The ACIT, Vapi Circle, Vapi V. M/s. Silvassa Cement Products, Silvassa(UT of D & NH)

ITA 3101/AHD/2007

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 6163 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-06-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 16-06-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 16-07-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K M MAHESH
• Assessee Lawyers: M K PATEL
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : C BENCH : A HMEDABAD (BEFORE HONBLE SHRI D.T. GARASIA, J.M. & HON'BLE S HRI A.N. PAHUJA , A.M.) I.T.A. NO. 3101/AHD./2007 ASSESSMENT YEAR : 2004-2005 ASSISTANT COMMISSIONER OF INCOME TAX, -VS.- SILVASSA CEMENT PRODUCTS PVT. LTD., VAPI CIRLE, VAPI SILVASSA (PAN : AADCS 4 425 P) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.M. MAHESH, SR. D.R. RESPONDENT BY : SHRI M.K. PATEL O R D E R PER SHRI D.T. GARASIA, JUDICIAL MEMBER : THIS APPEAL FILED BY THE REVENUE IS AGAINST THE OR DER DATED 30.03.2007 OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS), VALSAD FOR THE ASSESSMENT YEAR 2004-05 ON THE FOLLOWING GROUNDS :- (1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED CIT(A.) HAS ERRED IN DELETING THE ADDITION OF UNACC OUNTED CASH SALE OF RS.24,96,232/-. (2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED CIT(A.) HAS ERRED IN GRANTING RELIEF TO ASSESSEE WI THOUT CONSIDERING THE FACT THE SUCH CASH SALES WAS NOT FOUND RECORDED IN THE REGULAR BOOKS OF ACCOUNTS MAINTAINED BY ASSESSEE, AS FOUND AND ADMITTED BY THE ASSESSEE DURING SURVEY PROCEEDINGS. (3) IT IS, THEREFORE, PRAYED THAT THE DECISION OF THE L EARNED CIT(A.) MAY BE SET ASIDE AND THE ORDER OF THE A.O. MAY BE RESTO RED. 2. DURING THE YEAR UNDER CONSIDERATION, SURVEY PROC EEDING WAS CONDUCTED IN THE BUSINESS PREMISES OF THE ASSESSEE-COMPANY UNDER SECTION 133A OF THE INCOME TAX ACT, 1961 ON 05.12.2003. DURING THE COURSE OF SURVEY, IT WAS FOU ND THAT THE ASSESSEE-COMPANY HAS SOLD CEMENT TO THE TUNE OF RS.24,95,232/- IN CASH, WHICH WAS DISCLOSED AS NOT ACCOUNTED DURING THE COURSE OF SURVEY PROCEEDINGS. THE ASSESSEE-COMPANY HAS INCLUDED THE SAME IN ITS BOOKS OF ACCOUNTS AND HAS INCREASED ITS INCOME TO THAT EXTEN T. THE ASSESSEE-COMPANY HAS NOT CLAIMED ANY DEDUCTION ON ACCOUNT OF PURCHASE OF CEMENT. UNDISCL OSED INCOME REFERS TO INCOME NOT REFLECTED 2 ITA NO. 3101/AHD/2007 IN THE BOOKS OF ACCOUNTS AT THE TIME OF SURVEY PROC EEDINGS. THE ASSESSING OFFICER WAS OF THE VIEW THAT IF THE PURCHASES ARE REFLECTED IN THE PRO FIT & LOSS ACCOUNT AND UNACCOUNTED SALES ARE CREDITED, ONLY THE PROFIT IS SUBJECT TO TAX. ACCORD INGLY, AS DECLARED BY THE ASSESSEE-COMPANY, THE EXTRA AMOUNT OF CASH SALES OUGHT TO HAVE SUFFERED T AX, THEREFORE, THE ENTIRE AMOUNT OF RS.24,95,232/- WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE-COMPANY. 3. ON APPEAL, IN THE IMPUGNED ORDER, THE LEARNED CO MMISSIONER OF INCOME TAX(APPEALS) DELETED THE ADDITION OF RS.24,95,232/- MADE BY THE ASSESSING OFFICER FOR THE DETAILED REASONS GIVEN IN PARA 6.4, WHICH READS AS UNDER :- 6.4. I HAVE PERUSED THE FACTS OF THE CASE AND THE CONTENTIONS OF APPELLANT COMPANY AND THE ASSESSING OFFICER. THE AP PELLANT COMPANY HAS SOLD CEMENT TO THE TUNE OF RS.24,95,232/- IN CA SH WHICH WAS DISCLOSED AS NOT ACCOUNTED DURING THE COURSE OF SUR VEY PROCEEDINGS. THE APPELLANT COMPANY LATER ON ACCOUNTED EACH AND EVERY ITEMS OF THE UNDISCLOSED INCOME IN ITS BOOKS OF ACCOUNTS AND OFF ERED THE SAME FOR TAXATION. THE APPELLANT COMPANY HAS ALSO SUBMITTED BEFORE THE ASSESSING OFFICER ALL THE RELEVANT DOCUMENTS IN SUP PORT OF ITS CLAIM. ADMITTEDLY, THERE IS NO DISPUTE AS TO THE FACT THAT THE UNACCOUNTED SALES HAS BEEN ADDED TO THE INCOME OF THE APPELLANT COMPA NY AND THE ASSESSING OFFICER HIMSELF HAS ACCEPTED IT. I DID NO T FIND ANY MERIT IN THE CONTENTION OF THE ASSESSING OFFICER AND THE ADDITIO N MADE BY THE ASSESSING OFFICER IS HEREBY DELETED. THE APPELLANT COMPANY SUCCEEDS IN THIS GROUND OF APPEAL. 4. AT THE TIME OF HEARING BEFORE US, SHRI K.M. MAHE SH, SR. D.R. APPEARING ON BEHALF OF REVENUE SUBMITTED THAT THE ASSESSEE HAS NOT RECORDE D IN REGULAR BOOKS OF ACCOUNTS CASH SALES OF RS.24,96,232/- AS NOTICED BY SURVEY PARTY DURING TH E SURVEY PROCEEDINGS. THIS FACT WAS ADMITTED BY ONE OF THE PARTNERS OF THE FIRM AND SUBSEQUENTLY RECONFIRMED IN THE AFFIDAVIT-LETTER DATED 29.03.2004. IN VIEW OF THESE FACTS, THE ASSESSING O FFICER HAS RIGHTLY MADE THE ADDITION OF UNACCOUNTED CASH SALES AS NOT FOUND RECORDED BY THE SURVEY PARTY AND AS ADMITTED BY THE ASSESSEE IN THE STATEMENT RECORDED DURING THE COURSE OF SURV EY PROCEEDINGS. 5. ON THE OTHER HAND, SHRI M.K. PATEL, LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE AT THE TIME OF SURVEY PROCEEDING S CONDUCTED ON 05.12.2003, THE ASSESSEE HAS DECLARED UNACCOUNTED CASH SALES OF RS.24,95,232/-, WHICH WAS INCLUDED IN SALES ACCOUNT OF CEMENT. IN SUPPORT OF THIS, THEY WERE ENCLOSED COPY OF THE CASH BOOK AND COPY OF THE SALES REGISTER REFLECTING THE SAME FOR VERIFICATION. THE ASSESSING OFFICER IN HIS ASSESSMENT ORDER HAS 3 ITA NO. 3101/AHD/2007 STATED THAT THE ASSESSEE-COMPANY HAS SOLD CEMENT TO THE TUNE OF RS.24,95,232/- IN CASH, WHICH WAS DISCLOSED AS NOT ACCOUNTED DURING THE COURSE OF SURVEY PROCEEDINGS. NOW THE COMPANY HAS INCLUDED THE SAME IN ITS BOOKS OF ACCOUNTS AND HAS INCREASED ITS INCOME TO THAT EXTENT. THE ASSESSEE-COMPANY HAS NOT CLAIMED ANY DEDUCTION ON A CCOUNT OF PURCHASE OF CEMENT. THE EXPLANATION OF THE ASSESSEE-COMPANY THOUGH LOGICAL AND NOT BE ACCEPTED. THEREFORE, THE ASSESSING OFFICER WAS OF THE VIEW THAT EXPLANATION OF THE ASSESSEE-COMPANY IS LOGICAL. THE ASSESSING OFFICER HAS NOT ACCEPTED, WHICH THE LEARN ED COMMISSIONER OF INCOME TAX(APPEALS) HAS ACCEPTED, THEREFORE, THE DEPARTMENTAL APPEAL SH OULD BE DISMISSED. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. WE HAVE GONE THROUGH THE CONTENTION OF THE ASSESSEE AND THE ASSESSING OFFICE R. THE ASSESSEE-COMPANY HAS SOLD CEMENT TO THE TUNE OF RS.24,95,232/- IN CASH, WHICH WAS NOT D ISCLOSED AS NOT ACCOUNTED DURING THE COURSE OF SURVEY PROCEEDINGS. THE ASSESSEE-COMPANY LATER ON A CCOUNTED EACH AND EVERY ITEMS OF THE UNDISCLOSED INCOME IN ITS BOOKS OF ACCOUNTS AND OFF ERED THE SAME FOR TAXATION. THE ASSESSEE- COMPANY HAS SUBMITTED ALL THE RELEVANT DOCUMENTS IN SUPPORT OF ITS CLAIM. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS HELD THAT T HERE IS NO DISPUTE TO THE FACTS THAT UNACCOUNTED SALES HAS BEEN ADDED TO THE INCOME OF T HE ASSESSEE-COMPANY AND THE ASSESSING OFFICER HAS ACCEPTED IT. THEREFORE, THERE IS NO REA SON TO MAKE THE ADDITION OF RS.24,95,232/- AND THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS DELETED THE SAME. WE FIND THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS HEL D THAT THE ASSESSEE HAS SOLD CEMENT TO THE TUNE OF RS.24,95,232/- IN CASH, WHICH WAS NOT A CCOUNTED DURING THE COURSE OF SURVEY PROCEEDINGS. THE ASSESSEE-COMPANY LATER ON ACCOUNTE D EACH AND EVERY ITEMS OF THE UNDISCLOSED INCOME IN ITS BOOKS OF ACCOUNTS AND OFFERED THE SAM E FOR TAXATION. THUS THERE IS NO DISPUTE TO THE FACT THAT UNDISCLOSED SALES OF CEMENT HAVE BEEN ADD ED BACK TO THE INCOME OF THE ASSESSEE- COMPANY. THEREFORE, WE ARE OF THE VIEW THAT LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IS JUSTIFIED IN DELETING THE ADDITION MADE ON ACCOUNT OF UNACCOUNTED CASH SALES OF RS.24,96,232/-. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. THE ORDER WAS PRONOUNCED IN THE COURT ON 16.06.201 0 SD/- SD/- (A.N. PAHUJA) (D.T. GARASIA ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 16 / 06 / 2010 4 ITA NO. 3101/AHD/2007 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A) CONCERNED, (4) CIT CONCERNED, (5) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGI STRAR, ITAT, AHMEDABAD LAHA/SR.P.S.