M/s. Vijay Auto Service, Jalandhar V. Income tax Officer, Jalandhar

ITA 352/ASR/2010

• Counselvise Citation: 35220914 RSA 2010
• Duration Of Justice: 1 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 17-04-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 09-08-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMRIK CHAND
• Assessee Lawyers: J S BHASIN
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.352(ASR)/2010 ASSESSMENT YEAR:2005-06 PAN;AACFVO260H M/S. VIJAY AUTO SERVICE, VS. THE INCOME TAX OFFICE R, JALANDHAR. WARD IV(1), JALANDHAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. J.S. BHASIN, ADV. RESPONDENT BY: SH. AMRIK CHAND, DR DATE OF HEARING :17.04.2012 DATE OF PRONOUNCEMENT:23/04/2012 ORDER PER BENCH; THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF THE CIT(A), JALANDHAR, DATED 24.05.2010 FOR THE ASSESSMENT YEAR 2005-06. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL: 1. THAT IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS GROSSLY ERRED IN REJECTING THE ASSESSEE S CLAIM OF LOSS OF RS.91,200/- CAUSED BY THEFT. 2. THAT SIMPLY BECAUSE THE FIR LODGED WITH THE POLI CE WAS WITHDRAWN, COULD NOT BE THE SOLE BASIS TO DISBELIEV E THE FACTUM OF THEFT, WHEN THE BONAFIDE OF THE CLAIM REMAINS UN IMPEACHED. 3. THAT THE LD. CIT(A)S RELIANCE ON 309 ITR 157 (P &H) IS MISPLACED, THE FACTS OF THE CASE BEING TOTALLY DIFF ERENT. ITA NO.352(ASR)/2010 2 4. THAT THE LD. CIT(A) WAS ALSO NOT JUSTIFIED IN UP HOLDING THE DISALLOWANCE AT 1/10 TH EACH OUT OF CAR EXPENSES AND CAR DEPRECIATION, BEING ARBITRARY AND EXCESSIVE. 5. THAT THE ORDERS OF THE AUTHORITIES BELOW ARE AGA INST LAW AND FACTS OF THE CASE. 3. THE BRIEF FACTS IN THE GROUNDS OF THE ASSESSEE A RE THAT THE ASSESSEE HAD CLAIMED LOSS ON THEFT AMOUNTING TO RS.91,200/-. THE EXPLANATION OF THE ASSESSEE WAS THAT THEFT INCIDENT TOOK PLACE ON 09.0 8.2004 AT LATE NIGHT WHEN SOME BURGLARS INTRUDED INTO PETROL PUMP, WHO BROKEN OPEN THE STEEL SAFE AND FLED WITH THE CASH AMOUNTING TO RS.91,200/- LYING I N THE SAFE. NEXT MORNING ON 10.08.2004, A WRITTEN COMPLAINT WAS FILED WITH T HE NEAREST POLICE CHOWKI AND SIMULTANEOUSLY, A WRITTEN INTIMATION WAS FILED WITH THE NEW INDIA ASSURANCE CO. LTD., KAPURTHALA ON 10.08.2004 ITSELF . BEFORE REGISTERING FIR, THE POLICE AUTHORITIES STARTED DETENTION OF OU R OWN WORKERS AND SUBJECTED TO THEM THIRD DEGREE INTERROGATION. MOST OF OUR WORKERS FLED IN PANIC. A COMPLAINT FILED WITH THE POLICE HAD TO BE WITHDRAWN. FOR WANT OF LODGING OF FIR WITH THE POLICE, EVEN THE CLAIM WITH THE INSURANCE CO. COULD NOT BE PURSUED. THE ASSESSEE SUBMITTED SWORN AFFIDA VITS OF TWO EMPLOYEES ALONGWITH PHOTOCOPY OF BROKEN SAFE AS WELL AS TO SU BSTANTIATE THE CLAIM. THE AO BEING NOT SATISFIED WITH THE EXPLANATION OF THE ASSESSEE DISALLOWED THE CLAIM. THE LD. CIT(A) CONFIRMED THE ACTION OF THE A SSESSING OFFICER. 4. THE LD. COUNSEL FOR THE ASSESSEE, MR. J.S. BHASI N, ADV. RELIED UPON THE DOCUMENTS PLACED BEFORE THE A.O. AND THE EXPLAN ATION GIVEN BEFORE BOTH ITA NO.352(ASR)/2010 3 THE AUTHORITIES BELOW. HE RELIED UPON THE DECISION OF ITAT, AMRITSAR BENCH, IN THE CASE OF INCOME TAX OFFICER VS. NATIONAL SHEE T AND METAL WORKS, REPORTED IN 9 TTJ (AMR) 546, COPY OF WHICH WAS PLAC ED ON RECORD. 5. THE LD. DR, ON THE OTHER HAND, RELIED UPON THE O RDERS OF THE AUTHORITIES BELOW AND THE DECISION RELIED UPON BY T HE LD. CIT(A), IN THE CASE OF SHIVALIK WOOLLEN MILLS VS. ACIT 309 ITR 157 (P&H ). 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE ASSESSEE HAD CLAIMED LOSS OF RS.91,200/- FOR TH EFT OF CASH ON THE MID- NIGHT OF 09.08.2004. THE LD. COUNSEL FOR THE ASSESS EE INVITED OUR ATTENTION TO THE COMPLAINT DATED 10.08.2004 PLACED AT PB-7 WHICH IS BEARING STAMP OF POLICE CHOWKI, KISHAN GANJ, THANA KARTARPUR (JALAND HAR) SIGNED BY SOME PERSON ON BEHALF OF VIJAY AUTO SERVICE. SIMILARLY A T PB-8, THERE IS WITHDRAWAL OF THE COMPLAINT ON THE SAME DATE, WHICH IS ALSO BEARING A STAMP OF THE SAID POLICE CHOWKI. THE SAID STAMP OF THE PO LICE CHOWKI AT PB 7 -8 DOES NOT BEAR ANY SIGNATURE OF ANY PERSONNEL OF TH E POLICE DEPARTMENT . FIRST OF ALL, ANY PAPER FILED WITH ANY POLICE AUTHO RITY HAS TO BE DULY SIGNED AND RECEIPTED FROM THE SAID POLICE AUTHORITY ALONG WITH DIARY NUMBER WHICH IS NOT THERE ON RECORD IS UNDISPUTED. FROM PERUSAL OF THE PAPER BOOK, PAGE 7 & 8 WHICH ARE CLAIMED BY THE ASSESSEE AS COMPLAINT FILED AND WITHDRAWN, IT APPEARS THAT THESE TWO LETTERS WERE SIMULTANEOUSLY GOT STAMPED FROM THE POLICE CHOWKI BUT THE SAME ARE NOT RECEIPTED BY T HE POLICE CHOWKI AND, ITA NO.352(ASR)/2010 4 THEREFORE, THE SAME CANNOT BE TAKEN INTO COGNIZANCE AND CANNOT BE AN EVIDENCE OF ANY THEFT CLAIMED BY THE ASSESSEE. AS R EGARDS THE LETTER WRITTEN TO NEW INDIA ASSURANCE COMPANY LTD, WHICH IS AVAILABLE AT PB-9 AND INSURANCE COVER AT PB 10-11, THE ASSESSEES EXPLANA TION IS THAT THE SAME COULD NOT BE PURSUED FOR WANT OF FIR WITH THE POLIC E AUTHORITIES. IN THE MEANTIME, A LETTER WAS ISSUED BY THE A.O. TO THE MA NAGER, NEW INDIA ASSURANCE CO. LTD. AND SHO POLICE CHOWKI KISHANGARH TO CONFIRM WHETHER THERE IS ANY COMPLAINT OF CASH THEFT FILED BY THE ASSESSEE ON 10.08.2004 AS PER COPIES OF LETTER FILED WITH THE AO. BOTH THE A UTHORITIES I.E. NEW INDIA ASSURANCE CO. AND SHO HAD DENIED HAVING FILED ANY C OMPLAINT BY THE ASSESSEE. ON 28.11.2007 LETTER RECEIVED FROM THESE AUTHORITIES I.E. NEW INDIA ASSURANCE CO. AND SHO WERE SHOWN TO THE ASSESSEE AN D CONFRONTED.. THE ASSESSEE ADVANCED NO ARGUMENT BEFORE THE AO AND REI TERATED THE EXPLANATION GIVEN EARLIER. THE AFFIDAVITS PRODUCED OF THE EMPLO YEES OF THE ASSESSEE ARE SELF SERVING DOCUMENTS AND THE PHOTOCOPIES OF THE P HOTOGRAPHS PLACED ON RECORD AT PB 15 TO 17 CANNOT PROVE THE CLAIM OF THE ASSESSEE WHICH ARE SELF MADE DOCUMENTS. IN THE ABSENCE OF ANY COMPLAINT OR FIR WITH THE POLICE AUTHORITIES OR IN THE ABSENCE OF ENQUIRY BY THE POL ICE AUTHORITY GOES AGAINST THE CLAIM OF THE ASSESSEE, WHICH PRIMA FACIE PROVES THAT THE ASSESSEE HAD MADE THE CLAIM FOR THE PURPOSE OF CLAIMING THE LOSS ONLY. AS PER INQUIRY BY THE AO FROM THE POLICE AUTHORITY AND INSURANCE CO., THERE IS NO CLAIM OF ITA NO.352(ASR)/2010 5 THEFT WITH EITHER OF THE AUTHORITY AND THE ASSESSEE HAS NOT SUBMITTED ANY EXPLANATION ON 28.11.2007 WHEN THE AO CONFRONTED T HE SAID DENIAL BY THE INSURANCE COMPANY AND THE POLICE AUTHORITY. THE CAS E RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE IN THE CASE OF ITO VS . NATIONAL SHEET & METAL WORKS (SUPRA) CANNOT BE MADE APPLICABLE FOR THE REA SON THAT THE FACTS IN THE CASE OF M/S. NATIONAL SHEET AND METAL WORKS (SUPRA) WERE QUITE DIFFERENT WHERE SHORTAGE IN THE STOCK WAS FOUND AND THE ASSES SEE HAD MADE COMPLAINT WITH THE POLICE AUTHORITIES THAT SHORTAGE COULD NOT BE TAKEN PLACE WITHOUT ACTIVE COLLUSION AND COMPLICITY OF SOME MEMBERS OF THE STAFF FOR WHICH PROMPT AND IMMEDIATE ENQUIRY WAS REQUESTED. THE AS SESSEE IN THAT CASE ALSO INTIMATED THAT ONE OF THE STAFF MEMBERS I.E. WEIGH MENT CLERK SH. R.S. SRIVASTAVA HAD GONE ON LEAVE AND WAS OVER STAYING A ND AVOIDING TO REPORT FOR DUTY. THE POLICE WERE ABLE TO GET HOLD OF SUCH WEI GHMENT CLERK FROM U.P. BUT AFTER THE THOROUGH INVESTIGATION NO CLUE COULD BE FOUND FOR THE RESPONSIBILITY OF THE ACTUAL LOSSES AND NO SPECIFIC CHARGES COULD BE FRAMED AGAINST ANY MEMBER OF THE STAFF WHICH COULD STAND I N A COURT OF LAW. IN FACT, THE SHO, HAD CONFIRMED THAT THE ILAQA MAGISTRATE H AD ORDERED ON 14.6.1975 ON THE BASIS OF THE INFORMATION FURNISHED BY THE PO LICE THAT THE PARTIES IN QUESTION WERE UNTRACEABLE AND THE SAME WAS ACCEPTED BY THEM. THE ASSESSEE IN SUCH A SITUATION THOUGHT IT BETTER TO WITHDRAW T HE PROCEEDING WHICH WOULD ENABLE TO GET HIM RID OF EMPLOYEES AGAINST WHOM HE HAS LODGED A COMPLAINT ITA NO.352(ASR)/2010 6 FOR EMBEZZLEMENT. IT IS IN THIS BACK GROUND THAT IT AT, AMRITSAR BENCH, IN THE CASE OF NATIONAL SHEET AND METAL WORKS (SUPRA) HAD DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. IN THE PRESENT CASE, THE RE IS NO SUCH CASE. FIRST OF ALL, THERE IS NO COMPLAINT OR FIR RECEIVED BY THE P OLICE AUTHORITIES. CONSEQUENTLY, NO ENQUIRY HAD BEEN MADE BY THE POLIC E AUTHORITIES AND FURTHER NO MATTER WAS FILED IN ANY COURT OF LAW WIT H REGARD TO THE SAID THEFT. THEREFORE, THE CASE RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE, CANNOT BE MADE APPLICABLE. IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, THE CLAIM MADE BY THE ASSESSEE HAS RIGHTLY NOT BEEN AC CEPTED BY THE AO AND ACCORDINGLY WE CONFIRM THE ORDER OF THE LD. CIT(A). THUS, ALL THE GROUNDS OF THE ASSESSEE ARE DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN ITA NO.352(ASR)/2010 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23RD APRIL, 2012. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 23RD APRIL, 2012 /SKR/ COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE:M/S. VIJAY AUTO SERVICE, JALANDHAR. 2. THE ITO WARD IV(1), JALANDHAR. 3. THE CIT(A), 4. THE CIT, 5. THE SR DR