Dr. Vinod Kumar Mishra , Kanpur V. Dy. Commissioner of Income Tax, Kanpur

ITA 27/LKW/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 5152 (ITAT-LUCKNOW)
• Duration Of Justice: 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 19-12-2013
• Assessment Year: misc
• Appeal Filed On: 17-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.27/LKW/2013 BLOCK PERIOD ENDING ON 14/09/2002 DR. VINOD KUMAR MISHRA, 111/456, BRAHM NAGAR, KANPUR. PAN:ACNPM1274B VS. DCIT, CC - II, KANPUR. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI RAKESH GARG, ADVOCATE RESPONDENT BY SHRI RAJIV JAIN, CIT, D.R. DATE OF HEARING 19/12/2013 DATE OF PRONOUNCEMENT 2 7 /12/2013 O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORDER OF LEARNED CIT ( A) - I, KANPUR DATED 31/10/2012 FOR THE BLOCK PERIOD ENDING ON 14/09/2002. 2. THE ASSESSEE HAS RAISED AS MANY AS F5 GROUNDS OF APPEAL BUT THE ONLY GRIEVANCE OF THE ASSESSEE IS REGARDING PENALTY CONFIRMED BY LEARNED CIT(A) OF RS.72,974/ - U/S 158B F A(2) OF THE ACT. 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THIS ADDITION WAS MADE FOR THE REASON THAT ALTHOUGH THE ASSESSEE SUBMITTED A RECON CILED STATEMENT OF PROFIT FOR THE YEAR TO EXPLAIN THE DIFFERENCE BUT THE ASSESSEE COULD NOT BRING ON RECORD THE BILLS OF CONSUMABLES GOODS WORTH RS.72,974/ - . HE FURTHER 2 SUBMITTED THAT IT WAS EXPLAINED BY THE ASSESSEE THAT THE BILLS COULD NOT BE ENTERED IN THE SEIZED SET OF BOOKS OF ACCOUNT BECAUSE THE SAME WERE NOT TRACEABLE AT THE TIME OF PREPARING THE SAME. HOWEVER, AT THE TIME OF PREPARATION OF REGULAR BOOKS, THESE BILLS WERE TRACED AND DULY ENTERED. HE ALSO SUBMITTED THAT SUBSEQUENTLY BECAUSE OF SEARCH, THESE BILLS COULD NOT BE TRACED A GAIN BECAUSE THE SAME MIGHT HAVE BEEN MISPLACED AND UNDER THESE FACTS, THE PENALTY IS NOT JUSTIFIED. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDER OF LEARNED CIT ( A). 5. WE HAVE CONSIDERED THE RIV AL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THIS ISSUE WAS DECIDED BY LEARNED CIT ( A) AS PER PARA 3.5.2 OF HIS ORDER, WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE : 3.5.2 THE EXPLANATION OFFERED BY THE LEARNED. A.R. IN THIS REGARD IS NEITHER REASONABLE NOR BONA - FIDE. THE FACT REMAINS THAT THIS EXPENDITURE WAS NOT CLAIMED IN ONE SET OF THE BOOKS (FOUND DURING THE COURSE OF SEARCH & SEIZURE). UNDER THESE CIRCUMS TANCES, IT WAS INCUMBENT UPON THE ASSESSEE TO PROVE THE GENUINENESS OF THE EXPENDITURE SO CLAIMED (IN ANOTHER SET OF BOOKS) BY PROVIDING THE RELEVANT BILLS AND PAYMENTS DETAILS. WHEREVER THE ASSESSEE WAS ABLE TO PRODUCE THE RELEVANT BILLS, I HAVE GIVEN THE BENEFIT TO HIM (SUPRA). HOWEVER, IN ABSENCE OF ANY EVIDENCE IN THIS REGARD, BENEFIT HAS BEEN EXTENDED TO THE ASSESSEE. THE PENALTY LEVIED BY THE A.O. ON THIS ITEM OF ADDITION IS CONFIRMED. 6. FROM THE ABOVE PARA OF LEARNED CIT ( A), WE FIND THAT THE ADDI TION WAS MADE ON THE BASIS THAT THE ASSESSEE COULD NOT PRODUCE RELEVANT BILLS AND PAYMENTS DETAILS. IN OUR CONSIDERED OPINION, THIS IS QUITE POSSIBLE THAT IN COURSE OF SEARCH, CERTAIN PAPERS, BILLS AND VOUCHERS ETC. MAY GET MISPLACED AND HENCE, ON THIS BA SIS , ALTHOUGH ADDITION IS JUSTIFIED BECAUSE THE ASSESSEE COULD NOT 3 PRODUCE THE BILLS ETC. BUT UNDER THESE FACTS, IN OUR CONSIDERED OPINION, THE PENALTY IS NOT JUSTIFIED AND HENCE, WE DELETE THIS PENALTY. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 7 T H DECEMBER, 2013. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR