Ashwinkumar Shantilal Kotecha, JAMNAGAR V. The Income Tax Officer, Ward-2(1), JAMNAGAR

ITA 307/RJT/2011

• Counselvise Citation: 30724914 RSA 2011
• Duration Of Justice: 2 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 12-06-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 20-07-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: KAMLESH RATHOD
• Keywords: Rejection of books of accounts; Unexplained investment; Depreciation; Income from undisclosed sources; Principle of natural justice; Difference of opinion; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI T.K. SHARMA (JM) AND SHRI A.L. GEHLOT (AM) I.T.A. NO. 307 /RJT/20 11. (ASSESSMENT Y EAR 2005 - 06 ) ASHWINKUMAR SHANTILAL KOTECHA, VS. THE .I.T.O., PROP.KOTECHA CLASSES,MADHAV PLAZA, WARD - 2(1), JAMNAGAR. 4 TH FLOOR, NEAR LAL BUNGLOW,JAMNAGAR. PAN:ADSPK4820B.. (APPELLANT) (RESPONDENT) DATE OF HEARING : 04 - 01 - 2012. DATE OF PRONOUNCEMENT : - 01 - 2012. REVENUE BY : SHRI M. K. SINGH, D.R. ASSESSEE BY : SHRI KAMLESH RATHOD, C.A. O R D E R PER T.K. SHARMA (JM): TH IS APPEAL BY THE ASSESSEE A GAINST THE ORDER DATED 10 - 03 - 2010 OF CIT (A), JAMNAGAR FOR THE ASSESSMENT YEAR 2005 - 06. 2. AT THE OUTSET, ON BEHALF OF ASSESSEE, SHRI KAMLESH RATHOD AP PEARED AND POINTED OUT THAT IN THE IMPUGNED ORDER DATED 10 - 03 - 2010, THE LD. CIT(A), JAMNAGAR WAS SERVED ON THE ASSESSEE ON 12 - 03 - 2010.. AGAINST THIS ORDER, THE APPEAL WAS REQUIRED TO BE FILED WITHIN 60 DAYS. HOWEVER, THE APPEAL HAS BEEN FILED ON 20 - 07 - 2011 WHICH IS DELAYED BY 427 DAYS. HE POINTED OUT THAT DELAY HAS OCCURRED ON ACCOUNT OF ILLNESS OF WIFE OF THE ASSESSEE. IN SUPPORT OF THIS, AN AFFIDAVIT DULY SWORN BY THE ASSESSEE IS ALSO FILED WHICH READS AS UNDER: - 'A) MY WIFE BECAME ILL AND WAS SUFFERI NG FROM THYROID DISEASE AND SHE WAS UNDER TREATMENT FROM THE JANUARY,2009. BUT GRADUALLY THE PROBLEM WENT ON WORST. B) I WAS ALONE AND THE MOST RESPONSIBLE FOR MY WIFES TREATMENT, I HAD TO TAKE SUITABLE MEDICAL ADVICE, GET ALL THE PRESCRIBED TESTS CONDUCTED AND MANY OTHER RELATED ACTIVITIES WITH REGARD TO MY WIFES TREATMENT AND I HAD TAKEN ADVICE FROM DOCTORS FROM VARIOU S ITA NO.307/RJT/2011. 2 CITIES I.E. JAMNAGAR, AHMEDABAD, MUMBAI AND HAD TO DO FREQUENT TRAVELING IN THE MATTER. THE TREATMENT WAS CONTINUING EVEN IN 2010 MID. C) BESIDES INCURRING PHYSICAL EFFORTS AND SPENDING TIME FOR TAKING PROPER CARE OF MY WIFE, I ALSO CAME UNDER MENTAL PRESSURE AND KEPT WORRYING ABOUT MY WIFES HEALTH. AND MY SELF EMPLOYED BUSINESS OF TEACHING TO STUDENT. D) DUE TO ABOVE HUSTLE AND BUSTLE, I COULD NOT ATTEND THIS PENDING TAX MATTERS. E) SINCE I AM A TEACHER BY PROFESSION CONDUCTING PRIVATE CLASSES, I D IDNT HAVE KNOWLEDGE ABOUT TAX MATTERS. F) SINCE I AM ALONE & SELF EMPLOYED MY FINANCIAL HEALTH ALSO GET DISTURB. 3. ON THE BASIS OF AVERMENTS MADE IN THE AFORESAID AFFIDAVIT, IT WAS PLEADED THAT DELAY OF 427 DAYS BE CONDONED. ON THE OTHER HAND, SHRI M. K. SINGH, D.R. APPEARED ON BEHALF OF THE REVENUE OBJECTED TO THE PRAYER OF LD. COUNSEL OF THE ASSESSEE FOR CONDONATION OF DELAY. HE POINTED OUT THAT IT IS UNBELIEVABLE THAT THE WIFE OF THE ASSESSEE WAS ILL FOR MORE THAN ONE YEAR. SINCE THE ASSESSEE WAS ATTENDING THE OTHER ROUTINE WORK, HE COULD HAVE EASILY HAND OVER THE PAPERS TO HIS CHARTERED ACCOUNTANTS FOR FILING THE SECOND APPEAL. IN SUPPORT OF ILLNESS OF WIFE, NO MEDICAL CERTIFICATE HAS BEEN FURNISHED. THEREFORE, IT IS NOT A FIT CASE TO CONDONE TH E DELAY OF 427 DAYS. 4. WE HAVE CAREFULLY GONE THROUGH THE CONTENTS OF THE AFFIDAVIT. KEEPING IN VIEW THE AVERMENTS MADE IN THE AFFIDAVIT, THE DELAY OF FILING THIS APPEAL OF 427 DAYS IS CONDONED AND APPEAL IS ADMITTED. 5. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS AN INDIVIDUAL. HE IS A PROPRIETOR OF KOTECHA CLASSES. FOR THE ASSESSMENT UNDER APPEAL, HE FILED THE RETURN OF INCOME ON 24 - 01 - 2006 DECLARING TOTAL INCOME OF RS.1,63,947/ - ALONG WITH PROFIT ITA NO.307/RJT/2011. 3 AND LOSS ACCOUNT AND BALANCE SHEET. THE AO SELECTED THIS CASE FOR DETAILED SCRUTINY AS IN THIS CASE, SURVEY U/S.133A WAS CONDUCTED ON 01 - 09 - 2005. 6. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO ISSUED A QUESTIONNAIRE DATED 21 - 10 - 2007 CALLING FOR VARIOUS DETAILS AND INFORMATION. A.O. ALSO ASKED THE ASS ESSEE TO PRODUCE BOOKS OF ACCOUNT I.E. THE RECEIPT BOOK, REGISTER OF DETAILS OF TOTAL STUDENTS IN DIFFERENT CLASSES, REGISTER SHOWING DETAILS OF FEES RECEIVED FROM EACH CLASS AND OTHER DETAILS TO SUBSTANTIATE THE TOTAL INCOME RECEIVED BY HIM DURING THE YEA R. IN PARA - 5 OF THE ASSESSMENT ORDER, THE AO HAS STATED THAT ASSESSEE FAILED TO PRODUCE ANY TYPE OF BOOKS OF ACCOUNTS OR REGISTER OR ANY KIND OF PRELIMINARY RECORD AND HAS SHOWN HIS INABILITY TO PRODUCE THE SAME ON THE GROUND THAT SAME IS NOT AVAILABLE AN D NOT TRACEABLE. IT WAS STATED THAT HE WAS MAKING ONLY ROUGH NOTING OF RECEIPT IN DIARIES MAINTAINED BY HIM, WHICH WAS FOUND DURING THE COURSE OF SURVEY AT HIS TUITION CLASS PREMISES ON 01 - 09 - 2005. ONLY DETAILED COPIES OF LEDGE ACCOUNT RELATING TO VARIOU S EXPENSES INCURRED BY HIM WERE SUBMITTED ALONG WITH WRITTEN SUBMISSION DATED 15 - 11 - 2007. 7. ON THE BASIS OF ABOVE, AO REACHED TO THE CONCLUSION THAT THERE IS NO OTHER ALTERNATIVE EXCEPT TO COMPUTE INCOME ON THE BASIS OF CASH DEPOSITS MADE BY THE ASSESSEE IN HIS BANK ACCOUNTS IN HDFC BANK AND NAVANAGAR CO - 0P. BANK, JAMNAGAR AND HIS STATEMENT WAS RECORDED DURING THE COURSE OF SURVEY ON 01 - 09 - 2005 U/S.131 (1) (IV) AND OTHER MATERIAL AVAILABLE ON RECORD AND GATHERED DURING THE COURSE OF SURVEY BECAUSE SOME OF THE DIARIES IN WHICH ASSESSEE HAS MADE NOTING RELATING RECEIPT FROM TUITION FEES FOR THE RELEVANT PERIOD WAS IMPOUNDED. THE AO ALSO CALLED BANK ACCOUNT FROM VARIOUS BANKS IN WHICH ASSESSEE WAS HAVING HIS ACCOUNT AS PER HIS STATEMENT AND DETAILS SUBMITTED AND ALSO HIS STATEMENT RECORDED U/S.131(1)(IV) AND OTHER DETAILS & INFORMATION RECEIVED. 8. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO ALSO ISSUED A SHOW CAUSE NOTICE DATED 26 - 11 - 2007 WHICH IS REPRODUCED IN PARA - 7 OF THE ASSESSMENT ORDER. IN THIS LETTER, AO ASKED THE ASSESSEE TO SHOW CAUSE WHY HIS INCOME ITA NO.307/RJT/2011. 4 SHOULD NOT BE ESTIMATED AS CASH DEPOSITED IN THE ABOVE REFERRED TWO BANK ACCOUNTS DURING THE PERIOD WORKS OUT TO RS.6,00,000/ - APPROXIMATELY. IT WAS ALSO STATED THAT THERE MAY BE SOME CASH DEPOSIT ED IN OTHER BANKS OR IN THE NAME OF FAMILY MEMBERS PERTAINING TO CASH RECEIPTS FROM TUITION CLASSES. THERE ARE ALSO SOME FIXED DEPOSITS IN THE BANK DURING THE YEAR. IN REPLY, ASSESSEE FURNISHED REPLY DATED 26 - 11 - 2007 WHICH IS REPRODUCED BY AO IN PARA - 8 O F THE ASSESSMENT ORDER. AFTER CONSIDERING THE REPLY, AO COMPUTED THE INCOME OF THE ASSESSEE AT RS.7,73,270/ - FOR THE DETAILED REASON GIVEN IN PARA - 9 TO 14 WHICH READS AS UNDER: - 9. IN THE ABOVE REPLY THE ASSESSEE HAS TRIED TO CALCULATE AND ESTIMATE HIS I NCOME FOR WHOLE YEAR ON THE BASIS OF DIARY IMPOUNDED AT NO.A - 13 PAGES NO.67 TO 81. I HAVE GONE THROUGH THE DIARY NO.A - 13 PAGES 67 TO 81 AND IT IS OBSERVED THAT THESE PAGES CONTAIN THE RECEIPT OF AMOUNT ON DIFFERENT PAGES IN DENOMINATION OF RS.250, 1000, 1 600 AGAINST WHICH NO DATE IS WRITTEN BUT ONLY NAMES OF STUDENTS ARE WRITTEN AND THE AMOUNT RECEIVED IS VERY MUCH LESS COMPARE TO STRUCTURE OF THE FEES AS STATED BY THE ASSESSEE IN HIS STATEMENT. THE NAMES OF THE STUDENTS ALSO CANNOT BE TALLIED OR VERIFIED . THE ASSESSEE ALSO COULD NOT EXPLAIN HOW AND WHY AN AMOUNT OF RS.250/ - IS ACCEPTED WHILE FEE PER CLASS IS MUCH MORE. IN ABSENCE OF BOOKS OF ACCOUNT OR PRELIMINARY RECORD OR RECEIPT THE SAME CANNOT BE RELIED UPON AND CANNOT FORM THE BASE FOR CALCULATING OR ESTIMATING THE INCOME OF THE WHOLE YEAR. 10. SO FAR AS THE ACTUAL NUMBER OF STUDENT IN THE TOTAL CLASSES IS CONCERNED THE REPLY GIVEN BY THE ASSESSEE IN HIS REPLY DATED 03 - 12 - 2007 UNDER THE HEAD RECORD OF STUDENT DATA BANK CAN NOT BE ACCEPTED IN VIEW OF THE FACT THAT TO VERIFY THE FACTUAL POSITION OF TOTAL NUMBER OF STUDENTS IN EACH CLASS, SUMMON U/S.131(1) WAS ISSUED TO FOLLOWING TEACHERS OUT OF TOTAL SEVEN TEACHERS AS RANDOM WHO WERE UNDER THE EMPLOYMENT OF THE ASSESSEE ON PART T IME BASIS : (1) SHOBHNA M. MADNANI (2) HARSHA MEHTA (3) JIGNA SHETH. IN RESPONSE TO SUMMONS ISSUED U/S.131(1) ONLY ONE TEACHER SMT. SHOBHNA MADNANI ATTENDED WHO WAS ENGAGE IN PART TIME JOBS AND WAS TEACHING MATHEMATICS TO STUDENTS OF 11 TH AND 12 TH ST ANDARD. IN HER STATEMENT RECORDED ON OATH U/S.131(1)(III) SHE HAS STATED IN ANSWER TO QUEST NO.7 THAT SHE WORKED IN KOTECHA CLASSES FOR 7 YEARS AND HAS TEACHING MATHEMATICS IN GUJARATI MEDIUM AND ATTENDANCE OF STUDENTS IN EACH CLASS OF 11 TH AND 12 TH AND T HERE WERE 15 TO 20 STUDENTS IN WHOLE YEAR IN EACH CLASS. HOWEVER, SHE HAS STATED IN LAST THAT ON AVERAGE THERE WERE ITA NO.307/RJT/2011. 5 STRENGTH OF 40 STUDENTS IN BOTH CLASSES WHO USED TO ATTEND AND WERE REGULAR STUDENTS. 11. FROM THE ABOVE STATEMENT OF SMT. SOBHANA MADNANI IT IS VERY CLEAR THAT IN EACH CLASS THERE WERE ABOUT 20 STUDENTS. THE ASSESSEE HAS RUNNING IN TOTAL FOLLOWING CLASSES IN TWO MEDIUM I.E GUJARATI AND ENGLISH. GUJARATI MEDIUM ENGLISH MEDIUM. 11 CLASSES - - 12 TH CLASSES - - F.Y.B. COM CLASSES N.A. - S.Y. B. COM CLASSES N.A. - T.Y. B.COM CLASSES N.A. - THEREFORE, THE ASSESSEE WAS RUNNING ABOUT 5 STUDENT CLASSES IN TWO MEDIUM WHICH WORKS OUT TO TOTAL10 NUMBER OF CLASSES AND IF IN EACH CLASS 20 STUDENTS WERE CALCULATED T HE TOTAL LIVE STRENGTH WORKS OUT TO 200 STUDENTS. THE ASSESSEE WAS CHARGING MINIMUM FEE OF RS.3000/ - TO MAXIMUM FEE OF RS.5000/ - . HOWEVER, EVEN IF THE AVERAGE FEE OF RS.4000/ - IS CONSIDERED THE AVERAGE RECEIPT WORKS OUT TO RS.8,00,000/ - (200 X 4000). 12. SECONDLY, AS PER THE BANK STATEMENT RECEIVED FROM HDFC BANK AND NAVANAGAR CO - OP. BANK AND DENA BANK, JAMNAGAR IN THE NAME AND ACCOUNT OF THE ASSESSEE CASH TO THE TUNE OF RS.5,51,450/ - HAS BEEN DEPOSITED ON VARIOUS DATES. IN ADDITION TO THAT THE CASH DEPO SITS AND UNACCOUNTED INVESTMENTS IN THE NAME OF OTHER FAMILY MEMBERS ALSO CANNOT BE DENIED OUT OF INCOME EARNED DURING THE YEAR BY WAY OF FIXED DEPOSITS AND PAYMENT OF LIC PREMIUM OF RS.1,00,000/ - APPROXIMATELY ON THE BASIS OF MATERIAL GATHERED AND ON RECO RD. THEREFORE, APPROXIMATE INCOME OF THE ASSESSEE FROM TUITION CLASSES CANNOT BE LESS THAN RS.8,00,000/ - IN A YEAR. IT IS ALSO NOTICED THAT THE ASSESSEE IN HIS STATEMENT RECORDED DURING THE COURSE OF SURVEY HAS STATED IN REPLY TO QUESTION NO.20 THAT THE ASSESSEE HAD PURCHASED PROPERTY AT GALERIA CHAMBERS IN F.Y. 2004 - 05 AND HAD MADE PART PAYMENT OF RS.2,01,000/ - THROUGH DIFFERENT CHEQUES DURING F.Y.2004 - 05 TO ONE SHRI ARVIND K. SHAH. HOWEVER, THE DEAL WAS FORFEITED AS ASSESSEE COULD NOT PAY THE REMAINING BALANCE AMOUNT. WHILE AS PER LEDGE ACCOUNT AS SUBMITTED BY THE ASSESSEE THE AMOUNT PAID THROUGH DIFFERENT CHEQUES IS REFLECTED AT RS.1,25,000/ - ON DIFFERENT DATES. THEREFORE, IT PROVES THAT THE ASSESSEE MUST HAVE PAID REMAINING AMOUNT OF RS.76,000/ - OUT OF BOOKS IN CASH. ON VERIFICATION OF IMPOUNDED MATERIAL, IT IS ALSO FOUND THAT THE ASSESSEE HAS ALSO PURCHASED ONE MOTOR CAR DURING THE F.Y. 2004 - 05 ON 100% LOAN. HOWEVER, THE ASSESSEE HAD PAID INSTALLMENTS TOTALING TO RS.60,000/ - DURING THE YEAR. THE C AR INSTALMENTS ARE NOT REFLECTED IN THE BOOKS OF ACCOUNTS FOR THE RELEVANT PERIOD. THEREFORE, IT ROVES THAT ASSESSEE IS NOT ITA NO.307/RJT/2011. 6 MAINTAINING ITS ACCOUNTS AND BOOKS PROPERLY AND INCOME REQUIRES TO BE ESTIMATED IN THIS CASE. 13. IN VIEW OF THE ABOVE FACTS, AND IN ABSENCE OF BOOKS OR PRELIMINARY RECORD OF INCOME OR AUDITED ACCOUNTS, I HAVE NO ALTERNATIVE EXCEPT TO ESTIMATE THE INCOME ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND GATHERED DURING THE COURSE OF ASSESSMENT AND SURVEY PROCEEDINGS. THE TOTAL INCOME TO BE ESTIMATED WORKS OUT TO RS.8,00,000/ - WHICH IS REASONABLE AND JUSTIFIABLE AND THEREFORE, ESTIMATE THE INCOME FROM TUITION CLASSES AT RS.8,00,000/ - AND ALLOW EXPENSES INCURRED FULLY AND AS CLAIMED BY THE ASSESSEE. I ALSO ESTIMATE AN UNACCOUNTED INCOM E OF RS.2,00,000/ - KEEPING IN VIEW THE UNACCOUNTED INVESTMENTS AND EXPENDITURE INCURRED BY THE ASSESSEE AS DISCUSSED SUPRA. 14. SUBJECT TO THE ABOVE REMARKS AND AFTER DISCUSSION TOTAL INCOME OF THE ASSESSEE IS COMPUTED AS UNDER: - TOTAL INCOME AS PER STAT EMENT OF INCOME. RS.1,63,943/ - . ADD: DISALLOWANCE AS DISCUSSED ABOVE. 1. ADDITION ON ACCOUNT OF ESTIMATE OF INCOME IN ABSENCE OF BOOKS AND PRELIMINARY RECORD AS DISCUSSED IN THE BODY OF THE ORDER TOTAL INCOME ESTIMATED (RS.8,00,000 + RS.2,00,000). RS.10,00,000/ - LESS: INCOME SHOWN BY THE ASSESSEE RS. 3,90,675/ - RS.6,09,325/ - -------------------- ------------------- TOTAL ASSESSED INCOME. RS.7,73,268/ - ROUNDED OFF RS.7 ,73,270/ - -------------------- 9. AGAINST THE AFORESAID ASSESSMENT FRAMED, ASSESSEE PREFERRED AN APPEAL BEFORE CIT(A) ON THE FOLLOWING GROUNDS: - 1. THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS WITHOUT OBSERVING THE RULES O F NATURAL JUSTICE AND EQUITY AND HENCE BAND IN LAW AND VOID AB - INITIO ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THAT THE LEARNED ASSESSING OFFICER ERRED AND WAS NOT JUSTIFIED IN ESTIMATING THE TUITION FEES INCOME AT RS.800000 AND THEREBY MAKING ADDIT ION OF RS.409325, TO THE TOTAL INCOME ON THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO.307/RJT/2011. 7 3. THAT THE LEARNED ASSESSING OFFICER FURTHER ERRED AND WAS NOT JUSTIFIED IN MAKING ADDITION OF RS.200000 TO THE TOTAL INCOME ON THE GROUND OF UNEXPLAINED INVESTMENTS ON THE FACTS AND CIRCUMSTANCE OF THE CASE. 4. IN ANY CIRCUMSTANCES THE ESTIMATION OF TUITION FEES AT RS.800000 AND UNEXPLAINED INVESTMENT MADE BY THE ASSESSING OFFICER IS TOO MUCH HIGH, HARSH AND EXCESSIVE ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THAT THE ASSESSING OFFICER OUGHT TO HAVE ALLOW DEPRECIATION AND ALSO INTEREST PAID ON CAR LOAN INSTALMENTS EVEN THOUGH THE SAME HAS NOT BEEN CLAIMED BY THE APPELLANT IN THE RETURN OF INCOME FILED ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 10. BEFORE THE LD. CIT(A), IT WAS CONTENDED THAT THE HE IS FOLLOWING CASH SYSTEM OF ACCOUNTING AND ONLY CONDUCTING CLASSES IN GUJARATI MEDIUM, HENCE ESTIMATION OF NUMBER OF STUDENT AT 200 IS NOT JUSTIFIED AND ASSESSEE WAS NOT CHARGING FEES FOR STUDENT LEARNING ON TRIAL BASIS AND ALSO FROM WEAKER SECTION, THEREFORE, ESTIMATION OF FEES OF RS.4000/ - PER STUDENT IS NOT JUSTIFIED. 11.. AFTER CONSIDERING THE SUBMISSIONS OF THE LD. COUNSEL OF THE ASSESSEE, THE LD. CIT(A) IN PARA - 6 OF THE IMPUGNED ORDER, DIRECTED THE AO TO ESTI MATE THE FEES AT RS.3000/ - FOR 200 STUDENTS. THE PARA - 6 IS REPRODUCED AS UNDER: - 6. I HAVE CAREFULLY CONSIDERED THE ISSUE AND GONE THROUGH THE RECORDS, IT IS SEEN THAT SINCE THE APPELLANT HAS NOT PRODUCED BOOKS OF ACCOUNTS IN THE COURSE OF ASSESSMENT AS WELL AS BEFORE ME TO SUBSTANTIATE HIS CLAIM, ALSO THE APPELLANT HAS RAISED VARIOUS CONTENTIONS WITHOUT SUPPORTING THEM WITH EVIDENCES; HENCE THE ESTIMATION MADE BY ASSESSING OFFICER IS UPHELD. HOWEVER, LOOKING INTO FACTS OF THE CASE, THE QUANTUM OF ESTIMAT ION IS ON HIGHER SIDE. TO MEET WITH END OF JUSTICE, ASSESSING OFFICER IS DIRECTED TO ESTIMATE FEES PER STUDENT AT RS.3000 FOR 200 STUDENTS. GROUNDS OF APPEAL ARE DISPOSED WITH THESE DIRECTIONS. 12. WITH REGARD TO GROUND NO.2, THE LD. CIT(A) IN PARA - 9 CO NFIRMED THE ADDITION OF RS.2,00,000/ - MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT BUT DELETED THE SAME ON THE GROUND THAT ADDITION MADE ON ACCOUNT OF ESTIMATION OF INCOME IS ITA NO.307/RJT/2011. 8 AVAILABLE FOR MAKING THE INVESTMENT OF RS.2,00,000/ - . THEREFORE, HE DELETED THE SAME . THE RELEVANT PARA - 9 OF THE ORDER OF LD. CIT(A) IS REPRODUCED AS UNDER: - 9. I HAVE CAREFULLY CONSIDERED THE ISSUE, SINCE THE APPELLANT HAS NOT PRODUCED BOOKS FOR ACCOUNTS DURING THE COURSE OF ASSESSMENT AND ALSO CONSIDERING DEFICIENCIES, THE UNACCOUNTED INVESTMENT WAS ESTIMATED AT RS.200000. THE APPELLANT HAS EXPLAINED AMOUNT PAID TO SHRI ARVINDBHAI K. SHAH AS OUTSTANDING AND INSTALMENTS OF KOTAK MAHINDRA DULY REFLECTED IN BALANCE SHEET. ALSO CONSIDERING THE ESTIMATION OF TUITION INCOME OF THE APPELLANT , WHICH IS AVAILABLE TO APPELLANT FOR MAKING INVESTMENT, THE ADDITION OF RS.200000 ON ACCOUNT UNEXPLAINED INVESTMENT IS HEREBY DELETED. 13. GROUND NO.5 IS DISMISSED BY THE LD. CIT(A) FOR THE DETAILED REASON GIVEN IN PARA - 10. 14. AGGRIEVED WITH THE ORDER OF LD. CIT(A), ON THE ESTIMATION OF INCOME, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. THE ONLY GROUND RAISED BY ASSESSEE IS REPRODUCED HEREUNDER: - (1) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AS WELL AS THE LEARNED ASSESSING OFFICER HAS ERR ED ON FACTS AS WELL AS IN LAW WHILE ADDING OR CONFIRMING THE ADDITION THROUGH ESTIMATING THE TUITION FEES PER STUDENT AT RS.3000/ - FOR 200 STUDENTS AND THEREBY MAKING ADDITION OF RS.2,09,325/ - . 15. AT THE TIME OF HEARING BEFORE US, ON BEHALF OF THE ASSESS EE SHRI KAMLESH RATHOD APPEARED AND FILED A PAPER BOOK CONTAINING 55 PAGES. SUBSEQUENTLY, ASSESSEE FILED ANOTHER PAPER BOOK CONTAINING 34 PAGES. IN THE SECOND PAPER BOOK WHICH CONTAINED 34 PAGES, THE ASSESSEE FILED WRITTEN SUBMISSIONS WHERE IT WAS CONTE NDED THAT LD. CIT(A) ALLOWED THE RELIEF OF RS.2,00,000/ - IN RESPECT OF ADDITION MADE BY AO AGAINST THE UNACCOUNTED INCOME OF RS.2,00,000/ - . HE CONTENDED THAT SINCE THE INVESTMENT AND EXPENDITURE IS DULY REFLECTED IN THE BOOKS OF ACCOUNTS, THEREFORE, CIT(A ) HAS RIGHTLY DELETED THE ADDITION AND NO TELESCOPING EFFECT AROSE AGAINST SUCH RELIEF GIVEN ON ESTIMATION OF TUITION FEE INCOME. IT IS CONTENDED THAT ASSESSEE HAS PAID LIC PREMIUM OF RS.1,42,402/ - DURING THE YEAR UNDER CONSIDERATION AND SAME IS REFLECTED IN THE BOOKS OF ACCOUNTS UNDER THE HEAD LIC PREMIUM. THE COPY OF THE SAID ACCOUNT IS ITA NO.307/RJT/2011. 9 ENCLOSED AT PAGE - 13. WITH REGARD TO ESTIMATION OF TUITION FEE, IT WAS CONTENDED THAT ONLY THE STATEMENT OF SMT. SHAHBANU M. MAMDANI WAS RECORDED AND NO STATEMENT OF AS SESSEE WAS EVER RECORDED EITHER AT THE TIME OF SURVEY OR THEREAFTER. THE ASSESSEE IS ONLY CONDUCTING CLASSES IN GUJARATI MEDIUM, NO CLASSES IN ENGLISH MEDIUM ARE CONDUCTED. IN SUPPORT OF THIS, RELIANCE IS PLACE ON PAMPHLET WHICH INDICATES THAT ASSESSEE I S CONDUCTING CLASSES ONLY IN GUJARATI MEDIUM. ON THE STRENGTH OF THIS PAMPHLET, HE CONTENDED THAT THERE IS NO JUSTIFICATION WHATSOEVER FOR ESTIMATING THE INCOME AND THE LD. CIT(A) OUGHT TO HAVE ACCEPTED THE BOOKS RESULT. THEREFORE, ESTIMATED ADDITION ON ACCOUNT OF TUITION FEE TO THE EXTENT OF RS.2,09,325/ - SUSTAINED BY LD. CIT(A) BE DELETED. 16. ON THE OTHER HAND, SHRI M. K. SINGH, DR APPEARED ON BEHALF OF THE REVENUE STRONGLY OBJECTED TO THE AFORESAID SUBMISSION MADE BY THE LD. COUNSEL OF THE ASSESSEE ON THE FOLLOWING GROUNDS: - (1) THAT THE AO REJECTED THE BOOKS OF ACCOUNTS AND LD. CIT(A) UPHELD THE ACTION OF AO. (2) NEITHER BEFORE BOTH THE DEPARTMENTAL AUTHORITIES BELOW, THE ASSESSEE HAS FURNISHED BOOKS OF ACCOUNTS AND OTHER DETAILS CALLED. (3) NO GR OUND WAS TAKEN BEFORE THE LD. CIT(A) AGAINST THE REJECTION OF BOOKS OF ACCOUNTS. (4) ONCE THE BOOKS OF ACCOUNTS ARE REJECTED, AO HAS NO OPTION BUT TO ESTIMATE THE INCOME. THE AO ESTIMATED THE INCOME KEEPING IN VIEW THE DEPOSIT AND INVESTMENT MADE AND NO CAPITAL ACCOUNT WAS FURNISHED EITHER BEFORE AO OR BEFORE CIT(A). EVEN BEFORE THE TRIB UNAL, THE ASSESSEE HAS FURNISHED, THE CAPITAL ACCOUNT WHICH INDICATES HOW HE HAS PAID THE LIC PREMIUM TO THE TUNE OF RS.1,42,402/ - FROM MEAGER INCOME DECLARED IN THE RETURN OF INCOME FROM PROFESSION AMOUNTING RS.1,63,947/ - ( GROSS INCOME AS PER PROFIT & LOSS ACCOUNT RS.1,89,799/ - ). (5) ASSESSEE HAS NOT FURNISHED STATEMENT OF AFFAIRS/BALANCE SHEET AT THE BEGINNING OF THE YEAR AS ON 31 - 03 - 2004/01 - 04 - 2004. (6) IN THE BALANCE - SHEET, THE ASSESSEE HAS SHOWN FOLLOWING LOANS FROM THE PRIVATE PARTIES: - ITA NO.307/RJT/2011. 10 LOANS (LIABILITY): - DATTANI BHAI 20.000.00 DILIPBHAI BHATT 18.000.00 HAATHYA BHEMA MEHAR 19.000.00 K. R. BHUT 18.000.00 SUNDRY LOAN - I 25.000.00 17. NO CONFIRMATIONS IN RESPECT OF AFORESAID LOAN WERE FURNISHED EITHER BEFORE AO OR LD. CIT(A). A.O. VIRTUALLY TREATED ALL THESE LOANS AS UN - EXPLAINED AS HE INCLUDED THE SAME WHILE ESTIMATING TUITION FEES. 18. BEFORE THE TRIBUNAL, THE ASSESSEE IS NOT AGGRIEVED WITH THE REJECTION OF BOOKS OF ACCOUNTS OR TELESCOPING BENEFIT ALLOWED BY LD. CIT(A) VIDE PARA - 9 OF THE IMPUGNED ORDER. 19. FINALLY, THE LD. D.R. POINTED OUT THAT LOOKING TO THE CASH DEPOSITED BY THE ASSESSEE IN THE BOOKS OF ACCOUNTS, FACT THAT NO CAPITAL ACCOUNT INDICATING OPENING BALANCE, FRESH LOAN TAKEN DURING THE YEAR, CONFIRMATION OF THE SAME , THE DRAWING MADE DURING THE YEAR FOR HOUSEHOLD EXPENSES, FRESH INVESTMENT MADE DURING THE YEAR AND DETAILS OF DRAWING FOR HOUSEHOLD EXPENSES, AO HAS RIGHTLY ESTIMATED THE TUITION FEE AT RS.8,00,000/ - AS AGAINST RS.3,90,675/ - DECLARED BY THE ASSESSEE. AF TER ESTIMATING THIS TUITION FEE, AO HAS ALLOWED ALL THE EXPENSES CLAIMED IN THE PROFIT AND LOSS ACCOUNT AMOUNTING TO RS.3,90,675/ - . NO BOOKS OF ACCOUNTS WERE PRODUCED BY THE ASSESSEE BEFORE BOTH THE DEPARTMENTAL AUTHORITIES BELOW. THEREFORE, AT THIS STAGE , WITHOUT ANY GROUND OF APPEAL, ASSESSEE CANNOT ARGUE THAT BOOKS RESULT SHOULD BE ACCEPTED. LOOKING TO THE HUGE CASH DEPOSIT IN BANK ACCOUNT, THE FRESH INVESTMENT MADE, LIC PREMIUM OF RS.1,42,402 / - PAID, THE ESTIMATE OF PROFESSIONAL RECEIPT MADE BY AO WAS FAIR AND REASONABLE. THE DEPARTMENT HAS NOT FILED THE SECOND APPEAL BECAUSE THE TAX EFFECT IS LESS THAN THE PRESCRIBED LIMIT. THE LD. CIT(A) IN THE IMPUGNED ORDER CONFIRMED THE ADDITION ONLY TO THE EXTENT OF UNEXPLAINED INVESTMENT TO THE EXTENT OF RS.2,00,000/ - (APPROXIMATELY) CONFIRMED BY HIM WHICH IS EVIDENT FROM THE FACT ITA NO.307/RJT/2011. 11 THAT AFTER GIVING THE APPEAL EFFECT, THE INCOME OF THE ASSESSEE IS ONLY RS.3,73,270/ - AS UNDER: - INCOME AS PER ORDER DATED 2 4 - 12 - 2007 RS.773270/ - LESS: RELIEF GRANTED BY LD. CIT(A) 1.CIT(A) DIRECTED TO TAKE TUITION FEE RS.200000/ - @ RS.3000/ - PER STUDENT FOR 200 STUDENTS. HENCE, FREE WOULD BE OF RS.600000/ - WHEREAS AS PER ORDER DT.24 - 12 - 07 IT WAS RS.800000/ - . THUS, ASSESSEE GETS RELIEF OF RS. 2 LAC. 2. UNEXPLAINED INVESTMENT RS.200000/ - RS.400000/ - . NET TOTAL INCOME AFTER A.E. RS.373270/ - . ========== 20. THE LD. D.R. POINTED OUT FROM THE ABOVE THAT IT IS EVIDENT THAT LD. CIT(A) IN SUBSTANCE CONFIRMED THE ADDITION IN RESPECT OF PROFESSION FEES TO THE EXTENT OF UNEXPLAINED INVESTMENT OF ABOUT RS.2,00,000/ - . THEREFORE, THE VIEW TAKEN BY LD. CIT(A) BE UPHELD. 21. IN REJOINDER, COUNSEL OF THE ASSESSEE CONTENDED THAT THE ASSESSEE IS NOT TAKING CLA SSES IN ENGLISH MEDIUM, THEREFORE, THERE IS NO JUSTIFICATION FOR ESTIMATING THE INCOME IN RESPECT OF ENGLISH MEDIUM CLASSES AND FOR THIS LIMITED PURPOSE, THE MATTER BE REMANDED TO THE FILE OF AO. 22. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY GONE THR OUGH THE ORDER OF AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT BOOKS OF ACCOUNTS WERE NEVER PRODUCED BY THE ASSESSEE BEFORE THE AO OR LD. CIT(A). IT APPEARS THAT THE STATEMENT OF ASSESSEE WAS ALSO RECORDED AS MENTIONED BY AO IN PARA - 12 OF THE ASSESSME NT ORDER. IN THIS PARA, THE AO MENTIONED AS UNDER: - IT IS ALSO NOTICED THAT THE ASSESSEE IN HIS STATEMENT RECORDED DURING THE COURSE OF SURVEY HAS STATED IN REPLY TO QUESTION NO.20 THAT THE ASSESSEE HAD PURCHASED PROPERTY AT GALERIA CHAMBERS IN F.Y. 200 4 - 05 AND HAD MADE PART PAYMENT OF RS.2,01,000/ - THROUGH DIFFERENT CHEQUES DURING F.Y.2004 - 05 TO ONE SHRI ARVIND K. SHAH. HOWEVER, THE DEAL WAS FORFEITED AS ASSESSEE COULD NOT PAY THE REMAINING BALANCE AMOUNT. ITA NO.307/RJT/2011. 12 THE ABOVE STATEMENT RECORDED U/S.131 (1)(IV) O N 01 - 09 - 2005 IS NOT FURNISHED BEFORE US DESPITE DEMANDED BY US DURING THE COURSE OF HEARING. THE SO CALLED BALANCE SHEET FILED BY THE ASSESSEE INDICATE THAT HE HAS NOT RECEIVED LOANS OF OVER RS.1,00,000/ - FROM PRIVATE PARTIES. NO CONFIRMATION OF SUCH LO AN OR SQUARED UP ACCOUNT WERE FURNISHED BEFORE ANY OF THE DEPARTMENTAL AUTHORITIES BELOW. WHILE ESTIMATING THE PROFESSIONAL FEE/TUITION FEE, AO HAS TREATED ALL THESE CREDITS INTO ACCOUNT. NEITHER BEFORE AO, NOR BEFORE LD. CIT(A) OR EVEN BEFORE US THE ASSE SSEE HAS FURNISHED CAPITAL ACCOUNT . THE ASSESSEE HAS ADMITTED TAT HE HAS PAID LIC PREMIUM OF RS.1,42,402/ - . THE ONLY ISSUE ARISING FOR OUR CONSIDERATION IN THIS APPEAL IS WHETHER ADDITION TO THE EXTENT OF RS.2,09,325/ - BY LD. CIT(A), ON THE FACTS AND CIRCUMSTANCES OF THE CASE ARE FAIR AND REASONABLE. ONCE THE BOOKS OF ACCOUNTS ARE REJECTED, AO HAS NO OPTION BUT TO ESTIMATE THE INCOME. IN ABSENCE OF CAPITAL ACCOUNT, IT IS NOT POSSIBLE TO SAY THAT INCOME TO THE EXTENT OF RS.2,09,325/ - SUSTAINED BY LD. CIT(A) IS EXCESSIVE OR UNREASONABLE. KEEPING IN VIEW THE UNEXPLAINED INVESTMENT TO THE EXTENT OF RS.2,09,325/ - SUSTAINED BY LD. CIT(A) IN THE IMPUGNED ORDER, NON - PRODUCTION OF BOOKS OF ACCOUNTS, NON - FURNISHING OF CAPITAL ACCOUNT AND EVEN THE STATEMENT OF THE ASSESSEE RECORDED DURING THE COURSE OF SURVEY. WE THEREFORE, DECLINED TO UPHOLD THE ORDER. 23. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. THIS ORDER PRONOUNCED IN THE OPEN COURT ON - 02 - 2012. XXXX SD/ - (A.L. GEHLOT) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT, DT : - 02 - 2012. NVA/ - ITA NO.307/RJT/2011. 13 COPY TO : 1 . AS HWINKUMAR SHANTILAL KOTECHA ,PROP. KOTECHA CLASSES, JAMNAGAR. 2 . THE ITO, WARD - 2(1), JAMNAGAR. 3 . T HE CIT , JAMNAGAR. 4 . T HE CIT (A), JAMNAG AR. 5 . T HE DR, I.T.A.T., RAJKOT 6 . THE GUARD FILE. (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT ITA NO.307/RJT/2011. 14 IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI T. K. SHARMA JM AND SHRI A.L. GEHLOT (AM) I.T.A. NO . 307/RJT/2011 ( ASSESSMENT YEAR 2005 - 06) ASHWINKUMAR SHANTILAL KOTECHA VS. THE I.T.O. PROP. KOTECHA CLASSES, MADHAV PLAZA, WARD - 2(1), JAMNAGAR 4 TH FLOOR, NR. LAL BUNGLOW, JAMNAGAR PAN: ADSPK4820B (APPELLANT) (RESPONDENT) REFERENCE UNDER SECTION 255 (4) OF THE INCOME - TAX ACT, 1961 AS THERE IS A DIFFERENCE OF OPINION BETWEEN THE MEMBERS OF THE BENCH WE STATE THE FOLLOWING POINT OF DIFFERENCE AND REFER THE SAME TO THE HONBLE PRESIDENT, INCOME - TAX APPELLATE TRIBUNAL FOR FURTHER NECESSARY ACTION AS ENVISAGED U/S 255(4) OF THE INCOME - TAX ACT: - WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2005 - 06 B E DISMISSED OR ADDITION SUSTAINED BY LD CIT(A), BE REDUCED TO RS.29,325/ - SD/ - SD/ - (A.L GEHLOT) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 30.03.2012 ITA NO.307/RJT/2011. 15 . , , IN THE INCOME TAX APPELLATE TRIBUNAL AT RAJKOT A . . , M) , BEFORE SHRI G.C. GUPTA, VICE - PRESIDENT (AZ) ( THIRD MEMBER) ITA NO. 307 / RJT / 2011 [ASSTT. YEAR : 2005 - 2006 ] ASHWINKUMAR SHANTILAL KOTECHA PROP. KOTECHA CLASSES MADHAV PLAZA 4 TH FLOOR, NR. LAL BUNGLOW JAMNAGAR. / VS. ITO, WARD - 2(1) JAMNAGAR. ( / APPELLANT) ( / RESPONDENT) :I / ASSESSEE BY : SHRI KAMLESH RATHOD )I / REVENUE BY : SHRI ANKUR GARG, CIT - DR DATE OF HEARING : 28 TH AUGUST , 2012. O R D E R ON ACCOUNT OF DIFFERENCE IN OPINION BETWEEN THE LEARNED JUDICIAL MEMBER AND LEARNED ACCOUNTANT MEMBER OF ITAT, RAJKOT BENCH, THIS MATTER HAS BEEN REFERRED TO ME BY THE HONBLE PRESIDENT, ITAT FOR CONSIDERATION AND DISPOSAL UNDER SECTION 255(4) OF THE INCOM E TAX ACT, 1961. THE HONBLE PRESIDENT HAS REFERRED THE FOLLOWING QUESTION : ITA NO.307/RJT/2011. 16 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2005 - 2006 BE DISMISSED OR ADDITION SUSTAINED BY THE LD.CIT(A) B E REDUCED TO RS.29,325/ - . 2. I HAVE CAREFULLY CONSIDERED THE ABOVE QUESTION DRAWN BY THE LEARNED MEMBERS OF THE RAJKOT BENCH AND HAVE PERUSED THE PROPOSED ORDERS OF THE LEARNED JM AND THE LEARNED AM. I HAVE HEARD THE LEARNED CIT - DR AND THE LEARNED COUNSEL FOR THE ASSESSEE. THE CONTENTION OF THE LEARNED CIT - DR AND THE LEARNED COUNSEL FOR THE ASSESSEE WERE BROADLY SIMILAR AS ADVANCED BY THEM BEFORE THE REGULAR BENCH AND RECORDED IN THE PROPOSED ORDERS OF THE LEARNED JM AND THE LEARNED AM. 3. THE LEA RNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ESTIMATION OF TUITION FEE FROM THE STUDENTS HAVE BEEN ESTIMATED IN AN ARBITRARY MANNER. HE SUBMITTED THAT THE ASSESSEE HAS SUBMITTED CASH FLOW STATEMENT, A COPY OF WHICH HAS BEEN SUBMITTED BEFORE THE TRIBUN AL IN COMPILATION AT PAGE NO.3 AND 4 OF THE PAPER BOOK NO.3 FILED BY THE ASSESSEE. HE SUBMITTED THAT THE ASSESSEE HAS NOT MADE ANY INVESTMENT NOT DISCLOSED TO THE DEPARTMENT IN ANY OF THE ACCOUNTING YEARS. HE REFERRED TO THE COPY OF THE PRINTED BROUCHERS ISSUED BY THE ASSESSEE, A COPY OF WHICH HAS BEEN FILED AT PAGE NO.18 OF THE PAPER BOOK FILED BEFORE THE TRIBUNAL, WHICH SHOWED THAT THE ASSESSEE HAS NOT ADMITTED STUDENTS FOR B.COM CLASSES IN ITA NO.307/RJT/2011. 17 GUJARAT MEDIUM, AND THEREFORE, THE ADDITION MADE BY WAY OF ESTI MATE OF TUITION FEE WITH REGARD TO THREE YEARS COURSE OF B.COM IN GUJARATI MEDIUM HAS BEEN WRONGLY MADE. HE REFERRED TO THE STATEMENT OF THE FACTS AND THE WRITTEN SUBMISSIONS IN SUPPORT OF ITS CASE THAT THE TUITION CLASSES WERE FOR STUDENTS OF 11 TH AND 12 TH CLASSES IN ENGLISH AS WELL AS GUJARATI MEDIUM AND FOR THE THREE YEARS DEGREE COURSE IN B.COM IT WAS ONLY FOR ENGLISH MEDIUM AND NOT IN GUJARAT MEDIUM AT ANY POINT OF TIME. HE SUBMITTED THAT ONUS IS ON THE DEPARTMENT TO PROVE THAT THE ASSESSEE W AS RUNNING TUITION CLASSES FOR THREE YEARS COURSES OF B.COM CLASSES IN GUJARATI MEDIUM ALSO. 4. THE LEARNED DR HAS OPPOSED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE. HE REFERRED TO THE RELEVANT PORTIONS OF THE ASSESSMENT ORDER, APPELLATE ORDER OF THE CIT(A) AS WELL AS THE PROPOSED ORDER OF THE LEARNED JM IN SUPPORT OF THE CASE OF THE REVENUE. HE SUBMITTED THAT THE ASSESSEE HAS TRIED TO MANIPULATE THE RECORD BY MAKING SOME NOTING IN PARA - 11 OF THE ASSESSMENT ORDER THAT WERE NOT THERE IN T HE ORIGINAL ASSESSMENT ORDER PASSED BY THE AO HE SUBMITTED THAT THE ASSESSEE HAS NOT PRODUCED ITS BOOKS OF ACCOUNTS BEFORE ANY REVENUE AUTHORITIES, AND THEREFORE THE ESTIMATE OF TUITION FEE WAS WHOLLY JUSTIFIED. HE SUBMITTED THAT IN THE BALANCE SHEET O F THE ASSESSEE, FOR THE YEAR RELEVANT TO THE ASSESSMENT YEAR, THE ASSESSEE HAS NOT DECLARED ITS VALUE OF CAR AND ITA NO.307/RJT/2011. 18 CORRESPONDING LOAN ACCOUNT PAYABLE TO THE BANK, AND THEREFORE, THE ACCOUNTS STATEMENTS FILED BY THE ASSESSEE HAVE NO EVIDENTIARY VALUE. 5. T HE LEARNED COUNSEL FOR THE ASSESSEE IN HIS REJOINDER SUBMITTED THAT THE ALL THE PAYMENTS WERE MADE BY THE ASSESSEE TO THE BANK PER CHEQUE AS PER THE COPY OF THE LEDGER ACCOUNTS FILED BY THE ASSESSEE AT PAGE NO.7 - 13 OF THE PAPER BOOK NO.2. 6. I FIND THAT T HERE ARE LOTS OF FACTS OF THE CASE AS DETAILED IN THE PROPOSED ORDER OF THE LEARNED JM AND THE LEARNED AM WITH REGARD TO THE CASE OF THE ASSESSEE. I FIND THAT THERE IS NO MATERIAL DIFFERENCE IN THE RECORDING OF THE FACTS IN THE PROPOSED ORDER OF BOTH THE LEARNED JM AND THE LEARNED AM. HOWEVER, THERE IS A DIFFERENCE BETWEEN TWO LEARNED MEMBERS ON VARIOUS ISSUES REGARDING THE ASSESSMENT OF THE ASSESSEE. I AM AWARE THAT MY ROLE AS THIRD MEMBER IS LIMITED TO THE EXTENT OF POINT OF DIFFERENCE BETWEEN THE TWO MEMBERS OF THE TRIBUNAL REFERRED TO ME BY THE HONBLE PRESIDENT. I FIND THAT IN THE APPEAL BY THE ASSESSEE BEFORE THE TRIBUNAL, THE ONLY GROUND OF THE APPEAL OF THE ASSESSEE IS AS UNDER: THE LD.CIT(A) AS WELL AS THE LEARNED AO HAS ERRED ON FACTS AS WEL L AS IN LAW WHILE ADDING OR CONFIRMING THE ADDITION ITA NO.307/RJT/2011. 19 THROUGH ESTIMATING THE TUITION FEES PER STUDENT AT RS.3000 FOR 200 STUDENTS AND THEREBY MAKING ADDITION OF RS.2,09,325/ - 7. I FIND THAT THE LEARNED JM HAS DISMISSED THIS GROUND OF THE APPEAL OF THE ASSE SSEE WHEREAS THE LEARNED AM HAS PARTLY ALLOWED THE GROUND OF THE APPEAL OF THE ASSESSEE AND HAS SUSTAINED THE ADDITION OF RS.29,325/ - AND HAS DELETED THE BALANCE ADDITION OF RS.1,80,000/ - OUT OF THE ESTIMATED TUITION FEE. IN THESE FACTS, MY BRIEF IS LIMIT ED TO DECIDE WHETHER THE REDUCTION OF RS.1,80,000/ - ALLOWED BY THE LEARNED AM WHILE ESTIMATING THE TUITION FEE RECEIVED BY THE ASSESSEE WAS JUSTIFIED OR NOT. I FIND THAT THE LEARNED JM HAS SUSTAINED THE ADDITION OF TUITION FEE TO EXTENT OF RS.29,325/ - ON THE BASIS THAT THE ASSESSEE COULD NOT PRODUCE ITS BOOKS OF ACCOUNTS AND HAS ADMITTEDLY NOT FURNISHED CAPITAL ACCOUNT, FUND FLOW CHART AND DETAILS OF HOUSEHOLD EXPENSES, DETAILS OF FRESH INVESTMENT INDICATING THE SOURCE OF THEREOF. THE LEARNED AM ON THE OT HER HAND HAS ALLOWED RELIEF OF RS.1,80,000/ - OUT OF ESTIMATION OF TUITION FEE ON THE GROUND THAT THE AO HAS WRONGLY ESTIMATED THE TUITION FEE FOR THREE CLASSES OF B.COM RUNNING IN GUJARATI AND THE BALANCE ADDITION OF RS.29,325/ - WAS CONFIRMED TO COVER PETT Y LAPSES AND DEFICIENCIES IN ESTIMATION. I FIND THAT ALTHOUGH THE ASSESSEE COULD NOT PRODUCE ITS BOOKS OF ACCOUNTS BEFORE THE AO OR BEFORE THE CIT(A) BUT IT HAS FILED ITS STATEMENT OF ACCOUNTS BEFORE THE AO AT THE TIME OF ASSESSMENT ITSELF. THE ASSESS EE HAS ALSO FILED ITA NO.307/RJT/2011. 20 CASH FLOW STATEMENT BEFORE THE REVENUE AUTHORITIES, A COPY OF WHICH HAS BEEN FILED AT PAGE NO.3 AND 4 OF THE PAPER BOOK NO.3 FILED BEFORE US. A PERUSAL OF THE CASH - FLOW STATEMENT FILED BY THE ASSESSEE SHOWS THAT THE CASH PAYMENT IN THE F ORM OF RENT, LIC PREMIUM, SALARY EXPENSES, HOUSEHOLD EXPENSES AND OTHER SMALL EXPENSES ALONG WITH CASH DEPOSIT WITH HDFC BANK AND THE NAWANAGAR CO - OP. BANK ARE COVERED WITH THE CASH AVAILABLE WITH THE ASSESSEE DURING THE YEAR. THE REVENUE COULD NOT CONTR OVERT THE CASH FLOW STATEMENT FILED BY THE ASSESSEE. NO UNACCOUNTED INVESTMENT OUTSIDE THE STATEMENT OF ACCOUNT FILED BY THE ASSESSEE COULD BE SHOWN BY THE REVENUE. THE COPY OF THE BROCHURES ISSUED BY THE ASSESSEE FROM TIME TO TIME FOR RUNNING ITS TUITIO N CLASSES, A COPY OF WHICH HAS BEEN FILED IN THE COMPILATION BEFORE US, SHOWS THAT THE ASSESSEE WAS RUNNING TUITION CLASSES FOR CLASSES 11 TH AND 12 TH IN BOTH THE ENGLISH AND GUJARATI MEDIUM, WHEREAS THE TUITION CLASSES FOR THREE YEARS DEGREE COURSE OF B.C OM WAS ONLY IN ENGLISH MEDIUM. NO EVIDENCE HAS BEEN BROUGHT ON RECORD ON BEHALF OF THE REVENUE TO CONTRADICT THIS CLAIM OF THE ASSESSEE THAT IT HAS NOT RUN TUITION CLASS FOR THREE YEARS B.COM DEGREE COURSE IN GUJARATI MEDIUM DURING THE RELEVANT PERIOD. I FIND THAT NO STATEMENT OF THE ASSESSEE WAS RECORDED BY THE REVENUE AUTHORITIES EITHER AT TIME OF SURVEY OR THEREAFTER DURING THE ASSESSMENT PROCEEDINGS. THE CONTENTION OF THE LEARNED COUNSEL FOR THE ITA NO.307/RJT/2011. 21 ASSESSEE THAT THE ASSESSEE HAS NEVER RUN GUJARATI MED IUM BATCHES FOR THREE YEARS B.COM DEGREE COURSES WAS NOT CONSIDERED BY THE AO AND THE CIT(A). THE ONLY ISSUE BEFORE ME TO DECIDE AS THIRD MEMBER IS WITH REGARD TO THE ESTIMATION OF EXCESS TUITION FEE OF RS.1,80,000/ - PERTAINING TO THREE YEARS DEGREE COU RSE OF B.COM. CLASSES IN GUJARATI MEDIUM. IN THE ABSENCE OF ANY MATERIAL OR EVIDENCE BROUGHT ON RECORD TO SHOW THAT THE ASSESSEE IN FACT RUN B.COM CLASSES IN GUJARATI MEDIUM, AND IN VIEW OF THE FLAT DENIAL BY THE ASSESSEE IN THIS REGARD, I CANNOT FIND A NY CONVINCING AND VALID REASON TO SUSTAIN THE ADDITION ON THIS COUNT. REGARDING SOME CHANGE IN PARA - 11 OF THE COPY OF ASSESSMENT ORDER AS FILED BY THE ASSESSEE AND AS PER THE ORIGINAL ASSESSMENT ORDER IN OFFICIAL RECORD OF THE DEPARTMENT, I FIND THAT THE SAME IS NOT DECISIVE OF THE ISSUE BEFORE THE TRIBUNAL. I TAKE THE CONTENTS OF PARA - 11 AS PER OFFICIAL RECORD OF THE DEPARTMENT AS CORRECT. I FIND THAT A VERY SMALL CONTROVERSY REGARDING THE ADDITION OF RS.1,80,000/ - BY WAY OF ESTIMATE OF TUITION FEE EARN ED BY THE ASSESSEE FROM RUNNING OF THREE YEARS B.COM DEGREE COURSE IN GUJARATI, IS BEFORE ME FOR DECISION AS THIRD MEMBER, AND THE ASSESSEE HAS VEHEMENTLY DENIED RIGHT FROM THE ASSESSMENT STAGE THAT IT WAS EVER RUNNING B.COM THREE YEARS DEGREE COURSE CLASS ES IN GUJARATI. THIS CONTENTION WAS RAISED BY THE ASSESSEE BEFORE THE CIT(A) ALSO AND IS DULY REFLECTED IN THE STATEMENT OF FACTS FILED BEFORE THE CIT(A). A COPY OF THE ITA NO.307/RJT/2011. 22 BROCHURES OF THE TUITION CLASSES PUBLISHED BY THE ASSESSEE CLEARLY SHOWS THAT THERE W ERE NO TUITION CLASSES FOR B.COM COURSE IN GUJARATI MEDIUM. THE INITIAL BURDEN PLACED ON THE ASSESSEE HAS BEEN SHIFTED TO THE DEPARTMENT TO PROVE THAT THE CLAIM OF THE ASSESSEE WAS FALSE OR NOT IN ACCORDANCE WITH THE FACTS OF THE CASE. NO SUCH EXERCISE HAS BEEN UNDERTAKEN BY THE REVENUE AUTHORITIES TO DISCHARGE THAT ONUS AND NO EVIDENCE WAS PLACED ON RECORD TO CONTROVERT THE SUBMISSIONS OF THE ASSESSEE. IT IS WELL SETTLED THAT ADDITION CANNOT BE MADE MERELY ON THE BASIS OF THE SUSPICION AND WITHOUT BRIN GING ANY MATERIAL ON RECORD. THE LEARNED AM HAS DELETED THE IMPUGNED ADDITION OF RS.1,80,000/ - ON THE GROUND THAT THE REVENUE AUTHORITIES HAVE NOT CONSIDERED THE CONTENTION OF THE ASSESSEE THAT THE ASSESSEE WAS NOT RUNNING THE GUJARATI MEDIUM CLASSES FOR THREE TYPES OF B.COM CLASSES, AND THEREFORE THE ESTIMATION SUSTAINED BY THE CIT(A) WAS ON EXCESSIVE SIDE. THE LEARNED AM HAS CONCLUDED THAT ON THE BASIS OF THE MATERIAL ON RECORD, THE ASSESSEE HAS FULLY EXPLAINED THE INVESTMENT POINTED OUT BY THE AO AS TH E SAME WAS FOUND RECORDED IN THE P & L ACCOUNT AND THE BALANCE SHEET AS ON 31 - 3 - 2005 AND NO ADDITION CAN BE MADE ON ESTIMATION/PRESUMPTION OR ARBITRARILY. THE LEARNED AM HAS FURTHER OBSERVED THAT WHATEVER MAY BE THE INCOME TO BE DETERMINED MUST BE REAL IN COME, MAY BE ON ESTIMATION BASIS OR ON THE BASIS OF BEST JUDGMENT AND THAT THE ASSESSEE HAS DEMONSTRATED ITA NO.307/RJT/2011. 23 THAT THERE IS EXCESSIVE ESTIMATION OF RS.1,80,000/ - , AS THE AO HAS WRONGLY ESTIMATED THE TUITION FEE FOR THREE TYPES OF B.COM CLASSES IN GUJARATI MEDIU M AND THE ASSESSEE DESERVES SUCH RELIEF ON ACCOUNT OF JUSTICE. IN THE FACTS AND CIRCUMSTANCES, I AM INCLINED TO AGREE WITH THE DECISION OF THE LEARNED AM AND HAS NO HESITATION TO HOLD THAT THE ADDITION OF RS.1,80,000/ - SUSTAINED BY THE CIT(A) WAS RIGHTLY DELETED BY THE LEARNED AM AND QUESTION REFERRED TO ME BY THE HONBLE PRESIDENT IS ANSWERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. IN VIEW OF THIS, I AGREE WITH THE LEARNED AM ON THE ISSUE OF ADDITION REFERRED TO ME BY THE HONBLE PRESIDENT. 8 . THE MATTER WILL NOW GO BACK TO THE DIVISION BENCH FOR PASSING ORDER IN ACCORDANCE WITH MAJORITY VIEW. SD/ - (G.C. GUPTA) VICE - PRESIDENT (THIRD - MEMBER) PLACE : AHMEDABAD DATE : 05 - 09 - 2012 ITA NO.307/RJT/2011. 24 \T\I , N IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. A . . E R 7 A . . A7 7 ) BEFORE SHRI T. K. SHARMA JM AND SHRI D. K. SRIVASTAVA AM IT A NO. 307 /RJT/2011 :: / ASSESSMENT YEAR 200 5 - 06 . ASHWINKUMAR SHANTILAL KOTECHA, PROP. KOTECHA CLASSES, MADHAV PLAZA, 4 TH FLOOR, NEAR LAL BUNGLOW, JAMNAGAR. PAN : ADSPK4820B ( \, / APPELLANT) THE INCOME - TAX OFFICER, WARD - 2(1), JAMNAGAR. (, / RESPONDENT :I / ASSESSEE BY SHRI KAMLESH RATHOD , CA. )I / REVENUE BY SHRI K.C. MATHEWS , DR. IT / DATE OF HEARING 16 - 06 - 2013 IT / DATE OF PRONOUNCEMENT 31 - 07 - 2013 PRESENT : - FOR ASSESSEE: SHRI KAMLESH RATHOD, CA FOR REVENUE : SHRI K. C. MATHEWS, DR ORDER UNDER SECTION 255(4) OF THE INCOME - TAX ACT, 1961. . . E , R 7 / T. K. SHARMA, J. M. : IN THIS CASE, AO FRAMED THE ASSESS MENT U /S.14 3(3) ON 24 - 12 - 2007 WHEREIN, HE ESTIMATED THE TUITION FEE AT RS.8,00,000/ - AS AGAINST THE NET INCOME SHOWN BY THE ASSESSEE AT RS.3,90,605/ - FURTHER, AO ALSO MADE ADDITION OF RS.2,00,000/ - IN RESPECT OF UNACCOUNTED INVESTMENT AND EXPENDITURE AS PER PARA 12 A ND 13 OF THE ASSESSMENT ORDER. ON APPEAL, THE LEARNED CIT (A), JAMNAGAR IN HIS ORDER DATED 10 - 03 - 2010 ESTIMATED THE TUITION FEES AT RS.6,00,000/ - AS AGAINST RS.8,00,000/ - AND CONFIRMED THE ITA NO.307/RJT/2011. 25 ADDITION OF RS.2,00,000/ - WHICH WAS MADE BY AO ON ACCOUNT OF UNACCO UNTED INVESTMENT AND EXPENDITURE. HOWEVER, T HE LD. CIT (A) ALLOWED THE BENEFIT OF TELESCOPING OF ADDITION OF RS.2,00,000/ - AGAINST THE ESTIMATED ADDITION CONFIRMED ON ACCOUNT OF ESTIMATION OF TUITION FEES , AS STATED IN PARA - 9 OF HIS ORDER WHICH READS AS UN DER: - 9. I HAVE CAREFULLY CONSIDERED THE ISSUE, SINCE THE APPELLANT HAS NOT PRODUCED BOOKS FOR ACCOUNTS DURING THE COURSE OF ASSESSMENT AND ALSO CONSIDERING DEFICIENCIES, THE UNACCOUNTED INVESTMENT WAS ESTIMATED AT RS.200000. THE APPELLANT HAS EXPLAINED A MOUNT PAID TO SHRI ARVINDBHAI K. SHAH AS OUTSTANDING AND INSTALLMENTS OF KOTAK MAHINDRA DULY REFLECTED IN BALANCE SHEET. ALSO CONSIDERING THE ESTIMATION OF TUITION INCOME OF THE APPELLANT, WHICH IS AVAILABLE TO APPELLANT FOR MAKING INVESTMENT, THE ADDITION OF RS.200000 ON ACCOUNT OF UNEXPLAINED INVESTMENT IS HEREBY DELETED. AGGRIEVED WITH THE ORDER OF LD. CIT (A), THE ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING GROUNDS: - 1 . THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AS WELL AS THE LEARNED ASSESSING OFFICER IS BAD IN LAW AS WELL AS ON FACTS. 2 . THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AS WELL AS THE LEARNED ASSESSING OFFICER HAS ERRED ON FACTS AS WELL AS IN LAW WHILE ADDITION OR CONFIRMING THE ADDITION THROUGH ESTIMATING T HE TUITION FEES PER STUDENT AT RS.3000 FOR 200 STUDENTS AND THEREBY MAKING ADDITION OF RS.2,09,325/ - . 2. THE JUDICIAL MEMBER IN HIS PROPOSED ORDER CONFIRMED THE ADDITION OF RS.2,09,325/ - . THE ACCOUNTANT MEMBER IN HIS DISSENT NOTE HELD THAT AO WRONGLY ES TIMATE TUITION FEE FOR THREE TYPES OF B. COM CLASSES RUNNING IN GUJARATI (3 X 20 = 60 X 3000) AND HELD THAT ASSESSEE IS ENTITLED TO RELIEF OF RS.1,80,000/ - . IN THIS MANNER, LD. ACCOUNTANT MEMBER WAS OF THE VIEW THAT OUT OF ADDITION OF RS.2,09,325/ - , BE RE DUCED TO RS.29,325/ - ( I.E. RS.2,09,325/ - RS.1,80,000/ - ). ITA NO.307/RJT/2011. 26 3. ON ACCOUNT OF DIFFERENCE OF OPINION BETWEEN THE ME MBER S , THE MATTER WAS REFERRED TO THE PRESIDENT FOR NOMINATION OF THIRD MEMBER U/S.255(4) OF THE I.T. ACT, 1961 TO DECIDE THE FOLLOWING QUESTIO N : - 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2005 - 2006 BE DISMISSED OR ADDITION SUSTAINED BY THE LD. CIT (A) BE REDUCED TO RS.29,325/ - . THE HONBLE PRESIDENT , ITAT NOMINATED ZONAL VICE P RESIDENT SHRI G. C. GUPTA AS THIRD MEMBER. THE THIRD MEMBER VIDE HIS ORDER DATED 05 - 09 - 2012 AGREED WITH THE VIEW OF LD. A .M. THEREFORE, IN ORDER TO PASS CONSEQUENTIAL ORDER IN ACCORDANCE WITH MAJORITY VIEW, THE MATTER WAS FIXED FOR HEARING. 4. AT T HE TIM E OF HEARING, LD. DR POINTED OUT THAT LD. CIT (A) IN HIS ORDER CONFIRMED THE ADDITION OF RS.2,00,000/ - WHICH WAS MADE BY AO IN RESPECT OF UNACCOUNTED INVESTMENT AND EXPENDITURE BUT DELETED THE SAME BY ALLOWING THE BENEFIT OF TELESCOPING AGAINST THE ADDITIO N OF RS.2,09,325/ - CONFIRMED IN RESPECT OF TUITION FEE INCOME. AGAINST THE CONFIRMATION OF ADDITION OF RS.2,00,000/ - IN RESPECT OF UNACCOUNTED INVESTMENT AND EXPENDITURE , NO APPEAL HAS BEEN FILED BY THE ASSESSEE MEANING THEREBY, TH IS ADDITION ATTAINS FINALI TY. NOW AS PER MAJORITY VIEW, TUITION INCOME IS REDUCED BY RS.1,80,000/ - FROM THE INCOME ESTIMATED BY THE LD. CIT (A) AT RS.6,00,000/ - . THEREFORE, NOW ONLY RS.29,325/ - (RS.2,09,325/ - - RS.1,80,000/ - )FOR ALLOWING THE BENEFIT OF TELESCOPING. ON THESE BASIS, LD. DR POINTED OUT THAT TRIBUNAL IN ITS CONSEQUENTIAL ORDER WORKED OUT THE ADDITION CONFIRMED ON ACCOUNT OF TUITION FEE WHICH IS AVAILABLE FOR CLAIMING BENEFIT OF TELESCOPING. AS AGAINST THIS, T HE COUNSEL OF THE ASSESSEE POINTED OUT THAT THIS ITA NO.307/RJT/2011. 27 MATTER BE R ESTORED TO THE FILE OF LD. CIT (A) FOR EXAMIN ING WHETHER HE ALLOWED THE BENEFIT OF TELESCOPING OR NOT. 5. RIVAL SUBMISSIONS WERE CONSIDERED. WE FOUND CONSIDERABLE FORCE IN SUBMISSIONS MADE BY LD. DR. FROM THE PERUSAL OF PARA - 9 OF LD. CIT (A) ORDER WHICH I S REPRODUCED BY US (SUPRA), IT IS CLEAR THAT THE LD. CIT (A) CONFIRMED THE ADDITION OF RS.2,00,000/ - ON ACCOUNT OF UNEXPLAINED INVESTMENT AND EXPENDITURE BUT DELETED THE SAME BY ALLOWING THE BENEFIT OF TELESCOPING AGAINST ADDITION CONFIRMED BY HIM IN RESPE CT OF ESTIMATION OF TUITION FEE RS.2,09,325/ - . NOW AS PER MAJORITY VIEW, RELIEF IN ADDITION OF TUITION FEE OF RS.1,80,000/ - IS TO BE ALLOWED. THEREFORE, BENEFIT OF TELESCOPING CANNOT EXCEED THE NET ADDITION OF TUITION FEE CONFIRMED WHICH WORKS OUT TO RS.29 ,325/ - AS UNDER: - - . TUITION FEE ESTIMATED BY LD. CIT (A) RS.6,00,000/ - - . LESS: RELIEF ALLOWED IN TUITION FEE AS PER RS.1,80,000/ - MAJORITY VIEW RS. 4 ,20,000/ - - . LESS: NET INCOME DECLARED AS PER PROFIT RS.3,90,675/ - AND LO SS ACCOUNT - . NET TUITION FEE ADDITION AVAILABLE FOR ALLOWING BENEFIT OF TELESCOPING RS. 29,325/ - FROM THE ABOVE, IT IS CLEAR THAT BENEFIT OF TELESCOPING IS TO BE RESTRICTED RS. 29,325/ - BECAUSE AS PER MAJORITY VIEW, ONLY TO THIS EXTENT, TUI TION FEE ADDITION IS CONFIRMED . FURTHER, AFTER ALLOWING THE BENEFIT OF TELESCOPING OF RS.29,325/ - THE BALANCE ADDITION IN RESPECT OF UN ACCOUNT ED INVESTMENT AND EXPENDITURE WORKS OUT TO OF RS.1, 70 , 6 7 5/ - IS REQUIRED TO BE CONFIRMED (RS.2,00,000/ - - RS.29,325 / - ). ITA NO.307/RJT/2011. 28 TO SUM UP , THE TOTAL INCOME LIABLE TO BE ASSESSED AS PER MAJORITY VIEW, WOULD BE AS UNDER: - TOTAL INCOME AS PER STATEMENT OF INCOME RS.1,63,943 ADD: DISALLOWED ON ACCOUNT OF ESTIMATION OF INCOME TUITION FEE: AS PER AO RS.8,00,000 LESS: RELIEF BY CIT(A) RS.2,00,000 RS.6,00,000 RELIEF BEING GIVEN BY THE ITAT AS PER M AJORITY VIEW RS.1,80,000 RS.4,20,000 LESS: INCOME SHOWN BY ASSESSEE RS.3,90,675 RS. 29,325 ADD: ADDITION CONFIRMED BY CIT (A) ON ACCOUNT O F UNACCOUNTED INVESTMENT AND EXPENDITURE RS.2,00,000 LESS: TELESCOPING BENEFIT TO THE EXTENT OF TUITION FEE ADDITION CONFIRMED RS. 29,325 RS.1,70,675 TOTAL INCOME LIABLE TO BE ASSESSED . RS.3,63,943 ROUNDED OFF RS .3,63,940 6 . IN THE RESULT, THE APPEAL OF THE A SSESSEE IS PARTLY ALLOWED. 7 . THIS O RDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD/ - SD/ - ( . . ) D. K. SRIVASTAVA ) ( T . . : / T. K. SHARMA) ADD: / ACCOUNTANT MEMBER N) / JUDICIAL MEMBER / ORDER DATE 31 - 07 - 2013. /RAJKOT . NVA/ - ITA NO.307/RJT/2011. 29 9 RJO O / COPY OF ORDER FORWARDED TO: - 1 . \, / APPELLANT - . ASHWINKUMAR SHANTILAL KOTECHA, PROP. KOTECHA CLASSES, MADHAV PLAZA, 4 TH FLOOR, NEAR LAL BUNGLOW, JAMNAGAR 2 . (, / RESPONDENT - THE INCOME - TAX OFFICER , WARD - 2(1), JAMNAGAR 3 . I / CONCERNED CIT , JAMNAGAR. 4 . - \ / CIT (A) , JAMNAGAR. 5 . I , \T\I , / DR, ITAT, RAJKOT 6 . : / GUARD FILE. / BY ORDER TRUE COPY. PRIVATE SECRETARY, ITAT, RAJKOT