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

ITA 2705/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94311 (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.2705/AHD/2011 ASST. YEAR 2008-09 INCOME-TAX OFFICER, WARD 2, PALANPUR APPELLANT VS. SHRI BABULAL DALAJI SONI, PROP. OF PUSHPAM JEWELLERS, SONI BAZAR, AT DEESAI, TAL-DEESA, DIST. BANASKANTHA (NG) RESPONDENT PAN : ALUPS 8579F 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.2705/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.25,20,571/- MA DE BY THE ASSESSING OFFICER ON ACCOUNT OF UNDISCLOSED EXCESS STOCK OF GOLD AND SILVER ORNAMENTS. 2. THE FACTS OF THE CASE ARE THAT THE ASSESSING OFF ICER NOTICED DURING THE COURSE OF SURVEY THAT THERE WAS A STOCK OF RS.33,12,121/-, BUT ACCORDING TO BOOKS OF ACCOUNTS THE STOCK WAS OF RS.7,91,550/- SO THERE WAS A STOCK DIFFERENCE OF RS.25,20,571/-. HE MADE THE ADDITION ONLY ON THE BASIS OF DISCLOSUR E MADE DURING THE COURSE OF SURVEY, SINCE BOOKS OF ACCOUNT, BILLS AND VOUCHERS WERE NOT FOUND, AS THEY WERE WITH THE ACCOUNTANT OF THE ASSESSEE, WHO WAS NOT AVAILABLE AT THE TIME OF SURVEY. WITHIN A FORTNIGHT OF THE DATE OF SURVEY, THE ASSESSEE FILED LETTER STATI NG THAT THE DIFFERENCE IN THE STOCK (BASED ON WHICH THE DISCLOS URE WAS MADE) WAS RECONCILED WITH A REQUEST THAT THE CHEQUES ISSU ED TOWARDS PAYMENT OF TAXES ON THE DISCLOSED AMOUNT BE NOT DEP OSITED WITH THE BANK. DURING THE COURSE OF ASSESSMENT PROCEEDIN GS THE ASSESSEE PRODUCED RECONCILIATION POSITION OF STOCK, THE BOOK S OF ACCOUNT WITH ALL SUPPORTING EVIDENCES LIKE VOUCHERS, PURCHA SE BILLS, SALE BILLS AND STOCK REGISTER. THE ASSESSING OFFICER DID NOT REJECT THE BOOKS OF ACCOUNT OF ASSESSEE BUT BEING NOT SATISFIE D HE MADE THE DISALLOWANCE OF RS.25,20,571/- ON ACCOUNT OF UNDISC LOSED EXCESS ITA NO.2705/AHD/2011 ASST. YEAR 2008-09 3 STOCK. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MA TTER IN APPEAL BEFORE THE CIT(A), WHO GRANTED RELIEF TO THE ASSESS EE. NOW THE REVENUE BEING AGGRIEVED, IS IN APPEAL BEFORE THE TR IBUNAL. 4. THE LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED TH E ASSESSING OFFICERS ORDER WHEREAS THE LD. AUTHORIZED REPRESEN TATIVE RELIED ON THE ORDER OF CIT(A). THE LD. AR SUBMITTED THAT REST ALL THE SUPPORTING EVIDENCES LIKE RECONCILIATION POSITION O F STOCK, THE BOOKS OF ACCOUNT ALONG WITH VOUCHERS, PURCHASE BILL S, SALE BILLS AND STOCK REGISTER AS PRODUCED BEFORE THE ASSESSING OFF ICER, WERE SUBMITTED BEFORE CIT(A). THE CIT(A) AFTER CALLING R EMAND REPORT AND CONSIDERING THE FACTS AND CIRCUMSTANCES ALONG W ITH OTHER MATERIAL, HAS RIGHTLY GRANTED THE RELIEF TO THE ASS ESSEE. THERE IS NO NEED FOR INTERFERENCE. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND CARE FULLY GOING THROUGH THE MATERIAL ON RECORD, WE FIND THAT ASSESS ING OFFICER MADE THE ADDITION OF RS. RS.25,20,571/- ON ACCOUNT OF UNDISCLOSED STOCK FOUND DURING THE COURSE OF SURVEY, SINCE BOOK S OF ACCOUNT, BILLS AND VOUCHERS WERE NOT FOUND, AS THEY WERE WIT H THE ACCOUNTANT OF THE ASSESSEE, WHO WAS NOT AVAILABLE A T THE TIME OF SURVEY. WITHIN A FORTNIGHT OF THE DATE OF SURVEY, T HE ASSESSEE FILED LETTER STATING THAT THE DIFFERENCE IN THE STOCK (BA SED ON WHICH THE DISCLOSURE WAS MADE) WAS RECONCILED WITH A REQUEST THAT THE ITA NO.2705/AHD/2011 ASST. YEAR 2008-09 4 CHEQUES ISSUED TOWARDS PAYMENT OF TAXES ON THE DISC LOSED AMOUNT BE NOT DEPOSITED WITH THE BANK. DURING THE COURSE O F ASSESSMENT PROCEEDINGS, ASSESSEE CLAIMED TO PRODUCE ALL SUPPOR TING EVIDENCES LIKE RECONCILIATION POSITION OF STOCK, BOOKS OF ACC OUNT ALONG WITH VOUCHERS, PURCHASE BILLS, SALE BILLS AND STOCK REGI STER BUT THE ASSESSING OFFICER WITHOUT TAKING INTO ACCOUNT THEM, MADE THE ADDITION ONLY ON THE BASIS OF DISCLOSURE MADE DURIN G THE COURSE OF SURVEY. THE CIT(A) AFTER CALLING FOR THE REMAND REP ORT, CONSIDERING ALL THE FACTS AND MATERIAL AVAILABLE ON RECORD ALONG WITH RECONCILIATION POSITION OF STOCK GRANTED RELIE F, RELIEF TO THE ASSESSEE. THE STAND OF THE ASSESSEE IS AS UNDER (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 ITA NO.2705/AHD/2011 ASST. YEAR 2008-09 5 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. 6. WE FIND THAT THE ASSESSEE HAS SUCCESSFULLY RETRA CTED FROM THE STATEMENT GIVEN AT THE TIME OF SURVEY. RETRACTION OF EARLIER STATEMENT THROUGH DISCLOSURE IS BASED ON A COGENT R EASON. DISCLOSURE MAY BE GIVEN TO SHOW THE FACTUAL POSITIO N AT THE RELEVANT POINT OF TIME. THE SAME WAS RECONCILED AND EXPLAINED TO THE CIT(A), WHO HAS DULY CONSIDERED THE SAME IN RE MAND REPORT AND HAVING RIGHTLY APPRECIATED THE FACTUAL POSITION GRANTED RELIEF TO ASSESSEE. IN OUR CONSIDERED VIEW, THE CIT(A) IS JUS TIFIED IN DELETING THE ADDITION IN QUESTION WITH FACTUAL AND LEGAL FINDING. THE REVENUE COULD NOT REBUT THE FINDING OF CIT(A). IN V IEW OF THE ABOVE DISCUSSION, WE FIND NO INFIRMITY IN THE ORDER OF CIT(A). WE UPHOLD THE SAME. 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/- ITA NO.2705/AHD/2011 ASST. YEAR 2008-09 6 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 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: