Naresh Raman Gujar, Pune V. Income-tax Officer, Ward - 2(2), Pune

ITA 2834/PUN/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2585 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 31-01-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 04-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Section: 143(3); 37(1)

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI ANIL CHATURVEDI, AM . / ITA NO.2834/PUN/2017 / ASSESSMENT YEAR : 2010-11 NARESH RAMAN GUJAR, 1482, SADASHIV PETH, SHOP NO.1, OPP. TILAK SMARAK MANDIR, PUNE 411 030. PAN : AAWPG1863H. . / APPELLANT V/S THE INCOME TAX OFFICER, WARD 2(2), PUNE. . / RESPONDENT ASSESSEE BY : MS. DEEPA KHARE. REVENUE BY : M.K. VERMA. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY THE ASSESSEE IS EMANATING OUT OF THE O RDER OF COMMISSIONER OF INCOME TAX (A) PUNE-5, PUNE DATED 06 .09.2017 FOR THE ASSESSMENT YEAR 2010-11. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- ASSESSEE IS AN INDIVIDUAL AND PROPRIETOR OF LEE COMPUTERS . ASSESSEE ELECTRONICALLY FILED HIS RETURN OF INCOME FOR A.Y. 201 0-11 ON 15.10.2010 DECLARING TOTAL INCOME OF RS.4,79,520/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER, ASSESSMENT WAS FRAM ED U/S / DATE OF HEARING : 31.01.2019 / DATE OF PRONOUNCEMENT: 07.03.2019 2 ITA NO.2834/PUN/2017 143(3) OF THE ACT VIDE ORDER DT.14.02.2013 AND THE TOTAL INCOME WAS DETERMINED AT RS.7,04,350/-. AGGRIEVED BY THE ORDER OF A O, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE ORDER DT.06.0 9.2017 (IN APPEAL NO.PN/CIT(A)-5/ITO, WD.2(2), PUNE/764/2012-13) DISMIS SED THE APPEAL OF ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT (A), ASSESSEE IS NOW IN APPEAL AND HAS RAISED THE FOLLOWING EFFECTIVE GROUND : THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CO NFIRMING ADDITION OF RS.1,97,822/- ON ACCOUNT OF EXCESS CLAIM OF LOSS OF STOCK ON ACCOUNT OF BURGLARY. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON PERUS ING THE PROFIT AND LOSS ACCOUNT, AO NOTICED THAT ASSESSEE HAD CLAIMED DEDUCTION OF RS.5,54,771/- ON ACCOUNT OF GOODS LOST IN BUR GLARY WHICH HAD TAKEN PLACE IN ASSESSESS SHOP. HE NOTICED THAT AS SESSEE HAD CLAIMED COMPENSATION OF RS.14,11,245/- FROM NATIONAL INSURANC E COMPANY LTD., WHO HAD ASSESSED THE LOSS AT RS.12,38,653/ - AND HAD SETTLED THE CLAIM AT RS.8,81,704/- AS AGAINST WHICH, ASSESS EE HAD CLAIMED DEDUCTION OF RS.5,54,771/-. AO CONSIDERED THE DIFFERE NCE OF RS.1,97,822/- AND BEING EXCESS CLAIM AND DISALLOWED THE SAM E. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATT ER BEFORE LD.CIT(A), WHO UPHELD THE ORDER OF AO. AGGRIEVED BY THE OR DER OF LD.CIT(A), ASSESSEE IS NOW IN APPEAL. 4. BEFORE ME, LD.A.R. REITERATED THE SUBMISSIONS MADE BEFOR E AO AND LD.CIT(A) AND POINTED TO THE COPY OF THE FIR WHICH IS PLACED AT PAGES 5 TO 10 AND PANCHANAMA PLACED AT PAGE 11 OF TH E PAPER BOOK. SHE ALSO POINTED TO THE STATEMENT OF ASSESSEE RECORDED BY THE POLICE AUTHORITIES, THE COPY OF WHICH IS PLACED AT PAGES 32 TO 34 OF THE PAPER 3 ITA NO.2834/PUN/2017 BOOK. SHE SUBMITTED THAT IT IS NOT A CASE OF REVENUE TH AT THE CLAIM MADE BY THE ASSESSEE IS BOGUS. ONLY BECAUSE THE INSURANCE CO MPANY HAS SETTLED THE CLAIM AT A LESSER FIGURE, THE AMOUNT OF DED UCTION CANNOT BE DENIED TO ASSESSEE. SHE THEREFORE SUBMITTED THAT ASS ESSEES CLAIM OF LOSS BE ALLOWED. LD.D.R. ON THE OTHER HAND, SUPPORTE D THE ORDER OF AO AND LD.CIT(A). 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MA TERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT T O THE DISALLOWANCE OF RS.1,97,822/- BEING THE EXCESS CLAIM. IN THE PRESENT CASE BEFORE US, LD.A.R. SUBMITTED THAT THE LOSS OCCURRED D UE TO BURGLARY WHICH HAD TAKEN PLACE IN ASSESSEES SHOP. THE COMPLAINT FOR LOSS DUE TO BURGLARY WAS LODGED WITH THE POLICE AUTHORITIE S. THE AFORESAID FACTS HAVE NOT BEEN CONTROVERTED BY REVENUE. THE REASON FOR DISALLOWANCE BY AO IS THAT ASSESSEE HAD MADE THE EXC ESS CLAIM. IN THE PRESENT CASE, I FIND THAT NO MATERIAL HAS BEEN PLACE D BY THE AO TO DEMONSTRATE THAT THE CLAIM OF LOSS MADE BY THE ASSESSEE WAS EXCESSIVE OR BOGUS. FURTHER, IT IS NEITHER THE CASE OF REVENUE TH AT THE COMPLAINT LODGED WITH THE POLICE FOR BURGLARY IN THE SHOP OF ASSESSEE WAS FALSE NOR THAT THE POLICE STATED IN THE REPORT THAT THE FIR LODGED BY THE ASSESSEE WAS FALSE. FURTHER IT IS NOT THE CASE O F REVENUE THAT THE CLAIM LODGED BY THE ASSESSEE WITH THE INSURANCE COM PANY HAS BEEN REDUCED ON ACCOUNT OF THE CLAIM BE FALSE. THE CONTE NTION OF THE ASSESSEE THAT THE INSURANCE COMPANY CALCULATED THE INS URANCE CLAIM ON THE BASIS OF AVERAGE CLAUSE WHEREIN THE COST OF GOODS LOST AS PER THE BOOKS IS TAKEN AT COST AND THE CALCULATION CONSIDE RED BY INSURANCE COMPANY IS ONLY FOR COMPUTATION FOR PAYMENT O F CLAIM, IS 4 ITA NO.2834/PUN/2017 NOT FOUND TO BE FALSE. FURTHER THE CONCLUSION OF THE AO THAT ASSESSEE HAD MADE EXCESS CLAIM OF LOSS IS ALSO NOT SUPPORTED BY ANY MATERIAL EVIDENCE. THE LODGING OF FIR WITH THE POLICE PRIMA FACIE SHOWS THAT BURGLARY HAD TAKEN PLACE. IT IS ALSO NOT THE CASE OF RE VENUE THAT THE CLAIM MADE BY THE ASSESSEE IS BOGUS. CONSIDERING THE T OTALITY OF THE AFORESAID FACTS, I AM OF THE VIEW THAT IN THE PRESENT CA SE THE LOSS BY BURGLARY HAS ARISEN DURING THE COURSE OF BUSINESS AND WAS HENCE ALLOWABLE U/S 37(1) OF THE ACT. I THEREFORE DIRECT THE AO TO ALLOW THE ASSESSEES CLAIM OF LOSS. THUS, THE GROUNDS OF THE ASSESSEE ARE ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED. ORDER PRONOUNCED ON THE 7 TH DAY OF MARCH, 2019. S SD/- ( ANIL CHATURVEDI ) ' / ACCOUNTANT MEMBER PUNE; DATED : 7 TH MARCH, 2019. YAMINI #$%&'(' % / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-5, PUNE. PR. CIT-4, PUNE. '#$ %%&',) &', *+ / DR, ITAT, SMC PUNE; $-.// GUARD FILE. / BY ORDER // TRUE COPY // // 012%3&4 / SR. PRIVATE SECRETARY ) &' , / ITAT, PUNE.