Sh. Ravi Dhingra, Delhi V. ACIT, New Delhi

ITA 3780/DEL/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 98108 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC 1
• Next Hearing Date: 14-12-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 10-06-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: V K SABRAWAL
• Section: 131

Judgement Text

M.A. NO. 205 /DEL./201 6 ASSESSMENT YEAR: 20 10 - 11 PAGE 1 OF 8 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC - I NEW DELHI) BEFORE SHRI I.C. SUDHIR JUDICIAL MEMBER IN M.A. NO. 205 / DEL./2016 I.T.A. NO. 3 780 /DEL./201 5 ASSESSMENT YEAR: 20 10 - 1 1 ACIT CIRCLE 57(1), (ERSTWHILE CIRCLE 34(1), D - 08, VIKAS BHAWAN , I.P. ESTATE, NEW DELHI VS. SH. RAVI DHINGRA, PROP. M/S. AMBA TRADING CO., C - 81/1, TANKI ROAD, BHAJANPURA, DELHI (APPLICANT) (RESPONDENT) (PAN: A AFPD0697R ) ASSESSEE BY : SHRI V.K. SABRAWAL, ADVOCATE REVENUE BY: SHRI RAJESH KUMAR, SR. DR DATE OF HEARING 23 / 0 9 /2016 DATE OF PRONOUNCEMENT 1 5 / 1 2 /2016 ORDER PER I.C. SUDHIR, JUDICIAL MEMBER : 1. IN ITS APPLICATION THE REVENUE HAS POINTED OUT THAT THERE ARE SOME MISTAKES FROM RECORD IN THE ORDER DATED 18.12.2015 WHICH NEED RECTIFICATION U/S 254(2) OF THE ACT. 2. THE LD. SR. DR SUBMITTED THAT AN ADDITION OF RS. 10 LAC MADE ON ACCOUNT OF DISCREPANC Y IN STOCK HAS BEEN DELETED BY THE TRIBUNAL ON THE BASIS THAT THE ADDITION WAS MADE ONLY ON THE BASIS OF THE STATEMENT RECORDED DURING THE SURVEY FROM THE BROTHER OF THE ASSESSEE AND PAGE 2 OF 8 THEREAFTER THE STATEMENT OF THE ASSESSEE RECORDED U/S 131 ON 23.2.2010 . T H E TRIBUNAL HAS FURTHER OBSERVED THAT APART FROM STATEMENT OF THE ASSESSEE, THE ASSESSING OFFICER HAS NOT GIVEN ANY FINDING OR DISCUSSED ANY FACT IN THE ASSESSMENT ORDER AS TO WHETHER THERE WAS ANY DISCREPANCY IN THE QUANTITY OR IN VALUATION OF THE STOCK AS FOUND DURING THE COURSE OF SURVEY AND THAT THE ASSESSMENT ORDER IS COMPLETELY SILENT ABOUT ANY ENQUIRY/INVESTIGATION CARRIED OUT BY THE ASSESSING OFFICER EITHER DURING THE SURVEY OR DURING THE ASSESSMENT PROCEEDINGS. THE TRIBUNAL HAS OBSERVED FURTHER THAT EXCEPT STATEMENT THERE IS NO OTHER MATERIAL OR ANY FACT BROUGHT ON RECORD BY THE ASSESSING OFFICER TO INDICATE THAT THERE EXISTS ANY DISCREPANCY IN THE STOCK OR ANY CASH NOR ANY INVENTORY HAS BEEN MENTIONED ABOUT ANY PREPARED DURING THE SURVEY PROCEEDINGS OR EXAMINATION WAS CARRIED OUT TO COME TO THE CONCLUSION THAT THE STOCK SHOWN IN THE BOOKS OF ACCOUNT DOES NOT MATCH WITH THE PHYSICAL STOCK EXISTS AT THE BUSINESS OF THE ASSESSEE. THE CORRECT FACT HOWEVER IS THAT THERE WERE SEVERAL MATERIAL FOUND DURING THE COURSE OF SURVEY TO ESTABLISH DISCREPANCIES IN THE MAINTENANCE OF STOCK DUE TO WHICH SURRENDER OF RS. 10,000/ - WAS MADE BY THE ASSESSEE. IN THIS REGARD HE REFERRED CONTENTS OF PAGE NOS. 3 & 4 OF THE APPLICATION WITH FURTHER PAGE 3 OF 8 SUBMISSION THAT NON - CONSIDER ATION OF THESE FACTS BY THE TRIBUNAL HAS RESULTED INTO MISTAKE APPARENT FROM HEARD IN ITS ORDER. 3 . THE LD. AR ON THE OTHER HAND SUBMITTED THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF THE TRIBUNAL AS ALLEGED. THE AUTHORITIES BELOW HAVE BRUSHED ASIDE THE EXPLANATION OF THE ASSESSEE THAT THE STOCK SURRENDERED HAS BEEN INCLUDED IN THE CLOSING STOCK AS PER THE PROFIT AND LOSS ACCOUNT WITHOUT GIVING CONTRARY FINDING OR BRINGING CONTRARY MATERIAL AS THE TO CONTROVERT THE EXPLANATION OF THE AS SESSEE. HE PLACED RELIANCE ON THE FOLLOWING DECISIONS: - 1 ) RASBIHARI BANSAL VS. CIT (2007) 293 ITR 365 (DELHI) 2 ) PREM COLONIZERS PVT. LTD. VS. ITO (2013) 56 SOT 121 (URO)(DELHI) 3 ) DHOLADHAR INVESTMENT PVT. LTD. VS. CIT (2014) 362 ITR 111 (DELHI) 4. WHEN I WENT THROUGH THE ORDERS OF THE AUTHORITIES BELOW IN VIEW OF THE ABOVE SUBMISSION , I FIND THAT THERE WAS NOTHING IN THE ORDERS OF THE AUTHORITIES BELOW OR IN THE MATERIAL ON RECORD AVAILABLE DURING THE COURSE OF HEARING OF THE APPEAL BEFORE THE TRIBUNAL REMAINED TO BE CONSIDERED IN ITS ORDER, WHICH THE REVENUE NOW STATING IN THEIR APPLICATION TO SUPPORT ITS CLAIM THAT THERE IS MISTAKE APPARENT THEIR RECORD IN THE ORDER OF THE TRIBUNAL WHICH AS PER IT NEEDS RECTIFICATION U/S 254(2) OF THE ACT. THE PAGE 4 OF 8 APPLICANT REVEN UE IN HIS APPLICATION IS SAYING THAT THE TRIBUNAL HAS GIVEN ITS FINDING THAT EXCEPT THE STATEMENT THERE IS NO OTHER MATERIAL OR ANY FACT BROUGHT ON RECORD BY THE ASSESSING OFFICER TO INDICATE THAT THERE EXISTS ANY DISCREPANCY IN THE STOCK OR IN CASH, IT IS ALSO NOT RECORDED IN THE ASSESSMENT ORDER AS TO WHERE ANY INVENTORY WAS PREPARED IN THE SURVEY PROCEEDINGS OR EXAMINATION WAS CARRIED OUT TO COME TO THE CONCLUSION THAT STOCKS SHOWN IN THE BOOKS OF ACCOUNTS DOES NOT MATCH WITH THE PHYSICAL STOCK EXISTS AT THE BUSINESS OF THE ASSESSEE. THE TRIBUNAL HAS FURTHER OBSERVED THAT EVEN THERE IS NOTHING IN THE ASSESSMENT ORDER OR ANY OTHER MATERIAL TO INDICATE THAT THE VERIFICATION OF STOCK WAS CARRIED OUT BY THE ASSESSING OFFICER DURING THE SURVEY OR EVEN DURING T HE ASSESSMENT PROCEEDINGS . THUS, THE PLEA OF THE APPLICANT REVENUE IN SUPPORT OF THE APPLICATION NOW IS THAT THE TRIBUNAL H AS GIVEN ABOVE FINDING WITHOUT CALLING OF SURVEY FOLDER OR ANY REMAND REPORT FROM THE ASSESSING OFFICER AND WITHOUT APPRECIATING FACT S THAT A ) INVENTORY OF STOCK AN D CASH WAS PREPARED AND THE SAME IS PALCED IN THE SURVEY FOLDER , B ) DURING THE SURVEY CONDUCTED ON 8.2.2010, THE STATEMENT OF THE BROTHER OF THE ASSESSEE I.E. SHRI DEVINDER DHINGRA WAS RECORDED PAGE 5 OF 8 ON BEHALF OF ASSESSEE WHICH WAS ALSO ACCEPTED BY THE ASSESSEE IN HIS STATEMENT ON OATH RECORDED ON 23.2.2010, C ) THE INVENTORY OF STOCK WAS MADE AN D DIFFERENCE IN CLOSING STOCK AS PER BOOKS OF ACCOUNT AND THAT FOUND DURING THE SURVEY WAS FOUND. AS PER THE INVENTORY MADE DURING THE SURVEY THE VALUE OF STOCK FOUND WAS RS. 19,80,500/ - AND THE VALUE OF CLOSING STOCK AS PER THE BOOKS OF ACCOUNT S WAS RS. 9,78,089/ - . W HILE RECORDING THE STATEMENT DURING THE SURVEY, THIS DIFFERENCE IN STOCK WAS CONFRONTED TO SH. DEVINDER DHINGRA IN QUESTION NO. 29 AND HE ON BEHALF OF HIS BROTHER SURRENDER ED OF RS. 10 LAC FOR TAX, ON ACCOUNT OF EXCESS STOCK AND AT THE TIME OF SURVEY DISCREPANCY WAS ALSO FOUND IN CASH AND FOUND AT BUSINESS PREMISES OF THE ASSESSEE AT THE TIME OF THAT SURVEY DECLARE D BY THE ASSESSEE . THE SAME HAS BEEN DULY RECORDED IN THE SURVEY FOLDER. 4. THUS I FIND FROM THE ABOVE SUBMISSION OF THE APPLICANT THAT THE AUTHORITIES BELOW THOUGH HAVE NOT RECORDED THE ABOVE NUMBERED FINDINGS OF FACTS IN THEIR ORDERS BUT THESE FACTS ARE AVAILABLE IN THE SURVEY FOLDER WHICH THE TRIBUNAL SHOULD HAVE CALLED FOR AND ALSO THE TRIBUNAL SHOULD PAGE 6 OF 8 HAVE CALLED FOR THE REMAND REPORT FROM THE ASSESSING OFFICER FOR APPRECIATING THE ABOVE NUMBERED FACTS. 4.2 . IT IS VERY SURPRISING THAT HOW THE TRIBU NAL CAN IMAGINE THAT THERE ARE SOME MORE FACTS AVAILABLE ON RECORD , BEYOND THOSE RECORDED BY THE AUTHORITIES BELOW. WHEN AN APPEAL IS PREFERRED BY AN ASSESSEE, THE DUTY LIES UPON THE REVENUE TO DEFEND ORDERS OF THE AUTHORITIES BELOW QUESTIONED BEFORE THE T RIBUNAL. IF THE REVENUE FAILS IN SUCH DUTY, THE TRIBUNAL CANNOT BE MADE RESPONSIBLE IN THE PROCEEDINGS U/S 254(2) OF THE ACT TO SUGGEST THAT THERE IS MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL. UNDISPUTEDLY IT IS NOT THE CASE OF THE APPLICAN T REVENUE THAT THE ABOVE NUMBERED FACTS WHICH WERE NOT FOUND MATERIAL OR RELEVANT BY THE AUTHORITIES BELOW NOR WERE BROUGHT ON RECORD BY THE REVENUE APPLICANT WERE NOT CONSIDERED BY THE TRIBUNAL RESULTING INTO MISTAKE APPARENT FROM RECORD IN ITS ORDER/FIND ING. INSTEAD THE CASE OF THE APPLICATION IS THAT THE TRIBUNAL SHOULD HAVE CALLED SURVEY FOLDER AND REMAND REPORT FROM THE A.O. BEFORE DISPOSING OFF THE APPEAL AND DUE TO SUCH FAILU RE ON THE PART OF THE TRIBUNAL , T HERE IS MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF THE TRIBUNAL WITHIN THE MEANING OF SECTION 254(2) OF THE ACT. I DO NOT FIND ANY REASON TO ACCEPT SUCH PLEA, SINCE CONSIDERATION OF FRESH MATERIAL WOULD B E CERTAINLY AMOUNTING TO REVIEW OF PAGE 7 OF 8 ITS ORDER BY THE TRIBUNAL, WHICH IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE I.T. ACT. THE APPLICATION IS ACCORDINGLY REJECTED. 6 . THE ORDER IS PRONOUNCED IN THE OPEN COURT 1 5 . 1 2 .2016. (I.C. SUDHIR) JUDICIAL MEMBER DATED: 1 5 . 1 2 .2016. NARENDER KUMAR COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT (APPEALS) 5) DR: ITAT ASSISTANT REGISTRAR DATE DRAFT DICTATED ON DRAFT PLACED BEFORE AUTHOR DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER PAGE 8 OF 8 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS KEPT FOR PRONOUNCEMENT ON FILE SENT TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.