Appeal Details
Counselvise Citation
[2019] 117 COUNSELVISE.COM (IT) 0592 (ITAT-AGRA)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
6 year(s) 9 month(s) 20 day(s)
Appellant
Respondent
Appeal Type
Cross Objection
Pronouncement Date
16-05-2019
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
DB
Next Hearing Date
20-03-2013
Assessment Year
2006-2007
Appeal Filed On
26-07-2012
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO.378/AGR/2012 ASSESSMENT YEAR: 2006-07 SHRI DHARMENDRA KUMAR VARSHNEY, VS. ASSTT. COMMISS IONER OF INCOME TAX, C/O. M/S. D.K. FOOD PRODUCTS, CENTRAL CIRCLE, AGR A. NAI KA NAGLA ROAD, HATHRAS (U.P.). (PAN : AAYPV 1888 H). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NAVIN GARGH, ADVOCATE RESPONDENT BY : SHRI WASEEM ARSHAD, SRA. D.R. DATE OF HEARING : 20.03.2013 DATE OF PRONOUNCEMENT : 26.03.2013 ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 10.02.2012 PASSED BY THE LD. CIT(A)-I, AGRA FOR THE ASSESSMENT YEAR 2006-07. 2. THE ASSESSEE HAS RAISED AS MANY AS 3 GROUNDS AND SUB-GROUNDS BUT EFFECTIVELY THERE ARE TWO GROUNDS, ONE IS IN RESPEC T OF ADDITION OF RS.2,89,693/- ON 2 ITA NO.378/AGRA/2012 A.Y. 2006-07 ACCOUNT OF GOLD BISCUITS (TICKET) AND SECOND IS IN RESPECT OF CONFIRMING ADDITION OF RS.48,000/- OUT OF ADDITION OF RS.1,08,000/- ON ACC OUNT OF LOW WITHDRAWALS. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E DERIVES INCOME FROM MANUFACTURING AND TRADING OF CHURAN, CHANI, JALJIRA ETC. A SEARCH UNDER SECTION 132(1) AND SURVEY UNDER SECTION 133A OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) WERE CONDUCTED ON 28.02.2006. DURING THE COURSE OF SEARCH, TWO GOLD BISCUITS WORTH RS.3,99,373/- WAS FOUND IN LOCKER NO .27A IN ALIGARH GRAMIN BANK, HATHRAS. THE VALUE OF GOLD BISCUITS WAS RS.2,89,69 3/- AND VALUE OF JEWELLERY WAS RS.1,09,680/-. THE EXPLANATION OF THE ASSESSEE AS NOTED BY THE A.O. IN HIS ORDER IS AS UNDER :- THAT THE GOLD WEIGHING (WEIGHING 363.35 GM. VALUED AT RS.289693/- FOUND FROM LOCKER NO.27A (S.NO.5&6 OF V ALUATION REPORT) WAS KEPT FOR SISTER REKHA VARNSHEY AND DEE MED BELONGING TO HER. THE ITEM AT S. NO.5 GOLD PIECE WEIGHING 116.6 50 GM. WHICH HAS BEEN VALUED AT RS.93320/- HAS BEEN ACQUIRED FOR RS. 63250/- AS PER ANNEXURE A-4 PG.42 WHICH IS FURTHER EVIDENT FROM T HE VALUE OF GOLD NOTED AT RS.5430/- PER 10GM. FOR RS.63250/- WORKS O UT TO 116.50 GMS. SIMILARLY ITEM NO.6 VALUED AT RS.196373/- HAS BEEN ACQUIRED OUT OF RS.130000/- AS PER ANNEXUREA-4 PG.42. THE INVESTME NT IN ANNEXURE- A-4 PG.42 RELATES TO SHRI ASHOK KR. VARSHNEY AND IS OUT OF INCOME WHICH HAS BEEN DECLARED IN THE STATEMENT U/S 132(4) AND INCLUDED IN THE INCOME SHOWN IN RETURN. 3 ITA NO.378/AGRA/2012 A.Y. 2006-07 4. THE A.O DID NOT ACCEPT THE ASSESSEES EXPLANATIO N ON THE GROUND THAT SHRI ASHOK KUMAR VARSHNEY, BROTHER OF THE ASSESSEE, HAS NOT SHOWN INVESTMENT IN GOLD BISCUIT IN THE CAPITAL ACCOUNT AND BALANCE SHEET. EVEN IN THE AMOUNT SURRENDERED BY ASHOK KUMAR VARSHNEY FOR A.Y. 2006-07 THE VALUE OF GOLD BISCUIT AND ORNAMENTS HAVE NOT BEEN INCLUDED. THE ASSESSEE DID NOT FURNISH ANY EVIDENCE IN SUPPORT OF HIS CLAIM. THE A.O. FOUND THAT THE GOLD BISCUIT WAS FOUND IN THE LOCKER BELONGING TO THE ASSESSEE AND NO SATISFACTORY EXPLA NATION WITH REGARD TO SOURCE OF ACQUISITION OF SUCH ORNAMENTS AND GOLD BISCUITS HAV E BEEN OFFERED BY THE ASSESSEE. THEREFORE, IT WAS HELD THAT INVESTMENT IN GOLD BISC UIT AND JEWELLERY WAS MADE ON ACCOUNT OF UNDISCLOSED SOURCES. THE A.O. MADE ADDI TION ACCORDINGLY OF RS.3,99,373/-. THE CIT(A), CONSIDERING THE C.B.D.T . CIRCULAR AND SOME ORDERS OF I.T.A.T., DELETED THE ADDITION OF RS.1,09,680/- MAD E BY THE A.O. ON ACCOUNT OF JEWELLERY FOUND IN LOCKER OF THE ASSESSEE. HOWEVER , THE CIT(A) CONFIRMED THE ADDITION OF RS.2,89,693/- ON ACCOUNT OF GOLD BISCUI T AS UNDER :- (PARAGRAPH NO.6.4, PAGE NOS.10 & 11) 6.4 I HAVE CONSIDERED THE ABOVE WRITTEN SUBMISSION AND AFFIDAVIT FILED BY SHRI ASHOK KUMAR VARSHNEY OWING UP BOTH TH E GOLD BISCUITS DURING THE COURSE OF HEARING OF THE APPEAL PROCEEDI NG. IT COULD NOT BE EXPLAINED BY THE LD. AR SATISFACTORILY WHY THIS AFF IDAVIT WAS NOT FILED DURING THE COURSE OF ASSESSMENT PROCEEDING WHEN THE MATTER OF SOURCE OF ACQUISITION OF GOLD BISCUITS WAS UNDER EXAMINATI ON BEFORE THE AO. IT IS ALSO UNDISPUTED FACT THAT BOTH THE GOLD BISCU ITS WERE FOUND IN THE 4 ITA NO.378/AGRA/2012 A.Y. 2006-07 LOCKER OF THE APPELLANT. AS PER SECTION 132(4) AND 292C, IF ANY MONEY, BULLION, JEWELLERY OR VALUABLE ARTICLE OR TH ING ARE OR IS FOUND IN THE POSSESSION OR CONTROL OF ANY PERSON IN THE C OURSE OF A SEARCH OPERATION, SUCH BULLION, JEWELLERY OR VALUABLE ARTI CLE OR THING ETC. WOULD BE DEEMED TO BE BELONGING TO THAT PERSON. THO UGH LD. AR HAS TRIED TO EXPLAIN THE SOURCE OF ACQUISITION OF GOLD BISCUITS FROM PAGE NO.42 OF ANNEXURE A-4 OF THE SEIZED DOCUMENT OF WHI CH ADDITION WAS ALSO MADE IN THE ASSESSMENT ORDER OF SHRI ASHOK KUM AR VARSHNEY FOR THE A.Y. 2003-04 U/S 153A BUT IT COULD NOT BE EXPLA INED THAT IF THESE GOLD BISCUITS BELONGED TO SHRI ASHOK KUMAR VARSHNEY , WHY IT WAS KEPT IN THE LOCKER BELONGING TO THE ASSESSEE (APPEL LANT). EVEN DURING THE COURSE OF SEARCH AND SEIZURE OPERATION, THESE G OLD BISCUITS WERE NOT OWNED UP BY SHRI ASHOK KUMAR VARSHNEY AT THE TI ME OF RECORDING OF HIS STATEMENT WHILE MAKING DECLARATION/SURRENDER OF UNDISCLOSED INCOME AS DISCUSSED BY THE AO IN THE ASSESSMENT ORD ER. THE LD. AR HAS MADE AN ARGUMENT IN HIS WRITTEN SUBMISSION THAT THE CASH FOUND IN THE LOCKER OF THE APPELLANT WAS OWNED UP BY SHRI AS HOK KUMAR VARSHNEY, WHICH WAS ACCEPTED BY THE DEPARTMENT. HER E THE QUESTION ARISES, IF THE CASH FOUND IN THE LOCKER OF THE APPE LLANT WAS OWNED UP BY SHRI ASHOK KUMAR VARSHNEY DURING THE COURSE OF S EARCH, WHY THE GOLD BISCUITS WAS NOT OWNED UP BY HIM. IT APPEARS T HAT NOW DURING THE COURSE OF ASSESSMENT PROCEEDING AS WELL AS DURING T HE APPEAL PROCEEDING, EXPLAINING THE SOURCE OF ACQUISITION OF GOLD BISCUITS FROM PAGE NO.42 OF THE SEIZED DOCUMENT IS NOTHING BUT AF TER THOUGHT AND THE SAME IS BEING JUSTIFIED IN THE APPEAL PROCEEDING BY FILING AN AFFIDAVIT OF SHRI ASHOK KUMAR VARSHNEY WHICH WAS NOT FILED DU RING THE COURSE OF APPEAL PROCEEDING FOR WHICH NO REASONABLE EXPLAN ATION COULD BE GIVEN BY THE LD. AR JUSTIFYING AS TO HOW THE APPELL ANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THIS AFFIDAVIT B EFORE THE AO. THEREFORE, THE AFFIDAVIT OF SHRI ASHOK KUMAR VARSHN EY FILED BY THE APPELLANT AT THE TIME OF APPEAL PROCEEDING IS NOT A DMITTED UNDER RULE 46A OF THE I.T. RULE, 1961 AND HENCE, AGREEING WITH THE FINDINGS OF THE AO, I CONFIRM THE ADDITION OF RS.2,89,693/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE GOLD BISCU ITS. 5. THE CONTENTION OF THE LD. AUTHORISED REPRESENTAT IVE WAS THAT THE GOLD BISCUIT BELONGED TO ASSESSEES BROTHER SHRI ASHOK KUMAR VAR SHNEY AND ADDITION HAS BEEN 5 ITA NO.378/AGRA/2012 A.Y. 2006-07 MADE IN THE HANDS OF SHRI ASHOK KUMAR VARSHNEY. TH E LD. AUTHORISED REPRESENTATIVE FURTHER SUBMITTED THAT LOOSE PAPER D ATED 14.12.2002 WAS FOUND OF WHICH COPY HAS BEEN PLACED AT PAGE NO.16 OF ASSESSE ES PAPER BOOK. THE LD. AUTHORISED REPRESENTATIVE TRIED TO DEMONSTRATE THAT THE SO-CALLED TWO GOLD BISCUITS FOUND IN THE LOCKER OF THE ASSESSEE WAS BELONGING T O THE ASSESSEES BROTHER SHRI ASHOK KUMAR VARSHNEY AND RS.2,00,000/- HAS ALREADY BEEN ADDED IN HIS HAND AND INVESTMENT IN GOLD BISCUIT WAS OUT OF THAT RS.2,00, 000/-. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT SINCE THE AMOUNT OF G OLD BISCUIT HAS ALREADY BEEN TAXED IN THE HANDS OF THE ASSESSEES BROTHER, THERE FORE, THE SAME ADDITION CANNOT BE MADE IN THE HANDS OF THE ASSESSEE. 6. LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HA ND, RELIED UPON THE ORDER OF CIT(A) AND SUBMITTED THAT THE ASSESSEE HAS FAILED T O FURNISH ANY EVIDENCE THAT THE SO-CALLED LOOSE PAPER DATED 14.12.2002 WAS IN FACT PERTAINING TO THE GOLD BISCUITS FOUND IN THE LOCKER OF THE ASSESSEE. THE LD. DEPAR TMENTAL REPRESENTATIVE SUBMITTED THAT SOME CASH WAS FOUND IN THE LOCKER OF THE ASSES SEE. SHRI ASHOK KUMAR VARSHNEY SUBMITTED IN HIS STATEMENT THAT THE CASH T O THE EXTENT OF RS.5,00,000/- BELONGED TO HIM. BUT AT THAT TIME HE DID NO SAY TH AT THE TWO GOLD BISCUITS ALSO BELONGED TO HIM. 6 ITA NO.378/AGRA/2012 A.Y. 2006-07 7. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PAR TIES AND RECORDS PERUSED. THE ASSESSEE HAS TAKEN INCONSISTENCY APPROACH IN HI S SUBMISSION REGARDING TWO GOLD BISCUITS FOUND IN THE LOCKER OF THE ASSESSEE. IN THE EXPLANATION FURNISHED BEFORE THE A.O., IT WAS SUBMITTED THAT THE GOLD ORN AMENTS AND GOLD BISCUITS BELONGED TO SISTER REKHA VARSHNEY. SHRI ASHOK VARS HNEY NEVER ADMITTED THAT THE SAID TWO GOLD BISCUITS BELONGED TO HIM. WHEN SHRI ASHOK VARSHNEY, BROTHER OF THE ASSESSEE, IN HIS STATEMENT POINTED OUT THAT CASH OF RS.5,00,000/- FOUND IN THE LOCKER OF ASSESSEE BELONGED TO HIM, HE DID NOT POINT OUT T HAT THESE TWO GOLD BISCUITS ALSO BELONGED TO HIM. THE CIT(A) RECORDED THE FACT THAT IF THESE GOLD BISCUITS BELONGED TO SHRI ASHOK KUMAR VARSHNEY, WHY IT WAS KEPT IN TH E LOCKER BELONGING TO THE ASSESSEE. EVEN DURING THE COURSE OF SEARCH AND SEI ZURE OPERATION, THESE GOLD BISCUITS WERE NOT OWNED UP BY SHRI ASHOK KUMAR VARS HNEY AT THE TIME OF RECORDING HIS STATEMENT WHILE MAKING DECLARATION/SU RRENDER OF UNDISCLOSED INCOME. 8. IT APPEARS FROM THE FACTS THAT COINCIDENTALLY SO ME OF THE ITEM OF JEWELLERY FOUND IN LOOSE PAPER DATED 14.12.2002 FOR WHICH THE ADDITION IN THE HANDS OF THE ASSESSEES BROTHER WAS MADE. THE ASSESSEE HAS TRIE D TO GET THE BENEFIT OF THAT ADDITION IN HIS HAND WITHOUT SUFFICIENT EVIDENCE. WE, THEREFORE, FIND THAT THE CIT(A) HAS RIGHTLY CONFIRMED THE ADDITION OF RS.2,8 9,693/- ON ACCOUNT OF TWO GOLD BISCUITS FOUND FROM LOCKER OF THE ASSESSEE. 7 ITA NO.378/AGRA/2012 A.Y. 2006-07 9. THE CIT(A) HAS NOTED THAT THE EXPLANATIONS OF TH E ASSESSEE IS NOTHING BUT AFTER THOUGHT AND THE SAME IS BEING JUSTIFIED IN TH E APPEAL PROCEEDING BY FILING AN AFFIDAVIT OF ASHOK KUMAR VARSHANEY WHICH WAS NOT FI LED DURING THE COURSE OF APPELLATE PROCEEDING FOR WHICH NO REASONABLE EXPLAN ATION COULD BE GIVEN BY THE ASSESSEE JUSTIFYING AS TO HOW THE ASSESSEE WAS PREV ENTED BY SUFFICIENT CAUSE FROM PRODUCING THIS AFFIDAVIT BEFORE THE A.O. THE LD. A UTHORISED REPRESENTATIVE CONTENDED THAT THE CIT(A) HAS WRONGLY NOT ADMITTED THE AFFIDAVIT FILED BY SHRI ASHOK KUMAR VARSHNEY. HE RELIED UPON THE JUDGEMENT OF HONBLE ALLAHABAD HIGH COURT IN THE CASES OF SMT. MOHINDAR KAUR VS. C ENTRAL GOVERNMENT AND OTHERS, 104 ITR 120 (ALL.) AND ORDER OF I.T.A.T., D ELHI BENCH IN THE CASE OF ITO VS. JITENDER MEHRA, 53 ITD 396. THE JUDGEMENT OF H ONBLE ALLAHABAD HIGH COURT AND ORDER OF I.T.A.T. BOTH DO NOT HELP TO THE ASSES SEE AS THE FACTS OF THAT CASES ARE DIFFERENT THAN THE FACTS OF THE CASE UNDER CONSIDER ATION. THE CIT(A) DID NOT ACCEPT THE SAID AFFIDAVIT AS RULE 46A(1) CLEARLY PROVIDES THE CONDITION THAT THE APPELLANT WAS TO SHOW THAT HE WAS PREVENTED BY SUFFICIENT CAU SE FROM PRODUCING EVIDENCE BEFORE THE A.O. IN THE CASE UNDER CONSIDERATION, THE ASSESSEE HAS FAILED TO GIVE ANY SUFFICIENT CAUSE FOR NOT PRODUCING THE SAME BEF ORE THE A.O., THEREFORE, WE FIND THAT THE CIT(A) HAS RIGHTLY REJECTED THE CONTENTION OF THE ASSESSEE. 8 ITA NO.378/AGRA/2012 A.Y. 2006-07 10. THE SECOND ADDITION IS ON ACCOUNT OF HOUSE HOLD EXPENSES. THE A.O. MADE ADDITION OF RS.1,08,000/- WHICH HAS BEEN REDUCED BY THE CIT(A) TO RS.48,000/-. THE FINDING OF CIT(A) IN THIS REGARD IS REPRODUCED AS UNDER :- (PARA NO.5.3, PAGE NO.6) 5.3 CONSIDERING MY DECISION ON THE REASONABILITY OF HOUSE HOLD EXPENSES SHOWN BY THE APPELLANT AS DISCUSSED IN THE ORDER OF A.Y. 2000-01, I ESTIMATE THE HOUSE HOLD EXPENSES OF THE APPELLANT AT RS.5,000/- PER MONTH, WHICH COMES TO RS.50,000/- FO R ENTIRE YEAR. AFTER TAKING INTO ACCOUNT THE HOUSE HOLD WITHDRAWAL SHOWN BY THE APPELLANT AT RS.12,000/-, THE BALANCE AMOUNT OF RS. 48,000/- (RS.60,000 - RS.12,000) IS TO BE ADDED IN THE HAND OF THE APPELLANT ON ACCOUNT OF LOW WITHDRAWAL AND THEREFORE, THE ADDITI ON ON ACCOUNT OF LOW WITHDRAWAL IS CONFIRMED TO THE EXTENT OF RS.48, 000/- INSTEAD OF RS.1,08,000/- AND THEREFORE, THE APPELLANT GETS A R ELIEF OF RS.60,000/- AGAINST GROUND NO.1, ACCORDINGLY GROUND NO.1 IS PARTLY ALLOWED. 11. THE LD. AUTHORISED REPRESENTATIVE DID NOT ARGUE MUCH ON THE ISSUE AND ALSO FAILED TO POINT OUT ANY CONTRARY MATERIAL TO THE FI NDING OF CIT(A). THERE IS NO SUCH MATERIAL AVAILABLE ON RECORD AGAINST THE FINDING OF CIT(A). IN THE LIGHT OF THE FACT, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) . 12. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER PBN/* 9 ITA NO.378/AGRA/2012 A.Y. 2006-07 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY
