Income Tax Officer-3(2), Kanpur V. Shri Manish Jakhodia, Kanpur

ITA 609/LKW/2013

• Counselvise Citation: 60923714 RSA 2013
• Duration Of Justice: 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 29-01-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 02-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK MISHRA
• Assessee Lawyers: P K KAPOOR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 609/LKW/2013 ASSESSMENT YEAR: 2002 - 03 INCOME TAX OFFICER 3(2) KANPUR V. SHRI MANSIH J AKHODIA 77/14, COOLIE BAZAR KANPUR PAN: ABFPJ1332E (APP ELL ANT) (RESPONDENT) C.O. NO.37/LKW/2013 [IN ITA NO. 609/LKW/2013] ASSESSMENT YEAR: 2002 - 03 SHRI MANSIH JAKHODIA 77/14, COOLIE BAZAR KANPUR V. INCOME TAX OFFICER 3(2) KANPUR ( CROSS - OBJE CTOR ) (RESPONDENT) DEPARTMENT BY: SHRI. VIVEK MISHRA, CIT (DR) ASSESSEE BY: SHRI. P. K. KAPOOR, C.A. DATE OF HEARING: 29.01.2014 DATE OF PRONOUNCEMENT: 06.02.2014 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE REVENUE AGAI NST THE ORDER OF THE LD. CIT(A) ON VARIOUS GROUNDS, WHICH ARE AS UNDER: - 1 . THE LD. COMMISSIONER OF INCOME TAX (A) - LL, KANPUR HAS ERRED : - 2 - : IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS.12,65,710/ - MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNDI SCLOSED JEWELLERY, WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CASE AND MATERIAL EVIDENCES REFERRED BY THE ASSESSING OFFICER IN HIS ORDER DATED 07.11.2006. 2 . T HE LD. COMMISSIONER OF INCOME TAX (A) - LL, KANPUR HAS ERRED IN LAW AND ON FACTS OF THE C ASE THAT THE ASSESSEE HAS NOT BEEN ABLE TO SUBSTANTIATE THAT THE UNACCOUNTED JEWELLERY WORTH RS.12,65,710/ - WAS NOT BELONGING TO HIM. 3 . THE LD. COMMISSIONER OF INCOME TAX (A) - LL, KANPUR HAS ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS .63,285/ - MADE BY THE ASSESSING OFFICER WITHOUT APPRECIATING THE FACTS THAT THE ASSESSEE HAS NOT ABLE TO SUBSTANTIATE HIS CLAIM THAT HE HAS NOT EARNED ANY COMMISSION ON SALE/TRANSACTION OF JEWELLERY WORTH RS.12,65,710/ - . 4 . THAT THE ORDER OF THE LD. CIT(A) - II , KANPUR DATED 06.05.2013 NEEDS TO BE QUASHED AND THE ORDER PASSED BY THE ASSESSING OFFICER DATED 07.11.2006 TO BE RESTORED. 2 . THE ASSESSEE HAS ALSO FILED CROSS OBJECTION RAISING THE FOLLOWING GROUND: - 1 . BECAUSE PROCEEDINGS UNDER SECTION 147, HAVE NEITHER BEE N VALIDLY INITIATED NOR CONCLUDED IN THE EYES OF LAW AND ON A DUE CONSIDERATION OF THIS ASPECT OF THE MATTER, THE ASSESSMENT ORDER DATED 7.11.2006 DESERVES TO BE VACATED. 3 . DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. COUNSEL FOR THE ASSESSEE HAS INVI TED OUR ATTENTION TO THE FACT THAT IN THE HANDS OF THE ASSESSEE PROTECTIVE ADDITION OF ` 12,65,710 WAS MADE ON ACCOUNT OF VALUE OF JEWELLERY SEIZED DURING THE COURSE OF ASSESSEES ARREST BY THE GRP. THE SUBSTANTIVE ADDITION OF THIS AMOUNT WAS MADE IN THE H ANDS OF M/S SONA CHANDI , KANPUR . IN THE CASE OF THE M/S SONA CHANDI , KANPUR THE SUBSTANTIVE ADDITION WAS DELETED BY THE LD. CIT(A) WHOSE ORDER WAS LATER ON CONFIRMED BY THE TRIBUNAL HAVING SATISFIED THAT THE JEWELLERY SEIZED BY : - 3 - : THE GRP FROM THE ASSESSEE D URING THE COURSE OF HIS JOURNEY TO BANDA WAS DULY EXPLAINED. WHEN THE SUBSTANTIVE ADDITION HAS BEEN DELETED, NO PROTECTIVE ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE IN THIS REGARD. COPY OF THE ORDER OF THE TRIBUNAL IS PLACED AT PAGES 20 TO 24 OF T HE COMPILATION OF THE ASSESSEE. 4 . WITH REGARD TO OTHER GROUND RELATI NG TO ADDITION OF ` 63,285 IS CONCERNED, IT WAS CONTENDED THAT ONCE THE JEWELLERY WAS EXPLAINED IN THE HANDS OF M/S SONA CHANDI, KANPUR, ADDITION ON ACCOUNT OF COMMISSION CANNOT BE MADE IN TH E HANDS OF THE ASSESSEE . 5 . THE LD. D.R. DID NOT DISPUTE THE AFORESAID FACTS. 6 . HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES AND THE ORDER OF THE TRIBUNAL DATED 27.11.2013 IN THE CASE OF M/S SONA CHANDI, KANPUR IN ITA NO. 290/LKW/2012, WE FIN D THAT THE SUBSTANTIVE ADDITION MADE IN THE HANDS OF M/S SONA CHANDI, KANPUR ON ACCOUNT OF JEWELLERY SEIZED FROM THE ASSESSEE , WAS DELETED. THEREFORE, NO PROTECTIVE ADDITION IN THIS REGARD IS SUSTAINABLE IN THE HANDS OF THE ASSESSEE. ACCORDINGLY WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) , WHO HAS RIGHTLY DELETED THE ADDITION IN THIS REGARD. 7 . SO FAR AS ADDITION ON ACCOUNT OF COMMISSION IS CONCERNED, WE FIND THAT SINCE THE JEWELLERY WAS OWNED BY M/S SONA CHANDI, KANPUR AND NO EVIDENCE IS PLACED THAT THE COMMISSION WAS PAID TO THE ASSESSEE. IN THE STATEMENT OF SHRI. RAJENDRA KUMAR AGARWAL , IT WAS STATED THAT COMMISSION @ 5% OF SALES WAS PAID TO THE ASSESSEE BY THE FIRM . WHEN THERE WAS NO GOLD ORNAMENT, THERE WAS NO QUESTION OF PAYMENT OF COMMISSION THEREOF. THEREFORE, THE ADDITION MADE ON THIS ACCOUNT IS ALSO NO T SUSTAINABLE. ACCORD INGLY FINDING NO MERIT IN THIS GROUND , WE CONFIRM THE ORDER OF THE LD. CIT(A) , WHO HAS RIGHTLY DELETED THE ADDITION IN THIS REGARD. : - 4 - : 8 . THE CROSS OBJECTION FILED BY THE ASSE SSEE IS NOT PRESSED. THEREFORE, THE APPEAL OF THE REVENUE AND CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. 9 . IN THE RESULT, APPEAL OF THE REVENUE AND CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 6.2.2014. SD/ - S D/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 6.2.2014 JJ: 2901 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR