The ITO, Ward-2, Palanpur V. Shri Kantilal Dalaji Soni, Palanpur

ITA 2704/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94309 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 29-07-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 03-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: A C BRAHMAKSHATRIYA
• Keywords: Additional evidence; Corroborative evidences; Retraction

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ITA NO.2704/AHD/2011 ASST. YEAR 2008-09 INCOME-TAX OFFICER, WARD 2, PALANPUR APPELLANT VS. SHRI KANTILAL DALAJI SONI, PROP. OF SUNDHA JEWELLERS, SONI BAZAR, AT DEESAI, TAL-DEESA, DIST. BANASKANTHA (NG) RESPONDENT PAN : AIJOS 0130N APPELLANT BY : SHRI DINESH SINGH, SR.DR RESPONDENT BY : SHRI A. C. BRAHMAKSHATRIYA, AR DATE OF HEARING : 29/7/2015 DATE OF PRONOUNCEMENT : 02/09/2015 O R D E R PER SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER. THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) DATED 2.8.2011 FOR ASST. YEAR 2008-09 ON THE FOLLOWING GROUND :- ITA NO.2704/AHD/2011 ASST. YEAR 2008-09 2 1. THE LD. CIT(A)-XX, AHMEDABAD HAS ERRED IN LAW AND O N FACTS IN DELETING THE ADDITION OF RS.60,10,130/- MA DE BY THE ASSESSING OFFICER ON ACCOUNT OF UNDISCLOSED EXCESS STOCK OF GOLD AND SILVER ORNAMENTS. 2. THE ASSESSING OFFICER NOTICED THAT AT THE TIME O F SURVEY BOOKS OF ACCOUNTS, BILLS AND VOUCHERS WERE NOT FOUN D AS THEY WERE WITH THE ACCOUNTANT OF ASSESSEE WHO WAS NOT AVAILAB LE AT THE TIME OF SURVEY. THE ASSESSEE FILED EXPLANATION INTER ALI A STATING THAT DIFFERENCE IN THE STOCK (BASED ON WHICH THE DISCLOS URE WAS MADE) WAS RECONCILED WITH A REQUEST THAT THE CHEQUES ISSU ED TOWARDS THE PAYMENT OF TAXES ON THE DISCLOSED AMOUNT COULD NOT DEPOSITED WITH THE BANK. DURING THE COURSE OF ASSESSMENT PROCEEDIN GS THE ASSESSEE FURNISHED THE STOCK RECONCILIATION. HOWEVER, THE AS SESSING OFFICER MADE THE ADDITION. THE ASSESSEE BEING AGGRIEVED, CA RRIED THE MATTER IN APPEAL BEFORE THE CIT(A). 3. BEFORE CIT(A) THE CONTENTION OF ASSESSEE WAS THA T BOOKS OF ACCOUNTS WITH SUPPORTING EVIDENCES NAMELY PURCHASE BILLS, SALES BILLS AND STOCK REGISTER WERE PRODUCED DURING THE A SSESSMENT PROCEEDINGS. THE ASSESSING OFFICER DID NOT REJECT T HE BOOKS OF ACCOUNTS. CONSEQUENT ON THE RETRACTION IT WAS STATE D THAT THE CHEQUES ISSUED TOWARDS PAYMENT OF TAXES WERE NOT DE POSITED FOR CLEARANCE. THE PURCHASE MADE FROM SHRI NAKODA BULLI ON AND ITA NO.2704/AHD/2011 ASST. YEAR 2008-09 3 R.C. SILVER WERE NOT TAKEN INTO ACCOUNT AT THE TIME OF SURVEY. THE STAND OF THE ASSESSEE HAS BEEN THAT (A) BOOKS OF ACCOUNTS AND PURCHASE BILLS, SALES BILLS A ND STOCK REGISTER WERE PRODUCED DURING THE COURSE OF ASSESSM ENT PROCEEDINGS; (B) THE ASSESSING OFFICER DID NOT REJECT THEM; (C) CONSEQUENT ON RETRACTION THE CHEQUES ISSUED TOWARDS PAYMENT OF TAXES WERE NOT DEPOSITED BY THE ASSESSING OFFICE R; (D) PURCHASES FROM SHRI NAKODA BULLION AND R.C. SILVER WERE NOT TAKEN INTO ACCOUNT; (E) CERTAIN ITEMS GIVEN FOR JOB WORK WERE RECEIVED BACK AS JOB WORK INWARD; (F) DURING THE COURSE OF REMAND PROCEEDINGS ONCE AGAIN THE STOCK WAS RECONCILED WITH SUPPORTING EVIDENCE, IN FACT NO ADDITIONAL EVIDENCE HAS BEEN FILED DURING APPELLATE PROCEEDING S; AND (G) IN RESPECT OF THE ABOVE MENTIONED PURCHASES, CONFIR MATION FROM THE SELLERS AND ASSESSEES LEDGER ACCOUNT IN THE BO OKS OF THE SELLERS WERE ALSO FURNISHED TO THE ASSESSING OFFICE R AND KEEPING IN VIEW THE RECONCILIATION FURNISHED, THE DISCLOSUR E MADE TURNS OUT TO BE BASED ON FACTUAL POSITION. 4. IN THIS BACKGROUND THE CIT(A), AFTER CALLING FOR REMAND REPORT FROM THE ASSESSING OFFICER AND CONSIDERING T HE SAME, OBSERVED AS UNDER :- 4.9 I AM INCLINED TO ACCEPT THE CONTENTIONS OF THE APPELLANT. THERE IS NO DISPUTING THE FACT THAT AT THE TIME OF SURVEY, ITA NO.2704/AHD/2011 ASST. YEAR 2008-09 4 BOOKS OF ACCOUNT, BILLS AND VOUCHERS WERE NOT AVAIL ABLE. WITHIN A FORTNIGHT OF SURVEY OPERATION, APPELLANT F ILED A LETTER STATING THAT THE STOCK STOOD RECONCILED. DURING THE COURSE OF ASSESSMENT PROCEEDINGS ALSO, SAME EXPLANATION WAS G IVEN. AS SEEN FROM THE REMAND REPORT, AO HAS NOT BEEN ABLE T O DISPROVE THE CLAIM OF PURCHASER NAMELY BY THE APPEL LANT. THE THRUST OF THE REMAND REPORT APPEARS TO BE THAT AS T HE BOOKS OF ACCOUNTS WERE NOT PRODUCED AT THE TIME OF SURVEY AN D AS THE APPELLANT MADE THE DISCLOSURE THE AO CORRECTLY MADE THE ADDITION. AS CONTENDED BY THE LEARNED AR, MERE STAT EMENT GIVEN AT THE TIME OF SURVEY CANNOT BE THE BASIS FOR MAKING THE ADDITION. THE CASE LAWS RELIED ON BY THEM SUPPORT T HIS CONTENTION. THEREFORE, IMPUGNED ADDITION OF RS.60,1 0,130/- IS DELETED. THE REVENUE BEING AGGRIEVED, IS IN APPEAL BEFORE TH E TRIBUNAL. 5. BEFORE US THE LD. DEPARTMENTAL REPRESENTATIVE HE AVILY RELIED ON THE ORDER OF ASSESSING OFFICER. WHEREAS THE LD. AUTHORIZED REPRESENTATIVE SUPPORTED THE ORDER OF CIT(A). HE SU BMITTED THAT THE CIT(A) HAS RIGHTLY APPRECIATED THE FACTS AND CI RCUMSTANCES OF THE CASE AND GIVEN RELIEF TO THE ASSESSEE. THERE IS NO NEED OF INTERFERENCE. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND CAR EFULLY GONE THROUGH THE MATERIAL ON RECORD. WE FIND THAT THE AS SESSEE HAS SUCCESSFULLY RETRACTED FROM THE STATEMENT GIVEN AT THE TIME OF SURVEY. RETRACTION OF EARLIER STATEMENT IS BASED O N COGENT REASONING. DISCLOSURE MAY BE GIVEN AS PER FACTUAL P OSITION ITA NO.2704/AHD/2011 ASST. YEAR 2008-09 5 AVAILABLE WITH ASSESSEE AT THE RELEVANT POINT OF TI ME. THE SAME WAS RECONCILED AND THE SAME WAS EXPLAINED BEFORE CIT(A) , WHO HAS DULY CONSIDERED THE SAME IN THE REMAND REPORT AND RIGHTLY APPRECIATED THE FACTUAL POSITION IN LIGHT OF DOCUME NTARY EVIDENCES. IN VIEW OF ABOVE THE CIT(A) IS JUSTIFIED IN DELETI NG THE ADDITION IN QUESTION WITH FACTUAL AND LEGAL FINDING. THE REVENU E COULD NOT REBUT THE FINDING OF CIT(A). WE FIND NO INFIRMITY I N THE ORDER OF CIT(A) AND THE SAME IS UPHELD. 7. THE APPEAL FILED BY THE REVENUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 2 ND DAY OF SEPTEMBER, 2015 SD/- SD/- (ANIL CHATURVEDI) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMB ER DATED :02/09/2015 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY.REGISTRAR,ITAT, AHMEDABAD ITA NO.2704/AHD/2011 ASST. YEAR 2008-09 6 1. DATE OF DICTATION: 29/07/2015 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 03/08/2015 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 2/9/2015 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: