICH ONE OF THE PARTNER FIRM OF THE ASSESSEE RETIRES AND THE PAYMENT WAS MADE TO HIM. AFTER CAL LING FOR A DETAILED REMAND REPORT AND EXAMINING THE BOOKS OF ACCOUNT AND THE T DS CHALLANS SO PRODUCED BEFORE THE CIT(A), THE CIT(A) RECORDED A CATEGORICA L FINDING THAT ENTIRE DOCUMENT WAS WRITTEN IN ONE GO AND THE ENTRIES MENTIONED THE REIN CLEARLY PERTAINS TO THE PERIOD PRIOR TO THE PERIOD COVERED BY THE PROCEEDIN GS U/S 153A AND WHICH WAS VERIFIABLE FROM THE ENTRIES IN THE BOOKS OF ACCOUNT OF THE ASSESSEE PERTAINING TO THAT RELEVANT ASSESSMENT YEAR. THE REVENUE IS ALSO AGGR IEVED FOR ADMITTING THE ADDITIONAL EVIDENCE, WHICH WE FOUND WERE IN THE FOR M OF TDS CERTIFICATE. THE CIT(A) WHILE ACCEPTING THE ADDITIONAL EVIDENCE HAD CALLED FOR A REMAND REPORT IN TERMS OF RULE 46A AND AFTER CONSIDERING THE CONTENT S THEREOF HAS COME TO THE CONCLUSION THAT THE ENTRIES ON THE SEIZED PAPER PER TAIN TO THE AY 1998-99. IN VIEW OF THE REMAND REPORT HAVING BEEN CALLED FOR, WE DO NOT FIND ANY MERIT IN THE CONTENTION OF THE LEARNED DR FOR ALLEGING THE ACTIO N OF THE CIT(A) IN TERMS OF RULE 46A. THE CASE LAW CITED BY THE LEARNED DR AND REPO RTED AT 288 TIOL 474, IN CASE OF MITTAL INTERNATIONAL (INDIA) PVT.LTD. IS DISTING UISHABLE ON FACTS. FROM THE ORDER OF CIT(A), IT IS DISCERNABLE THAT ADDITIONAL EVIDEN CE HAS BEEN ACCEPTED AFTER DUE APPLICATION OF MIND, MOREOVER THE ADDITIONAL EVIDEN CE IN THE FORM OF TDS CERTIFICATE FORMS PART OF THE DEPARTMENT RECORD, TH EREFORE THE SAME CANNOT BE ALLEGED AS ADDITIONAL EVIDENCE. CALLING OF REMAND REPORT FROM THE AO AMOUNTS TO GIVING FULL OPPORTUNITY TO THE AO TO EXAMINE THE EV IDENCE OR TO CROSS EXAMINE THE WITNESS IF ANY PRODUCED BY THE ASSESSEE. IN VIEW O F THE DETAILED FINDING RECORDED BY CIT(A) WITH REGARD TO PERIOD TO WHICH THE DOCUME NT ON THE BASIS OF WHICH ADDITION WAS MADE, WE DO NOT FIND ANY REASON TO INT ERFERE IN THE ORDER OF CIT(A) FOR DELETING THE ADDITION MADE IN THE AY 2006-07. EVEN IF CIT(A) HAS OBSERVED THAT MOST OF THE ENTRIES ON THE SEIZED PAPER HAVE B EEN EXPLAINED AND SAME WERE VERIFIED FROM THE BOOKS OF ACCOUNT, BANK STATEMENT ETC., SOME OF THE ENTRIES WHICH WERE NOT EXPLAINED BY THE ASSESSEE EVEN NO ADDITION WAS WARRANTED INSOFAR AS ASSESSEE HIMSELF HAS DECLARED RS.1 CRORE DURING THE COURSE OF SEARCH ITSELF ON ITA-2665/D/2008 5 WHICH THERE IS NO COMMENT OF THE AO IN THE ASSESSME NT ORDER. KEEPING IN VIEW THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE , THERE IS NO INFIRMITY IN THE ORDER OF CIT(A). 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 30 TH SEPTEMBER, 2009. SD/- SD/- (I.P.BANSAL) (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 30.09.2009. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT DEPUTY REGISTRAR