DCIT, Alwar V. GIRISH DATA, Alwar

ITA 453/JPR/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2172 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 01-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S NEHRA
• Assessee Lawyers: P C PARWAL CA DHK
• Keywords: Unexplained investment; Opportunity of cross examination; Third party statement
• Section: 133A

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES , JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,O JH HKKXPUN] YS[KK LNL; LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM VK;DJ VIHY LA-@ ITA NO. 453/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR: 2013-14 THE DCIT CIRCLE 1, ALWAR CUKE VS. SHRI GIRISH DATA WARD NO. 7, KHAIRTHAL, DISTT.ALWAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ABOPD 2301 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY:SHRI A.S. NEHRA, DCIT - DR FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI P.C. PARWAL, CA LQUOKBZ DH RKJH[K@ DATE OF HEARING : 10/01/2018 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 25/01/2018 VKNS'K@ ORDER PER BHAGCHAND, AM THE REVENUE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A), ALWAR DATED 09-03-2017 FOR THE ASSESSMENT YEAR 2013-14 RAISING THEREIN FOLLOWING GROUND OF APPEAL. ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A) SHOULD HAVE UPHELD ADDITION OF RS. 34,25 ,000/- IN THE HANDS OF THE ASSESSEE ON PROTECTIVE BASIS SINCE THE ISSUE REGARDING THE TAXABILITY OF THIS AMOUNT IN THE HAND S OF THE ASSESSEE OR HIS BROTHER SHRI PADAM CHAND DATA IS NO T FINAL AS ITA NO.453/JP/2017 THE DCIT, CIR CLE 1, ALWAR VS SHRI GIRISH DATA 2 SHRI PADAM CHAND DATA HAS NOT ACCEPTED THE DECISION OF LD. CIT(A) SO FAR. 2.1 APROPOS SOLITARY GROUND OF THE REVENUE , THE F ACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS AS UNDER:- 5.5 I HAVE PERUSED THE ASSESSMENT ORDER AS WELL A S REMAND REPORT OF THE AO, SUBMISSIONS AND CROSS REPLY OF THE APPELLAN T INCLUDING JUDICIAL CITATIONS GIVEN THEREIN. FOLLOWING FACTS HAVE EMERG ED. 1. THAT THE APPELLANT IS ENGAGED IN THE BUSINESS OF SALE/PURCHASE OF VEGETABLES ON COMMISSION BASIS IN THE NAME OF M/S. GIRISH TRADING COMPANY BESIDES SHARE OF PROFIT FROM FIRMS IN WHICH HE IS PARTNER 2. THAT DURING THE YEAR UNDER CONSIDERATION, A SURV EY U/S 133A OF THE ACT WAS CONDUCTED IN THE BUSINESS PREMI SES OF M/S. SHAILJA ASSOCIATES AND M/S. SHAILJA GRITS UDYOG, KH AIRTAL ON 03-01- 2013. 3. THAT SHRI PADAM CHAND DATA, BROTHER SHRI GIRISH DATA WAS PRESENT IN THE PREMISES AND AS PER HIS OWN STAT EMENT HE AND SHRI GIRISH DATA, MANAGES THE AFFAIRS OF THE FIRMS. 4. THAT DURING THE COURSE OF SURVEY OPERATION SOME INCRIMINATING DOCUMENTS HAS BEEN FOUND. ONE SUCH DO CUMENT I.E. PAGE NO.12 OF ANNEXURE A-1 REVEALS RECORDING OF FOLLOWIN G TRANSACTION WITH A PROPER DATE ALSO MENTIONED ON THE PAPER. PRITHVI 30,00,000.00 AABHAV 5,00,000.00 DSP 10,00,000.00 ROHITASH 22,50,000.00 TOTAL 67,50,000.00 5. THAT SHRI PADAM CHAND DATA HAS RECORDED THE STAT EMENT THAT THE ABOVE ENTRIES ARE INVESTMENT IN PROPERTIES MADE BY HIMSELF AND HIS BROTHER SHRI GIRISH DATA AND HE HAS AGREED TO S URRENDER THE ENTIRE AMOUNT OF RS. 67,50,000/- AS UNEXPLAINED INVESTMENT IN PROPERTIES FOR TAX. HE WAS ALSO AGREED THAT THIS AMOUNT WILL BE SU RRENDERED BY BOTH ITA NO.453/JP/2017 THE DCIT, CIR CLE 1, ALWAR VS SHRI GIRISH DATA 3 THE PERSONS I.E. IN HIS OWN HAND AND SHRI GIRISH DA TA (I.E. 50% OF EACH) IN THEIR RESPECTIVE RETURNS. 6. THAT THE APPELLANT HAS FILED AN AFFIDAVIT VIDE L ETTER DATED 30-05-2014 CONFIRMING AS UNDER:- 3.0 THAT BESIDES PARTNERS OF THE FIRM SHAILJA GRIT S UDYOG, KHAIRTHAL AND M/S. SHAILJA ASSOCIATES, KHAIRTHAL. I AM ALSO LOOKING AFTER DAY TO DAY OF TH ESE CONCERNS . 7. THAT THE APPELLANT HAD DISOWNED THE STATEMENT MA DE BY SHRI PADAM CHAND DATA DURING THE COURSE OF SURVEY O PERATION, WHEREIN HE HAD OFFERED FOR TAXATION THE AMOUNT OF INVESTMEN T @ 50% IN HIS OWN HANDS AND IN THE HAND OF SHRI GIRISH DATA. 8. THAT THE A.R. VIDE LETTER DATED 4-02-2016 SUBMIT TED THAT THE APPELLANT HAS NOT MADE ANY ALLEGED SURRENDER AN D ALSO NO STATEMENT OF THE ASSESSEE HAS BEEN RECORDED DURING THE COURSE OF SURVEY PROCEEDINGS, THEREFORE, NO QUESTION ARISES FOR SURR ENDER OR ADDITION OF RS. 41,67,035/- 9. THAT THE AO WENT ON TO REJECT THE SUBMISSION OF THE APPELLANT AND ADDED RS. 33,75,000/- (50% OF THE AMO UNT OF INVESTMENT OF RS. 67,50,000/- AS PER THE IMPOUNDED DOCUMENT I. E. PAGE NO. 12OF ANNEXURE A-1) IN THE HAND OF THE APPELLANT ON PROTE CTIVE BASIS, BESIDES RS. 50,000/- AS 50% SHARE OF COMMISSION EARNED AS P ER THE STATEMENT OF SHRI PADAM CHAND DATA. 5.5.2 I HAVE CONSIDERED THE ABOVE MENTIONED FACT OF THE CASE. I HAVE TAKEN NOTE OF THE FACT THAT SHRI GIRISH DATA HAD NEVER GI VEN ANY STATEMENT SURRENDERING THE AMOUNT OF INVESTMENT OR EVEN CONFIRMING THE CONFESS ION MADE BY SHRI PADAM CHAND DATA DURING THE COURSE OF SURVEY PROCEEDINGS. IT IS ONLY ON THE BASIS OF A THIRD PARTY STATEMENT (I.E. SHRI PADAM CHAND DATA) THAT THE AO HAD MADE THE ADDITION OF RS. 33,75,000/- AND RS. 50,000/-. THEREFORE, IN MY CONS IDERED VIEW THERE IS NO JUSTIFICATION FOR THE ADDITION OF THE ABOVE MENTION ED AMOUNT IN THE HANDS OF THE APPELLANT ON PROTECTIVE BASIS. ACCORDINGLY, THE ADD ITION OF RS. 34,25,000/- IS DELETED AND THE APPELLANTS GROUND OF APPEAL ON THIS ISSUE IS ALLOWED. 2.2 DURING THE COURSE OF HEARING, THE LD. DR RELIED ON THE ORDER OF THE AO. ITA NO.453/JP/2017 THE DCIT, CIR CLE 1, ALWAR VS SHRI GIRISH DATA 4 2.3 ON THE OTHER HAND, THE LD.AR OF THE ASSESSEE SU PPORTED THE ORDER OF THE LD. CIT(A). 2.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. BRIEF FACTS OF THE CASE ARE TH AT THE AO ON PERUSAL OF THE RETURN OF INCOME OF THE ASSESSEE NOTED THAT THE ASSESSEE HAD NOT DECLARED UNEXPLAINED SURRENDERED INVESTMENT IN PROP ERTIES OF RS. 33,75,000/- I.E. 50% OF RS. 67,50,000/- AND UNDISCL OSED COMMISSION / BROKERAGE INCOME OF RS. 50,000/- I.E. 50% OF RS. 1. 00 LAC AND ALSO EXCESS CASH OF RS. 7,37,037/- FOUND DURING THE COURSE OF S URVEY. THE AO IN THIS REGARD REQUIRED THE ASSESSEE TO EXPLAIN THE REASON VIDE ORDER SHEET ENTRY DATED 02-02-2016 FOR NOT DECLARING THE SURRENDERED AMOUNT OF RS. 33,75,000/- AS UNEXPLAINED INVESTMENT IN PROPER TIES, RS. 50,000/- UNDISCLOSED INCOME FROM COMMISSION AND RS. 7,37,037 /- ON ACCOUNT OF CASH FOUND DURING THE COURSE OF SURVEY IN THE RETUR N FILED BY HIM. THE LD.AR OF THE ASSESSEE SUBMITTED THE REPLY VIDE LETT ER DATED 04-02-2016 BUT THE SAME WAS NOT FOUND TENABLE BY THE AO. THE AO TH US MADE THE ADDITION OF RS. 34,25,000/- ON PROTECTIVE BASIS IN THE HAND OF THE ASSESSEE BY OBSERVING AS UNDER:- ITA NO.453/JP/2017 THE DCIT, CIR CLE 1, ALWAR VS SHRI GIRISH DATA 5 8. .THE STATEMENT OF SHRI GIRISH DATA HAS ALSO RECORDED DURING THE ASSESSMENT PROCEEDING BUT HE HA S RETRACTED THE ABOVE SURRENDERED AMOUNT. SINCE, NEIT HER SHRI PADAM CHAND DATA NOR SHRI GIRISH DATA HAS DECLARED THE SURRENDERED AMOUNT IN THEIR RETURNS OF INCOME, HENC E ENTIRE UNDECLARED AMOUNT OF RS. 67,50,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PROPERTIES AND RS. 1,00,0 00/- ON ACCOUNT OF UNDISCLOSED COMMISSION/ BROKERAGE HAS BE EN SEPARATELY ASSESSED ON SUBSTANTIVE BASIS SIN THE HA NDS OF SHRI PADAM CHAND DATA WHO WAS AVAILABLE AT THE TIME OF SURVEY. BUT TO PROTECT THE REVENUE, 50% OF THE UNDE CLARED SURRENDER AMOUNT I.E. 33,75,000/- ON ACCOUNT OF UNE XPLAINED INVESTMENT IN PROPERTIES AND RS. 50,000/- ON ACCOUN T OF UNDISCLOSED INCOME FROM COMMISSION / BROKERAGE IS A SSESSED IN THE HANDS OF ASSESSEE SHRI GIRISH DATA ON PROTEC TIVE BASIS. IN FIRST APPEAL, THE LD. CIT(A) HAS DELETED THE ADD ITION OF RS. 34,25,000/- MADE BY THE AO. IT IS NOTED THAT SHRI GIRISH DATA H AD NOT GIVEN ANY STATEMENT AS TO SURRENDERING THE AMOUNT OF INVESTME NT. WE HAVE DELETED THE WHOLE ADDITION IN THE HANDS OF SHRI PADAM CHAND DATA. . IN SUCH CIRCUMSTANCES AND FACTS OF THE CASE, WE CONCUR WITH THE FINDINGS OF THE LD. CIT(A) ON THE ISSUE IN QUESTION. THUS THE SOLITARY GROUND OF THE REVENUE IS DISMISSED. ITA NO.453/JP/2017 THE DCIT, CIR CLE 1, ALWAR VS SHRI GIRISH DATA 6 3.0 IN THE RESULT, THE APPEAL FILED BY THE REVENU E IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25-01-2018 . SD/- SD/- FOT; IKY JKO HKKXPUN (VIJAY PAL RAO) ( BHAGCHAND) U;KF;D LNL; / JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 25 /01/ 2018 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE DCIT,CIRCLE 1 , ALWAR 2. IZR;FKHZ@ THE RESPONDENT- SHRI GIRISH DATA, ALWAR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 453/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR