Dy. CIT Cen. Cir. Aurangabad, Aurangabad V. Shri Arun V. Deshpande, Aurangabad

ITA 616/PUN/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9901 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 11-10-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 21-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ARVIND SONDE; S A MUKADAM
• Assessee Lawyers: S K SINGH
• Keywords: Search and seizure
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JM AND SHRI R.K. PANDA, AM ITA NO. 616 TO 618/PN/2010 (ASSESSMENT YEAR: 2003-04 TO 2005-06) DY. CIT CENT.CIR. AURANGABAD .. APPELLANT VS. SHRI ARUN V. DESHPANDE FLAT NO. 8, CHETNA APARTMENT BANSILAL NAGAR, AURANGABAD PAN AAPDP 4898 D RESPONDENT APPELLANT BY: SHRI S.K. SINGH RESPONDENT BY: S/SHRI ARVIND SONDE/ AND S.A. MUKADAM DATE OF HEARING: 11-10-2012 DATE OF PRONOUNCEMENT: 30-10-2012 ORDER PER SHAILENDRA KUMAR YADAV, JM THESE APPEALS RELATE TO THE SAME ASSESSEE RAISING COMMON ISSUE. THEY WERE THEREFORE, HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORD ER FOR THE SAKE OF CONVENIENCE. ALL THESE APPEALS BY THE REVENUE ARE DIRECTED AGAINST CONSOLIDATED ORDER OF THE CIT(A)-AURANGABAD DATED 28-1-2010 FOR A.Y. 2003-04 TO 2005-06 DELETING THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF PEAK AMOUNT OF MONE Y TOWARDS UNDISCLOSED INVESTMENT IN M/S. RUDRANEE CONSTRUCTION CO. 2. THE ASSESSEE IS A PARTNER IN M/S. RUDRANEE CONSTRUCTION CO., ALONG WITH OTHER PARTNER SHRI VIV EK S. DESHPANDE. SEARCH AND SEIZURE PROCEEDINGS U/S 132(2) OF THE ACT WAS CONDUCTED IN THE ASSESSEES 2 ITA NO 616 TO 618/PN/10 ARUN V . DESHPANDE A.Y. 2003-04 TO 2005-06 GROUP OF CASES. DURING THE PROCEEDINGS U/S 132 OF THE ACT VARIOUS INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED FROM THE OFFICE PREMISES OF THE ASSESSEE EVIDENCING UNRECORDED CASH TRANSACTIONS. ON SCRUTIN Y OF THE ABOVE SEIZED MATERIAL, THE A.O IDENTIFIED SE VERAL INSTANCES OF INTRODUCTION AND WITHDRAWAL OF CASH BY THE ASSESSEE. THE PEAK OF SUCH UNACCOUNTED FUND WA S ADDED AS UNDISCLOSED INVESTMENT OF THE ASSESSEE. 3. ON APPEAL, THE CIT(A) DELETED THE IMPUGNED ADDITION BY OBSERVING AS UNDER: IT IS CLEARLY EVIDENT FROM THE FACTS OF THE CASE THAT ADDITIONAL INCOME OF RS. 1.75 CRORE WAS OFFERED BY THE APPELLANT ON THE BASIS OF UNACCOUNTED CASH TRANSACTIONS RECORDED IN ABOVE REFERRED SEIZED MATERIAL AND WHILE DOING SO, THE PEAK OF ALL CASH TRANSACTIONS RECORDED IN THE ABOVE REFERRED SEIZED MATERIAL WAS OFFERED AS UNDISCLOSED INCOME OF THE APPELLANT INVESTED IN THE WORK IN PROGRESS NOT REFLECTED IN REGULAR BOOKS OF ACCOUNT. IN VIEW OF THE ABOVE, THE ENTIRE UNACCOUNTED CASH CIRCULATION REFLECTED AND RECORDED IN SEIZED REGISTERS MARKED AS ANNEXURE A-25, A-26, A-32 AND A-33 WAS DISCLOSED BY THE APPELLANTS FIRM AND ASSESSED AS INCOME OF THE FIRM. ONCE THE UNACCOUNTED FUND RECORDED IN THE SEIZED MATERIAL IS OFFERED BY THE APPELLANTS FIRM AS ITS UNDISCLOSED INCOME AND THE REVENUE ACCEPTED THE SURRENDER OF THE AMOUNT AND ASSESSED IT AS INCOME OF THE FIRM, SEPARATE ADDITION IN THE HAND OF INDIVIDUAL PARTNER IS NOT SUSTAINABLE. THE ENTIRE DISCLOSURE MADE BY THE PARTNER SHRI VIVEK S. DESHPANDE WAS ON THE BASIS OF ENTRIES OF CASH RECORDED IN ANNEXURE A-25, A-26, A-32 AND A-33. AS SUCH THE UNACCOUNTED FUND CIRCULATING IN THE BUSINESS OF M/S. RUDRANEE CONSTRUCTION COMPANY AS DEPICTED IN ABOVE REFERRED SEIZED MATERIAL IS A PART AND PARCEL OF THE DISCLOSURE MADE BY THE APPELLANTS FIRM AND THEREFORE, THE NAMES OF THE PERSONS USED FOR RECORDING MOVEMENT OF UNACCOUNTED FUND BECOME IRRELEVANT. 3 ITA NO 616 TO 618/PN/10 ARUN V . DESHPANDE A.Y. 2003-04 TO 2005-06 SIMILARLY, THE DCIT CENTRAL CIRCLE, AURANGABADS CONTENTION IN THE REMAND REPORT THAT THE ADDITION IN THE HANDS OF INDIVIDUAL PARTNERS IS BASED ON SEPARATE SET OF SEIZED MATERIAL IS ERRONEOUS AND CONTRARY TO THE FACT. THE PERUSAL OF RECORD CLEARL Y SHOWS THAT THE ENTIRE ADDITION WAS MADE ON THE BASIS OF FOUR REGISTERS SEIZED UNDER IDENTIFICATION MARK ANNEXURE A-25, A-26, A-33 AND A-33. NO OTHER INCRIMINATING DOCUMENT OR EVIDENCE GATHERED DURING THE COURSE OF SEARCH WAS BROUGHT ON RECORD FOR MAKING ADDITION IN THE APPELLANTS CASE. IN VIEW OF THE ABOVE, I FULLY AGREE WITH THE APPELLANTS SUBMISSION THAT THIS IS A CASE OF DOUBLE ADDITION SINCE TRANSACTIONS REFLECTED IN SEIZED MATERIAL HAS ALREADY BEEN CONSIDERED BY ONE OF THE PARTNERS OF THE FIRM WHILE MAKING DISCLOSURE OF ADDITIONAL INCOME IN HIS STATEMENT RECORDED DURING THE COURSE OF SEARCH. IN VIEW OF ABOVE, I DELETE ADDITION OF RS. 1,00,173/-, RS. 54,78,368/- AND RS. 14,19,365/- FOR A.Y. 2003- 04, 2004-05 AND 2005-06 RESPECTIVELY. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE FIND THAT NOTHING CONTRARY W AS BROUGHT TO OUR KNOWLEDGE BY THE DEPARTMENT. WE THEREFORE, DO NOT FIND ANY INFIRMITY WITH THE REASO NED ORDER OF THE CIT(A) FOR THE YEARS UNDER CONSIDERATI ON WHEREIN ADDITION IN QUESTION HAS BEEN DELETED BECAU SE SAME HAS BEEN OFFERED AND ADDED IN CASE OF FIRM AS STATED ABOVE. THE SAME IS UPHELD. 5. IN THE RESULT, ALL THE APPEALS OF THE REVENUE AR E DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 30 TH OCTOBER 2012. SD/- SD/- (R.K. PANDA) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 30 TH OCTOBER 2012 ANKAM 4 ITA NO 616 TO 618/PN/10 ARUN V . DESHPANDE A.Y. 2003-04 TO 2005-06 COPY TO:- 1. ASSESSEE 2. DEPARTMENT 3. THE CIT (A) II PUNE 4. THE CIT II PUNE 5. THE D.R. B BENCH, I.T.A.T., PUNE. BY ORDER //TRUE COPY// SR. P.S. I.T.A.T., PUNE