DCIT, Agra V. Smt. Kalyani Chaturvedi, Agra

ITA 332/AGR/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7063 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 18-04-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 27-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Keywords: Unexplained investment
• Section: 44AD; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO.332/AGR/2009 ASST. YEAR: 2005-06 DY. COMMISSIONER OF INCOME TAX, VS. SMT. KALYANI C HATURVEDI, CENTRAL CIRCLE, AGRA. 503, NARAIN TOWER, SANJAY PLACE, AGRA. PRESENT ADDRESS: 505, BIBHAV EXOTICA, SURYA NAGAR, AGRA. (PAN : ACUPC 6044 Q). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.K. SHARMA, JR. D.R. RESPONDENT BY : SHRI MRADUL PATHAK, C.A. ORDER PER H.S. SIDHU, J.M. : THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST TH E ORDER DATED 20.05.2009 PASSED BY THE LD. CIT(A)-II, AGRA ON THE FOLLOWING GROUNDS :- 1. THAT THE LD. CIT(A)-II, AGRA HAS ERRED IN LAW A ND ON FACTS IN ALLOWING RELIEF OF ` 13,11,200/- MADE ON ACCOUNT OF EXTRA PROFIT FROM CONSTRUCTION WORK WITHOUT PROPERLY APPRECIATING THE FACTS BROUGHT ON RECORD BY THE ASSESSING OFFICER. 2 2. THAT LD. CIT(A)-II, AGRA HAS ERRED IN LAW AND ON FACTS IN DELETING ADDITION OF ` 15,00,000/- MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PROPERTY WITHOUT PROPERLY APPRECIATIN G THE FACTS BROUGHT ON RECORD BY THE ASSESSING OFFICER. 3. THAT THE ORDER OF THE LD. CIT(A), AGRA BEING ERR ONEOUS IN LAW AND ON FACTS BE VACATED AND THE ORDER OF THE A.O. B E RESTORED. 4. THAT THE APPELLANT CRAVES LEAVE TO AMEND THE GRO UNDS OF THE APPEAL AS STATED ABOVE, AS AND WHEN NEED FOR DOING SO ARISE. 5. WITHOUT PREJUDICE TO THE ABOVE GROUNDS OF APPEAL , THE APPELLANT WANTS TO TAKE THE FOLLOWING ADDITIONAL GROUND OF AP PEAL:- THAT THE LD. CIT(A)-II, AGRA HAS ERRED IN LAW AND ON FACTS IN ALLOWING ABOVE RELIEF BY HOLDING THAT THE REMAND REPORT AS S UBMITTED BY A.O. IS GENERAL IN NATURE, WHEREAS THE LD. CIT(A) HAS CALLE D FOR THE REPORT U/S. 250(4) OF IT ACT 1961 BY DIRECTING THE ASSESSING OF FICER TO SUBMIT PARAWISE COMMENTS ON WRITTEN SUBMISSIONS FILED BY T HE ASSESSEE WITHOUT GIVING ANY SPECIFIC DIRECTION FOR FURTHER ENQUIRY A S ENVISAGED IN SECTION 250(4) OF THE ACT. THE APPELLANT REQUESTS THE HON BLE ITAT TO RESTORE THE CASE BACK TO THE FILE OF THE LD. CIT(A) WITH TH E DIRECTION THAT THE LD. CIT(A) SHOULD CALL FRESH REPORT U/S 250(4) OF THE A CT WITH THE SPECIFIC LINE OF FURTHER ENQUIRY TO BE CONDUCTED MENTIONED T HEREIN. 2. THE BRIEF FACTS RELATING TO THE ISSUE IN DISPUTE ARE THAT THE ASSESSEES RESIDENTIAL PREMISES WAS SEARCHED BY THE DEPARTMENT UNDER SECTI ON 132(1) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) ON 16.09.29004. DURING THE COURSE OF SEARCH, CERTAIN CASH, JEWELLERY AND DOCUMENTS ETC. WERE FOU ND. THE ASSESSEE WAS CONFRONTED WITH THE SEIZURE MATERIAL FOR WHICH THE ASSESSEE FI LED VARIOUS REPLIES BEFORE THE ASSESSING OFFICER. AFTER CONSIDERING ALL THE EVIDE NCES FILED BY THE ASSESSEE, THE ASSESSING OFFICER MADE THE VARIOUS ADDITIONS INCLUD ING THE ADDITION IN DISPUTE BY 3 COMPLETING THE ASSESSMENT UNDER SECTION 143(3) OF T HE ACT ON 29.12.2006. AGGRIEVED BY THE SAME, THE ASSESSEE FILED APPEAL BE FORE THE LD. FIRST APPELLATE AUTHORITY WHO, VIDE THE IMPUGNED ORDER DATED 20.05. 2009, DELETED THE ADDITION IN DISPUTE. NOW, THE REVENUE HAS FILED THE PRESENT AP PEAL AGAINST THE IMPUGNED ORDER. 3. AT THE TIME OF HEARING, THE LD. D.R. RELIED UPON THE ORDER PASSED BY THE ASSESSING OFFICER AND, ON THE CONTRARY, THE LD. COU NSEL FOR THE ASSESSED RELIED UPON THE IMPUGNED ORDER PASSED BY THE LD. FIRST APPELLAT E AUTHORITY. HE HAS ALSO FILED ONE SMALL PAPER BOOK CONTAINING PAGE NOS.1 TO 18, I N WHICH, HE HAS ATTACHED THE FOLLOWING :- 1. COPY OF INCOME TAX RETURN AND COMPUTATION 2. COPY OF ACCOUNT OF CONSTRUCTION RECEIPTS 3. COPY OF PAGE NO.21 & 22 OF ANNEXURES A-1 SHOWING INVESTMENTS IN PROPERTY AT JAI RAM BAGH 4. COPY OF PAGE NO.8 OF ANNEXURE A-1 SHOWING INVE STMENTS IN PROPERTY AT VAYU VIHAR, PATHOLI 5. COPY OF RELEVANT LEDGER ACCOUNTS RELATING TO INV ESTMENTS IN PROPERTY AT VAYU VIHAR, PATHOLI 6. COPY OF RELEVANT LEDGER ACCOUNTS RELATING TO INV ESTMENTS IN PROPERTY AT RAHUL VIHAR 7. COPY OF RELEVANT LEDGER ACCOUNTS RELATING TO INV ESTMENTS IN PROPERTY AT VAIBHAV KUNJ (DEVELOPERS M/S VISHIST BU ILDERS & PROMOTERS). 8. COPY OF SUBMISSIONS MADE BEFORE LD CIT(A)-II, AG RA DATED 11.12.2008 9. COPY OF SUBMISSIONS MADE BEFORE LD. CIT(A)-II, A GRA DATED 06.03.2009 10. COPY OF SUBMISSIONS MADE BEFORE THE LD. A.O. DA TED 20.12.20056. 4 4. HE HAS ALSO CERTIFIED THAT THE AFORESAID DOCUMEN TS THE ASSESSEE HAS ALREADY FIELD BEFORE THE ASSESSING OFFICER/CIT(A), AGRA. I N ADDITION TO THE AFORESAID PAPER BOOK, THE LD. COUNSEL FOR THE ASSESSEE ALSO FILED S YNOPSIS IN THE SHAPE OF BRIEF FACTS AND WRITTEN ARGUMENTS ON THE GROUNDS RAISED BY THE DEPARTMENT AND MAINLY HE HAS RELIED UPON THE ORDER PASSED BY THE LD. FIRST APPEL LATE AUTHORITY. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE IMPUGNED ORDER, ALONG WITH DOCUM ENTARY EVIDENCES FILED BY THE LD. COUNSEL FOR THE ASSESSEE AND WE ARE OF THE CONSIDER ED OPINION THAT THE FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NOT DISPUTED BY BOTH THE PARTIES. THE ASSESSEE IS ENGAGED IN THE CONSTRUCTION WORK AND THE YEAR IN DI SPUTE IS SECOND YEAR OF THE BUSINESS OF THE ASSESSEE. IN THE EARLIER YEARS, TH E CONSTRUCTION RECEIPTS WERE SHOWN AT ` 11,36,550/- WHILE DURING THE YEAR UNDER APPEAL THES E HAVE INCREASED TO ` 36,10,000/- AND APPLIED NET PROFIT @ 8% UNDER THE PROVISIONS OF SECTION 44AD OF THE ACT. THE NET PROFIT WAS DECLARED AT ` 2,88,800/-, BUT THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO PROVIDE DOCUMENTARY EVIDEN CE TO SUBSTANTIATE THE GROSS RECEIPTS OF THE ASSESSEE FROM CONTRACT WORK AT ` 36,10,000/-. IN RESPONSE TO THE SAME, THE ASSESSEE FILED THE SPLIT UP OF ` 36,10,000/- VIDE REPLY DATED 20.12.2006. AFTER GOING THROUGH THE SAME, THE ASSESSING OFFICER FELT DISSATISFIED AND ESTIMATED 5 THE CONTRACT GROSS RECEIPTS AT ` 2 CRORES AND APPLIED A NET PROFIT @ 8% AND WORKED OUT THE NET PROFIT FROM CONSTRUCTION WORK AT ` 16,00,000/- AND DEDUCTING ` 2,88,800/- THEREFROM AS SHOWN BY THE ASSESSEE, HE MADE THE ADD ITION OF ` 13,11,200/- TO THE DECLARED INCOME FROM THIS SOURCE. THE ASSESSING OF FICER ALSO MADE ADDITION OF ` 15,00,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE 4 PROPERTIES. AFTER GOING THROUGH THE RELEVANT RECORDS AVAILABLE WITH US, ESP ECIALLY THE PAPER BOOK FILED BY THE LD. COUNSEL FOR THE ASSESSEE, WE ARE OF THE CONSIDE RED OPINION THAT THE LD. FIRST APPELLATE AUTHORITY HAS RIGHTLY DELETED THE ADDITIO N OF ` 13,11,200/- MADE ON ACCOUNT OF EXTRA PROFIT FROM CONSTRUCTION WORK BECA USE THE ASSESSING OFFICER HAS ONLY ESTIMATED THE GROSS PROFIT TO ` 2 CRORES AND APPLIED THE NET PROFIT RATE OF 8% WHICH IS WITHOUT ANY BASIS AND MATERIAL AVAILABLE O N RECORD. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE LD CIT(A) HAS RIGHT LY DELETED THE ADDITION IN DISPUTE RAISED IN GROUND NO.1. WE CONFIRM THE SAME BY DISM ISSING THE ISSUE RAISED IN GROUND NO.1 IN THE PRESENT APPEAL. 6. AS REGARDS TO THE SECOND ISSUE RELATING TO THE A DDITION OF ` 15,00,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN 4 PROPERTIES, THE LD. FIRST APPELLATE AUTHORITY HAS THOROUGHLY GONE THROUGH THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE AND DELETED THE ADDITION IN DISPUTE. 6 7. WE HAVE GONE THROUGH THE IMPUGNED ORDER ON THE I SSUE IN DISPUTE ALONG WITH THE DOCUMENTARY EVIDENCES FILED BY THE ASSESSEE BEF ORE US WHICH HAS ALREADY BEEN FILED BEFORE THE REVENUE AUTHORITIES. WE ARE OF TH E CONSIDERED OPINION THAT THE ASSESSING OFFICER HAS NOT PIN-POINTED ANY DISCREPAN CY IN THE DETAILED ACCOUNTS PRODUCED BY THE ASSESSEE AND MADE THE ADDITION IN D ISPUTE WITHOUT ANY BASIS, MERELY ON THE BASIS OF SURMISES AND CONJECTURES WHICH IS N OT PERMISSIBLE UNDER LAW. THE LD. FIRST APPELLATE AUTHORITY HAS RIGHTLY DELETED THE A DDITION IN DISPUTE. WE UPHOLD THE IMPUGNED ORDER BY DISMISSING THE ISSUE RAISED BY TH E REVENUE IN GROUND NO.2. NO OTHER POINT HAS BEEN ARGUED BY BOTH THE PARTIES AND , THEREFORE, APPEAL FIELD BY THE REVENUE IS DISMISSED. 8. IN THE RESULT, APPEAL FIELD BY THE REVENUE IS DI SMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 21.04.2011) SD/- SD/- (P.K. BANSAL) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: AGRA DATE: 21 ST APRIL, 2011 PBN/* 7 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRI BUNAL, AGRA TRUE COPY