DCIT, Jaipur V. SHAKUN ADVERTISING PVT. LTD., Jaipur

ITA 578/JPR/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5079 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 27-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KALIKA SINGH
• Assessee Lawyers: S L PODDAR DHK
• Keywords: Unexplained investment; Loose papers

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 HKKXPUN] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF;D LN L; DS LE{K BEFORE:SHRI BHAGCHAND, AM & SHRI LALIET KUMAR, J M VK;DJ VIHY LA-@ ITA NO. 578/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 THE DCIT CENTRAL CIRCLE- 2 JAIPUR CUKE VS. M/S. SHAKUN ADVERTISING (P) LTD. B-3, GIRRAJ MANSION, IST FLOOR, NEW COLONY, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AABCS 4742 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY: SHRI KALIKA SINGH, CIT -DR FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.L. PODDAR, ADVOCATE LQUOKBZ DH RKJH[K@ DATE OF HEARING : 03/10/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 3/10/2016 VKNS'K@ ORDER PER BHAGCHAND, AM THE REVENUE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A)-CENTRAL, JAIPUR DATED 16-06-2014 FOR THE ASS ESSMENT YEAR 2008-09 RAISING THEREIN FOLLOWING GROUNDS OF APPEAL. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A), JAIPUR HAS ERRED IN DELETING THE ADDITI ON OF RS. 57.00 LACS MADE ON ACCOUNT OF BOGUS EXPENSES WHILE APPRECIATING THE CREDIBLE EVIDENCE SEIZED DURING SE ARCH AND THE CATEGORICAL ADMISSION OF THE ASSESSEE MADE U/S 132(4) OF THE I.T. ACT. ITA NO. 578/JP/2014 DCIT, CENTRAL CIRCLE- 2,JAIPUR VS. M/S. SHAKUN ADVE RTISING (P) LTD. . 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A), JAIPUR HAS ERRED IN RELYING UPON ITAT O RDER IN A.Y. 2007-08 IGNORING THAT ITAT ORDER HAS NOT BEEN ACCEPTED BY THE DEPARTMENT BUT HAS BEEN CHALLENGED BEFORE HON'BLE HIGH COURT (NOTE ENCLOSED). 2.1 AT THE OUTSET OF THE HEARING, THE LD. AR OF THE ASSESSEE PRAYED THAT THE SIMILAR ISSUE HAS ALREADY BEEN DECIDED BY THE C OORDINATE BENCH VIDE ITS ORDER DATED 15-06-2016 IN ASSESSEE'S OWN CASE ( ITA NO. 352/JP/2013) FOR THE ASSESSMENT YEAR 2009-10, HENCE, THE ISSUE I N QUESTION OF THE ASSESSEE IS COVERED BY THE DECISION OF COORDINATE B ENCH IN ASSESSEE'S OWN CASE (SUPRA). 2.2 IT IS ALSO NOTED THAT LD. CIT(A) HAS DELETED TH E ADDITION OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2008-09 BY OBSERVI NG AS UNDER:- 4.3 I HAVE CAREFULLY PERUSED THE ORDER OF THE AO AND THE SUBMISSIONS OF THE A.R. OF THE APPELLANT ALONGW ITH THE ORDER OF THE HON'BLE I.T. ACT JAIPUR BENCH IN THE CASE OF THE APPELLANT FOR A.Y. 2007-08 ITA NO. 821/JP/2012 DATE D 13- 03-2014. THE HON'BLE ITAT ON IDENTICAL FACTS HAS ADJUDICATED IN FAVOUR OF THE APPELLANT BY OBSERVING THAT THE BOOKS OF ACCOUNT WERE AUDITED U/S 44AB. IN AUDIT RE PORT, THE CA HAS NOT POINTED OUT ANY SERIOUS DEFICIENCY OR DE FECT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ALL TH E BOOKS OF ACCOUNT WERE PRODUCED BEFORE THE AO AND EXAMINED BY HIM. IT WAS ALSO OBSERVED THAT SINCE THE APPELLANT DISCLOSED A HIGHER RATE OF G.P. DURING THE YEAR UNDER CONSIDERA TION THERE WAS NO JUSTIFICATION FOR MAKING FURTHER ADDITION. ITA NO. 578/JP/2014 DCIT, CENTRAL CIRCLE- 2,JAIPUR VS. M/S. SHAKUN ADVE RTISING (P) LTD. . 3 ON PERUSAL OF THE ORDER OF THE AO, IT IS FOUND THAT AN ADHOC ADDITION OF RS. 57 LAKHS HAS BEEN MADE ON IDE NTICAL FACTS AD ADJUDICATED UPON BY THE HON'BLE ITAT IN T HE APPELLANTS CASE FOR A.Y. 2007-08. I FIND THE FACTS ARE COVERED BY THE ABOVE MENTIONED FINDING OF HON'BLE ITAT IN FAVOUR OF THE APPELLANT. THEREFORE, THE ADDITION OF RS. 57 LAKHS IS DELETED. 2.3 IT IS FURTHER NOTED THAT THE COORDINATE BENCH H AD TAKEN INTO CONSIDERATION SUCH TYPE OF ISSUE RAISED BY THE REVE NUE IN ITS APPEAL (SUPRA) WHEREIN THE APPEAL OF THE REVENUE WAS DISMI SSED BY THE COORDINATE BENCH VIDE ITS ORDER DATED 15-06-2016 IN ITA NO. 352/JP/2013 FOR THE ASSESSMENT YEAR 2009-10 BY OBSE RVING AS UNDER:- 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH TH E PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. DURIN G THE COURSE OF SEARCH, STATEMENT U/S 132(4) WAS RECORDED BY THE AU THORIZED OFFICERS. SHRI BALLABH DAS MAHESHWARI HAD ADMITTED ADDITIONAL INCOME AT RS. 2.97 CRORES ON THE BASIS OF LOOSE PAPERS AND DOCUME NTS FOUND AT THE BUSINESS PREMISES AT DELHI, MUMBAI AND AHMADABAD AS HE WAS NOT ABLE TO GET VERIFICATION FROM THE REGULAR BOOKS OF ACCOUNT FROM THE FAMILY MEMBERS AND BUSINESS CONCERNS. HOWEVER, IN R ETURN, HE HAS ADMITTED ADDITIONAL INCOME OF RS. 1.00 CRORE, WHICH INCLUDES DISCLOSURE OF RS. 75 LACS ON ACCOUNT OF UNACCOUNTED INVESTMENT IN HOUSE PROPERTY CONSTRUCTED AT 4-5, SHUBHAM ENCLAVE, C-SCHEME, JAIPUR. THE ADDITION MADE BY THE ASSESSING OFFICER ON THE BASIS OF STATEMENT RECORDED U/S 132(4) ARE NOT ON THE BASIS OF INCRIMINATING DOCUMENTS FOUND DURING THE COURSE OF SEARCH, AS SUC H NO REFERENCE HAS BEEN MADE BY THE ASSESSING OFFICER IN ASSESSMENT OR DER. HE SIMPLY GAVE GENERAL OBSERVATION OF THE GROUP THAT DURING T HE COURSE OF SEARCH, VARIOUS ASSETS/BOOKS OF ACCOUNT WERE FOUND AND SEIZ ED AS PER ANNEXURE PREPARED DURING THE COURSE OF SEARCH. THEREAFTER, H E ANALYSED THE EXPENSES UNDER THE HEAD CONSULTANCY CHARGES, SALES PROMOTION, TRAVELLING EXPENSES, PURCHASES MATERIAL FOR ADVERTI SEMENT AND ALSO CONSIDERED NOT MAINTAINING STOCK REGISTER AND COMMI SSION PAYMENT NOT VERIFIABLE BUT NO SPECIFIC BILLS VOUCHERS HAVE BEEN REFERRED BY THE ASSESSING OFFICER THAT THE EXPENSES CLAIMED AND COM MISSION PAID IS ITA NO. 578/JP/2014 DCIT, CENTRAL CIRCLE- 2,JAIPUR VS. M/S. SHAKUN ADVE RTISING (P) LTD. . 4 BOGUS ON THE BASIS OF SEIZED MATERIAL. WHATEVER AD DITION MADE BY THE ASSESSING OFFICER ON THE BASIS OF STATEMENT RECORDE D DURING THE COURSE OF SEARCH U/S 132(4) WHICH HAVE EVIDENTIARY VALUE B UT IT IS REBUTTABLE. THE CBDT ALSO ISSUED INSTRUCTION ON FORCED DISCLOSU RE DURING THE SURVEY AND SEARCH, WHICH HAS BEEN REFERRED BY THE L D CIT(A) WHEREIN IT HAS CLEARLY DIRECTED BY IT TO THE AUTHORIZED OFFICE R, NO ATTEMPT SHOULD BE MADE TO OBTAIN THE CONFESSION, WHICH IS NOT BASED O N INCRIMINATING DOCUMENT/ASSETS FOUND DURING THE COURSE OF SEARCH. THE LD DR HAS NOT CONTROVERTED THE FINDINGS GIVEN BY THE LD CIT(A). T HE CASE LAWS REFERRED BY THE LD CIT(A) ARE SQUARELY APPLICABLE O N THE FACTS AND CIRCUMSTANCES OF THE ASSESSEES CASE. ACCORDINGLY, WE UPHOLD THE ORDER OF THE LD CIT(A) AND DISMISS THE REVENUES APPEAL. 2.4 DURING THE COURSE OF HEARING, THE LD. DR ALSO M ENTIONED THAT THIS ISSUE IS COVERED BY ITAT, JAIPUR BENCH DECISIONS IN VARIOUS YEARS. HOWEVER, THESE ORDERS HAVE BEEN CHALLENGED BY THE D EPARTMENT IN THE HON'BLE HIGH COURT OF RAJASTHAN. 2.5 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED THAT THE LD. CIT(A ) HAD FOLLOWED THE DECISION OF ITAT COORDINATE BENCH DATED 13-03-2014 IN ITA NO. 821/JP/2012 FOR THE ASSESSMENT YEAR 2007-08 AND DEL ETED THE ADDITION OF RS. 57 LAKHS. IT IS ALSO NOTED THAT SUCH TYPE OF IS SUE HAD BEEN TAKEN INTO CONSIDERATION BY ITAT JAIPUR BENCH VIDE ITS ORDER D ATED 15-06-2016 FOR THE A.Y. 2009-10 IN ASSESSEE'S OWN CASE (SUPRA) WHE REIN THE COORDINATE BENCH HAD DISMISSED THE APPEAL OF THE REVENUE. THER EFORE, RESPECTFULLY, ITA NO. 578/JP/2014 DCIT, CENTRAL CIRCLE- 2,JAIPUR VS. M/S. SHAKUN ADVE RTISING (P) LTD. . 5 FOLLOWING THE DECISIONS IN VARIOUS YEARS OF THE CO ORDINATE BENCH (SUPRA), THE APPEAL OF THE REVENUE IS DISMISSED. 3.0 IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/10/2 016. SD/- SD/- YFYR DQEKJ HKKXPUN (LALIET KUMAR) (BHAGCHAND ) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 03 /10/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE DCIT, CENTRAL CIRCLE- 2, JAIPU R 2. IZR;FKHZ@ THE RESPONDENT- M/S. SHAKUN ADVERTISING (P) LTD. , JAIPUR 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. 578/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR