Shri Rekha Ram Choudhary, NIMBAHERA V. ITO, CHITTORGARH

ITA 47/JODH/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54357 (ITAT-JODHPUR)
• Duration Of Justice: 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 17-02-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R H GOYAL

Judgement Text

1 ITA 47-11 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH SMC JODHPUR. ( BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER ) ITA NO. 47/JODH/2011 ASSTT. YEAR : 2004-05. SHRI RAKHA RAM CHOUDHARY VS. THE INCOME-TAX OFFI CER, PROP. M/S. NEW VIJAY GOLDEN TRAN. CO. WARD-3, NIMBAHERA. CHITTORGARH. (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI R.H. GOYAL DATE OF HEARING : 05.12.2011. DATE OF PRONOUNCEMENT : 09.12.2011. ORDER DATED : 09.12.2011. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2004-05. 2. FIRST ISSUE IN THE APPEAL OF THE ASSESSEE IS AGA INST SUSTAINING ADDITION OF RS. 1,50,0000/- WHICH WAS INTRODUCED IN CAPITAL ACCOUNT ON ACCOUNT OF SALE OF SILVER AND GOLD ORNAMENTS. 3. THE ASSESSING OFFICER DISALLOWED THE CLAIM OF TH E ASSESSEE ON THE REASON THAT THE PERSON TO WHOM THE SALE OF SILVER AND GOLD ORNAMENT S HAS BEEN MADE HAS REFUSED TO HAVE PURCHASED THE SAME. ACCORDINGLY HE ADDED THE AMOUN T UNDER SECTION 68. AN AFFIDAVIT OF SHRI JETHARAM WAS FILED BEFORE LD. CIT (A). IT WAS SUBMITTED THAT THROUGH SHRI JETHARAM, THE SILVER AND GOLD JEWELLERY WAS SOLD. HOWEVER, TH E LD. CIT (A) BY OBSERVING THAT SHRI 2 MOTI LAL SONI HAD DENIED IN HAVING PURCHASED ANY GO LD ORNAMENTS, THEREFORE, BURDEN SHIFTED TO ASSESSEE WHICH REMAINED DISCHARGED. ACC ORDINGLY, HE CONFIRMED THE ADDITION. 4. AFTER CONSIDERING THE ORDERS OF THE ASSESSING OF FICER AND LD. CIT (A), I FIND THAT ASSESSEE DESERVES TO SUCCEED IN THIS GROUND. NO WHE RE IN THE ORDERS OF THE ASSESSING OFFICER AND LD. CIT (A), IT IS DENIED THAT ASSESSEE WAS NOT HAVING ANY GOLD AND SILVER ORNAMENTS THAT WERE SOLD AND ON THIS ACCOUNT THE CA PITAL WAS RAISED. IF FOR A MOMENT, IT IS ACCEPTED THAT THE SAME WERE NOT SOLD TO SHRI MOTI L AL SONI, THEN IT COULD BE POSSIBLE THAT THE SAME MAY BE SOLD TO ANYBODY ELSE, BUT THE FACT REMAINS THAT THE SALE CONSIDERATION WAS ON ACCOUNT OF SALE OF SILVER AND GOLD ORNAMENTS . AS STATED ABOVE, POSSESSING SILVER AND GOLD ORNAMENTS WAS NOT DENIED. THEREFORE, I HOL D THAT THE ASSESSING OFFICER AND LD. CIT (A) SHOULD HAVE ACCEPTED THE CLAIM OF THE ASSES SEE. ACCORDINGLY, I DELETE THE ADDITION OF RS. 1,50,000/-. 5. THE REMAINING ADDITION IS AGAINST CONFIRMING THE ADDITION OF RS. 11,700/- MADE ON ADHOC BASIS OUT OF CONVEYANCE AND TELEPHONE EXPENSE S. 6. OUT OF TOTAL EXPENSES OF CONVEYANCE AT RS. 33,00 0/- AND AT RS. 25,500/- ON ACCOUNT OF TELEPHONE AND PETROL AND REPAIR WERE CLA IMED, ASSESSING OFFICER DISALLOWED RS. 11,700/- OUT OF THESE EXPENSES. THE LD. CIT (A) HAS CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 7. AFTER CONSIDERING THE ORDERS OF THE ASSESSING OF FICER AND LD. CIT (A), I FEEL THAT IF DISALLOWANCE IS RESTRICTED TO RS. 6,000/- THAT WILL MEET THE ENDS OF JUSTICE. I ORDER ACCORDINGLY. 8. CHARGING OF INTEREST UNDER SECTION 234B, 244 AND 234D ARE CONSEQUENTIAL. THE ASSESSING OFFICER IS DIRECTED TO ALLOW CONSEQUENTIA L RELIEF TO THE ASSESSEE. 3 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART. 10. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 09 .12.2011. SD/- ( R.K. GUPTA ) JUDICIAL MEMBER JODHPUR, COPY FORWARDED TO :- SHRI REKHA RAM CHOUDHARY, NIMBAHERA. THE ITO WARD-3, CHITTORGARH. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 47/JODH/2011) BY ORDER, AR ITAT JODHPUR.