Shri Harshadray M.Shah, Dahod V. The ACIT.,Cent.Circle-1, Baroda

ITA 3141/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6607 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-05-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 24-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S A BOHRA
• Section: 132

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BEFORE S/SHRI M.K. SHRAWAT, JM AND D.C.AGRAWAL, AM HARSHADRAY M. SHAH, 1, AMRUTWADI, YAMUNA NIVAS, STATION ROAD, DAHOD. VS. ACIT, CENT. CIRCLE-1, BARODA. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI SAKAR SHARMA, AR RESPONDENT BY:- SHRI S.A. BOHRA, SR.DR O R D E R PER D.C. AGRAWAL, ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE ASSESSEE RAISING FO LLOWING GROUND :- (1) LD. CIT(A) ERRED ON FACTS AND IN LAW IN CONFIRMING ADDITION OF RS.2,33,921/- MADE BY THE AO ON ACCOUNT OF CASH FOU ND IN THE COURSE OF SEARCH. 2. THE ONLY ISSUE INVOLVED IN THE APPEAL IS ABOUT N ON-ACCEPTING EXPLANATION IN RESPECT OF CASH OF RS.2,33,921/- FOU ND IN THE SEARCH. THE FACTS OF THE CASE ARE THAT SEARCH U/S 132 WAS CARRI ED OUT IN THE CASE OF M/S YAMUNA GROUP ON 19.9.2006. APART FROM OTHER THINGS CASH OF RS.9,82,382/- WAS FOUND AS UNDER :- THE CASH WAS FOUND FROM THE FOLLOWING PLACES BY THE SEARCH PARTY (1) LOCKER NO.491 OF SHRI KALPIT SHAH/SMT. JYOTI SHAH RS.2,85,000/- (2) LOCKER NO.872 F OF SHRI HARSHAD M. SHAH/SMT. RS .15,000/- ITA NO.3141/AHD/2009 ASST. YEAR 2007-08 ITA NO.3141/AHD/2009 ASST. YEAR 2007-08 2 USHABEN SHAH (3) LOCKER NO.63 OF USHABEN SHAH RS.60,000/- (4) LOCKER NO.766 OF SMT. JYOTI K. SHAH RS.67,000/- (5) GODHRA RESIDENCE OF SHRI KALPIT H. SHAH RS.1,30 ,000/- (6) BUSINESS PREMISES OF SHREE YAMUNA PULSES/SHREE YANUNA AKSHAT (P) LTD. RS.15,000/- (7) BUSINESS PREMISES OF SHREE YAMUNA PROTEINS RS.1 ,31,487/- (8) RESIDENCE AT YAMUNA NIWAS, DAHOD RS.42,815/- (9) RESIDENCE AT KALINDI BUNGLOW, DAHOD. RS.2,36,00 0/- TOTAL RS.9,82,382/- THIS CASH WAS EXPLAINED AS BELONG TO EACH ENTITIES OF THE GROUP AS UNDER :- ASSESSEE HAD CASH BALANCE AS PER BOOKS OF ACCOUNTS REGULARLY MAINTAINED IN THE COURSE OF BUSINESS AS UNDER (I) SHREE YAMUNA AKSHAT P. LTD., DAHOD RS.2,18,939. 00 (II) SHREE YAMUNA PROTEINS-GODHRA RS.2,26,989.00 (IV) SHREE YAMUNA PULSES-DAHOD RS.2,65,986.00 (V) NUTAN PULSES-DAHOD RS.36,547.00 (VI) CASH HELD BY MEMBERS OF FAMILY OUT OF WITHDRAWALS FROM FIRM/BANK ACCOUNTS/PAST SAVINGS RS.2,33,921.00 RS.9,82,382.00 THE AO INFERRED THAT ASSESSEE HAD CASH IN EXCESS OF RS.2,33,921/-. SINCE ASSESSEE HAD OWNED UP ALL THE DISCLOSURE MADE AT RS .89,50,475/- IN ALL, THIS EXCESS CASH SHOULD BELONG TO HIM ONLY. THOUGH IT IS EXPLAINED THAT IT IS OUT OF WITHDRAWALS OF THE FAMILY MEMBERS FROM TH E FIRM, BANK ACCOUNT OR PAST SAVINGS BUT AS ASSESSEE WAS UNABLE TO SUBST ANTIATE IT WITH THE NECESSARY BOOKS OF ACCOUNT OR FURNISHING OTHER EVID ENCES THE AO TREATED IT AS UNEXPLAINED AND ADDED IN THE TOTAL INCOME. ITA NO.3141/AHD/2009 ASST. YEAR 2007-08 3 3. THE LD. CIT(A) CONFIRMED THE ADDITION ON THE GRO UND THAT EXPLANATION FURNISHED BY THE ASSESSEE WAS NOT SUBST ANTIATED. HE HELD THE CASH AS UNEXPLAINED. 4. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERI AL ON RECORD. BEFORE US, THE LD. AR SUBMITTED THAT ASSESSEE HAD M ADE TOTAL DISCLOSURE OF RS.89,50,475/- WHICH WAS AGAINST VARIOUS INVESTMENT S AMOUNTING TO RS.33,91,428/- AND REST WAS CASH AVAILABLE WITH HIM . THIS CASH PERTAINED TO VARIOUS CONCERNS AND AS FOUND DURING THE COURSE OF SEARCH. HE SUBMITTED THAT CASH FOUND WAS LESS BECAUSE A SPECIF IC PREMISES BELONGING TO THE ASSESSEE WAS NOT SEARCHED AND AT THAT PREMIS ES CASH WAS KEPT. THE LD. AR REFERRED TO THE FOLLOWING DETAILS OF THE DIS CLOSURE:- INCOME DISCLOSED INCOME DISCLOSED IN RESPECT OF LOANS AND ADVANCES ON PE AK BASIS IN A.Y 2005-06 7900000 INTEREST ON UNREALIZED LOANS AND ADVANCES EARNED IN A. Y 2005-06 525675 INTEREST ON UNREALIZED LOANS AND ADVANCES EARNED IN A. Y 2006-07 524800 TOTAL INCOME DISCLOSED 8950475 APPLICATION OF INCOME DISCLOSED PPF CONTRIBUTION OF MINORS AND FAMILY MEMBERS IN A. Y 2005-06 10000 INVESTMENTS IN FDRS, BANK DEPOSITS, PPF, BONDS, NSC, KV P ETC. BY FAMILY MEMBERS IN A.Y 2005-06 53388 ITA NO.3141/AHD/2009 ASST. YEAR 2007-08 4 INVESTMENTS IN FDRS, BANK DEPOSITS, PPF, BONDS, NSC, KV P ETC. BY FAMILY MEMBERS IN A.Y 2006-07 66000 PURCHASE OF HOUSEHOLD ARTICLES IN A.Y 2005-06 46265 PURCHASE OF HOUSEHOLD ARTICLES IN A.Y 2006-07 16500 PURCHASE OF HOUSEHOLD ARTICLES IN A.Y 2007-08 23600 FUNDS APPLIED FOR CONSTRUCTION OF KALINDI BUNGLOW BELO NGING TO WIFE IN A.Y 2006-07 1250000 WITHDRAWAL TO MEET HOUSEHOLD EXPENSES, PURCHASE OF JEWELL ERY AND OTHER ITEMS NOT SPECIFICALLY IDENTIFIED IN A.Y 2006-07 100000 WITHDRAWAL TO MEET HOUSEHOLD EXPENSES, PURCHASE OF JEWELL ERY AND OTHER ITEMS NOT SPECIFICALLY IDENTIFIED IN A.Y 2007-08 1025675 ADVANCE TO SURJAN CONSTRUCTION INCLUDING GIVEN BY NIMES H SHAH AND RETURNED BACK SUBSEQUENTLY BY CHEQUE IN A.Y 2006-07 800000 TOTAL APPLICATION OF INCOME DISCLOSED 3391428 CASH BALANCE REMAIN UNUTILIZED OUT OF INCOME DISCLOSED 5559047 ADD: CASH BALANCE AT THE END OF A.Y 2005-06 566899 CLOSING CASH BALANCE FOR A.Y 2007-08 6125946 5. AFTER HEARING THE LD. DR AND VERIFYING THE ABOVE DETAILS OF THE DISCLOSURE WITH THE CASH FLOW STATEMENT BEFORE THE AUTHORITIES, WE ARE OF THE VIEW THAT CASH OF RS.2,33,921/- IS EXPLAINABLE FROM THE CASH AVAILABLE AT RS.61,25,946/- AS PER DISCLOSURE MADE. IN OTHER WORDS THE CASH SO FOUND IS COVERED BY THE DISCLOSURE AND, THEREFORE, NO FURTHER ADDITION IS REQUIRED TO BE MADE. THE ADDITION IS DELETED. AS A RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ITA NO.3141/AHD/2009 ASST. YEAR 2007-08 5 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER WAS PRONOUNCED IN OPEN COURT ON 13/5/11. SD/- SD/- (M. K. SHRAWAT) (D.C. AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMB ER AHMEDABAD, DATED : 13/5/11. MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD 1.DATE OF DICTATION 11 /05/2011 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 12/05/ 2011 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.. 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..