A/Dy.C.I.T., C.C., Agra V. Sh. Sunil Chand Gupta, Agra

ITA 301/AGR/2013

• Counselvise Citation: 30120314 RSA 2013
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 29-01-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 08-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIRUDH KUMAR
• Assessee Lawyers: DEEPENDRA MOHAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ITA NO. 301/AGRA/2013 ASSTT. YEAR : 2006-07 A.C.I.T., CENTRAL CIRCLE, VS. SHRI SUNIL CHAND G UPTA, AGRA. PROP. M/S. TRAVEL BUREAU, 88, SECTOR 3, VIBHAV NAGAR, AGRA. (PAN: ABPPG 1076 N) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANIRUDH KUMAR, CIT/DR RESPONDENT BY : SHRI DEEPENDRA MOHAN, C.A. DATE OF HEARING : 29.01.2014 DATE OF PRONOUNCEMENT OF ORDER : 31.01.2014 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-II, AGRA DATED 16.05.2013 FOR THE ASSESSMENT YEAR 2006- 07. 2. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH TH E PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIES BELOW AND CONSIDERED TH E MATERIAL AVAILABLE ON RECORD. 3. ON GROUND NO. 1, THE REVENUE CHALLENGED THE DELE TION OF ADDITION OF RS.31,36,000/- U/S. 69A MADE BY THE AO AS UNEXPLAIN ED CASH FOUND IN LOCKER NO. ITA NO. 301/AGRA/2013 2 43. THE AO NOTED THAT THE ASSESSEE AND HIS WIFE ARE JOINTLY OWNER OF THE LOCKER NO. 43 IN INDIAN OVERSEAS BANK. THE LOCKER WAS LASTLY O PERATED ON 20.06.2005 AS PER REPORT OF INVESTIGATION WING, BEING IT IS A CASE OF SEARCH. THE ASSESSEE, HOWEVER, EXPLAINED THAT THE BANK LOCKER WAS LASTLY OPERATED ON 19.05.2009. THE ASSESSEE FILED CERTIFICATE FROM THE CHIEF MANAGER, INDIAN OV ERSEAS BANK CONFIRMING THAT THE LOCKER NO. 43 IN THE JOINT NAME OF ASSESSEE AND HIS WIFE WAS OPERATED ON 19.05.2009 BEFORE THE SEARCH PROCEEDINGS. THE AO SU MMONED THE CHIEF MANAGER AND RECORDED HIS STATEMENT WHO HAS PRODUCED TWO REG ISTERS, I.E., LOCKER OPERATION REGISTER AND LOCKER LEDGER REGISTER. IN HIS STATEME NT RECORDED ON OATH, HE HAS STATED THAT ENTRY IN THE LOCKER OPERATION REGISTER IS GENE RALLY MADE WHILE SOMETIMES, THE ENTRIES ARE MADE IN LOCKER LEDGER REGISTER TO SHOW THE DETAILS OF LOCKER HOLDER AND OTHER DETAILS. ON PERUSAL, IT WAS NOTICED THAT THE ENTRY OF 19.05.2009 IS THERE IN LOCKER OPERATION REGISTER, BUT IT IS NOT THERE IN L OCKER LEDGER REGISTER, BUT FOR 20.06.2005, THERE ARE ENTRIES IN BOTH THE REGISTERS . THE AO, THEREFORE, CONCLUDED THAT THE LOCKER WAS LASTLY OPERATED ON 20.06.2005. THEREFORE, THE CASH FOUND IN THE SEARCH OF RS.31,36,000/- IS UNEXPLAINED AND WAS ADD ED U/S. 69A IN THE YEAR UNDER APPEAL, I.E., 2006-07. THE ASSESSEE EXPLAINED BEFOR E THE LD. CIT(A) THAT THE SEARCH WAS CONDUCTED ON 10.03.2010. THE LOCKER IN QUESTION WAS LASTLY OPERATED ON 19.05.2009, WHICH WAS ALSO CONFIRMED BY THE CHIEF M ANAGER, IOB. THEREFORE, THE CASH OF RS.31,36,000/- IS TO BE CONSIDERED IN ASSES SMENT YEAR 2010-11, WHICH WAS ITA NO. 301/AGRA/2013 3 ALSO OFFERED FOR TAXATION IN ASSESSMENT YEAR 2010-1 1. IT WAS ALSO EXPLAINED THAT THE CHIEF MANAGER, IOB IN HIS STATEMENT ALSO CONFIRMED THE OPERATION OF THE LOCKER ON 19.05.2009. THEREFORE, THE ADDITION IN ASSESSMENT Y EAR UNDER APPEAL IS WHOLLY UNJUSTIFIED. THE LD. CIT(A) CONSIDERING THE EXPLANA TION OF THE ASSESSEE IN THE LIGHT OF THE MATERIAL BEFORE HIM FOUND THAT ON THE DATE O F SEARCH ON 10.03.2010, CASH OF RS.31,36,000/- WAS FOUND IN LOCKER NO. 43 MAINTAINE D WITH IOB AND WAS SEIZED. THE ASSESSEE MADE SURRENDER OF RS.4 CRORE CASH FOUN D FROM THE RESIDENCE AS WELL AS CASH SEIZED FROM THE AFORESAID LOCKER OF RS.31,3 6,000/- IN THE ASSESSMENT YEAR 2010-11. THE AO, HOWEVER, WANTED TO TAX CASH FOUND IN THE LOCKER IN ASSESSMENT YEAR 2006-07 HOLDING THAT THE LOCKER WAS OPERATED O N 20.06.2005 LASTLY. THE CHIEF MANAGER, IOB, HOWEVER, CONFIRMED THAT THE LOCKER IN QUESTION WAS OPERATED LASTLY ON 19.05.2009 AND IN STATEMENT ON OATH ALSO HE HAS CONFIRMED THE SAME FACT THAT WIFE OF THE ASSESSEE LASTLY OPERATED THE LOCKER ON 19.05.2009. THE CHIEF MANAGER ALSO STATED THAT ORDINARILY ENTRIES ARE RECORDED IN LOCKER LEDGER REGISTER ONLY IN THE CIRCUMSTANCES WHEN THE LOCKER OPERATION REGISTER IS NOT AVAILABLE AND TO SAVE THE TIME OF THE CUSTOMER, ENTRIES ARE DONE IN THE LOCKE R LEDGER REGISTER. THE LD. CIT(A) ACCEPTED THE CONTENTION OF THE ASSESSEE THAT THE LO CKER IN QUESTION WAS LASTLY OPERATED ON 19.05.2009 AND THE ASSESSEE HAS ALREADY OFFERED CASH IN QUESTION FOR TAXATION IN ASSESSMENT YEAR 2010-11. THEREFORE, THE ADDITION WOULD AMOUNT TO DOUBLE TAXATION AND THE SAME WAS ACCORDINGLY DELETE D. ITA NO. 301/AGRA/2013 4 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE LD . DR RELIED UPON THE FINDINGS OF THE AO AND ALSO STATED THAT THERE WERE NO ENTRIES IN THE LOCKER LEDGER REGISTER, WHICH CASTS A DOUBT ON THE EXPLANATION OF THE ASSESSEE. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUB MISSIONS MADE BEFORE THE AUTHORITIES BELOW. WE HAVE PERUSED THE CERTIFICATE OF THE BANKER AND THE LOCKER OPERATION REGISTER AS WELL AS THE STATEMENT OF THE CHIEF MANAGER, IOB. THE BANK HAS CONFIRMED THAT LOCKER IN QUESTION WAS LASTLY OP ERATED ON 19.05.2009 BY WIFE OF THE ASSESSEE. IT IS NOT IN DISPUTE THAT ENTRY OF LO CKER LASTLY OPERATED ON 19.05.2009 IS RECORDED IN LOCKER OPERATION REGISTER. THEREFORE , THERE IS NO QUESTION OF TAKING ANY ADVERSE VIEW AGAINST THE ASSESSEE. THE ASSESSEE ALSO MADE SURRENDER OF THE ENTIRE CASH IN ASSESSMENT YEAR 2010-11. THEREFORE, THE ADDITION WOULD AMOUNT TO DOUBLE TAXATION. THE AO DID NOT PLACE RELIANCE UPON PART OF THE STATEMENT OF CHIEF MANAGER, IOB, BUT FAILED TO NOTICE THAT HE WAS SUMM ONED AS WITNESS OF THE REVENUE DEPARTMENT TO FASTEN LIABILITY AGAINST THE ASSESSEE IN THE ASSESSMENT YEAR 2006-07 OF THE CASH IN QUESTION. THEREFORE, IF THER E WAS NO SATISFACTORY EXPLANATION GIVEN OF ENTRY REGARDING LOCKER LEDGER REGISTER, TH E BURDEN UPON THE AO WOULD NOT HAVE BEEN DISCHARGED TO MAKE ADDITION AGAINST THE A SSESSEE. THERE IS NOTHING INCRIMINATING MATERIAL AVAILABLE AGAINST THE ASSESS EE ON RECORD. THEREFORE, THE LD. ITA NO. 301/AGRA/2013 5 CIT(A) ON PROPER APPRECIATION OF FACTS AND MATERIAL ON RECORD CORRECTLY DELETED THE ADDITION. GROUND NO. 1 FAILS AND IS DISMISSED. 5. ON GROUND NO. 2, THE REVENUE CHALLENGED THE DELE TION OF ADDITION OF RS.1,27,677/- ON ACCOUNT OF DISALLOWANCE OF EXPENSE S UNDER VARIOUS HEADS. THE AO NOTED THAT THE ASSESSEE HAS MADE CLAIM OF DEDUCT ION OF EXPENSES UNDER VARIOUS HEADS OF EXPENSES. THE ASSESSEE WAS ASKED TO PRODUC E THE BOOKS OF ACCOUNT, BILLS AND VOUCHERS, WHICH THE ASSESSEE HAD PRODUCED. THE AO ON EXAMINATION OF BILLS AND VOUCHERS FOUND SOME OF THE VOUCHERS ARE HAND MA DE AND ACCORDINGLY 10% OF THE EXPENSES WERE DISALLOWED AND ADDITION OF RS.1,2 7,677/- WAS MADE. THE ASSESSEE SUBMITTED BEFORE THE LD. CIT(A) THAT THE A O WITHOUT POINTING OUT ANY SPECIFIC DEFECTS IN BILLS AND VOUCHERS MADE ADHOC A DDITION, WHICH IS NOT PERMISSIBLE. HE HAS RELIED UPON CERTAIN DECISIONS I N SUPPORT OF THE CONTENTION. THE LD. CIT(A) FOUND THAT THE AO HAS NOT POINTED OUT AN Y SPECIFIC INSTANCES OF EXPENDITURE NOT VERIFIABLE IN NATURE. SINCE THE EXP ENSES WERE INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS, THEREFORE, THE ADDITION WAS DELETED AS WAS FOUND TO BE ADHOC IN NATURE. 6. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE. THE AO DISALLOWED 10% OF THE EXPENSES MERELY ITA NO. 301/AGRA/2013 6 ON THE REASON THAT SOME OF THE BILLS AND VOUCHERS A RE HAND MADE. THIS ITSELF IS NO GROUND TO MAKE DISALLOWANCE OUT OF THE EXPENSES. TH E AO HAS NOT POINTED OUT ANY SPECIFIC DEFECTS IN BILLS AND VOUCHERS THROUGH WHIC H THE DEDUCTION OF THE EXPENDITURES WAS CLAIMED. IT APPEARS TO BE ADHOC AD DITION IN NATURE, WHICH HAS BEEN RIGHTLY DELETED BY THE LD. CIT(A). THIS GROUND FAILS AND IS DISMISSED. 7. IN THE RESULT, THE DEPARTMENTAL APPEAL IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (PRAMOD KUMAR) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY