J.S. Ananth, V. ACIT,

ITA 347/BANG/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7460 (ITAT-BANGALORE)
• Duration Of Justice: 4 year(s) 6 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 10-08-2017
• Assessment Year: 2003-2004
• Appeal Filed On: 15-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Documents seized

Judgement Text

ITA.347/BANG/2013 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BENGALURU BENCH 'B', BENGALURU BEFORE SHRI. A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI. LALIET KUMAR, JUDICIAL MEMBER I.T.A NO.347/BANG/2013) (ASSESSMENT YEAR : 2003-04) SHRI. J. S. ANANTH, PARTNER OF SUDARSHAN SILKS FOR SUDARSHAN SILKS AND SAREES, NO.231, KRISHNA MARKET, CHICKPET, BENGALURU .. APPELLANT PAN : AAIFS9662C V. ASST. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE -2(1), BENGALURU .. RESPONDENT ASSESSEE BY : SHRI. H. N. KHINCHA, CA REVENUE BY : MS. NEERA MALHOTRA, CIT - DR HEARD ON : 22.08.2017 PRONOUNCED ON : 13.10.2017 O R D E R PER LALIET KUMAR, JUDICIAL MEMBER : THIS APPEAL IS FILED BY THE ASSESSEE, AGAINST THE ORDER OF THE CIT (A), MYSURU, FOR THE ASSESSMENT YEAR 2003-04. ALT HOUGH THE ASSESSEE ITA.347/BANG/2013 PAGE - 2 HAS RAISED AS MANY AS FIVE GROUNDS IN ITS APPEAL, A RGUMENTS WERE MADE ONLY IN RESPECT OF GROUND NO.2, WHICH IS AS UNDER : 2. WITHOUT PREJUDICE, THE AO HAS ERRED IN MAKING AN ADDITION OF RS.11,05,000/- AS SUPPRESSED SALE. THE RE WERE NO CHANGE IN BILLS, NO SUPPRESSION OF SALE OR UNDER RECORDING OF SALES. THE SALES HAVE BEEN DULY RECORDED AND AR E DULY EXPLAINED. THE ADDITION OF RS.11,05,000/- IS DONE ONLY ON SURMISES AND CONJECTURE AND IS NOT SUPPORTED BY LAW AND EVIDENCE AND HENCE IS TO BE DELETED. 02. IT IS THE CASE OF THE ASSESSEE BEFORE US THAT T HE ASSESSEE WAS CARRYING ON THE BUSINESS IN THE NAME OF SUDARSHAN S ILKS AND SAREES. A SEARCH U/S.132 WAS CONDUCTED ON 11.10.2007 AND NO TICE U/S.153A WAS ISSUED TO THE ASSESSEE CALLING UPON THE ASSESSE E TO FILE THE RETURN. SUDARSHAN SILKS HAD TAKEN OVER THE BUSINESS OF SUDA RSHAN SILKS & SAREES WITH EFFECT FROM 01.02.2004, AS A GOING CONC ERN AND THEREFORE THE RETURN WAS FILED BY THE ERSTWHILE PARTNER, NAME LY THE ASSESSEE BEFORE US. 03. DURING THE COURSE OF SEARCH, THE NOTE BOOKS IN VENTORISED AS A3/JSA & V/04, DT.30.11.2007 WERE SEIZED FROM THE R ESIDENTIAL PREMISES OF THE PARTNER. THE BOOK HAS A TITLE CHA NGE OF BILLS. THE AO HAS EXAMINED THE VARIOUS ENTRIES OF CHANGE OF BI LLS WITH THE BILLS AND HAS TABULATED THE SAME IN PARA 4 OF THE ASSESSM ENT ORDER WHICH IS REPRODUCED BELOW : ITA.347/BANG/2013 PAGE - 3 THUS ON THE BASIS OF THE ABOVE UNDER-DISCLOSED SALE S ON ACCOUNT OF CHANGE IN VALUE OF THE BILLS, THE ASSESSEE HAS SUPP RESSED THE INCOME OF RS.11,05,000/-. THE ASSESSEE FILED REPLY TO THE SH OW-CAUSE NOTICE AND IN THE REPLY THE ASSESSEE HAD DISPUTED THE UNDER-VA LUATION OF THE SALES. IT WAS ALSO DISPUTED THAT THE ASSESSEE WAS NOT AWAR E AS TO WHOSE HAND- WRITING WAS IN THE NOTE-BOOK. IT WAS NOT SUBMITTED THAT IT WAS NOT IN THE HAND-WRITING OF ANY OF THE PARTNERS. IT WAS AF FIRMED THAT THE SALES WAS CORRECTLY RECORDED. NOT BEING CONVINCED WITH T HE REPLY, THE AO MADE AN ADDITION TO THE EXTENT OF RS.11,05,000/-. BEING AGGRIEVED WITH THE ADDITION, THE ASSESSEE FILED AN APPEAL BEF ORE THE CIT (A). ITA.347/BANG/2013 PAGE - 4 04. BEFORE THE CIT (A), ASSESSEE AFFIRMED THE SUBMI SSIONS MADE BEFORE THE AO. THE CIT (A) AFTER GOING THROUGH THE REPLY ALSO CONFIRMED THE ADDITION MADE BY THE AO. FEELING AGG RIEVED BY THE ORDER OF THE CIT (A), ASSESSEE IS IN APPEAL BEFORE US. 05. THE LD. AR HAS VEHEMENTLY SUBMITTED THAT ONCE T HE EVIDENCE RELIED UPON BY THE REVENUE HAS NOT BEEN PROVED IN R ECORDS IN ACCORDANCE WITH LAW, THE SAME CANNOT FORM THE BASIS FOR MAKING ADDITION AGAINST THE ASSESSEE. IT WAS SUBMITTED TH AT THE HAND-WRITING IN THE NOTE-BOOKS WERE NOT OF ANY OF THE FAMILY MEM BERS OF THE ASSESSEE AND THEREFORE THE SAME CANNOT BE RELIED UP ON. 06. ON THE OTHER HAND, THE LD. DR SUPPORTED THE CAS E OF THE REVENUE BY RELYING UPON THE ORDER OF THE LOWER AUTH ORITIES. 07. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORDS. IN OUR VIEW, IT IS BEYOND THE PALE OF CONTROVERSY THAT THE NOTE BOOKS INVENTORISED AS A3/JSA & V/04 WERE SEIZED FROM THE PREMISES OF THE ASSESSEE. IT IS ALSO NOT CHALLENGED BY THE ASSESSE E THAT THESE SEIZED ARTICLES WERE DULY INVENTORISED AND A SEIZURE MEMO WAS PREPARED BY THE INVESTIGATING TEAM HAVING SIGNATURE OF THE WITN ESSES, IN WHOSE PRESENCE THESE ARTICLES WERE FOUND. IN THE REPLY F ILED BEFORE THE LOWER AUTHORITIES, IT WAS ONLY DISPUTED THAT THE HAND-WRI TING IN THE NOTE- BOOKS IS NOT OF ANY FAMILY MEMBERS OF ASSESSEE . ITA.347/BANG/2013 PAGE - 5 8. IN OUR VIEW, THE PRESUMPTION OF LAW OPERATES AGA INST THE ASSESSEE AS IT IS FOR THE ASSESSEE TO ESTABLISH AND PROVE THAT THE DOCUMENTS SEIZED / NOTE BOOKS SEIZED DID NOT BELONG TO THE ASSESSEE AND THE ENTRIES THEREIN WERE NOT THE CHANGED ENTRIE S OF HIGH-VALUE SALE OF THE ASSESSEE. THE ASSESSEE WAS MERELY DENYING T HE SIGNATURES IN THE NOTE-BOOKS, BUT IT IS FOR THE ASSESSEE TO PROVE HOW THE NOTE-BOOKS WERE FOUND DURING THE SEARCH FROM THE PREMISES OF T HE ASSESSEE FROM HIS POSSESSION. WHEN THE NOTE-BOOKS FOUND FROM THE PREMISES OF THE ASSESSEE, DULY REFLECTS SUPPRESSION OF SALES BY CHA NGING THE HIGH-VALUE ENTRIES WITH LOW-VALUE ENTRIES AND ASSESSEE FAILED TO REBUT THIS PRESUMPTION THEREFORE PRESUMPTION LIES AGAINST THE ASSESSEE , THEREFORE ORDER OF AO IS REQUIRED TO BE UPHELD . THE ASSESSE E HAS THEREFORE FAILED TO PROVE THE CASE BEYOND THE SHADOW OF DOUBT . ACCORDINGLY WE FIND NO GROUND FOR INTERFERENCE IN THE ORDER PASSED BY THE LOWER AUTHORITIES. 09. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 13TH DAY OF O CTOBER, 2017. SD/- SD/- (A. K. GARODIA) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL M EMBER BENGALURU DATED : 13.10.2017 MCN* ITA.347/BANG/2013 PAGE - 6 COPY TO: 1. THE ASSESSEE 2. THE ASSESSING OFFICER 3. THE COMMISSIONER OF INCOME-TAX 4. COMMISSIONER OF INCOME-TAX(A) 5. DR 6. GF, ITAT, BANGALORE BY ORDER SENIOR PRIVATE SECRETARY