SURESH PARWAL, Jaipur V. ITO, Jaipur

ITA 353/JPR/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5148 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 13-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA CIT DHK
• Assessee Lawyers: S L PODDAR

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 353/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11. SHRI SURESH PARWAL, PROP. M/S. YASH JEWELLERS, M-37, MAHESH COLONY, TONK ROAD, JAIPUR. CUKE VS. THE INCOME TAX OFFICER, WARD 6(4), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ADJPP 5850 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.L. PODDAR (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A. VERMA (ADDL. CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 01.09.2016. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 01/09/2016. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT (A)-2, JAIPUR DATED 09.03.2015 PERTAINING TO A.Y. 2010-11. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE L EARNED CIT (A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 49,47,412/- U/S 69 OF THE IT ACT, 1961 ON ACCOUNT OF SHORT STOCK FOUND. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE L EARNED CIT (A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.51,568/- ON ACCOUNT OF INCRIMINATING DOCUMENTS. 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE L EARNED CIT (A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 1,65,445/- ON ACCOUNT OF UNDISCLOSED PROFIT IN FORWARD MARKET TRANSACTIONS O F SILVER. 2 ITA NO. 353/JP/2015 SHRI SURESH PARWAL 4. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE L EARNED CIT (A) HAS ERRED IN RESTRICTING THE ADDITION OF RS. 88,470/- O N ACCOUNT OF TRADING ADDITION BY INVOKING THE P5ROVISION OF SECTION 145( 3) OF THE IT ACT, 1961. 5. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE L EARNED CIT (A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 12,778/- ON ACCOUNT OF UNDISCLOSED EXPENSES BOOK BY THE ASSESSEE. 6. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE L EARNED CIT (A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 1,34,250/- ON ACCOUNT OF EXCESS CASH FOUND AT THE TIME OF SURVEY. 7. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE L EARNED CIT (A) HAS ERRED IN SUSTAINING THE ADDITION OF RS.2,50,000/- O N ACCOUNT OF UNDISCLOSED INVESTMENT IN BUSINESS. 2. DURING THE COURSE OF HEARING, ASSESSEE FILED AN ADDITIONAL GROUND WHICH READS AS UNDER :- UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE ADDITION CONFIRMED BY THE LEARNED CIT (A) ON ACCOUNT OF SHORTAGE OF ST OCK FOR RS. 49,47,412/- U/S 69 OF THE INCOME TAX ACT, 1961 IS B AD IN LAW AS HE CONFIRMED THE TRADING ADDITION BY APPLYING GP RATE ON ESTIMATED BASIS BY REJECTING THE BOOKS OF ACCOUNTS THEN NO OTHER AD DITIONS ARE WARRANTED IN TRADING ACCOUNT. 2.1. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THA T THIS GROUND GOES TO THE ROOT OF THE CASE. THIS GROUND WAS NOT RAISED BEFORE LD. CIT (A). HE SUBMITTED THAT WHEN THE BOOKS OF ACCOUNTS ARE REJECTED AND BY APPLYING GP RATE TRADING ADDITION IS CONFIRMED, THEN NO OTHER ADDITIONS ARE WARRANTED IN TRADING ACCOUNT. THE LD. COUNSEL REITERATED THE SUBMISSIONS AS ARE MADE IN T HE APPLICATION UNDER RULE 11 OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963. 2.2. THE LD. D/R VEHEMENTLY OPPOSED THE SUBMISSIONS . 3 ITA NO. 353/JP/2015 SHRI SURESH PARWAL 2.3. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE AO HAS REJECTED THE BOOKS OF ACCOUNT, ESTIMATED THE GP @ 0.5% OF THE ESTIMATED TURNOVER OF RS. 65,00,00,000/ - AND ALSO MADE OTHER ADDITIONS. THE CONTENTION OF THE ASSESSEE IN THE AP PLICATION ARE AS UNDER :- IT IS SUBMITTED THAT THIS ADDITIONAL GROUND HAS B EEN TAKEN BEFORE THE HONBLE BENCH AS THE SAME GOES TO THE ROOT OF THE C ASE. THIS WAS DECIDED BY THE HONBLE CIT (A) BUT THE TIME OF FILING THE APPE AL BEFORE YOUR HONOUR THE SAME GROUND COULD NOT BE TAKEN INADVERTENTLY. THE A SSESSEE HAS TAKEN THE ADDITIONAL GROUND THE SAME MAY KINDLY BE ACCEPTED. THE ISSUE RAISED IN THE ADDITIONAL GROUND IS CRUX OF THE MATTER. HENCE THE SAME DESERVES TO BE PERMITTED BY THE HONBLE BENCH. THE FOLLOWING DECISIONS ARE QUOTED IN SUPPORT (I) NATIONAL THERMAL POWER CO. LTD. VS. CIT (1998) 229 ITR 383 (SC) (II) SHAWAN BENIWAL VS. INCOME TAX OFFICER BIKANER . ITA NO. 292/JU/2008 DATED 14.01.2009. (III) JORA SINGH VS. ITO (2010) 42 DTR 409 (LUCKNOW) (IV) CIT VS. KERALA STATE CO-OPERATIVE MARKETING F EDERATION LTD. (1992) 193 ITR 624 (KER.) (V) MAHINDRA & MAHINDRA VS. DY. CIT (2009) 122 TTJ 577 (MUB)(SB) (VI) SUNIL KUMAR PUGALIA (HUF) VS. ITO (2009) 120 TTJ 1001 (JODH) WE FIND MERIT IN THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. HOWEVER, THE LD. CIT (A) HAS NOT GIVEN A CLEAR FINDING ON THIS GROUN D. THEREFORE, WE DEEM IT PROPER 4 ITA NO. 353/JP/2015 SHRI SURESH PARWAL THAT THIS GROUND BE ADJUDICATED BY LD. CIT (A). AC CORDINGLY WE HEREBY SET ASIDE THE ORDER OF LD. CIT (A) AND RESTORE THE APPEAL ALONG W ITH THE ADDITIONAL GROUND TO THE FILE OF THE LD. CIT (A) FOR FRESH DECISION. 3. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 01/09/ 2016. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 01/09/2016. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI SURESH PARWAL, JAIPUR. 2. THE RESPONDENT THE INCOME TAX OFFICER, WARD 6( 4), JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 353/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR