The ITO, Vidisha V. Smt Sudha Agrawal, Raisen

ITA 457/IND/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1511 (ITAT-INDORE)
• Duration Of Justice: 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2013
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 08-08-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: ANIL KHANDELWAL
• Keywords: Business income; Opportunity of being heard; Assessment record
• Section: 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.457/IND/2012 A.Y.200-10 INCOME TAX OFFICER VIDISHA :: APPELLANT VS SMT. SUDHA AGARWAL RAISEN PAN ABFPA4355G :: RESPONDENT APPELLANT BY SHRI R.A. VERMA RESPONDENT BY SHRI ANIL KHANDELWAL DATE OF HEARING 21.1.2013 DATE OF PRONOUNCEMENT 21.1.2013 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 23 RD MAY, 2012 OF THE LEARNED FIRST APPELLATE AUTHORITY, BHOPAL. THE FIRST GROUND RAISED IS THAT THE LEARNED CIT(A) ERRE D IN DELETING THE 2 ADDITION OF RS.2,55,437/- MADE ON ACCOUNT OF RECEIP T OF COMMISSION AND INTEREST NOT SHOWN BY THE ASSESSEE. 2. DURING HEARING, WE HAVE HEARD SHRI R.A. VERMA, L EARNED SENIOR DR AND SHRI ANIL KHANDELWAL, LEARNED COUNSEL FOR THE ASSESSEE. THE CRUX OF ARGUMENTS ON BEHALF OF THE RE VENUE IS THAT THE PROOF OF RECEIPT AS COMMISSION AND INTEREST FRO M VARIOUS PARTIES WAS NEVER FURNISHED BEFORE THE ASSESSING OF FICER AND THE ASSESSEE MERELY CREDITED RS.6,26,957/- TO THE PROFI T AND LOSS ACCOUNT IN THIS RESPECT, THEREFORE, IN THE ABSENCE OF SUCH PROOF, THE ADDITION WAS RIGHTLY MADE. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSESSEE DEFENDED THE IMPUGNED ORDE R BY SUBMITTING THAT THE LEARNED CIT(A) DULY EXAMINED TH E CLAIM OF THE ASSESSEE. 2.1 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS PROPRIETOR OF M/S SHREE JI ENTERPRISES. AS PER THE REVENUE, THE ASSESSEE RECEIVED THE AMOUNT OF RS.8,8 2,394/- AS COMMISSION AND INTEREST INCOME FROM VARIOUS PARTIES BUT DID NOT DEPICT THE SAME IN ITS BOOKS OF ACCOUNTS. THE LEAR NED ASSESSING 3 OFFICER FOUND THAT ONLY RS.6,26,957/- WAS CREDITED TO THE PROFIT AND LOSS ACCOUNT AS CLAIM/INCENTIVE/COMMISSION. ON QUESTIONING, IT WAS CLAIMED BY THE ASSESSEE THAT RE ST OF THE COMMISSION HAS BEEN PASSED OFF TO THE BUYERS. THE ASSESSING OFFICER OBSERVED THAT NO PROOF OF SUCH PASSING OF W AS SHOWN IN THE PROFIT AND LOSS ACCOUNT, THUS, THE DIFFERENCE A MOUNT OF RS.2,55,437/- WAS ADDED TO THE INCOME OF THE ASSESS EE. ON APPEAL, THE LEARNED CIT(A) EXAMINED THE RECORD OF T HE ASSESSEE ALONG WITH FORM 26AS AND CONCLUDED AS UNDER :- 3.3 I HAVE EXAMINED THE ISSUE. IN ORDER TO EXAMINE THE VERACITY OF APPELLANTS SUBMISSIONS, BOOKS OF ACCOUNTS INCLUDING CASH BOOK, EXPENSES VOUCHERS AND THE ASSESSMENT RECORDS WERE EXAMINED. IT IS FOUND THAT THE APPELLANT HAS SHOWN TOTAL RECEIPT OF RS. 17,97,613/- WHILE THE A.O. HAD WORKED OUT TOTAL RECEIPT OF RS. 8,82.394/- ON THE BASIS OF FORM 26 AS. THE BOOKS OF ACCOUNTS ALSO SHOWS PAYMENT OF COMMISSION TO VARIOUS DEALERS. IT IS FOUND THAT ALL RECEIPTS OF COMMISSION AND INTERE ST AND PAYMENT OF COMMISSION ARE DULY RECORDED IN THE BOOKS OF ACCOUNT. IN VIEW OF ABOVE IT IS HELD THAT THE ADDITION OF RS.2,55,437/- ON ACCOUNT OF RECEIPTS IS INVALID AND THE SAME IS DELETED. IF THE TOTALITY OF FACTS, ASSERTION MADE BY THE LEA RNED RESPECTIVE COUNSEL, MATERIAL AVAILABLE ON RECORD, OBJECTIONS R AISED IN THE ASSESSMENT ORDER AND THE CONCLUSION DRAWN IN THE IM PUGNED ORDER, ARE KEPT IN JUXTAPOSITION AND ANALYSED, WE F IND THAT THE 4 ASSESSING OFFICER WORKED OUT THE TOTAL RECEIPTS OF RS.8,82,394/- ON THE BASIS OF FORM 26AS BY OBSERVING THAT NO PROO F WAS PRODUCED BY THE ASSESSEE EVIDENCING RECEIPT OF THE IMPUGNED AMOUNT. THERE IS A CATEGORICAL FINDING IN THE IMPU GNED ORDER THAT THE FACTUM OF CLAIM, MADE BY THE ASSESSEE, WAS DULY EXAMINED FROM BOOKS OF ACCOUNTS INCLUDING VOUCHERS AND CASH BOOK AND FOUND THAT THE PAYMENTS OF COMMISSION HAVE BEEN DULY RECORDED IN THE BOOKS OF ACCOUNTS. THIS FACTUAL MAT RIX WAS NOT CONTROVERTED BY THE REVENUE BY BRINGING ANY POSITIV E MATERIAL ON RECORD, THEREFORE, WE FIND NO JUSTIFICATION TO INTE RFERE WITH THE CONCLUSION DRAWN BY THE LEARNED CIT(A), CONSEQUENTL Y, THIS GROUND OF THE REVENUE IS HAVING NO MERIT. 3. IN THE NEXT GROUND, THE REVENUE HAS CHALLENGED T HE ADDITION OF RS.32,49,300/- ON ACCOUNT OF CASH DEPOSIT IN SB ACCOUNT WHICH WAS DELETED BY THE LEARNED CIT(A). THE CRUX OF ARGUMENTS ON BEHALF OF THE REVENUE IS THAT NEITHER ANY CASH B OOK WAS PRODUCED BY THE ASSESSEE FOR VERIFICATION OF THE AS SESSING OFFICER NOR ANY PROOF OF SOURCE OF SUCH CASH WAS PRODUCED D URING THE ASSESSMENT STAGE. A PLEA WAS ALSO RAISED THAT THE LEARNED FIRST APPELLATE AUTHORITY ACCEPTED THE ADDITIONAL EVIDENC E WITHOUT 5 CALLING FOR REMAND REPORT FROM THE ASSESSING OFFICE R, WHICH, AS PER THE LEARNED SENIOR DR, IS VIOLATION OF RULE 46A OF THE IT RULES. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSE SSEE DEFENDED THE CONCLUSION DRAWN IN THE IMPUGNED ORDER. A PLEA WAS ALSO RAISED THAT THE ASSESSING OFFICER DID NOT PROVIDE S UFFICIENT OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE ITS CLA IM. 3.1 WE HAVE PERUSED THE RECORD, CONSIDERED THE ASSE RTION MADE BY THE LEARNED RESPECTIVE COUNSEL AND FIND THAT THE LEARNED ASSESSING OFFICER ON THE BASIS OF AIR DATA, AVAILAB LE ON RECORD, FOUND THAT THE ASSESSEE DEPOSITED THE AMOUNT OF RS. 32,49,300/- IN CASH IN HIS BANK ACCOUNT. THE ASSESSEE WAS ASKE D TO FURNISH THE NATURE AND SOURCE OF SUCH DEPOSITS. THE MERE C LAIM OF THE ASSESSEE WAS THAT THESE RECEIPTS IN CASH RELATES TO SALE FROM HIS BUSINESS. THE ASSESSEE, DURING ASSESSMENT PROCEEDI NGS, NEITHER PRODUCED CASH BOOKS/ANY OTHER PROOF, NOR PRODUCED T HE SOURCE OF SUCH DEPOSIT. THERE IS A FURTHER OBSERVATION TH AT EVEN THE BOOKS OF ACCOUNTS WERE NOT PRODUCED FOR VERIFICATIO N, CONSEQUENTLY, HE ADDED THE AMOUNT U/S 68 AS UNEXPLA INED CASH CREDIT. ON APPEAL, THE LEARNED CIT(A) CONCLUDED AS UNDER :- 6 6.3 I HAVE EXAMINED THE ISSUE. IN ORDER TO EXAMINE THE VERACITY OF APPELLANTS SUBMISSIONS, BOOKS OF ACCOUNTS WERE EXAMINED ALONGWITH CASH BOOK. ON EXAMINATION IT IS FOUND THAT ALL DEPOSITS MADE IN THE SBI ACCOUNT ARE BUSINESS RECEIPTS. THERE IS NO JUSTIFICATION FOR ANY ADDITION ON THIS ACCOUNT. IN VIEW OF THE ABOVE THE IMPUGNED ADDITIO N OF RS. 3249300/- IS DELETED. WITHOUT COMMENTING UPON THE CONCLUSION DRAWN IN THE IMPUGNED ORDER, WE FIND THAT EVEN IN THE PAPER BOOK , FILED BY THE ASSESSEE, BEFORE THIS TRIBUNAL, NO BIFURCATION HAS BEEN GIVEN BY THE ASSESSEE. ON QUESTIONING BY THE BENCH AS TO WHY NECESSARY DETAILS ABOUT THE NATURE AND SOURCE OF CASH DEPOSIT WERE NOT PRODUCED BEFORE THE ASSESSING OFFICER, IT WAS MEREL Y CLAIMED THAT THE COMPUTER WAS NOT WORKING, THEREFORE, THE NECESS ARY DETAILS COULD NOT BE FURNISHED. WE FURTHER FIND THAT WHILE COMING TO A PARTICULAR CONCLUSION, THE LEARNED CIT(A) NEITHER S OUGHT REMAND REPORT FROM THE ASSESSING OFFICER NOR ANY OPPORTUNI TY WAS PROVIDED TO HIM. THE ASSESSEE IS EXPECTED TO EXPLA IN THE NATURE AND SOURCE OF THESE CASH DEPOSITS, THEREFORE, WE RE MAND THIS ISSUE TO THE FILE OF THE LEARNED ASSESSING OFFICER TO EXAMINE THE CLAIM OF THE ASSESSEE AND DECIDE IN ACCORDANCE WITH LAW. NEEDLESS TO MENTION HERE THAT THE ASSESSEE BE PROVI DED OPPORTUNITY OF BEING HEARD WITH FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, FILED BY THE ASSESSEE IN SUPPORT OF ITS CLAIM, 7 THEREFORE, THIS GROUND OF THE REVENUE IS ALLOWED FO R STATISTICAL PURPOSES ONLY. FINALLY, THE APPEAL OF THE REVENUE IS PARTLY ALLOW ED FOR STATISTICAL PURPOSED . THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 21 ST JANUARY, 20132. SD SD (R.C.SHARMA) (JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 21 ST JANUARY, 2013 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/-2121