The ACIT-CC-1, Baroda V. Shri Nikul C. Patel, Anand

ITA 2688/AHD/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1923 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 29-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHELLEY JINDAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER DATE OF HEARING: 7/12/2009 DRAFTED ON: 7/12/200 9 ITA NO.2687/AHD/2009 & 2688/AHD/2009 ASSESSMENT YEAR : 2000-01 & 2006-07 ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIR.1, 6 TH FLOOR, AAYKAR BHAVAN, RACE COURSE CIRCLE, BARODA. VS. SHRI NIKUL C. PATEL NARAYAN BUGLOW, GAM PAKINDRA, ANAND. PAN/GIR NO. : AGBPP 8507 C (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI SHELLEY JINDAL CIT. D.R. RESPONDENT BY: NONE O R D E R PER BENCH:- THESE ARE THE APPEALS FILED BY THE REVENUE AGAINST THE SEPARATE ORDERS OF THE LD.CIT(APPEALS)-VI, AHMEDABAD, DATED 31 ST MARCH 2009 IN APPEAL NOS.CIT(A)-IV/63.B/CC-1/08-09 AND CIT(A)-IV/ 69.B/CC-1/08- 09. 2. THE ISSUE INVOLVED IN GROUND NO.1 OF THE APPEAL, FOR ASSESSMENT YEAR 2000-01 IS THAT THE CIT(A) ERRED IN DIRECTING THE LEARNED ASSESSING OFFICER TO ALLOW TELESCOPING OF ADDITION OF RS.30,4 8,000/- ON ACCOUNT OF INVESTMENT IN CONSTRUCTION OF RESIDENTIAL HOUSE AGA INST AMOUNT WITHDRAWN FROM PARTNERSHIP FIRM JAYESH FINANCE AFTER VERIFYIN G FROM SEIZED MATERIAL. SIMILARLY, THE GROUND NO.1 IN ASSESSMENT YEAR 2006- 07 IS THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ERRED IN DIRECT ING THE LEARNED ASSESSING OFFICER TO ALLOW TELESCOPING OF INVESTMEN T IN THE PURCHASE OF ITA NO S.2687 & 2688/AHD/2009 M/S.NIKUL C. PATEL ASST.YEAR -2000-01 & 2006-07 - 2 - LAND AGAINST AMOUNT WITHDRAWN FROM PARTNERSHIP FIRM JAYESH FINANCE AFTER VERIFYING FROM THE SEIZED MATERIAL. IN GROUND NOS.2 IN ASSESSMENT YEAR 2000-01 AND GROUND NO.2 IN ASSESSMENT YEAR 2006-07 IS THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ERRED IN DIRECT ING THE LEARNED ASSESSING OFFICER TO ALLOW TELESCOPING OF ADDITION OF RS.40,000/-IN ASSESSMENT YEAR 2000-01 AND RS,28,000/- IN ASSESSME NT YEAR 2006-07 ON ACCOUNT OF LOW HOUSE HOLD EXPENSES AGAINST AMOUNT W ITHDRAWN FROM PARTNERSHIP FIRM JAYESH FINANCE AFTER VERIFYING FRO M SEIZED MATERIAL FURTHER. GROUND NO.3 OF THE APPEAL IN THE ASSESSMEN T YEAR 2006-07 IS THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ERR ED IN DIRECTING THE LEARNED ASSESSING OFFICER TO ALLOW TELESCOPING OF A DDITION OF RS.34,000/- ON ACCOUNT OF EXPENDITURE ON FOREIGN TRAVEL AGAINST AMOUNT WITHDRAWN FROM PARTNERSHIP FIRM M/S. JAYESH FINANCE AFTER VER IFYING FROM SEIZED MATERIALS. FURTHER GROUND NO.4 OF THE APPEAL IN ASS ESSMENT YEAR 2006-07 IS ALSO DIRECTED AGAINST THE ORDER OF THE LEARNED C OMMISSIONER OF INCOME TAX(APPEALS) DIRECTING LEARNED ASSESSING OFFICER TO ALLOW TELESCOPING OF ADDITION OF RS.2,500/- AGAINST AMOUNT WITHDRAWN FRO M PARTNERSHIP FIRM FROM JAYESH FINANCE AFTER VERIFYING FROM SEIZED MAT ERIAL. 3. THE ASSESSEE FILED ADJOURNMENT APPLICATION WHIC H WAS REJECTED BY THE BENCH. THE BENCH WAS OF THE VIEW THAT THE APPEA LS CAN BE DISPOSED OFF IN THE ABSENCE OF THE ASSESSEE AFTER CONSIDERING TH E ARGUMENTS OF THE LEARNED DEPARTMENTAL REPRESENTATIVE AND THE MATERIA LS AVAILABLE ON REROCD. THEREFORE, THE APPEALS WERE HEARD EX-PARTE QUA THE RESPONDENT AND THE DISPOSED OFF ACCORDINGLY. 4. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENT ATIVE AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RECORD. IN THE PRESENT APPEALS, THE ADDITIONS HAVE BEEN MADE BY THE ITA NO S.2687 & 2688/AHD/2009 M/S.NIKUL C. PATEL ASST.YEAR -2000-01 & 2006-07 - 3 - LEARNED ASSESSING OFFICER FOR INVESTMENT IN CONSTRU CTION OF RESIDENTIAL HOUSE RS.30,48,000/- IN ASSESSMENT YEAR 2000-01, IN VESTMENT IN PURCHASE OF LAND RS.33,90,000/- IN ASSESSMENT YEAR 2005-06 O N ACCOUNT OF LOW HOUSE HOLD EXPENSE RS.40,000/- IN ASSESSMENT YEAR 2 000-01 AND RS. 28,000/- IN ASSESSMENT YEAR 2006-07, ON ACCOUNT OF FOREIGN TRAVEL EXPENSES RS.34,000/- IN ASSESSMENT YEAR 2006-07 AND INVESTMENT IN FIXED DEPOSIT RS.2,500/- IN ASSESSMENT YEAR 2006-07. THE EXPLANATION OF THE ASSESSEE BEFORE THE LOWER AUTHORITIES WAS THAT THE ABOVE INVESTMENTS AND EXPENDITURE ARE MADE OUT OF WITHDRAWALS FROM THE FI RM M/S.JAYESH FINANCE. THE LEARNED ASSESSING OFFICER CONSIDERED T HE REPLY OF THE ASSESSEE AS NOT VALID FOR THE REASON THAT THE ASSES SEE DURING THE COURSE OF THE SEARCH IN THE STATEMENT RECORDED SUBMITTED THAT EXPENDITURES WERE INCURRED OUT OF UNDISCLOSED INCOME. THE LEARNED COM MISSIONER OF INCOME TAX(APPEALS) HAS RESTORED THE MATTER TO THE FILE OF THE LEARNED ASSESSING OFFICER TO VERIFY WHETHER THE ABOVE INVESTMENT AND EXPENDITURE CLAIMED BY THE ASSESSEE ARE OUT OF WITHDRAWALS FROM THE FIRM M /S.JAYESH FINANCE AFTER VERIFYING THE SEIZED MATERIALS. WE FIND THAT THE E XPLANATION OF THE ASSESSEE WAS REJECTED BY THE LEARNED ASSESSING OFFICER WITHO UT VERIFYING THE SAME MERELY ON THE GROUND THAT AT THE TIME OF THE SEARCH THE ASSESSEE STATED THAT INVESTMENTS/ EXPENDITURES WERE INCURRED OUT OF UNDI SCLOSED INCOME. HOWEVER, THE REVENUE COULD NOT POINT OUT WHAT WAS T HE SOURCE OF UNDISCLOSED INCOME OF THE ASSESSEE AND MOREOVER, IT IS NOT STATED IN THE RECORDED STATEMENT THAT THE INVESTMENTS WERE OUT OF UNDISCLOSED INCOME OF THE FIRM IN WHICH THE ASSESSEE WAS A PARTNER OR OUT OF SOME UNDISCLOSED INCOME EARNED BY THE ASSESSEE IN HIS INDIVIDUAL CAP ACITY. WE FURTHER OBSERVE THAT NO MATERIAL WHICH WAS FOUND DURING THE COURSE OF THE SEARCH AND WHICH INDICATES THAT THE ASSESSEE WAS EARNING S OME INCOME IN HIS INDIVIDUAL CAPACITY WHICH WAS NOT DISCLOSED IN THE REGULASR RETURN WAS FOUND DURING THE COURSE OF THE SEARCH. IN THE ABOVE CIRCUMSTANCES WE FIND ITA NO S.2687 & 2688/AHD/2009 M/S.NIKUL C. PATEL ASST.YEAR -2000-01 & 2006-07 - 4 - THAT NO ERROR IN THE ORDER OF THE LEARNED COMMISSIO NER OF INCOME TAX(APPEALS) COULD BE POINTED OUT BY THE LEARNED DE PARTMENTAL REPRESENTATIVE. WE THEREFORE CONFIRM THE ORDER OF T HE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AND DISMISS THE APPEAL OF THE REVENUE. 5. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A RE DISMISSED. ORDER PRONOUNCED AT THE CLOSE OF THE HEARING IN THE PRESENCE OF THE PARTIES IN THE COURT ON 07/12/2009. SD/- SD/- ( MAHAVIR SINGH) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 07/12/2009 PREPARED AND COMPARED BY : PARAS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-IV, AHMEDABAD. 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD