BHARATI JEWELLERS, MUMBAI V. ACIT CIR 19(2),

ITA 588/MUM/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0975 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 24-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YOGESH KAMAT SR
• Assessee Lawyers: ASHISH JOSHI
• Section: 133A

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI - B,BENCH , , BEFORE S/SH. JOGINDERSINGH,JUDICIAL ME MBER & RAJENDRA,ACCOUNTANT MEMBER /. ITA NO. 5 88/MUM/201 4 , / ASSESSMENT YEAR - 20 0 7 - 0 8 M/S. BHARATI JEWELLERS SHOP NO.5 - 6, RIDDHI SIDDHI BUILDING , 1ST GOATHAN LANE SANTCRUZ(W), MUMBAI. PAN: AAAFB 5860 D VS ACIT - CIR. 19(2) MUM BAI ( / A PPELLANT ) ( / RESPONDENT ) /ASSESSEE BY :SHRI ASHISH JOSHI - CA / REVENUE BY :SHRI YOGESH KAMAT - SR.AR / DATE OF HEARING : 02 - 0 7 - 2015 / DATE OF PRONOUNCEMENT : 02 - 07 - 2015 , 1961 254 ( 1 ) ORDER U/S.254(1)OF THE INCOME - TAX ACT,1961(ACT) PER RAJENDRA, AM - CHALLENGING THE ORDER DT.26.12 .2013 OF CIT(A) - 30,MUMBAI THE ASSESSEE , HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1) THE LEARNED CIT (APPEAL) HAS ERRED IN LAW AND IN FACTS TO CONFIRM PENALTY LEVIED UNDER SECTION 271 (C). 2) THE LEARNED CIT (APPEAL) HAS ERRED IN LAW AND IN FACTS TO CONFIRM PENALTY LEVIED IN SPITE OF THE FACT THAT THERE IS NO SPECIFIC CHARGE EITHER FOR CONCEALMENT OF INCOME OR INACCURATE PARTICULARS OF INCOME AGAINST THE APPELLANT FOR LEVYING PENALTY U/S 271 (1)( C). 3) THE LEARNED CIT (APPEAL) HAS ERRED IN LAW AND IN FACTS TO CONFIRM PENALTY LEVIED WITHOUT FINDING THAT THERE IS CONCEALMENT OF INCOME OR INACCURATE PARTICULARS OF INC OME. 4) THE LEARNED CIT (APPEAL) HAS ERRED IN LAW AND IN FACTS TO CONFIRM PENALTY LEVIED WITHOUT FINDING THAT EXPLANATION PROVIDED DURING PENALTY PROCEEDINGS IS NOT BONAFIDE OR FOUND FALSE. 5) THE LEARNED CIT (APPEAL) HAS ERRED IN LAW AND IN FACTS TO C ONFIRM PENALTY LEVIED WHEN THE ISSUE OF ADDITION IS DEBATABLE. 6) THE LEARNED CIT (APPEAL) HAS ERRED IN LAW AND IN FACTS TO CONFIRM PENALTY @ 200% AS AGAINST 100% IN SPITE OF THE FACT THAT THERE IS NO REASON GIVEN BY A.O TO CHARGE PENALTY AT HIGHER RATE . 7) THE APPELLANT LEAVES THE RIGHT TO AMEND, ADD, OR ALTER THE GROUNDS AT THE TIME OF REGULAR HEARING AND THE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. EFFECTIVE GROUND OF APPEAL IS ABOUT LEVY OF PENALTY U/.271(1)(C) OF THE ACT. DURING THE COURSE O F HEARING BEFORE US , AUTHORISED REPRESENTATIVE(AR) AND THE DEPARTMENTAL REPRESENTATIVE (DR) STATED THAT THE QUANTUM APPEAL FILED BY THE ASSESSEE ; AGAINST THE ORDER OF THE FIRST APPELLATE 588/14 - BHARTI(07 - 08) 2 AUTHORITY ( FAA ) WHEREIN THE ADDITION WAS CONFIRMED, WAS ALLOWED BY TH E TRIBUNAL VIDE ITS ORDER DATED 03.09.2014 (ITA/ 1380/MUM/2011 - AY.2007 - 08). WE FIND THAT THE TRIBUNAL HAD DECIDED THE QUANTUM APPEAL AS UNDER: 7. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE RELEVANT MATERIAL EVIDENCES BROUGHT O N RECORD BEFORE US. IT IS AN UNDISPUTED FACT THAT THE ADDITION HAS BEEN MADE ON THE BASIS OF THE STATEMENT OF THE ASSESSEE GIVEN AT THE TIME OF THE SURVEY. AT THE TIME OF THE SURVEY ITSELF, THERE WERE CERTAIN ITEMS WHICH WERE FOUND IN EXCESS WHEREAS AT THE SAME TIME THERE WERE ITEMS WHICH WERE FOUND LESS. THE MAJOR DIFFERENCE IS BETWEEN GOLD OF 24 CARAT, 22 CARAT AND 18 CARAT. ONCE THE ASSESSEE HAD FILED A DETAILED RECONCILIATION STATEMENT AT THE TIME OF THE ASSESSMENT PROCEEDINGS, THE AO SHOULD HAVE EXAMINED THE RECONCILIATION STATEMENT WITH THE BOOKS OF ACCOUNTS OF THE ASSESSEE. THE AO SIMPLY PROCEEDED BY THE STATEMENT MADE AT THE TIME OF SURVEY. 7.1. HON'BLE SUPREME COURT IN THE CASE OF CIT VS S. KHADER KHAN SON IN APPEAL (CIVIL) NOS. 13224 O F 2008 & 6747 OF 2012 HAS HELD THAT SECTION 133A DOES NOT EMPOWER ANY INCOME TAX OFFICER TO EXAMINE ANY PERSON ON OATH. THEREFORE, THE STATEMENT RECORDED U/S. 133A OF THY ACT IS NOT GIVEN ANY EVIDENTIARY VALUE. THE HON'BLE SUPREME COURT FURTHER STATED THAT THE MATERIALS COLLECTED AND THE STATEMENT RECORDED DURING THE SURVEY U/S. 133A ARE NOT CONCLUSIVE PIECE OF EVIDENCE BY ITSELF. DRAWING SUPPORT FROM THIS DECISION OF THE HON'BLE SUPREME COURT, IN OUR CONSIDERED OPINION, THE STATEMENT OF THE ASSESSEE WOULD NOT AUTOMATICALLY BIND UPON THE ASSESSEE. WE FURTHER FIND THAT THE ASSESSEE HAS GIVEN A DETAILED RECONCILIATION STATEMENT AND THE AO HAS NOT POINTED OUT ANY MATERIAL DEFECT IN THE SAID RECONCILIATION STATEMENT. ADDITIONS MADE MERELY ON THE BASIS OF THE STATEMENT GIVEN AT THE TIME OF SURVEY CANNOT BE UPHELD. WE, ACCORDINGLY SET ASIDE THE FINDINGS OF THE LD. CIT(A) AND DIRECT THE AO TO DELETE THE ADDITION OF RS. 29,53,089/ - . AS THE QUANTUM APPEAL HAS BEEN DECIDE IN FAVOUR THE ASSESSEE AND THE ADDITION MADE BY THE AO AND CONFIRMED BY THE FIRST APPELLATE AUTHORITY HAS BEEN DELETED,SO , THE PENALTY LEVIED,FOR THE ADDITION MADE,U/S.271(1)(C)OF THE ACT WOULD NOT SURVIVE. REVERSING THE ORDER OF THE FAA , WE DECIDE THE EFFECTIVE GROUND OF APPEAL IN FAVO UR OF THE ASSESSEE. AS A RESULT,APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. . ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND ,JULY,2015. 2 , 2015 SD/ - SD/ - ( / JOGINDERSINGH) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / MUMBAI, /DATE: 02 .07.2015 JV/S RPS. / COPY OF THE ORDER FORWARDED TO : 588/14 - BHARTI(07 - 08) 3 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , / ITAT, MUMBAI.