JITENDRA KUMAR AGARWAL, Jaipur V. ACIT, Jaipur

ITA 292/JPR/2011

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 7209 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 01-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S L PODDAR

Judgement Text

1 ITA 292-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH B JAIPUR BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ITA NO. 292/JP/2011 ASSTT. YEAR : 2008-09. SHRI JITENDRA KUMAR AGARWAL, VS. THE ACIT, CIRCLE- 1, PROP. GARG JEWELLERS, JAIPUR. 222, JOHARI BAZAR, JAIPUR. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.L. PODDAR DEPARTMENT BY : SHRI SUNIL MATHUR DATE OF HEARING : 18.10.2011 DATE OF PRONOUNCEMENT : 04.11.2011. ORDER DATE OF ORDER : 04/11/2011. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2008-09. 2. THE APPEAL OF THE ASSESSEE IN ITA NO. 292/JP/201 1 AND APPEAL OF THE DEPARTMENT IN ITA NO. 507/JP/2011 WERE DISPOSED OFF BY THE TRI BUNAL EARLIER VIDE ITS ORDER DATED 28.7.2011. INADVERTENTLY, GROUND NOS. 3 & 4 RAISED IN THE APPEAL OF THE ASSESSEE COULD NOT BE DISPOSED OFF. THEREFORE, ON FILING OF MISCELLAN EOUS APPLICATION ON BEHALF OF THE ASSESSEE, THE ORDER OF TRIBUNAL WAS RECALLED FOR DI SPOSING THE GROUND NOS. 3 & 4 VIDE ITS ORDER DATED 23.9.2011 DECIDED IN M.A. NO. 43/JP/201 1. 2 3. THE LD. COUNSEL OF THE ASSESSEE ARGUED THAT LD. CIT (A) HAS ERRED IN NOT GIVING DIRECTION TO THE AO FOR SET OFF OF EARLIER YEARS SU STAINED INCOME AGAINST THE FINAL ASSESSED INCOME OF ASSESSMENT YEAR 2008-09 BY GROUND NO. 3. 3.1. IN GROUND NO. 4 THE ASSESSEE IS OBJECTING IN N OT GIVING DIRECTION FOR SET OFF OF TAXES PAID FOR ASSESSMENT YEAR 2008-09. 3.2. IT WAS ARGUED BY LD. A/R THAT THE APPEAL OF TH E ASSESSEE FOR EARLIER YEAR HAS ALREADY BEEN DECIDED BY THE TRIBUNAL AND WHATEVER T HE INCOME ASSESSED BY THE TRIBUNAL THAT HAS TO BE SET OFF AGAINST THE INCOME FOR ASSES SMENT YEAR 2008-09 AS ASSESSEE HAS SURRENDERED THE AMOUNT OF INCOME ONLY FOR ASSESSMEN T YEAR 2008-09 BY STATING THAT THE INCOME OF ALL EARLIER YEARS IS INCLUDED IN THE INCO ME FOR ASSESSMENT YEAR 2008-09. THE CONTENTION OF THE ASSESSEE WAS NOT ACCEPTED BY THE TRIBUNAL THAT INCOME FOR EARLIER YEAR WHICH HAS BEEN SHOWN IN THE INCOME FOR ASSESSMENT Y EAR 2008-09. THEREFORE, NO INCOME SHOULD BE ASSESSED FOR THE EARLIER YEAR. EARLIER Y EARS APPEAL HAS ALREADY BEEN DISPOSED OFF WHERE TRIBUNAL HAS HELD THAT THE INCOME RELATAB LE TO THE RESPECTIVE YEARS HAS TO BE ASSESSED IN THE YEAR OF INCOME. THEREFORE, THIS CO NTENTION OF THE ASSESSEE WAS NOT ACCEPTED AND THE APPEALS OF THE ASSESSEE WERE DISPO SED OFF ACCORDINGLY. WHILE DISPOSING THE APPEAL OF THE ASSESSEE, THE TRIBUNAL HAS ALREAD Y GIVEN DIRECTION IN ITS ORDER IN PARA 54 & 55. IN PARA 54 OF THE ORDER OF THE TRIBUNAL DECID ED IN ITA NOS. 639, 1329 TO 1331/JP/2010 HAS GIVEN ITS FINDING WHICH ARE AS UND ER :- 55. THIS ISSUE WAS ALSO INVOLVED IN THE EARLIER YEARS APPEAL AND WE HAVE ALLOWED THIS ISSUE IN FAVOUR OF THE ASSESSE E AND HAS DIRECTED THE AO TO REDUCE THE AMOUNT OF INCOME ASSE SSED DURING THE YEAR FROM THE INCOME SURRENDERED FOR A.Y. 2008- 09 OTHERWISE 3 IT WILL TANTAMOUNT TO DOUBLE ADDITION. FOR THE SAM E REASONING THIS GROUND OF THE ASSESSEE IS ALLOWED. SINCE WE HAVE ALREADY DECIDED THIS ISSUE, THEREFORE , THE SAME DIRECTION HAS TO BE GIVEN FOR THE YEAR UNDER CONSIDERATION AS WELL. 4. THE LD. D/R HAS STRONGLY OBJECTED IN GIVING SUCH DIRECTION. IT WAS ARGUED THAT IN FACT THERE IS A MISTAKE IN THE ORDER OF TRIBUNAL GI VING SUCH DIRECTION FOR THE REASON THAT ASSESSEE HAS DECLARED THE INCOME FOR ASSESSMENT YEA R 2008-09 WHICH RELATES TO ASSESSMENT YEAR 2008-09 AND IN SUPPORT OF THIS CONT ENTION A COPY OF STATEMENT RECORDED OF THE ASSESSEE DURING THE COURSE OF SEARCH WAS ALS O FILED. IT WAS SUBMITTED THAT NOWHERE IN THE STATEMENT IT HAS BEEN STATED THAT INCOME OF THE ASSESSEE PERTAINING TO EARLIER YEAR HAS BEEN SHOWN IN THE INCOME FOR ASSESSMENT YEAR 20 08-09. 5. WE HAVE GONE THROUGH THE STATEMENT RECORDED AND WE FIND THAT THIS FACT HAS BEEN MENTIONED BY THE ASSESSEE IN THE STATEMENT RECORDED ON 22.1.2008. IN REPLY TO QUESTION NO. 21 IT HAS BEEN STATED THAT IN ANNEXURE A-3 THE ENTIRE BUSINESS TRANSACTION HAS BEEN RECORDED WHICH HAVE BEEN BACK DATED OF 20 YEARS WHE REAS THE INCOME FOUND RECORDED IN ANNEXURE A-3 RELATES TO ASSESSMENT YEAR 2008-09. SI MILAR REPLY HAS BEEN GIVEN IN RESPONSE TO QUESTION NO. 22. ENTIRE ADDITIONS MADE IN THE YEAR UNDER CONSIDERATION AS WELL AS IN EARLIER YEAR WERE MADE ON THE BASIS OF A NNEXURE A-3 AND A-5. IT WAS THE CONTENTION OF THE ASSESSEE THAT ENTIRE TRANSACTION RECORDED IN ANNEXURE A-3 AND A-5 RELATE TO ASSESSMENT YEAR 2008-09 WHEREAS THE TRIBU NAL HAS HELD THAT THE ANNEXURES CLEARLY SHOW THAT THE ENTRIES RELATE TO EARLIER YEA RS, THEREFORE, INCOME RELATABLE TO A PARTICULAR YEAR HAS TO BE ASSESSED IN THAT YEAR ONL Y AND ON THIS BASIS THE TRIBUNAL HAS HELD THAT WHATEVER THE INCOME WHICH WAS FOUND DISCLOSED WAS ASSESSABLE IN THAT RESPECTIVE 4 YEAR AND IN THIS WAY THE CONTENTION OF THE ASSESSEE THAT ANY INCOME ASSESSABLE SHOULD BE CONSIDERED IN ASSESSMENT YEAR 2008-09 WAS REJECTED. IN VIEW OF THESE FACTS AND CIRCUMSTANCES THE TRIBUNAL HAS DIRECTED THAT WHATEV ER THE INCOME HAS BEEN ASSESSED IN EARLIER YEAR THAT HAS TO BE SET OFF AGAINST THE INC OME FOR ASSESSMENT YEAR 2008-09. THEREFORE, IN OUR VIEW CONTENTION OF THE LD. D/R AR E NOT CORRECT THAT THERE WAS A MISTAKE IN THE ORDER OF THE TRIBUNAL FOR EARLIER YEAR AS TR IBUNAL HAS GIVEN ITS FINDING AFTER APPRECIATING ALL THE FACTS OF THE CASE. ACCORDINGL Y WE DIRECT THE AO TO ALLOW SET OFF OF INCOME OF EARLIER YEAR AGAINST THE INCOME OF ASSESS MENT YEAR 2008-09 AS DIRECTED EARLIER ALSO. THIS GROUND OF THE ASSESSEE IS DISPOSED OFF ACCORDINGLY. 6. REGARDING SECOND GROUND WHICH IS AGAINST SETTING OFF TAX OF EARLIER YEAR AGAINST TAX PAID FOR ASSESSMENT YEAR 2008-09. 7. THIS ISSUE HAS ALREADY BEEN DISPOSED OFF BY US W HILE DISPOSING THE APPEAL OF EARLIER YEAR. FINDING IN THIS RESPECT HAS BEEN GIV EN IN PARA 57 AT PAGE 19 OF THE ORDER OF THE TRIBUNAL WHICH ARE AS UNDER :- 57. AFTER CONSIDERING THE SUBMISSIONS, WE FIND THAT THIS GROUND IS ACADEMIC IN NATURE. HOWEVER, FOR THE SAKE OF CLA RIFICATION, COMPUTING THE TAX FOR ASSESSMENT YEAR 2004-05 TO 07 -08 IF EXCESS AMOUNT FOUND PAID FOR A.Y. 2008-09, THEN THE SET OF F IS TO BE ALLOWED. WE HAVE GIVEN DIRECTION THAT INCOME COMPU TING FOR THIS YEAR IS TO BE REDUCED FROM THE SURRENDERED INCOME A S OTHERWISE IT WILL TANTAMOUNT TO DOUBLE ADDITION. THEREFORE, FOR THE SAKE OF THE REASON THAT THE TAX COMPUTED FOR THIS YEAR MAY ALSO BE SET OFF AGAINST THE EXCESS TAX PAID FOR ASSESSMENT YEAR 200 8-09 AS THERE WILL BE NO IMPACT ON REVENUE. FOR THE SAKE OF CLARI FICATION, IF ANY INTEREST IS CHARGEABLE AS PER PROVISIONS OF LAW, TH E AO IS FREE TO 5 CHARGE INTEREST YEAR-WISE TO THE DATE OF PAYMENT OF TAX. WE ORDER ACCORDINGLY. SINCE THIS ISSUE HAS BEEN DISPOSED OFF WHILE DECIDI NG THE ISSUE FOR EARLIER YEAR, THEREFORE, THERE IS NO NEED TO GIVE ANY SEPARATE FINDING HERE. ACCORDINGLY THIS GROUND OF THE ASSESSEE IS ALSO ALLOWED. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISPOSE D OFF AS ABOVE. 9. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 04. 11.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR, D/- COPY FORWARDED TO :- SHRI JITENDRA KUMAR AGARWAL, JAIPUR. THE ACIT, CIRCLE-1, JAIPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 292/JP/2011) BY ORDER, AR ITAT JAIPUR.