Shri Jugal Kishor Saboo, Surat V. The Income tax Officer,Ward-3(3), Surat

ITA 526/AHD/2010

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8903 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 16-03-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 16-02-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SITA RAM MEENA
• Assessee Lawyers: M K PATEL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH AHMEDABAD BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.526/AHD/2010 (ASSESSMENT YEAR:2005-06) SHRI JUGAL KISHOR SABOO B-608, SANDEEP APARTMENT, ALTHAN ROAD, BHATAR CHAR RASTA, SURAT APPELLANT VS. THE ITO, WARD 3(3), SURAT. RESPONDENT PAN: ADDPD4428P /BY ASSESSEE : SHRI M. K. PATEL, A.R. /BY REVENUE : SHRI SITA RAM MEENA, SR. D.R. /DATE OF HEARING : 16.03.2017 /DATE OF PRONOUNCEMENT : 20.03.2017 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2005-06 IS PREFERRED AGAINST THE CIT(A)-II, SURATS ORDER DATED 27.10.2009, IN A PPEAL NO. CAS/II/145/08- 09, UPHOLDING ASSESSING OFFICERS ACTION MAKING TOT AL ADDITIONS OF ITA NO. 526/AHD/2010 (SHRI JUGAL KISHOR SABOO VS. I TO) A.Y. 2005-06 - 2 - RS.18,25,155/- COMPRISING OF CASH FOUND DURING SURV EY OF RS.4,84,905/-, AMOUNTS REVEALED FROM DOCUMENTS FOUND DURING SURVEY OF RS.3,39,362/- AND THE ONE PERTAINING TO 37 CHEQUES INVENTORISED TOTAL ING TO RS.10,00,888/-; RESPECTIVELY, IN PROCEEDINGS U/S.143(3) OF THE INCO ME TAX ACT, 1961; IN SHORT THE ACT. 2. THE ASSESSEES PLEADINGS INDICATE THAT HIS SOLE SUBSTANTIVE GROUND CHALLENGES CORRECTNESS OF THE ABOVE UNDISCLOSED INC OME ADDITION OF RS.18,25,155/- COMPRISING OF THREE HEADS HEREINABOV E. RELEVANT FACT NARRATED IN ASSESSMENT ORDER REVEALED THAT THIS ASS ESSEE IS ENGAGED IN CHEQUE DISCOUNT BUSINESS. THE DEPARTMENT CONDUCTED A SURV EY AT ITS OFFICE PREMISES ON 20.10.2004. IT FOUND CASH AMOUNT OF RS.4,84,905 /-. THE SAME STOOD INVENTORIZED. THE ASSESSEE DOES NOT SEEM TO HAVE J USTIFIED THE SAME. THE DEPARTMENT THUS TREATED THIS CASH FIGURE AS ITS UNA CCOUNTED INCOME. THE ABOVE SURVEY FURTHER LED TO IMPOUNDING OF VARIOUS D OCUMENTS REVEALING ENTRIES TOTALING TO RS.3,39,362/- NOT RECORDED IN T HE REGULAR BOOKS OF ACCOUNT. THE THIRD ADDITION FIGURE OF RS.10,00,888/- APPEARS TO HAVE ARISEN FROM 37 CHEQUES FOUND AND INVENTORIZED DURING SURVEY. THE ASSESSEE FILED ITS RETURN ON 30.03.2006 STATING INCOME OF RS.84,690/-. THE A SSESSING OFFICER COMPLETED A REGULAR ASSESSMENT ON 28.12.2007 MAKING THE ABOVE THREE ADDITIONS TOTALING TO RS.18,25,155/- AS AFFIRMED IN THE LOWER APPELLATE PROCEEDINGS. ITA NO. 526/AHD/2010 (SHRI JUGAL KISHOR SABOO VS. I TO) A.Y. 2005-06 - 3 - 3. WE HAVE HEARD BOTH PARTIES. CASE FILE PERUSED. WE FIRST ADVERT TO THE FORMER TWO ADDITIONS OF CASH FOUND DURING SURVEY OF RS.4,84,905/- AND RS.3,93,362/- INDICATED BY THE IMPOUNDED MATERIAL F ORMING PAGES 1 TO 23 IN THE COURSE OF SURVEY. LEARNED COUNSEL REPRESENTING ASSESSEE FAILS TO REFER TO ANY EVIDENCE IN THE CASE FILE SO AS TO REBUT THESE TWO ADDITIONS. WE RATHER NOTICE THAT THE CIT(A) HAS ALREADY CONSIDERED ASSES SEES CASH AND BACK BALANCES AT PAGE 4 IN PARA 7 OF THE LOWER APPELLATE ORDER. WE THUS DO NOT SEE ANY REASON TO INTERFERE SO FAR AS THESE TWO ADDITIO NS AMOUNTS ARE CONCERNED. THE ASSESSEES ARGUMENTS AGAINST THESE FORMER TWO A DDITIONS FIGURES ARE ACCORDINGLY DECLINED. 4. THIS LEAVES US WITH THE LAST ADDITION AMOUNT OF RS.10,00,888/- AS INVENTORIZED AND ARISING FROM 37 CHEQUES FOUND DURI NG SURVEY. THE ASSESSING AUTHORITY ITSELF IS FAIR ENOUGH IN OBSERV ING THAT 36 OF THE SAID CHEQUES ARE IN THE NAMES OF VARIOUS OTHER PARTIES. THE LAST ONE IS FOUND TO BE IN ASSESSEES WIFES NAME SMT. MANJU KABRA. BOTH T HE LOWER AUTHORITIES THEREFORE AT THIS GROSS FIGURE AS ASSESSEES UNACCO UNTED INCOME. LEARNED REPRESENTATIVES STRONGLY ARGUE IN FAVOUR OF THEIR R ESPECTIVE STANDS. THERE CAN HARDLY BE ANY DISPUTE THAT A CHEQUE IS A NEGOTIABLE INSTRUMENT UNDER THE NEGOTIABLE ACT, 1881. SECTION 118 THEREOF ENVISAGE S A PRESUMPTION ABOUT NEGOTIABLE INSTRUMENT INTER ALIA OF VALID CONSIDERA TION, DATE, TIME OF ACCEPTANCE, TIME OF TRANSFER, ENDORSEMENTS, STAMPS AND THAT HOLDER IS A HOLDER ITA NO. 526/AHD/2010 (SHRI JUGAL KISHOR SABOO VS. I TO) A.Y. 2005-06 - 4 - IN DUE COURSE. WE OBSERVE IN THIS BACKDROP THAT TH E ASSESSEE IS NOWHERE IN PICTURE INSOFAR AS ALL THESE 37 CHEQUES ARE CONCERN ED. NEITHER OF THE LOWER AUTHORITY HAS EXAMINED OR SOUGHT TO CALL EVEN A SIN GLE DRAWER OF THESE CHEQUES TO ESTABLISH EVEN AN IOTA OF ASSESSEES NEX US WITH THE SAME. WE ARE ACCORDINGLY OF THE OPINION THAT THE ASSESSEE IS THU S NOWHERE PROVED TO BE EITHER HOLDER OR A HOLDER IN DUE COURSE ABOUT THE S AID 37 CHEQUES. WE THEREFORE AGREE WITH ASSESSEES CONTENTION IN CHALL ENGING THIS THIRD AND LAST ADDITION. THE SAME IS DIRECTED TO BE DELETED. 5. THIS ASSESSEES APPEAL IS PARTLY ALLOWED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 20 TH DAY OF MARCH, 2017.] SD/- SD/- ( MANISH BORAD ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 20/03/2017 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 / GUARD FILE. BY ORDER / . // . /0