I.T.O. 3(4), Lakhimpur-Kheri V. M/S. BHAGYA SHREE CONSTRUCTIONS, Lakhimpur-Kheri

ITA 570/LKW/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4591 (ITAT-LUCKNOW)
• Duration Of Justice: 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 18-02-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 20-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 133A

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.570/LKW/2015 ASSESSMENT YEAR:2011-12 M/S BHAGYA SHREE CONSTRUCTIONS, KACHEHRY ROAD, LAKHIMPUR KHERI. PAN:AAIFB1622P VS INCOME TAX OFFICER-3(4), LAKHIMPUR KHERI. (RESPONDENT) (APPELLANT) SHRI AMIT NIGAM, D. R. APPELLANT BY SHRI ABHINAV MEHROTRA, ADVOCATE RESPONDENT BY 18/02/2016 DATE OF HEARING 15/03/2016 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE OR DER PASSED BY LEARNED CIT(A), BAREILLY DATED 10/06/2015 FOR THE A SSESSMENT YEAR 2011-12. 2. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLLO WING GROUNDS: 1. THAT THE ORDER OF THE COMMISSIONER OF INCOME TA X (APPEALS), BAREILLY IS ERRONEOUS IN LAW AND ON FACT S IN DELETING THE ADDITION RIGHTLY MADE BY THE ASSESSING OFFICER AT RS.37,50,000/- ON ACCOUNT OF UNEXPLAINED INCOME UNDER SECTION 69A OF THE I.T.ACT, 1961 WHICH THE ASSESSEE SURRENDERED DURING THE COURSE OF SURVEY OPERATION U/S 133A OF THE I.T.ACT,1961. 2. THAT THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), BAREILLY IS ERRONEOUS IN LAW AND ON FACT MAY BE CANCELLED AND THE ORDER OF THE ASSESSING OFFICER MA Y BE RESTORED. 3. LEARNED D. R. OF THE REVENUE SUPPORTED THE ORDER OF ASSESSING OFFICER WHEREAS LEARNED A. R. OF THE ASSESSEE SUPPO RTED THE ORDER OF 2 LEARNED CIT(A). HE ALSO SUBMITTED THAT A CATEGORI CAL FINDING HAS BEEN GIVEN BY LEARNED CIT(A) IN HIS ORDER THAT THE IMPUG NED ADDITION WAS MADE BY THE ASSESSING OFFICER MERELY ON THE BASIS OF STA TEMENT GIVEN BY A PARTNER OF THE ASSESSEE FIRM AT THE TIME OF SURVEY AND NO I NCRIMINATING MATERIAL COULD BE FOUND DURING SURVEY TO SUBSTANTIATE THE AD DITION. HE ALSO SUBMITTED THAT AS PER THE ASSESSMENT ORDER ALSO, TH IS FACT IS APPARENT THAT THE ADDITION WAS MADE BY THE ASSESSING OFFICER MERE LY ON THE BASIS OF STATEMENT GIVEN BY A PARTNER OF THE ASSESSEE FIRM I N COURSE OF SURVEY PROCEEDINGS AND NO ADVERSE MATERIAL WAS FOUND IN CO URSE OF SURVEY FOR SUPPORTING THE STAND OF THE ASSESSING OFFICER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT THE ISSUE IN DISPUTE WAS DECIDED BY LEARNED CIT(A) AFTER MAKING FOLLOWING OBSERVATIONS ON PAGES 3 & 4 OF HIS ORDER, WHICH ARE REPRODUCED B ELOW FOR THE SAKE OF READY REFERENCE: I HAVE CAREFULLY CONSIDERED THE GROUNDS OF APPEAL, SUBMISSIONS OF THE COUNSEL FOR THE APPELLANT AND PE RUSED THE ASSESSMENT ORDER. A SURVEY U/S 133A OF THE ACT WAS CARRIED OUT IN THE CASE OF APPELLANT ON 25.02.2011. THE AO IN T HE ORDER HAS MENTIONED THAT NEITHER REGULAR BOOKS OF ACCOUNT NOR ANY INCRIMINATING DOCUMENTS WERE FOUND OR IMPOUNDED DUR ING THE SURVEY. ONLY A STATEMENT ON OATH OF SHRI P L JUNEJA S/O LATE SHRI AMAR NATH JUNEJA R/O BAJPAI COLONY, LAKHIMPUR KHERI WAS RECORDED. THE SUBMISSION OF THE COUNSEL FOR THE APP ELLANT IS THAT THE PERSON SHRI P L JUNEJA WHOSE STATEMENT WAS RECORDED BY THE SURVEY TEAM WAS A HEART PATIENT AND AFTER TH E SURVEY PROCEEDINGS ON 25.2.2011 HE SUFFERED A HEART ATTACK ON 1.3.2011 & WAS ADMITTED IN SGPGI FOR FURTHER TREATM ENT (COPY OF SGPGI PRESCRIPTION IS ATTACHED). THE COUNSEL FUR THER CLAIMED THAT THE ASSESSING OFFICER MERELY MADE THE ADDITION ON CONJECTURES THAT SOME UNDISCLOSED DEVELOPMENT CHARG ES WERE TAKEN AS ADMITTED IN THE STATEMENT. IT WAS VEHEMEN TLY ARGUED THAT NO INCRIMINATING DOCUMENTS WERE FOUND AT THE T IME OF SURVEY NOR DETECTED DURING THE COURSE OF ASSESSMENT PROCEEDINGS WHICH WOULD INDICATE ANY DEVELOPMENT CH ARGES HAVING BEEN RECEIVED. THE AO HAS NOTED IN THE ORDER THAT THE ASSESSEE, DURING ASSESSMENT PROCEEDINGS, PRODUCED A LL RELEVANT 3 DETAILS & NO DEFECTS IN THE BOOKS OF ACCOUNTS HAVE BEEN POINTED OUT. IN THIS BACK GROUND OF THE FACTS OF THE CASE A ND THE DETAILED SUBMISSIONS MADE BY THE COUNSEL FOR THE AP PELLANT AND THE DECISION (S) REFERRED TO OF HON'BLE COURTS I.E. (2008) 300 ITR 157 MADRAS HIGH COURT AND 2012) 210 TAXMAN 2487 (2013) 352 ITR 480 AND (2015) 229 TAXMAN 657(2014) 369 ITR 145, I AM OF THE CONSIDERED VIEW THAT NO ADDITION CAN BE M ADE ON THE BASIS OF A STATEMENT GIVEN AT THE TIME OF SURVEY WH EN THERE WERE NO OTHER INCRIMINATING DOCUMENTS FOUND DURING THE SURVEY TO SUBSTANTIATE THE ADDITION. THUS THE ADDITION AS MADE BY THE ASSESSING OFFICER IS NOT SUSTAINABLE AND THE SAME I S DELETED. 5. FROM THE ABOVE PARAS FROM THE ORDER OF LEARNED C IT(A), IT IS SEEN THAT A CATEGORICAL FINDING HAS BEEN GIVEN BY LEARNED CIT (A) THAT A STATEMENT OF SHRI P. L. JUNEJA WAS RECORDED BY THE SURVEY TEAM A ND THE ASSESSING OFFICER MADE THE ADDITION MERELY ON THE BASIS OF THE STATEM ENT WITHOUT REFERRING TO ANY ADVERSE MATERIAL FOUND IN COURSE OF SURVEY. TH E CIT(A) HAS REFERRED TO VARIOUS JUDICIAL PRONOUNCEMENTS AS PER WHICH NO ADD ITION CAN BE MADE ON THE BASIS OF STATEMENT GIVEN AT THE TIME OF SURVEY WHEN THERE WERE NO OTHER INCRIMINATING DOCUMENTS FOUND DURING THE SURVEY TO SUBSTANTIATE THE ADDITION. UNDER THIS FACTUAL AND LEGAL POSITION, W E FIND NO REASON TO INTERFERE IN THE ORDER OF CIT(A). 6. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GAROD IA ) JUDICIAL MEMBER ACCOUNTANT ME MBER DATED:15/03/2016 *SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR