Sh. Bheru Lal Bohra S/o Sh. Rang Lal Bohra, RAJIYASAR V. DCIT, UDAIPUR

ITA 305/JODH/2012

• Counselvise Citation: 30523314 RSA 2012
• Duration Of Justice: 1 year(s) 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 05-09-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 03-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR DEEPAK SEHGALCIT
• Assessee Lawyers: PRAKUL KHURANA; RAHUL LAKHWANI
• Keywords: Document seized; Documents seized
• Section: 244A; 132

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL: JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 304/JODH/2012 (A.Y. 2004-05) & ITA NO. 305/JODH/2012 (A.Y. 2006-07) SHRI BHERU LAL BOHRA VS DCIT, S/O SHRI RANG LAL BOHRA CENTRAL CIRCLE-3, SMT. PHOOLI DEVI BOHRA, UDAIPUR. SHRI TANSUKH BOHRA, SHRI NARENDRA BOHRA, L/H LATE SHRI BHERU LAL BOHRA ARHMAN PALACE, PURANI SADAK, KELWA, RAJSAMAND PAN NO. AANPB5719L (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. PRAKUL KHURANA AND SH. RAHUL LAKHWANI. DEPARTMENT BY : DR. DEEPAK SEHGAL-CIT- DR. DATE OF HEARING : 05/09/2013. DATE OF PRONOUNCEMENT : 24/09/2013. O R D E R PER BENCH. : BOTH THE ABOVE CAPTIONED APPEALS ARE BEING DECIDED BY A COMMON ORDER. 2 ITA NO. 304/JODH/2012 (A.Y. 2004-05) 2. BRIEFLY STATED THE FACTS OF GROUND RELATING TO A DDITION OF RS. 1,43,000/- AS UNDISCLOSED ADVANCES, AS NARRATED BY THE LD. CIT(A) IN THE IMPUGNED ORDER ARE AS UNDER: THE SEIZED DOCUMENTS REFLECTED THE APPELLANT HAS G IVEN ADVANCES TO VARIOUS PERSONS PARTICULARLY RS. 63,000 /- TO S FATEH SINGH (AS PER PAGE NO. 31 OF ANNEX. A-2), RS. 60,000/- TO SH. GEHARI LAL, BHERU LAL, GANESH LAL ( AS PER PAGE NO. 35 OF ANNEX. A-2), RS. 10,000/- TO S BHERU LAL (AS PER PAGE NO. 38 OF ANNEX. A-2) AND RS. 2.10 LACS TO SH. HAZARI I. S/O SH. GOPI LAL (AS PER PAGE 33 OF ANNEX . A-2), TOTALING TO RS. 3,43,000/-. THE AR TRIED TO EXPLAIN THAT THE ADVANCES HAVE BEEN GIVEN BY BHERU LAI BOHRA, HUF AN D IS RECORDED IN THE BOOKS OF HUF. THE AO REJECTED THE ARGUMENT AFTER DISCUSSING THE MATTER IN DETAIL MORE PARTICULARLY THAT COMPUTERIZED BOOKS ACCOUNTS OF AL L THE BUSINESS CONCERNS OF THE GROUP WERE FOUND IN THE CP U BUT ANY BOOKS OF ACCOUNTS OF SH. BHERU LAL BOHARA, HUF WAS FOUND IN CPU. ACCORDINGLY, THE AO HELD THE ADVANCES OF RS. 3,43,000/- AS UNDISCLOSED AND THE APPELLANT HAS DEC LARED UNDISCLOSED INCOME OF RS. 2 LACS, BALANCE AMOUNT RS . 1,43,000/- WAS FURTHER ADDED BY THE AO. AGAINST OR DER U/S 153C R.W.S 153A/143(3) - APPEAL NO. 419; 03-04, 04- 05 & 06-07- SH. BHERU LAL BOHARA. SIMILAR ISSUE HAS COM E UP FOR CONSIDERATION IN THE APPELLANT'S CASE IN A.Y. 2005- 06 IN 3 APPEAL NO. 416/10-11, WHEREIN VIDE ORDER DATE 21,03 .2012, AFTER CONSIDERING THE FACTS OF THE CASE AND LEGAL P OSITION ON THE ISSUE IT WAS HELD THAT THE ADVANCES ARE UNDISCL OSED AND THE ARGUMENT THAT THESE ARE REFLECTED IN THE BOOKS OF ACCOUNT OF THE HUF IS AFTERTHOUGHT. ACCORDINGLY, TH E GROUND TAKEN BY THE AR IS REJECTED AND ADDITION WAS SUSTAINED. AS THE FACTS AND CIRCUMSTANCES FOR THE Y EAR UNDER CONSIDERATION ARE SAME, THE ADVANCES OF RS. 3,43,000/- ARE HELD TO BE UNDISCLOSED AND CONSIDERI NG THAT APPELLANT HAS SHOWN UNDISCLOSED INCOME OF RS. 2 LAC S IN A.Y. 2003-04, ADDITION OF BALANCE AMOUNT C RS. 1,43 ,000/- MADE BY THE AO IS SUSTAINED. 4. GROUND NO. 3 FOR A.Y. 2003-04 AND GROUND NO. 2 FOR A.Y. 2004-05 & A.Y. 2006-07 ARE AGAINST TREATING TH E ADDITIONAL INCOME OF RS. 2 LACS SHOWN IN THE RETURN FILED U/S 153C OF THE ACT AS UNDISCLOSED INCOME FROM MONE Y LENDING BUSINESS. 4.1 SIMILAR ISSUE HAS COME UP FOR CONSIDERATION IN THE APPELLANT'S CASE IN A.Y. 2005-06 IN APPEAL NO. 416/ 10-11, WHEREIN VIDE ORDER DATE 21,3.2012, AFTER CONSIDERIN G THE FACTS OF THE CASE AND LEGAL POSITION ON THE ISSUE T HIS GROUND HAS BEEN REJECTED. AS THE FACTS AND THE CIRCUMSTANC ES FOR THE YEA UNDER CONSIDERATION IN THE PRESENT APPEALS ARE SAME AS THAT OF A.Y. 2005-06. THE GROUND IS REJECTE D IN THE PRESENT APPEALS ALSO. IT IS TO FURTHER ADD THAT AS DISCUSSED HEREINABOVE FOR A.Y. 2003-04, IT IS NOTICED THAT TH E AO HAS 4 HELD TOTAL ADVANCES; RS. 3,43,000/- AS UNDISCLOSED ADVANCES ON THE BASIS OF SEIZED DOCUMENTS. THU THE ARGUMENT OF THE AR THAT RS. 2 LACS SO DISCLOSED BY THE APPELLANT IN THE RETURN OF INCOME U/S 153C HAS BEEN INCORRECTLY HELD TO BE UNDISCLOSED INCOME, IS TOTAL DEVOID ANY MERIT. SIMI LAR IS THE POSITION FOR A.Y. 2004-05 AND A.Y. 2006-07 SEEN FROM THE PERUSAL OF ASSESSMENT ORDER. ACCORDINGLY, THIS GROUND TAKEN IN BOTH THE PRESENT APPEALS IS REJECTED. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS :- 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW LD. CIT (APPEALS) HAS ERRED IN NOT HOLDING ASSE SSMENT ORDER DATED 30.11.2010 AS BAD IN LAW, WITHOUT JURIS DICTION AND ILLEGAL SINCE: A. THERE WERE NO SEARCH WARRANTS IN THE NAME OF T HE APPELLANT & HENCE THE SEARCH U/S 132 ITSELF AT THE RESIDENCE OF THE APPELLANT WAS BAD IN LAW. B. THAT THE ASSESSMENT U/S 153C CANNOT BE WITHOUT RECORDING SATISFACTION IN CASE OF THE PE RSON SEARCHED WHICH IS ABSENT IN THE PRESENT CASE. 2. UNDER THE FACTS & CIRCUMSTANCES OF THE CASE AN D IN LAW, LD. CIT (APPEALS) HAS ERRED IN UPHOLDING THE ASSESS MENT OF RS. 2,00,000/- DECLARED BY THE ASSESSEE AS UNDIS CLOSED INCOME FROM MONEY LENDING BUSINESS WITHOUT ANY INCRIMINATING MATERIAL OR EVIDENCE FOUND DURING THE COURSE 5 OF SEARCH AND MERELY ON THE BASIS OF CONDITIONAL SU RRENDER, THAT TOO WITHOUT ACCEPTING THE CONDITIONS ATTACHED TO SUCH SURRENDER. 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT (APPEALS) HAS ERRED IN INITIATING THE PENALTY PROCEEDINGS U/S 271(1)(C), THUS, BY DENYING THE BENEFIT OF VOLUNTARY DISCLOSURE AS MADE BY THE ASSESSEE IN RESPECT OF UNDISCLOSED INCOME OF RS. 2, 00,000/. 4. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT (APPEALS) HAS ERRED IN MAINTAINING THE INTEREST LIABILITY U/S 234A, 234B, 234C & 234D OF THE INCOME TAX ACT, 1961 AND WITHDRAWING THE INTEREST U/S 244A OF THE INCOME TAX ACT, 1961. 5. THE APPELLANT CRAVES TO ALTER, AMEND AND MODIF Y ANY GROUND OF APPEAL. 3. AT THE TIME OF THE HEARING GROUND NO. (1) WAS NO T PRESSED BY LD. A.R. THIS GROUND IS THEREFORE, DISMISSED AS NOT PRE SSED. 4. THE OTHER GROUNDS ADMITTEDLY DO NOT ARISE FROM T HE APPELLANT ORDER. HENCE, THESE GROUNDS CANNOT BE ADJUDICATED U PON AND ARE DISMISSED, IN LIMINE. 6 5. IN THE RESULT THE APPEAL IN ITA NO. 304/JODH/201 2 FOR A.Y. 2004- 05 STANDS DISMISSED. ITA NO. 305/JODH/2012 FOR A.Y. 2006-07. 6. THE FACTS OF THIS YEAR ARE MUTATIS MUTANDIS SIMI LAR TO ASSESSMENT YEAR 2004-05. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN HIS APPEAL :- 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW LD. CIT (APPEALS) HAS ERRED IN NOT HOLDING ASSE SSMENT ORDER DATED 30.11.2010 AS BAD IN LAW, WITHOUT JURIS DICTION AND ILLEGAL SINCE: A. THERE WERE NO SEARCH WARRANTS IN THE NAME OF T HE APPELLANT & HENCE THE SEARCH U/S 132 ITSELF AT THE RESIDENCE OF THE APPELLANT WAS BAD IN LAW. B. THAT THE ASSESSMENT U/S 153C CANNOT BE WITHOUT RECORDING SATISFACTION IN CASE OF THE PER SON SEARCHED WHICH IS ABSENT IN THE PRESENT CASE. 2. UNDER THE FACTS & CIRCUMSTANCES OF THE CASE AN D IN LAW, LD. CIT (A) HAS ERRED IN UPHOLDING THE ASSESSMENT O F RS. 2,00,000/- DECLARED BY THE ASSESSEE AS UNDISCLOSE D INCOME FROM MONEY LENDING BUSINESS WITHOUT ANY INCRIMINATI NG MATERIAL OR EVIDENCE FOUND DURING THE COURSE OF SEA RCH AND MERELY ON THE BASIS OF CONDITIONAL SURRENDER, THAT TOO 7 WITHOUT ACCEPTING THE CONDITIONS ATTACHED TO SUCH SURRENDER. 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT (APPEALS) HAS ERRED IN INITIATING THE PENALTY PROCEEDINGS U/S 271(1)(C), THUS, BY DENYING THE BENEFIT OF VOLUNTARY DISCLOSURE AS MADE BY THE ASSESSEE IN RESPECT OF UNDISCLOSED INCOME OF RS. 2, 00,000/. 4. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT (APPEALS) HAS ERRED IN MAINTAINING THE INTEREST LIABILITY U/S 234A, 234B, 234C & 234D OF THE INCOME TAX ACT, 1961 AND WITHDRAWING THE INTEREST U/S 244A OF THE INCOME TAX ACT, 1961. 5. THE APPELLANT CRAVES TO ALTER, AMEND AND MODIF Y ANY GROUND OF APPEAL. 7. AGAIN, GROUND NO. (1) WAS NOT PRESSED AND THE OT HER GROUNDS ADMITTEDLY, DO NOT ARISE FROM THE APPELLATE ORDER. HENCE, WE DISMISS THIS APPEAL AS WELL. 8 8. IN THE RESULT, BOTH THE APPEALS STAND DISMISSED. ORDER PRONOUNCED IN THE COURT ON 24 TH SEPTEMBER, 2013. SD/- SD/- (N.K.SAINI) [HARI OM MARATH A] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 24 TH SEPTEMBER, 2013. VL/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT BY ORDER 4. THE CIT(A) 5. THE DR ASSISTANT REGISTRAR ITAT, JODHPUR