Shri Hem Kumar Jain, Gwalior V. ACIT, C-1, Gwalior

ITA 355/AGR/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 6759 (ITAT-AGRA)
• Duration Of Justice: 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-07-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-07-2010
• Assessment Year: 1999-2000
• Appeal Filed On: 09-09-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: V BAPNA
• Keywords: Loose papers
• Section: 69; 132

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, SMC, AGRA BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER ITA NO.355/AGR/2009 ASST. YEARS: 1999-2000 SHRI HEM KUMAR JAIN, VS. A.C.I.T., GWALIOR. SARAFA BAZAR, LASHKAR, GWALIOR. (PAN : ABWPJ 4305 L) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI V. BAPNA, C.A. RESPONDENT BY : SHRI VINOD KUMAR, JR. D.R. ORDER THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) DATED 02.06.2009 BY TAKING THE FOLLOWING EFFECTIVE GROUND S OF APPEAL (1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) ERRED IN CONFIRMING ADDITION OF RS.4,000/- TOWARDS HOUSEHOLD EXPENSES IS ILLEGAL, UNJUSTIFIED AND BAD IN LAW. (2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) ERRED IN CONFIRMING RS.13,533/- OUT OF LOOSE PAPERS IS ILLEG AL UNJUSTIFIED AND BAD IN LAW. 2. GROUND NO.1 RELATES TO THE ADDITION MADE ON ACCO UNT OF THE LOW HOUSE HOLD DRAWING. 3. I HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME. I NOTED THAT THE A.O. HAS MADE THE ADDITION OF RS.4,000/- FOR THE RE ASON THAT NO DETAILS HAVE BEEN GIVEN BY THE ASSESSEE SUPPORTED BY ANY EVIDENCE IN RESPECT OF TH E EXPENDITURE MADE BY HIM. THE ADDITION HAS BEEN SUSTAINED BY THE CIT(A) MERELY ON ADHOC BASIS EVEN THOUGH HE HAS GIVEN THE FINDING THAT 2 NO MATERIAL IS ON RECORD BEING PROVIDED BY THE A.O. TO SHOW THE LOW HOUSE HOLD EXPENSES BY THE ASSESSEE. UNDER SECTION 69 OF THE I.T. ACT, ADDITI ON CAN BE MADE IF THE ASSESSEE HAS ACTUALLY INCURRED THE EXPENDITURE. THE ONUS IS ON THE REVEN UE TO PROVE THAT THE ASSESSEE HAS INCURRED THE EXPENDITURE. WE, THEREFORE, DELETE THE ADDITION. THUS, THIS GROUND STANDS ALLOWED. 4. GROUND NO.2 RELATES TO THE SUSTENANCE OF ADDITIO N OF RS.13,533/-. THE FACTS RELATING TO THIS GROUND ARE THAT DURING THE COURSE OF SEARCH CE RTAIN LOOSE PAPERS WERE FOUND FROM THE BED ROOM OF SHRI HEM KUMAR JAIN WHICH WAS SEIZED. COPY OF WHICH WAS FURNISHED BEFORE US. ON THE BASIS OF THE LOOSE PAPERS, THE A.O. MADE THE AD DITION AMOUNTING TO RS.33,746/-. WHEN THE MATTER WENT BEFORE THE CIT(A), THE CIT(A) SUSTAINED THE ADDITION TO THE EXTENT OF RS.13,533/- BY REDUCING THE N.P. @ 10% ON OUT OF BOOK SALES WHICH WAS TAKEN BY THE ACIT @ 16%. INVESTMENT IN THE JEWELLERY WAS CONFIRMED BY THE AC IT @ 12% OF THE SALES ALONG WITH 1% COMMISSION ON THE INVESTMENT AMOUNTING TO RS.1,66,0 00/-. IT WAS CONTENDED BY THE LD. A.R. THAT THE LOOSE PAPERS CONTAINING THE JEWELLERY RELATED T O BUSINESS OF M/S PEERCHAND AMIT KUMAR. THEREFORE, PRIMARILY IF THE ADDITION HAS TO BE MADE ON THE BASIS OF THESE PAPERS, THIS SHOULD BE MADE IN THE HANDS OF M/S PEERCHAND AMIT KUMAR NOT I N THE HANDS OF THE ASSESSEE. THE ASSESSEE HAS NEVER DONE THE BUSINESS OF JEWELLERY. 5. LD. D.R., ON THE OTHER HAND, RELIED ON THE ORDER OF THE A.O. 6. I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSION AND PERUSED THE MATERIAL ON RECORD ALONG WITH THE ORDERS OF THE TAX AUTHORITIES BELOW. I NO TED THAT CERTAIN LOOSE PAPERS WERE FOUND FROM THE BED ROOM OF THE ASSESSEE WHICH CONTAINED DETAIL S OF THE JEWELLERY OF THE ASSESSEE ALONG WITH 3 WEIGHT AND VALUE. THE ASSESSEE IS A PARTNER IN A F IRM CARRYING ON BUSINESS OF THE JEWELLERY. THE ASSESSEE COULD NOT EXPLAIN WHY THESE PAPERS WERE FO UND FROM HIS BED ROOM. THE PRESUMPTION UNDER SECTION 132 (4A) ARE THAT THE LOOSE PAPERS BE LONGED TO THE ASSESSEE AND THE CONTENTS OF SUCH LOOSE PAPER ARE TRUE AND THEY ARE MADE BY THE ASSESSEE. NO PRESUMPTION UNDER SECTION 132 (4A) IS DEBATABLE ON THE ASSESSEE TO PROVE THAT THE SE ITEMS BELONGED TO HIM AND ALSO TO PROVE TO WHOM THESE PAPERS BELONGED. THE ASSESSEE HAS NOT G IVEN PROPER EXPLANATION. UNDER THESE FACTS AND CIRCUMSTANCES, THE PRESUMPTION UNDER SECTION 13 2(4A) WILL BE APPLICABLE AND IN MY OPINION THE CIT(A) WAS FAIR ENOUGH AND REASONABLE TO CONFIR M THE ADDITION IN RESPECT OF THE N.P. @ 5% AMOUNTING TO RS.3,819/-. SO FAR THE INVESTMENT IN THIS GROUND ARE CONCERNED, THE INVESTMENT HAS BEEN TAKEN @ 12 %. IN MY OPINION, IT WILL BE REAS ONABLE IF THE INVESTMENT IS TAKEN @ 10% AND ACCORDINGLY I REDUCE THE ADDITION OF RS.9,548/- TO RS.7,638/- FOR THE HUNDI AMOUNTING TO RS.1,66,000/-. I DO NOT FIND ANY EVIDENCE ON RECOR D. THE COMMISSION HAS BEEN ESTIMATED BY THE A.O. AND CONFIRMED BY THE CIT(A) MERELY ON ADHOC BA SIS @ 1%. ACCORDINGLY, I DELETE THE ADDITION OF RS.166/-. THUS, THE ASSESSEE WILL GET A RELIEF OF RS.2,076/- (166+1910). 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 06.07.201 0). SD/- (P.K. BANSAL) ACCOUNTANT MEMBER PLACE: AGRA DATE: 19 TH JULY, 2010. 4 PBN/* 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 ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY