The ITO, Ward-2(2), Ahmedabad V. M/s. Nitinkumar & Co., Ahmedabad

ITA 308/AHD/2010

• Counselvise Citation: 30820514 RSA 2010
• Duration Of Justice: 2 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 28-08-2012
• Assessment Year: 1993-1994
• Appeal Filed On: 01-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T SHANKAR
• Keywords: Revised return
• Section: 43B; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD D BENCH BEFORE: SHRI A. K. GARODIA ACCOUNTANT MEMBER AND SHRI KUL BHARA T, JUDICIAL MEMBER INCOME-TAX OFFICER, AHMEDABAD (APPELLANT) VS. M/S NITINKUMAR & CO. AHMEDABAD(RESPONDENT) PAN NO. REVENUE BY : SRI T. SHANKAR, SR. D.R. ASSESSEE BY : NONE DATE OF HEARING : 28-08-2012 DATE OF PRONOUNCEMENT : 05-10-2012 / ORDER PER : KUL BHARAT, JUDICIAL MEMBER:- THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-VII AHMEDABAD , DATED 09-11- 2009. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEALS:- 1 THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN DELE TING RS. 13,91,390/- OUT OF THE ADDITION MADE ON ACCOUNT OF DIFFERENT OF RS. 16,45,308/- IN SHARAFI ACCOUNT AND DISCLOSURE MADE BY THE ASSESSEE DURING SEARCH. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE AS SESSING OFFICER SINCE THE ASSESSEE HAS FAILED TO DISCLOSE HIS TRUE INCOME. I.T.A. NO 308/AHD/2010 A.Y.:-1993-94 ITA NO. 308/AHD/2010 A.Y. 1993-94 PAGE NO. ITO VS. M/S NITINKUMAR & CO. 2 2. THE FACTS IN BRIEF AS NARRATED IN THE ORDER OF L D. CIT(A) ARE REPRODUCED AS UNDER:- THE FACTS OF THE CASE FOR THE ASSESSMENT YEAR UNDE R CONSIDERATION ARE SIMILAR TO THAT OF ASSESSMENT YEAR 1392-93 WHER EIN MY PREDECESSOR HAS DECIDED THE APPEAL VIDE ORDER NO CLT(A)-VII/1 95/2007-08 DATED 11-06-2009. THE FACTS OF THE CASE BRIEFLY STATED ARE THAT :- (A)THE APPELLANT FILED RETURN OF INCOME FOR THE ASS ESSMENT YEAR UNDER CONSIDERATION ON 8.10.93 DECLARING TOTAL INCOME OF RS. 3,779/-. THE SAID RETURN WAS PROCESSED ON 27-1-94 AFTER MAKING P RIMA FACIE ADJUSTMENT OF RS. 4,009/- U/S. 43B OF THE ACT (B) NOTICE U/S. 148 WAS ISSUED ON 29-11.96 ON ACCOU NT OF THE REASON THAT THE APPELLANT HAD MADE DISCLOSURE OF RS 21,28, 146/- U/S. 132 OF THE ACT (C) PURSUANCE TO THE NOTICE U/S. 148 OF THE ACT, TH E APPELLANT FILED RETURN OF INCOME ON 5.2.97 DECLARING INCOME OF RS. 4,82,8 40/-. (D) THE ASSESSMENT WAS FINALIZED BY THE ASSESSING O FFICER U/S. 143(3) OF THE ACT ON 31-03-1997 DETERMINING THE APPELLANT 'S TOTAL INCOME AT RS. 18,22,770/- (E) ON APPEAL, THE CLT(A)-LV, AHMEDABAD VIDE HIS OR DER NO. CLT(A)-IV- INV.CIR.5(1)/25 & 26/1997-98 DATED 31.3.2000 DIREC TED THE ASSESSING OFFICER TO TAX THE APPELLANT'S INCOME AT RS, 1,49,5 99/-. (F) ON FURTHER APPEAL BY THE DEPARTMENT, THE HON'BL E- ITAT VIDE ITS ORDER NO. 1539/1540/541/ABAD/2000 DATED SEPTEMBER , 2006 SET ASIDE THE ASSESSMENT. (G) PURSUANCE TO THE ITAT'S ORDER, REFERRED TO ABOV E, THE ASSESSING OFFICER FINALIZED THE ASSESSMENT U/S. 144 R .W. S 254 OF T HE ACT VIDE HIS ORDER DATED 14.12.2007 AND DETERMINED THE APPELLANT 'S TO TAL INCOME AS:- TOTAL INCOME AS PER PROCESSING. RS. 4,82,840/- DIFFERENCE OF DISCLOSURE RS,16, 45,308/- UNPAID S.T/ LIABILITY. RS 4,009/- ---------------------- TOTAL INCOME RS .21,32,160. --------------------- (H) THERE WAS DISCLOSURE OF RS I9,32,995/- FOR ASSTT. YEAR 1992-93 AND RS.21,28,146/- FOR A.Y.1993-94. ITA NO. 308/AHD/2010 A.Y. 1993-94 PAGE NO. ITO VS. M/S NITINKUMAR & CO. 3 (H) THE ASSESSMENT FOR A..Y. 1992-93 WAS FINALIZED BY THE A, O. U/S. 144 R.W.S. 254 ON 14-12-2007 DETERMINING THE APPELLANT' S TOTAL INCOME AT RS. 18,90,190/- BY MAKING AN ADDITION OF RS, 15,27,190/ - ON ACCOUNT OF DISCLOSURE MADE BY THE APPELLANT, WHICH WAS CONFIRMED BY MY PREDECESSOR VIDE HIS ORDER DATED 11 -06-2009 (I) ACCORDING TO THE APPELLANT, THE DISCLOSURE HAD ARISEN DUE TO THE BALANCE SHEET DIFFERENCE OF RS. 18,32,964/- FOR A Y 1992-93 AND RS. 21,35,800/- FOR A.Y. 1993-94, WHICH WERE SUBSEQUEN TLY RETRACTED. 4.1 WHILE FINALIZING THE ASSESSMENT UNDER SECTION 1 44 R.W.S 254 OF THE I.T. ACT, 1961, WHICH PRESENTLY IN APPEAL BEFO RE THE UNDERSIGNED, THE ASSESSING OFFICER HAS MADE THE ADDITION OF RS. 16,45,308/- (ON ACCOUNT OF DIFFERENCE BETWEEN THE DISCLOSURE MADE B Y THE APPELLANT DURING THE COURSE OF RS. 21,28,148/- AND THE INCOME OF RS. 4,82,840/- ADMITTED BY THE APPELLANT IN THE REVISED RETURN OF INCOME).. 3. THE ONLY EFFECTIVE GROUND RAISED BY THE REVENUE IS AGAINST THE DELETION OF RS. 13,91,390/- OUT OF ADDITION MADE ON ACCOUNT OF DIFFERENCE OF RS. 16,45,308/- IN SHARAFI ACCOUNT AND DISCLOSURE M ADE BY THE ASSESSEE DURING THE SEARCH. NONE APPEARED ON BEHALF OF THE ASSESSEE. THE PROOF OF SERVICE OF NOTICE IS ON RECORD. UNDER THESE CIRCUM STANCES, THIS APPEAL WAS TAKEN UP FOR HEARING IN THE ABSENCE OF THE ASSESSEE . LD. SR. D.R. STRONGLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER AND SU BMITTED THAT THE DELETION MADE ON ACCOUNT OF DIFFERENCE OF INCOME IS NOT JUST IFIED. HE RELIED ON THE ASSESSMENT ORDER. 4. WE HAVE HEARD THE LD. SR. D.R. PERUSED THE MATER IAL AVAILABLE ON RECORD. WE FIND THAT LD. CIT(A) HAS DECIDED THIS M ATTER AS UNDER: 6. 1 HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MA DE BY THE A. R. OF THE APPELLANT. I HAVE ALSO GONE THROUGH THE OBSERVA TIONS OF THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. IT IS SEEN THAT SI MILAR ISSUE AROSE IN THE APPELLANT'S OWN CASE FOR A. Y 1992-93. MY PREDECESS OR VIDE HIS ORDER, REFERRED TO ABOVE HAS DECIDED THE SAID ISSUE AGAINS T THE APPELLANT AND ADDITION MADE BY THE ASSESSING OFFICER WAS CONFIR MED. A O'S REJECTION OF ITA NO. 308/AHD/2010 A.Y. 1993-94 PAGE NO. ITO VS. M/S NITINKUMAR & CO. 4 APPELLANT'S CONTENTION (THAT THERE WAS A MISTAKE TO THE TUNE OF RS 20 LAKHS IN MENTIONING THE CREDIT BALANCE IN THE NAME OF SHR I VIJAYKUMAR) WAS UPHELD BY MY PREDECESSOR I RESPECTFULLY AGREE WITH MY PREDECESSOR'S FINDING IN THIS REGARD. 7. HOWEVER, FOR THE ASSESSMENT YEAR UNDER CONSIDERA TION, THE A. R. OF THE APPELLANT HAS RAISED AN ALTERNATE PLEA. IT WAS SUBMITTED BY THE A R OF THE APPELLANT THAT THERE WAS DISCLOSURE OF RS. 18,8 2,965'- FOR A.Y 1992-93 AND RS 21,28,146/- FOR A.Y. 1993-94. THE CLT(A}-VLL , AHRNEDABAD VIDE HIS ORDER DATED 11-06-2009 FOR AY. 1992-93 HAD C ONFIRMED THE ADDITION OF RS 15,27,1990/- MADE BY THE ASSESSING OFFICER O N ACCOUNT OF DIFFERENCE IN THE DISCLOSURE MADE BY THE APPELLANT AND THE INC OME ADMITTED IN THE RETURN THE DISCLOSURE MADE WAS ON ACCOUNT OF EX CESS OF .ASSETS OVER .LIABILITIES IN THE BALANCE SHEET OF RS. 18, 82,964/-FOR A.Y. 1992-93 AND RS. 21,35,800/-FOR A Y 1993-94 WHICH WERE SUBSEQUEN TLY RETRACTED FOR BOTH THE YEARS 7.1 IT IS THE CONTENTION OF THE A R. THAT THE MIST AKE IN ACCOUNT OF SHRI VIJAYKUMAR AS IN THE YEAR ENDED ON 31-03-92 CONTINU ED IN THE YEAR ENDED ON 31.3.93, THE ADDITION MADE AND CONFIRMED FOR AY. 1992-93 SHOULD BE GIVEN SET OF AGAINST ADDITION OF A.Y 1993-94. ACCO RDING TO THE A R. THE ADDITION ON ACCOUNT OF MISTAKE SHOWN IN THE FIRST Y EAR CANNOT BE MADE IN NEXT YEAR ALSO WHEREIN THE MISTAKE IS REPEATED. HEN CE, IT WAS CLAIMED THAT ADDITION MADE BY THE A.O. IN AY 1992-93 OF RS. 15 , Z7,L90/- SHOULD BE GIVEN SET OFT AGAINST ADDITION OF RS. 16,45,308/- AND ONLY DIFFERENCE OF RS..1 , 18,118/.-.REQUIRES TO BE MADE. 7.1.2 . ACCORDING TO THE A. R FURTHER DIFFERENCE OF RS. 1.35.800/- APPEARING IN THE BALANCE SHEET OF RS. 21,35,800/- AS ON 31.3. 93 (RS. 22,07,500 CORRECT BALANCE OF SHRI VIJAYKUMAR - RS. 2.07,500/- SHOWN AND HENCE DIFFERENCE OF RS 20,00,000/- REQUIRED TO BE REDUCED FROM THE BALANCE SHEET DIFFERENCE OF RS. 21,35,800/- ) CAN ONLY BE A DDED. THEREFORE, IT WAS CONTENDED THAT AT THE WORTH RS. 1,18,118/-+ 1,35,800 = 2,53,913/-CAN BE SUSTAINED AGAINST ADDITION OF RS. 16,45,308/- BY TH E ASSESSING OFFICER. 7.1.3. VIDE PARA 6 OF THIS ORDER, THE APPELLANTS PLEA THAT THERE WAS A MISTAKE IN MENTIONING THE CREDIT BALANCE IN THE N AME OF SHRI VIJAYKUMAR WAS REJECTED BY ME. THE ALTERNATE PLEA OF THE LEAR NED A. R , IN A NUTSHELL, IS FOR TELESCOPING THE INCOME OF A. Y. 1992-93 (ON ACCOUNT OF THE EXCESS OF ASSETS OVER LIABILITIES AS ON 31-03-1992) CONFIRMED BY MY PREDECESSOR AGAINST THE INCOME FOR A. Y. 1993-94 (ON ACCOUNT OF THE EXCESS OF ASSETS OVER LIABILITIES AS ON 31.03-1993). THIS PLEA IS ON THE WELL ESTABLISHED PRINCIPLE THAT THE SAME INCOME CANNOT BE TAXED YEAR AFTER YEAR. THE DISCLOSURE FOR BOTH THE YEARS WAS MADE ON THE BASIS OF BALANCE SHEETS FOUND DURING THE COURSE OF SEARCH. THERE IS NOTHING ON RECORD TO SHOW THAT ITA NO. 308/AHD/2010 A.Y. 1993-94 PAGE NO. ITO VS. M/S NITINKUMAR & CO. 5 THE INCOME DISCLOSED AND CONFIRMED BY MY PREDECESSOR FOR A Y 1992-93 WAS INVESTED ELSEWHERE OR SPENT BY THE APPELLANT. 8. HAVING CONSIDERED THE FACTS OF THE CASE, I FIND SUFFICIENT FORCE IN THE CONTENTIONS PUT FORTH BY THE A. R. OF THE APPELLANT HENCE, L AM INCLINED TO DIRECT THE ASSESSING OFFICER TO SET-OFF THE ADDITION OF RS. 15,27,190/- MADE IN THE A. Y. 1992-93 AND RETAIN THE ADDITION O F RS 2,53,918/-. THUS THE APPELLANT GETS RELIEF OF RS. 13.01,390/- [RS.16,45.308/- -RS. 2,53,918/- ). 5. WE DO NOT FIND ANY INFIRMITY INTO THE ORDER OF T HE LD. CIT(A) AS THE RELIEF HAS BEEN GRANTED ON THE BASIS OF TELESCOPING . WE ARE IN AGREEMENT WITH THE OBSERVATION OF THE LD. CIT(A) THAT THE SAM E INCOME CANNOT BE TAXED YEAR AFTER YEAR. THIS OBSERVATION OF THE LD. CIT(A ) IS NOT CONTROVERTED BY THE REVENUE BY PLACING ANY OTHER EVIDENCE SUGGESTIN G THAT THE INCOME WAS NOT EARLIER TAXED. IN THIS VIEW OF THE MATTER, THI S GROUND OF THE REVENUES APPEAL IS DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (A.K. GARODIA) (KUL BHARAT) ACCOUNTANT MEMBER JU DICIAL MEMBER AHMEDABAD : DATED 05 /10/2012 A.K ITA NO. 308/AHD/2010 A.Y. 1993-94 PAGE NO. ITO VS. M/S NITINKUMAR & CO. 6 / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. / CONCERNED CIT 4. - / CIT (A)-III, BARODA 5. , ! , '# / DR, ITAT, AHMEDABAD 6. $% &' / GUARD FILE. BY ORDER/ , ( / ' ) ! , '# *