M/s. R.Kakkar Glass & Crockery House, Jalandhar V. The Deputy Commissioner of Income tax, Jalandhar

ITA 429/ASR/2000

• Counselvise Citation: 42920914 RSA 2000
• Duration Of Justice: 11 year(s) 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 07-12-2011
• Assessment Year: 1990-1991
• Appeal Filed On: 13-09-2000
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Business income
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL: AMRITSAR BENC H: AMRITSAR BEFORE SHRI H L KARWA, VP AND SHRI D K SRIVASTAVA, AM ITA NO. 429/ASR/2000 AY: 1990-91 M/S R. KAKKAR GLASS & CROCKERY V DCIT, C.C. 2, JALANDHAR HOUSE, JAURA GATE, JALANDHAR APPELLANT BY: S/SHRI SUDHIR SEHGAL AND ANIL MIGLANI RESPONDENT BY: SHRI TARSEM LAL, DR DATE OF HEARING: 08.12.2011 DATE OF PRONOUNCEMENT: 16.12.2011 ORDER D K SRIVASTAVA : THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER PASSED BY THE LD. CIT(A) ON 29.6.2002, ON THE FOLLOWING GROUNDS:- 1 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS GRAVELY ERRED IN UPHOLDING THE RE-OPENING U/S 1 47 AS VALID, WHICH IS BAD IN LAW AND ON FACTS AND BASED ON INSUFFICIENT A ND INADEQUATE MATERIAL. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS GRAVELY ERRED IN HOLDING THAT PAGE NO. 53 OF AN NEXURE A9 OF THE SEIZURE DURING SEARCH WAS THE BALANCE SHEET OF THE BUSINESS OF THE ASSESSEE. IT IS BASED ON CONJECTURES AND SURMISES. 2.1 THAT WHILE HOLDING AS ABOVE, THE LD. CIT(A) HA S CONSIDERED CERTAIN FACTS WHICH COULD NOT BE MADE A BASE AS MEN TIONED IN PARA 2.5 AND 2.6 OF HIS ORDER, WHICH HAS RESULTED IN WRONGLY HOLDING IT AS SUCH. 2.2 THAT WHILE HOLDING AS ABOVE, THE LD. CIT(A) IG NORED THAT THERE WAS NEITHER ANY CORRESPONDING BOOKS OF ACCOUNT TO CORRELATE THE IMAGINARY ENTRIES IN THIS PAPER NOR ANY ASSET FOUND AND SEIZED DURING SEARCH PERTAINING TO THE YEAR UNDER ASSESSMENT TO C ORROBORATE THE CONTEMPLATED ENTRIES. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS GRAVELY ERRED IN HOLDING BUSINESS INCOME OF THE APPELLANT AT RS. M/S R. KAKKAR GLASS & CROCKERY HOUSE V. DY CIT ITA NO. 429/ASR/2000 2 3,15,000/- BASED ON ROUGH AND IMAGINARY FIGURES CON TAINED IN THE SEIZED PAPER WHICH IS ONLY A WINDOW DRESSING TO OBTAINED T HE C&F AGENCY OF EAGLE FLASKS LTD. 3.1 THAT WHILE HOLDING AS ABOVE, THE LD. CIT(A) IG NORED THAT THE EXPLANATION FURNISHED WAS SUPPORTED BY ASSESSEE/APP ELLANT SUCCEEDED IN OBTAINING C & F OF EAGLE FLASK LIMITED. 4. THAT THE ADDITION OF RS. 1,00,000/- ON ACCOUNT OF OLD STOCK RATE DIFFERENCE AND ANOTHER RS. 1,00,000/- WRONGLY SUSTA INED BY THE LD. CIT(A) BASE ON INSUFFICIENT AND INADEQUATE MATERIA L. 5 THAT THE ADDITION OF RS. 1,60,000/- ON ACCOUNT O F AN ENTRY IN THE CONTEMPLATED ROUGH PAPER IN THE NAME OF SHRI YASH P AL IS NOWHERE PROVED TO BE AN ACTUAL CASH CREDIT NOR ANY ENQUIRY MADE BY THE AO IN THIS RESPECT. THE LD. CIT(A) HAS WRONGLY HELD THA T ON ASSET SIDE THERE ARE REAL ASSETS WHICH SHOW IT TO BE A REAL CASH CRE DIT. 6. THAT THE APPELLANT BEGS TO ADD OR AMEND ANY GROU ND OF APPEAL BEFORE THE APPEAL IS HEARD AND DISPOSED OFF. 2. THE APPEAL FILED BY THE ASSESSEE WAS DISPOSED OF F EARLIER BY TWO ORDERS OF THIS TRIBUNAL OUT OF WHICH THE FIRST ORDER IS DA TED 9.1.2007 BY WHICH ALL THE GROUNDS TAKEN BY THE ASSESSEE CHALLENGING THE INITI ATION OF PROCEEDINGS U/S 147/148 WERE DISMISSED WHILE THE OTHER ORDER IS DAT ED 4.5.2007 BY WHICH THE GROUNDS OF APPEAL CHALLENGING THE ADDITIONS/DISALLO WANCES CONFIRMED BY THE LD. CIT(A), WERE PARTLY ALLOWED. 3. AGGRIEVED BY BOTH THE ORDERS OF THIS TRIBUNAL, T HE ASSESSEE FILED APPEAL BEFORE THE HON'BLE HIGH COURT UPON WHICH BOTH THE O RDERS PASSED BY THIS TRIBUNAL WERE SET ASIDE BY THE HON'BLE HIGH COURT, VIDE ITS ORDER DATED 17.11.2009 (ITA NO. 391/09) AND ORDER DATED 23.3.20 10 (ITA NO. 324/09) AND THE MATTER WAS RESTORED TO THIS TRIBUNAL FOR A FRES H DECISION. ACCORDINGLY THE APPEAL FILED BY THE ASSESSEE WAS FIXED FOR HEARING. 4. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE WAS NOT KEEN TO PRESS THE GROUNDS OF A PPEAL RELATING TO VALIDITY OF M/S R. KAKKAR GLASS & CROCKERY HOUSE V. DY CIT ITA NO. 429/ASR/2000 3 INITIATION OF PROCEEDINGS U/S 147/148. THUS, THE GR OUNDS OF APPEAL BY WHICH THE INITIATION OF PROCEEDINGS U/S 147/148 WAS CHALL ENGED, WERE NOT PRESSED AT THE TIME OF HEARING. THEY ARE THEREFORE DISMISSED. 5. AS REGARDS THE QUANTUM OF ADDITIONS/DISALLOWANCE S WHICH ARE NOW THE SUBJECT MATTER OF APPEAL BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IT WAS THE ASSESSEE WHO HAD APPROACHED THE HIG H COURT AGAINST THE EARLIER ORDER OF THIS TRIBUNAL CONFIRMING ADDITIONS/DISALLO WANCES AND NOT THE DEPARTMENT AGAINST THE RELIEF GRANTED BY THIS TRIBU NAL IN ITS EARLIER ORDER DATED 5.4.2007 AND THEREFORE THE RELIEF ALREADY GRANTED B Y THE SAID ORDER OF THE TRIBUNAL MAY BE MAINTAINED. HE HOWEVER DID NOT PRES S FOR ANY FURTHER RELIEF OVER AND ABOVE THOSE ALLOWED BY THIS TRIBUNAL IN IT S EARLIER ORDER. SUM AND SUBSTANCE OF THE SUBMISSIONS MADE BY THE ASSESSEE W AS THAT APPEAL FILED BY THE ASSESSEE SHOULD BE DISPOSED OFF AFTER GRANTING SIMILAR RELIEF AS ALREADY GRANTED BY THIS TRIBUNAL IN ITS ORDER DATED 5.4.200 7 WHICH HAS SINCE BEEN SET ASIDE BY THE HIGH COURT. 6. ELABORATING THE RELIEF ALLOWED AND ADDITIONS SUS TAINED BY THIS TRIBUNAL IN ITS EARLIER ORDER, HE SUBMITTED THAT THE ADDITION O F RS.2,55,179/- AS CONFIRMED BY THE LD. CIT(A) ON ACCOUNT OF PROFIT HAS ALREAD Y BEEN SUSTAINED BY THIS TRIBUNAL IN ITS ORDER DATED 5.4.2007. HE SUBMITTED THAT THE ASSESSEE HAS NO OBJECTION IF THE SAID ADDITION SUSTAINED BY THIS TR IBUNAL IN ITS EARLIER ORDER IS MAINTAINED NOW. IN THIS VIEW OF THE MATTER, THE APP EAL OF THE ASSESSEE IN THIS BEHALF IS DISMISSED. AS REGARDS THE ADDITION OF RS. 4,50,000/- REPRESENTING THE ADDITION (I) ON ACCOUNT OF SUNDRY CREDITORS-II (RS .90,000); (II) ON ACCOUNT OF OLD STOCK RATES DIFFERENCE (RS. 1,00,000); (III) ON ACCOUNT OF UGRAHI FROM OLD FIRM (RS. 1,00,0000) AND (IV) ON ACCOUNT OF DEPOS IT IN THE NAME OF SHRI YASH PAL (RS. 1,60,000), THE LD. COUNSEL FOR THE ASSESSE E SUBMITTED THAT THIS TRIBUNAL HAS ALLOWED RELIEF TO THE EXTENT OF RS. 2,20,000 OU T OF TOTAL ADDITION OF RS. 4,50,000/- CONFIRMED BY THE LD. CIT(A), WHICH MAY B E MAINTAINED NOW ALSO AS THE DEPARTMENT HAD NOT CHALLENGED THE EARLIER ORDER OF THIS TRIBUNAL ALLOWING THE SAID RELIEF. HE HOWEVER DID NOT PRESS FOR FURTH ER RELIEF. IN THIS VIEW OF THE MATTER, RELIEF (RS.2.20.000/-) ALREADY GRANTED AND ADDITION (RS.2,30,000/-) ALREADY SUSTAINED BY THIS TRIBUNAL IN ITS EARLIER O RDER SHALL STAND. APPEAL OF THE ASSESSEE IN THIS BEHALF IS PARTLY ALLOWED. AS REGAR DS REMAINING ADDITIONS AMOUNTING TO RS. 4,11,000/-, RS. 64,700/-, RS. 90,0 00/- AND RS. 23,000/- ON M/S R. KAKKAR GLASS & CROCKERY HOUSE V. DY CIT ITA NO. 429/ASR/2000 4 ACCOUNT OF SUNDRY DEBTORS-II, ON ACCOUNT OF CASH IN HAND, ON ACCOUNT OF DEPOSIT IN THE NAME OF DELHI AND ON ACCOUNT OF A DVANCES SHOWN IN BALANCE SHEET RESPECTIVELY, THE LD. COUNSEL FOR THE ASSESSE E SUBMITTED THAT THEY HAVE SINCE BEEN DELETED BY THIS TRIBUNAL IN ITS ORDER DA TED 5.4.2007 AND THEREFORE THEY SHOULD BE MAINTAINED AS THE DEPARTMENT HAD NOT CHALLENGED THE EARLIER ORDER OF THIS TRIBUNAL ALLOWING THE SAID RELIEF TO THE ASSESSEE. IN THIS VIEW OF THE MATTER, THE APPEAL OF THE ASSESSEE IN THIS BEHA LF STANDS ALLOWED. 6. IN VIEW OF THE FOREGOING, ADDITION OF RS.2,55,17 9/- AND FURTHER ADDITION OF RS.2,30,000/- OUT OF RS.4,50,000/- AS ALREADY SU STAINED BY THIS TRIBUNAL IN ITS EARLIER ORDER DATED 5.4.2007 STAND CONFIRMED FO R THE REASONS GIVEN BY THIS TRIBUNAL IN THE SAID ORDER AND ALSO FOR THE REASON THAT NO FURTHER RELIEF HAS BEEN PRESSED BEFORE US BY THE LD. COUNSEL FOR THE A SSESSEE. THE RELIEF AS ALLOWED BY THIS TRIBUNAL IN ITS EARLIER ORDER DATED 5.4.2007 WOULD ALSO STAND FOR THE REASONS GIVEN IN THE SAID ORDER AND ALSO FOR TH E REASON THAT THEY WERE EARLIER ACCEPTED BY THE DEPARTMENT IN THAT THE DEPA RTMENT HAD NOT CHALLENGED THEM BEFORE THE HIGH COURT. ALL THE GROUNDS OF APPE AL TAKEN BY THE ASSESSEE WITH REGARD TO QUANTUM OF ADDITIONS/DISALLOWANCES S TAND DISPOSED OFF ACCORDINGLY. 7. APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED ORDER PRONOUNCED ON 16.12.2011 SD/- SD/- (H L KARWA) (D K SRIVASTAVA) VICE PRESIDENT ACCOUNTANT MEMBER AMRITSAR, 16.12.2011 SURESH COPY TO:- 1. THE APPELLANT, M/S R. KAKKAR GLASS & CROCKERY HO USE 2. THE RESPONDENT, DY CIT 3. THE CIT(A), JALANDHAR 4. THE LD. CIT, JALANDHAR 5. THE D.R., INCOME TAX DEPARTMENT, AMRITSAR M/S R. KAKKAR GLASS & CROCKERY HOUSE V. DY CIT ITA NO. 429/ASR/2000 5