CHANCHAL SHARMA, KATRA V. A.C.I.T, CIRCLE - 2, , JAMMU

ITA 350/ASR/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0020 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-08-2018
• Assessment Year: 2012-2013
• Appeal Filed On: 02-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAUTAM DE B LD
• Assessee Lawyers: P N ARORA LD
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER ITA NO.350(ASR)/2017 ASSESSMENT YEAR: 2012-13 CHANCHAL SHARMA, PROP. M/S HOTEL SWASTIK, PENTHAL ROAD, KATRA PAN:AESPS 5046G VS. ASST. CIT, CIRCLE-2, JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. P.N.ARORA (LD. ADV.) RESPONDENT BY: SH. GAUTAM DEB (LD. DR) DATE OF HEARING: 29.08.2018 DATE OF PRONOUNCEMENT:14.09.2018 ORDER PER N.K.CHOUDHRY, JM: THE INSTANT APPEAL HAS BEE PREFERRED BY THE ASSESSEE/APP ELLANT, ON FEELING AGGRIEVED AGAINST THE ORDER DATED 24.01.201 7 PASSED BY THE LD. CIT (A), J&K, JAMMU U/S. 250(6) OF THE I.T. ACT, 1961 (HEREINAFTER CALLED AS THE ACT). 2. THE FOLLOWING GROUNDS OF APPEAL HAS BEEN RAISED BY THE ASSESSEE. 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) AND THE ASSESSING OFFICER HAVE ERRED ON FACTS AND IN LAW IN PASSING THE IMPUGNED ORDER WHICH IS CONTRARY TO LAW, EQUIT Y AND JUSTICE AND FACTS & MATERIAL ON RECORD, ARBITRARY, BASED ON CONJECTURES AND SURMISES. 2. THE APPELLANT DENIES HIS LIABILITY TO TAX AS DETERM INED AND COMPUTED AND THE MANNER IN WHICH IT HAS BEEN SO DETERMINED OR COMPUTED. ITA NO.350(ASR)/2017 (A.Y: 2012-13) CHANCHAL SHARMA V. ACIT 2 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE IMPUGNED ADDIT ION MADE BY THE ASSESSING OFFICER IN TOTAL INCOME OF TH E ASSESSEE BY: A) ADDING RS.473501.00 AS UNEXPLAINED SOURCE OF EXPENDITURE BY ONLY RELYING ON THE STATEMENT OF ASSESSEES SON AT THE TIME OF SURVEY WITHOUT ANY COLLABORATIVE EVIDENCE. 4. THE APPELLANT CRAVES LEAVES TO AND PERMISSION TO A DD, TO ALTER OF DELETE ANY OF THE GROUNDS OF APPEAL AT ANY TIME UPTO THE FINAL DECISION OF THE APPEAL. 5. THE APPELLANT CRAVES LEAVE AND SANCTION TO FILE ADD ITIONAL EVIDENCE, IF SO REQUIRED FOR PROPER PROSECUTION OF THE CASE, BASED ON FACTS AND CIRCUMSTANCES, WHICH HAS NOT BEE N OR COULD NOT BE EDUCED OR FILED BEFORE LOWER AUTHORITI ES EITHER BECAUSE PROPER AND SUFFICIENT OPPORTUNITY/TIME WAS NOT PROVIDED OR BECAUSE IT WAS NOT SOLICITED OR ITS NEE D WAS NOT PROVIDED OR BECAUSE IT WAS NOT SOLICITED OR ITS NEE D WAS NOT APPRECIATED. 3. IN THE INSTANT CASE, THE RETURN DECLARING AN INCOME OF RS.1,85,51,460/- WAS E-FILED ON 29.03.2014 WHICH WAS PR OCESSED AND LATER ON SELECTED FOR SCRUTINY UNDER CASS SYSTEM. THE A SSESSEE IS ENGAGED IN HOTEL BUSINESS AND HAD SHOWN THE TOTAL INCOME FROM THE BUSINESS AT RS.1,85,51,460/- WHICH INCLUDED A SURRENDERED AMOUNT OF RS.1,75,00,000/- IN THE SURVEY CONDUCTED U/S 133A OF THE ACT ON 18.10.2011. THE ASSESSEE HAS ALSO SURRENDERED SOME DOCUME NTS/BOOKS WHICH WERE IMPOUNDED AND TEST CHECKED. IT WAS OBSERVED B Y THE LD. ASSESSING OFFICER THAT VIDE STATEMENT DATED 18.10.2011, T HE ASSESSEE SH. NISHANT SHARMA TRIED TO EXPLAIN THE SOURCE OF INVESTMEN T OF RS.19,00,000/- OUT OF SALE PROCEEDS OF JWELLERY. THE ASSE SSEE WAS ASKED TO SUBSTANTIATE HIS CLAIM OF SALE OF JWELLERY WITH DOCUME NTARY EVIDENCE, HOWEVER, IN RESPONSE TO WHICH THE ASSESSEE WAS ABLE TO ESTA BLISH ONLY AN AMOUNT OF RS.14,26,499/- BY WAY OF PRODUCING TWO BILL S FROM TWO FIRMS, ITA NO.350(ASR)/2017 (A.Y: 2012-13) CHANCHAL SHARMA V. ACIT 3 THEREFORE, THE ASSESSING OFFICER ADDED THE DIFFERENCE BET WEEN RS.19,00,000/- AND RS.14,26,494/- WHICH COMES TO RS.4,73, 501/- AS INCOME OF THE ASSESSEE. IN ADDITION TO THE AFORESAID ADD ITION, THE ASSESSING OFFICER ALSO ADDED AN AMOUNT OF RS.2,02,221/- ON ACCOUNT OF COMMISSION PAID. 4. ON APPEAL BEFORE BE LD. CIT(A), THE ADDITION OF RS. 2,02,221/- WAS DELETED, HOWEVER, THE ADDITION OF RS.4,73,501/- HAS B EEN SUSTAINED. 5. NOW THE ASSESSEE HAS PREFERRED THE INSTANT APPEAL. FROM THE STATEMENT DATED 19.10.2011 MADE BY THE ASSESSEE, IT REFL ECTS THAT THE ASSESSEE HAD OFFERED ADDITIONAL INCOME OF RS.1,75,000,00/ - FOR THE F.Y.2011-12 WHICH IS UNDER CONSIDERATION OF THIS APPEAL. THE FOLLOWING STATEMENT WAS MADE BY THE ASSESSEE. THAT MY BUSINESS PREMISES HAVE BEEN COVERED BY SURVEY BY THE INCOME TAX DEPARTMENT TODAY I.E. 18 TH MARCH, 2011. THAT THIS STATEMENT IS BEING MADE DURING THE COURSE OF SURVEY U/S 133 OF THE I.T. ACT, 1961. THAT I HEREBY OFFER ADDITIONAL INCOME OF RS.1.75 CR. FOR THE F.Y.2011-12 AND THIS INCOME SHALL BE ADJUSTED AGAINST MY OTHER NORMAL INCOMES. THAT THIS AMOUNT HAS BEEN INVESTED BY ME IN THE HOTEL SWASTIK RESORT AND (THE ARTIUM). IT WILL COVER ANY DI SCREPANCIES, IF ANY, INCLUDING INVESTMENT IN PROPERTY/STOCK OR OTHE R MOVABLE OR IMMOVABLE ARTICLE OR, THING OR ANY ENTRIES OR EXPE NSES IN THE BODY OF ACCOUNTS OR OTHER DOCUMENTS OR TRANSACTIONS OR ANY ACCOUNTED PAID LIABILITIES, TERMED IN THE SOURCE OF SURV EY OR OTHERWISE. ITA NO.350(ASR)/2017 (A.Y: 2012-13) CHANCHAL SHARMA V. ACIT 4 6. WE HAVE PERUSED THE ORDERS PASSED BY THE AUTHORITI ES BELOW AS WELL AS STATEMENT OF THE ASSESSEE, WHICH IS VERY MUCH RELEVANT FO R ADJUDICATION OF THIS APPEAL. IN THE STATEMENT, IT IS CLEARLY WRITTEN THAT SURRENDERE D AMOUNT OF RS.1.75 CRORE AS ADDITIONAL INCOME FOR FINANCIAL YEAR UN DER CONSIDERATION SHALL BE ADJUSTED AGAINST OTHER NORMAL INCOME, HOWEVE R, THE ASSESSING OFFICER HAS NOT TAKEN INTO CONSIDERATION THAT SURRENDERE D AMOUNT AND MADE AN ADDITION WHICH IS UNDER CHALLENGE. IN OUR CONSIDERED OPINION, ONCE THE ASSESSEE HAS SURRENDERE D AN AMOUNT WITH THE SUBMISSION THAT THE SAME MAY BE ADJUS TED AGAINST ALL OTHER NORMAL INCOME THEN CERTAINLY THE AMOUNT SURRENDE RED IS REQUIRED TO BE CONSIDERED BY THE REVENUE AUTHORITIES AND AFTER ADJ USTING ALL NORMAL INCOME, IF STILL THE SAME IS NOT SUFFICIENT THEN ONLY T HE ADDITION CAN BE MADE. HOWEVER, COMING TO THE INSTANT CASE, THERE IS ASSER TION OF THE ASSESSEE TO THE FACT THAT THE AMOUNT OF RS.1.75 CRORE AS SU RRENDERED, SHALL BE ADJUSTED AGAINST HIS ALL OTHER NORMAL INCOME WHICH ACCORDING TO CONSIDERED OPINION ALSO COVERS THE AMOUNT WHICH IS BEING A DDED BY THE ASSESSING OFFICER AND AFFIRMED BY THE LD. CIT(A), HENCE, WE ARE INCLINED TO DELETE THE ADDITION AND RESULTANTLY THE SAME IS DELETE D. 7 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14.09.2018. SD/- SD/- (SANJAY ARORA) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JU DICIAL MEMBER DATED:14.09.2018 /PK/ PS. ITA NO.350(ASR)/2017 (A.Y: 2012-13) CHANCHAL SHARMA V. ACIT 5 COPY OF THE ORDER FORWARDED TO: (1) CHANCHAL SHARMA, PROP. M/S HOTEL SWASTIK, PEN THAL ROAD, KTRA (2) THE ASST. CIT, CIRCLE-2, JAMMU (3) THE CIT(A), JAMMU (J&K) (4) THE CIT(CONCERNED) (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER