ITO, Gwalior V. M/s Osho Associates, Gwalior

ITA 65/AGR/2006

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 2526 (ITAT-AGRA)
• Duration Of Justice: 4 year(s) 10 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-02-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-01-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 21-03-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO.65/AGR/2006 ASST. YEAR: 2002-03 INCOME-TAX OFFICER 3(1), VS. M/S OSHO ASSOCIAT ES, GWALIOR. NO.2, GANDHI NAGAR, GWALIOR. (PAN : AAIFA 8181 C). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VINOD KUMAR, JR. D.R. RESPONDENT BY : SHRI RAJENDRA SHARMA, ADVOCATE ORDER PER H.S. SIDHU, J.M. : THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST TH E ORDER OF THE CIT(A) DATED 20.12.2005 ON THE FOLLOWING GROUNDS:- (1) THE LD. CIT(A) HAS ERRED, IN LAW AND FACTS, IN DELETING THE ADDITION OF ` 3,80,696/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF CASH CREDIT U/S 68 HOLDING THAT THE UNEXPLAINED INVESTMENT IS PRIOR TO COMMENCEMENT OF BUSINESS OF THE FIRM IGNORING THE FACT THAT THE INVESTMENT WAS ACTUALLY MADE BY THE PARTNERS NOT BEFORE COMMENCEMENT OF BUSINESS BUT DURING THE FINANCIAL YEAR. (2) THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN DE TERMINING THE INCOME FROM CONTRACT BUSINESS AT ` 2,33,176/- AS AGAINST ` 9,27,022/- DETERMINED BY THE INCOME-TAX OFFICER ESTIMATING THE 8% NET PROFIT ON CONTRACT RECEIPTS. (3) THE LD. CIT(A) ERRED IN WORKING OUT THE ASSESSE ES INCOME AT ` 2,33,176/- WHICH IS ABOUT 2% OF THE CONTRACTUAL RECEIPTS SHOWN BY THE ASSESSEE. (4) THE APPELLANT RESERVES HIS RIGHT TO ADD, AMEND OR ALTER THE GROUNDS OF APPEAL ON OR BEFORE THE DATE, THE APPEAL IS FINALLY HEARD FOR DISPOSAL. 2 2. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE ISSUE INVOLVED IN GROUND NOS. 2 & 3 HAS ALREADY BEEN DECIDED IN FAVOU R OF THE ASSESSEE BY THE ORDER OF ITAT, AGRA BENCH, AGRA IN ASSESSEES OWN CASE FOR THE ASSESSME NT YEAR 2005-06 IN ITA NO.704/AGR/2008 ACIT VS. M/S OSHO ASSOCIATES, ORDER DATED 17 TH SEPTEMBER, 2010. HE ALSO PRODUCED COPY OF THE SAME FOR PERUSAL. THE LD. D.R. HAS NOT RAISED ANY SERIOUS OBJECTION ON THE STATEMENT MADE BY THE LD. COUNSEL FOR THE ASSESSEE. 3. AFTER HEARING BOTH THE PARTIES ON THE ISSUE INVO LVED IN GROUND NOS. 2 & 3, WE ARE OF THE CONSIDERED OPINION THAT THE ISSUE INVOLVED IN GROUN D NOS.2 & 3 IS SQUARELY COVERED BY THE DECISION OF ITAT, AGRA BENCH IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2005-06. RESPECTFULLY FOLLOWING THE SAME, GROUND NOS. 2 & 3 ARE DISMISSED. 4. AS REGARDS TO THE ISSUE INVOLVED IN GROUND NO.1 REGARDING ADDITION OF ` 3,80,696/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF CASH CREDITS UNDER SECTION 68 OF THE ACT AS UNEXPLAINED INVESTMENT, THE LD. D.R. RELIED UPON THE ORDER PASS ED BY THE ASSESSING OFFICER AND, ON THE CONTRARY, THE LD. COUNSEL FOR THE ASSESSEE RELIED U PON THE ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY. 5. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE IMPUGNED ORDER, WE ARE OF THE CONSID ERED OPINION THAT THE ADDITION OF ` 3,80,696/- AS MENTIONED IN THE GROUND OF APPEAL ON ACCOUNT OF INVESTMENT BY THE MEMBERS OF AOP, SAME HAS BEEN INVESTED BY THE MEMBERS OF THE AOP. THE A SSESSING OFFICER HAS ALSO RECORDED THE STATEMENT OF THE MEMBERS DURING THE COURSE OF ASSES SMENT PROCEEDINGS AND THEY CONFIRMED THE 3 SAME. AS PER THE RECORDS EXAMINED BY THE LD. FIRST APPELLATE AUTHORITY, THE MEMBERS OF THE ASSOCIATION HAVING SUFFICIENT SOURCES OF THEIR INVE STMENT IN THE BUSINESS AND HAVE ALSO FILED THEIR EVIDENCE SUPPORTING THEIR VERSION BEFORE THE REVENU E AUTHORITIES WHICH HAS PROPERLY BEEN APPRECIATED BY THE LD. FIRST APPELLATE AUTHORITY WH ILE DELETING THE ADDITION IN DISPUTE IN THE IMPUGNED ORDER. THEREFORE, NO INTERFERENCE IS CALL ED FOR IN THE WELL REASONED ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY. WE UPHOLD THE SAME BY DISMISSING THE ISSUE INVOLVED IN GROUND NO.1. 6. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 04.02.201 1). SD/- SD/- (P.K. BANSAL) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: AGRA DATE: 4 TH FEBRUARY, 2011 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY