M/s Nand Kishore Sanwaria, Dhanbad V. ACIT, Dhanbad

ITA 29/RAN/2013

• Counselvise Citation: 2925114 RSA 2013
• Duration Of Justice: 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 13-03-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: HARSHWARDHAN PRASAD SR S C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RANCHI CIRCUI T BENCH, RANCHI (BEFORE SHRI P.K.BANSAL, HONBLE A.M.& SHR I D,T. GARASIA, HONBLE J.M.) I.T.A. NO. 29/RAN/2013 : AS SESSMENT YEAR 2008-09 M/S. NAND KISHORE SANWARIA, DHANBAD -VS- A.C .I.T., CIRCLE-II, DHANBAD (APPELLANT) PAN :AIOPS 6412L (RESPONDENT) APPELLANT BY : SHRI S.K. PODDAR WITH SHRI M.K.CHOUDHURY, ADVOCATE RESPONDENT BY : SHRI HARSHWARDHAN PRASAD, SR.S.C. DATE OF CONCLUDING THE HEARING : 30.04.2013 DATE OF PRONOUNCING THE ORDER : 03.05.2013 O R D E R PER BENCH : THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A), DHANBAD DATED 17.12.2012 FOR THE ASSESSMENT YEAR 20 08-09. 2. THE MAIN ISSUE INVOLVED IN GROUND NOS.1 TO 3 IS THE SUSTENANCE OF ADDITION OF RS.4,83,003/-. 3. BRIEF FACTS RELATING TO THIS ISSUE ARE THAT THER E HAD BEEN SURVEY IN THE CASE OF THE ASSESSEE ON 25.09.2007. DURING THE COURSE OF SU RVEY, CERTAIN DOCUMENTS WERE IMPOUNDED BEING COAL RECEIVED REPORT ON PRINTED FOR MAT WHICH WERE SAID TO HAVE BEEN MAINTAINED BY THE GATE-KEEPER. AS PER THE DETA ILS OF THE RECEIPTS ON WHICH LORRY NUMBER AND QUANTITY IN METRIC TONNE IS GIVEN. THE ASSESSING OFFICER NOTED THAT THE TOTAL QUANTITY MENTIONED ON THESE EIGHT SL IPS WERE 300.06 M.T. IT WAS ALSO NOTED THAT THERE WERE SMALL SLIPS IN WHICH GAT E PASS HAD BEEN GIVEN TO CERTAIN 2 LORRIES, NOT RECORDED IN THE BOOKS. THE DETAILS ARE GIVEN AT PAGE 3 OF THE CIT(A). THE ASSESSING OFFICER ASKED FOR THE EXPLANATION OF THE ASSESSEE. NOT BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE, THE ASSESSING OFFICER WORKED OUT THE PURCHASE VALUE OF 300.06 M.T. AMOUNTING TO RS.4 ,83,003/- AND ADDED THE SAME ALONG WITH THE GROSS PROFIT, ESTIMATED @10.08% ON PURCHASES AS THE UNDISCLOSED INCOME OF THE ASSESSEE. THE ASSESSEE WE NT IN APPEAL BEFORE THE CIT(A). THE CIT(A) CONFIRMED THE DISALLOWANCE BY OB SERVING AS UNDER: 7. I HAVE CONSIDERED THE FACTS OF THE CASE. THERE I S NO MERIT IN THE SUBMISSIONS OF THE APPELLANT THAT AS MANY AS 8 TRUC KS ENTERED WRONGLY IN THE PREMISES OF THE APPELLANT. IT MAY HA PPEN ONCE IN A WHILE. FURTHER, IN A SHORT PERIOD OF 10 DAYS FROM 1 5.09.2007 TO 25.09.2007, THERE ARE 7 TRUCKS WHICH HAVE LEFT THE PREMISES OF THE APPELLANT ON THE BASIS OF GATE PASSES ISSUED WHICH WERE ALSO NOT RECORDED IN THE BOOKS OF ACCOUNTS. AS REGARDS SOME OMISSIONS POINTED OUT IN THE COAL RECEIVE REPORTS BY THE APPE LLANT, I AGREE WITH THE OBSERVATIONS OF THE A.O. THAT THE ENTIRE RECORD WAS NOT FOUND DURING THE SURVEY. IF THE TRUCKS HAD WRONGLY ENTERE D IN THE PREMISES OF THE APPELLANT, THE GUARD WHO MADE ENTRY IN THE C OAL RECEIVE REPORT WOULD HAVE MENTIONED THIS FACT IN SUCH REPORT. FURT HER, THERE IS EVIDENCE AS ABOVE THAT TRUCKS HAVE ALSO LEFT PREMIS ES OF THE APPELLANT ON THE BASIS OF GATE PASSES AND SUCH PASSES IN RESP ECT OF 7 TRUCKS AS ABOVE WERE NOT FOUND ENTERED IN THE BOOKS OF ACCOUN TS WHICH SHOWS THAT UNACCOUNTED SALES HAVE TAKEN PLACE. THUS, THER E IS EVIDENCE OF NOT ONLY UNACCOUNTED PURCHASES BUT ALSO SALES. THER EFORE, IT IS HELD THAT THE APPELLANT HAS INDULGED IN UNDISCLOSED SALE S AND PURCHASES AND THE ADDITION IN THIS REGARD OF. RS. 4,83,003/- IS CONFIRMED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y CONSIDERED THE SAME. WE NOTED THAT THE ADDITION HAS BEEN MADE BY THE ASS ESSING OFFICER ON ACCOUNT OF UNACCOUNTED PURCHASE. EVEN THOUGH IT HAS BEEN OBSER VED AND CONFIRMED BY THE CIT(A) THAT THERE WAS UNACCOUNTED PURCHASE AND SALE S BUT THE ADDITION WAS NOT RESTRICTED TO THE PROFIT. THIS IS ALSO A FACT THAT WITHIN A SHORT PERIOD OF 10 DAYS , SEVEN TRUCKS HAVE LEFT THE PREMISES OF THE ASSESSEE AND THE TRUCKS MIGHT HAVE BEEN COMING AND GOING FROM THE PREMISES OF THE ASSESSEE. IF THE UNACCOUNTED PURCHASE 3 HAS BEEN MADE, THERE HAS TO BE UNACCOUNTED SALES AL SO. THE PROFIT SHOWN BY THE ASSESSEE HAS DULY BEEN ACCEPTED BY THE REVENUE IN R EGULAR ASSESSMENT WHICH IS AROUND 10.3%. WE DO NOT AGREE WITH THE SUBMISSIONS OF THE LD. A.R. THAT AT THE MOST 10% PROFIT BE TAKEN AS THE INCOME OF THE ASSES SEE. ALL THE EXPENSES RELATING TO SUCH PURCHASE AND SALES EXPENSES EXCEPT THE PURC HASE AND SALES, IF ACTUALLY IT IS PURCHASE AND SALES, MIGHT HAVE BEEN RECORDED IN THE PROFIT & LOSS A/C. OF THE ASSESSEE. IN VIEW OF THIS FACT AND THE FACT THAT TH ERE IS NO APPROPRIATE EXPLANATION WHY THE COAL RECEIVE REPORTS ARE NOT BEING FOUND EN TERED IN THE REGULAR BOOKS OF ACCOUNTS, WE SUSTAIN THE DISALLOWANCE TO THE EXTENT OF RS.1,50,000/-, KEEPING IN VIEW THE SURROUNDING FACTS AND CIRCUMSTANCES OF THE CASE. THUS, THE GROUND NOS. 1 TO 3 ARE PARTLY ALLOWED. 5. GROUND NO.4 RELATES TO THE DISALLOWANCE OF 20% O F CAR EXPENSES FOR PERSONAL USE. BRIEF FACTS RELATING TO THIS GROUND A RE THAT THE ASSESSING OFFICER DISALLOWED 20% OF THE MOTOR CAR EXPENSES. WHEN THE MATTER WENT BEFORE THE CIT(A), HE SUSTAINED THE DISALLOWANCE. 6. AFTER HEARING THE RIVAL SUBMISSIONS AND THE FACT THAT THE PERSONAL USE OF THE VEHICLE IS NOT DENIED, WE SUSTAIN THE DISALLOWANCE TO 10% OF THE CAR EXPENSES. THUS, THIS GROUND IS PARTLY ALLOWED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 3 RD MAY, 2013. SD/- SD/- [D.T.GARASIA] [P.K.BANSAL] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 3 RD MAY, 2013 4 COPY OF ORDER FORWARDED TO : 1. M/S. NAND KISHORE SANWARIA, DHANBAD 2. A.C.I.T., CIRCLE-II, DHANBAD 3. C.I.T.(A), DHANBAD 4. THE C.I.T., DHANBAD 5. THE D.R., I.T.A.T., TRUE COPY, BY ORDER, SR. PRIVATE SECRETARY, ITAT, RANCHI [MST, SR.PS]