SMT. MAMTA HALDIA, Jaipur V. DCIT, Jaipur

ITA 31/JPR/2011

• Counselvise Citation: 3123114 RSA 2011
• Duration Of Justice: 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 20-10-2011
• Assessment Year: 2008-2009
• Appeal Filed On: 07-01-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUBHASH CHANDRA
• Assessee Lawyers: NEERAJ BORAD; M L BORAD MANISH BORAD
• Section: 133A

Judgement Text

1 ITA 31(6)-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH B JAIPUR BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ITA NO. 31, 729,728, 727 & 726/JP/2011. ASSTT. YEAR : 2008-09, 07-08, 05-06, 04-05 03-0 4. SMT. MAMTA HALDIA, VS. THE DCIT, CENTRAL CIRCLE- 3, C-18, JYOTI MARG, BAPU NAGAR, JAIPUR. JAIPUR. ITA NO. 101/JP/2011 ASSTT. YEAR : 2008-09. THE DCIT, CENTRAL CIRCLE-3, VS. SMT. MAMTA HALDIA , JAIPUR. JAIPUR. (APPELLANTS) (RESPONDENTS) ASSESSEE BY : SHRI M.L. BORAD, MANISH BORAD & NEERAJ BORAD DEPARTMENT BY : SHRI SUBHASH CHANDRA DATE OF HEARING : 20.10.2011. DATE OF PRONOUNCEMENT : 19.12.2011. ORDER DATE OF ORDER : 19/12/2011. PER BENCH : THESE ARE SIX APPEALS, OUT OF WHICH ONE APPEAL IS BY DEPARTMENT FOR THE ASSESSMENT YEAR 2008-09 AND THE REMAINING APPEALS A RE BY ASSESSEE RELATING TO ASSESSMENT YEARS 2008-09, 2007-08, 2005-06, 2004-05 AND 2003-04. 2. SINCE COMMON ISSUES ARE INVOLVED, THEREFORE, THE Y ARE BEING DISPOSED OFF TOGETHER. 2 3. THE ONLY ISSUE IN THE APPEAL OF THE DEPARTMENT F OR THE ASSESSMENT YEAR 2008-09 IS AGAINST DELETING ADDITION OF RS. 48,16,027/- OUT OF TOTAL ADDITION OF RS. 1,00,39,000/-. 4. IN APPEAL OF THE ASSESSEE GROUND NOS. 2 TO 4 ARE AGAINST SUSTAINING THE ADDITION OF RS. 52,22,973/- OUT OF TOTAL ADDITION OF RS. 1,00,3 9,000/-. 5. SINCE THESE GROUNDS ARE CO-RELATED, THEREFORE, T HEY ARE BEING DISPOSED OFF TOGETHER. 6. BRIEF FACTS OF THE CASE ARE SIMILAR TO THE FACTS INVOLVED IN THE CASE OF SHRI RAVI HALDIA, SMT. DEEPALI HALDIA AND SHRI DINESH HALDIA. WE HAVE DISPOSED OFF THOSE CASES AND BRIEF FACTS HAVE BEEN DISCUSSED IN THE CASE OF SMT. DEEPALI HALDIA IN PARA 7 TO 14.1 AT PAGES 2 TO 23 IN ITA NO. 29/JP/2011 AND OTHERS OF E VEN DATE. THE LD. CIT (A) HAS ALSO MENTIONED SIMILAR FACTS IN ALL THESE CASES INCLUDIN G THE ASSESSEE I.E. SMT. MAMTA HALDIA. SIMILAR SUBMISSIONS ON BEHALF OF THOSE ASSESSEES HA VE BEEN FILED BEFORE LD. CIT (A) AND THEREAFTER HE HAS GIVEN HIS FINDINGS. THESE FINDIN GS HAVE BEEN REPRODUCED AS MENTIONED ABOVE IN THE CASE OF SMT. DEEPALI HALIDA (SUPRA). PROPORTIONATELY THE LD. CIT (A) HAS CONFIRMED THE ADDITION IN THE HANDS OF THE ASSESSEE ON PROTECTIVE BASIS AS WAS CONFIRMED SIMILARLY IN CASES OF SMT. DEEPALI HALDIA AND SHRI DINESH HALDIA. 7. SUBSTANTIVE ADDITION WAS MADE IN CASE OF SHRI RA VI HALDIA. THE APPEAL IN CASE OF SHRI RAVI HALDIA HAS ALREADY BEEN DISPOSED OFF BY U S WHEREBY WE HAVE DELETED THE ENTIRE ADDITION ON MERIT ON ACCOUNT OF EXCESS STOCK. THER EFORE, FOR THE SAME REASONING, THE ADDITION IN CASE OF PRESENT ASSESSEE SMT. MAMTA HAL DIA IS ALSO LIABLE TO BE DELETED AND ACCORDINGLY THE ADDITION IS DELETED. IN SIMILAR MA NNER WE HAVE DELETED THE ADDITION IN CASE OF SMT. DEEPALI HALDIA AND SHRI DINESH HALDIA. THE APPEALS OF BOTH THESE PERSONS HAVE BEEN SEPARATELY DECIDED BY ORDER OF EVEN DATE. ACCORDINGLY, THE GROUNDS OF THE ASSESSEE ARE ALLOWED AND GROUND OF THE DEPARTMENT I S DISMISSED. 3 8. NOW WE WILL TAKE UP THE REMAINING GROUNDS IN THE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2008-09. 9. GROUND NO. 1 IS AGAINST SUSTAINING THE ACTION OF THE AO OF SURVEY UNDER SECTION 133A AND SEARCH UNDER SECTION 132(1) WAS NOT PRESSE D. THEREFORE, THE SAME IS DISMISSED AS NOT PRESSED. 10. GROUND NO. 5 IS AGAINST SETTING OFF/DEDUCTING S IMULTANEOUS TRADING ADDITIONS AGAINST THE ADDITION ON ACCOUNT OF EXCESS STOCK. 11. ON ACCOUNT OF EXCESS STOCK, WE HAVE ALREADY DEL ETED THE ADDITION WHICH WAS MADE ON PROTECTIVE BASIS. THEREFORE, THIS GROUND DOES NO T REQUIRE ANY ADJUDICATION SEPARATELY AND ACCORDINGLY THE SAME IS DISMISSED. 12. GROUND NO. 6 IS AGAINST SUSTAINING THE APPLICAT ION OF PROVISIONS OF SECTION 145(3) IS ALSO DISMISSED AS ON SIMILAR FACTS IN OTHER CASE S THIS GROUND HAS BEEN REJECTED. 13. GROUND NO. 7 IS AGAINST SUSTAINING THE APPLICAT ION OF GP RATE OF 30% AGAINST DECLARED GP RATE OF 10.98%. 14. SIMILAR ISSUE WAS INVOLVED IN ALL OTHER CASES I .E. IN CASE OF SHRI RAVI HALDIA, SMT. DEEPALI HALDIA AND SHRI DINESH HALDIA WHERE WE HAVE DIRECTED TO APPLY A REASONABLE RATE. ASSESSEE HAS DECLARED GP RATE AT 10.98%. THE REFORE, WE ARE OF THE VIEW THAT IF A GP RATE OF 15% IS APPLIED, THEN IT WILL MEET THE ENDS OF JUSTICE. ACCORDINGLY, WE DIRECT THE AO TO RECALCULATE THE TRADING ADDITION BY APPLYING GP RATE OF 15% AGAINST 10.98% SHOWN BY ASSESSEE AND AGAINST 30% APPLIED BY THE AO. 15. GROUND NO. 8 IS AGAINST SUSTAINING ADDITION @ 2 5% OF UNVERIFIABLE PURCHASES. 4 16. SIMILAR GROUND WAS INVOLVED IN THE CASES OF OTH ER PERSONS MENTIONED ABOVE WHERE WE HAVE ALLOWED SIMILAR GROUND AS WE HAVE ALREADY S USTAINED TRADING ADDITION. ACCORDINGLY THIS GROUND IS ALLOWED. 17. NOW WE WILL TAKE UP THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2003-04. 18. GROUND NO. 1 IS AGAINST SUSTAINING THE APPLICAT ION OF PROVISIONS OF SECTION 145(3) IS ALSO DISMISSED AS ON SIMILAR FACTS IN OTHER CASE S THIS GROUND HAS BEEN REJECTED. 19. GROUND NO. 2 IS AGAINST SUSTAINING TRADING ADDI TION OF RS. 2,22,208/- BY APPLYING GP RATE OF 30% AS AGAINST GP RATE SHOWN BY ASSESSEE AT 13.82%. 20. SIMILAR ADDITION WAS MADE FOR ASSESSMENT YEAR 2 008-09 AND WE HAVE DIRECTED TO APPLY 15% GP AGAINST 10.98%. HERE GP RATE IS SHOWN AT 13.82%, THEREFORE, AO IS DIRECTED TO RECALCULATE THE TRADING ADDITION BY APP LYING GP RATE AT 17%. 21. NEXT ISSUE IS AGAINST SUSTAINING ADDITION @ 25% OF UNVERIFIABLE PURCHASES AND CASH PURCHASES. 22. WE HAVE ALREADY SUSTAINED TRADING ADDITION, THE REFORE, NO SEPARATE ADDITION IS REQUIRED TO BE MADE AS HELD IN VARIOUS OTHER CASES OF THIS GROUP. ACCORDINGLY THIS GROUND OF THE ASSESSEE IS ALLOWED. 23. REMAINING GROUND IS AGAINST SUSTAINING 10% DISA LLOWANCE OF VARIOUS EXPENSES IS REJECTED AS SIMILAR GROUND WAS REJECTED IN OTHER CA SES OF THE SAME GROUP. 24. NOW WE WILL TAKE UP THE APPEAL FOR ASSESSMENT Y EAR 2004-05. 25. FIRST GROUND IS REJECTED WHICH IS AGAINST UPHOL DING APPLICATION OF PROVISIONS OF SECTION 145(3) AS SIMILAR GROUND WAS REJECTED IN OT HER CASES OF THE SAME GROUP. 26. SECOND GROUND IS AGAINST CONFIRMING TRADING ADD ITION OF RS. 9,11,038/- MADE BY APPLYING GP RATE AT 30% AS AGAINST 10.33% DECLARED BY ASSESSEE. 5 27. WE ARE OF THE VIEW THAT IF A GP RATE AT 15% IS APPLIED THEN IT WILL MEET THE ENDS OF JUSTICE. ACCORDINGLY WE DIRECT THE AO TO RECALCULA TE THE TRADING ADDITION BY APPLYING 15% OF GP RATE. 28. GROUND NO. 3 RELATES TO CONFIRMING THE ADDITION @ 25% OF UNVERIFIABLE PURCHASES AND CASH PURCHASES. 29. SINCE WE HAVE ALREADY SUSTAINED TRADING ADDITIO N, THEREFORE, THERE IS NO NEED TO MAKE SEPARATE ADDITION @ 25% OF UNVERIFIABLE PURCHA SES, AS HELD IN VARIOUS OTHER CASES OF THE SAME GROUP. ACCORDINGLY, THIS GROUND OF THE ASSESSEE IS ALLOWED. 30. REMAINING GROUND IS AGAINST CONFIRMING 10% DISA LLOWANCE OF VARIOUS EXPENSES IS REJECTED AS SIMILAR GROUND WAS REJECTED FOR ASSESSM ENT YEAR 2003-04 AND OTHER CASES OF THE SAME GROUP. 31. NOW WE WILL TAKE UP THE APPEAL FOR ASSESSMENT Y EAR 2005-06. 32. FIRST GROUND IS REJECTED WHICH IS AGAINST UPHOL DING APPLICATION OF PROVISIONS OF SECTION 145(3) AS SIMILAR GROUND WAS REJECTED IN OT HER CASES OF THE SAME GROUP. 33. GROUND NO. 2 IS AGAINST CONFIRMING TRADING ADDI TION OF RS. 4,50,545/- BY APPLYING GP RATE OF 30% AS AGAINST GP RATE OF 10.11% SHOWN B Y ASSESSEE. 34. SIMILAR GROUND WAS INVOLVED FOR ASSESSMENT YEAR S 2003-04 AND 04-05 WHERE WE HAVE DIRECTED TO APPLY REASONABLE RATE. HERE WE FE EL THAT IF GP RATE OF 15% IS APPLIED THAT WILL MEET THE ENDS OF JUSTICE. ACCORDINGLY, WE DIR ECT THE AO TO RECALCULATE THE TRADING ADDITION. 35. GROUND NO. 3 IS AGAINST CONFIRMING ADDITION @ 2 5% OF UNVERIFIABLE PURCHASES AND CASH PURCHASES. 6 36. SIMILAR GROUND WAS INVOLVED IN EARLIER YEARS A PPEALS. WE HAVE ALLOWED THE GROUND IN THOSE YEARS. THEREFORE, FOR THE SAME REA SONING, THE GROUND OF THE ASSESSEE IS ALLOWED FOR THE YEAR UNDER CONSIDERATION ALSO. 37. NEXT ISSUE IS AGAINST CONFIRMING DISALLOWANCE @ 10% OF VARIOUS EXPENSES IS ALSO REJECTED AS SIMILAR GROUND WAS REJECTED IN THE CASE OF OTHER GROUP CASES FOR ASSESSMENT YEARS 2003-04 AND 04-05. 38. NOW WE WILL TAKE UP THE APPEAL FOR ASSESSMENT Y EAR 2007-08. 39. FIRST GROUND IS REJECTED WHICH IS AGAINST UPHO LDING APPLICATION OF PROVISIONS OF SECTION 145(3) AS SIMILAR GROUND WAS REJECTED IN OT HER CASES OF THE SAME GROUP. 40. NEXT ISSUE IS AGAINST CONFIRMING TRADING ADDITI ON OF RS. 1,76,838/- MADE BY APPLYING GP RATE OF 30% AS AGAINST 10.02%. 41. SIMILAR ADDITION WAS MADE IN EARLIER YEARS WHER E WE HAVE DIRECTED TO APPLY 15% GP RATE AGAINST 10.2% SHOWN BY ASSESSEE. ACCORDING LY IN THIS YEAR ALSO WE DIRECT THE AO TO RECALCULATE THE ADDITION BY APPLYING A GP RAT E OF 15%. 42. NEXT ISSUE IS AGAINST CONFIRMING ADDITION @ 25% OF UNVERIFIABLE PURCHASES AND CASH PURCHASES. 43. SIMILAR ISSUE WAS INVOLVED IN EARLIER YEAR AND WE HAVE ALLOWED THE ISSUE IN FAVOUR OF THE ASSESSEE. THEREFORE, FOR THE YEAR UNDER CON SIDERATION ALSO THIS GROUND IS ALLOWED. 44. REMAINING ISSUE IS AGAINST CONFIRMING 10% DISAL LOWANCE OF VARIOUS EXPENSES IS REJECTED AS SIMILAR GROUND WAS REJECTED FOR EARLIER YEAR ALSO. 45. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISM ISSED AND APPEALS OF THE ASSESSEE ARE ALLOWED IN PART. 7 46. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 19 .12.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR, D/- COPY FORWARDED TO :- SMT. MAMTA HALDIA, JAIPUR. THE DCIT, CENTRAL CIRCLE-3, JAIPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 31(6)/JP/2011) BY ORDER, AR ITAT JAIPUR.