Shri Gurubax Chugh, Indore V. The ACIT 4(2), Indore

ITA 65/IND/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4884 (ITAT-INDORE)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 01-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: H P VERMA; N D PATWA S
• Keywords: Unexplained investment; Loose papers; Additional evidence; Retraction
• Section: 133A

Judgement Text

PAGE 1 OF 10 IN THE INCOME TAX APPELLATE TRIBUNAL , INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, J.M. AND SHRI R.C.SHARM A, A.M. PAN NO. : ABCPCI530E I.T.A.NO. 65 /IND/201 3 A.Y. : 2004-05 SHRI GURUBAX CHUGH, 60, MAHARANI ROAD, INDORE. VS. ASSISTANT COMM ISSIONER OF INCOME-TAX, CIRCLE 4(2), INDORE. APPELLANT RESPONDENT APPELLANT BY : SHRI H.P.VERMA AND SHRI N. D. PATWA, ADVOCATES RESPONDENT BY : SHRI R. A. VERMA, SR. DR DATE OF HEARING : 23 . 10 .201 3 DATE OF PRONOUNCEMENT : 13 . 1 1 .201 3 O R D E R PER R. C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE CIT(A), DATED 30 TH OCTOBER, 2012, IN THE MATTER OF ORDER PASSED U/S 143(3)/254 OF THE INCOME-TAX AC T, 1961. 2. THE RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORDS PERUSED. AT THE OUT-SET, IT IS MADE CLEAR THAT THIS IS SECOND SHRI GURUBAX CHUGH, INDORE. I.T.A.NO.65/IND/2013 A.Y. 2004-05 2 PAGE 2 OF 10 ROUND OF APPEAL BEFORE TRIBUNAL. IN THE ORDER PASSE D BY THE TRIBUNAL DATED 30 TH NOVEMBER, 2010, THE APPEAL WAS RESTORED TO THE FILE OF ASSESSING OFFICER FOR ADMITTING ADDI TIONAL EVIDENCE AND AFTER MAKING INQUIRY TO DECIDE THE ADDITION OF RS. 30.50 LAKHS IN RESPECT OF INVESTMENT IN PURCHASE OF SHOPS . 3. FACTS IN BRIEF ARE THAT THERE WAS SURVEY AT ASSESSE ES BUSINESS PREMISES ON 6.2.2004. THE ASSESSEE RUNS A PROPRIETARY BUSINESS CONCERN STYLED AS M/S. ROYAL R ADIOS DEALING IN ELECTRONICS ITEM. A SURVEY U/S 133A WAS CONDUCTED AT THE BUSINESS PREMISES OF M/S. ROYAL RADIOS ON 6. 2.2004 AND ITS SISTER CONCERNS. DURING THE SURVEY, STOCK I NVENTORY WAS PREPARED AND SHORTAGE OF STOCK TO THE TUNE OF R S. 1,55,200/- WAS FOUND. BESIDES PAPERS RELATING TO IN VESTMENTS TOWARDS PURCHASE OF FOUR SHOPS IN THE NAME OF FAMIL Y MEMBERS OF THE ASSESSEE WERE ALSO FOUND. IT WAS ALS O FOUND THAT BOOKS OF ACCOUNT ETC. WERE WRITTEN UP TO 15.11 .2003 ONLY. SOME OTHER INCRIMINATING LOOSE PAPERS INVENTORISED AS ANNEXURE BS-11 WERE ALSO FOUND. DURING THE SURVEY N OTE BOOKS INVENTORISED AS ANNEXURE B-1 TO B-6 WERE ALSO FOUND IN SHRI GURUBAX CHUGH, INDORE. I.T.A.NO.65/IND/2013 A.Y. 2004-05 3 PAGE 3 OF 10 WHICH SALES TO THE TUNE OF RS. 27,23,107/- WERE REC ORDED WHICH WERE EFFECTED BY THE ASSESSEE OUT OF HIS BOOK S OF ACCOUNT DURING THE PERIOD 10.1.2004 TO 6.2.2004. B EING NOT SATISFIED WITH THE ASSESSEES REPLY, THE AO MADE AN ADDITION ON ACCOUNT OF INVESTMENT MADE IN THE BUSINESS OUTSIDE THE REGULAR BOOKS OF ACCOUNT, INVESTMENT IN PURCHASE OF FOUR SHOPS AND ON ACCOUNT OF INCRIMINATING LOOSE PAPERS. BEFORE THE CIT(A), THE ASSESSEE FILED AN ADDITIONAL EVIDEN CE IN THE FORM OF SALE DEEDS OF PROPERTIES AT MEGHDOOT VIEW A ND SAVING BANK ACCOUNT OF SEVEN PERSONS, WHO PORTRAYED TO HAV E PURCHASED PROPERTIES AT MARKET PRICE. HOWEVER, THE CIT(A) DID NOT ACCEPT THE ADDITIONAL EVIDENCE BY STATING THAT THE ASSESSEE HAS NOT STATED THE CIRCUMSTANCES AND THE CONDITIONS ALONGWITH APPLICATIONS FOR ADMISSION OF ADDITIONAL EVIDENCE I N WHICH HE HAS NOT BEEN ABLE TO FURNISH THE SAME BEFORE THE AO . 4. IN THE ORDER PASSED ON 30 TH NOVEMBER, 2010, THE TRIBUNAL DIRECTED THE ASSESSING OFFICER TO VERIFY T HE ADDITIONAL EVIDENCE AND AFTER MAKING NECESSARY ENQUIRY, DECIDE THE ADDITION OF RS. 30.50 LAKHS AFRESH. SHRI GURUBAX CHUGH, INDORE. I.T.A.NO.65/IND/2013 A.Y. 2004-05 4 PAGE 4 OF 10 5. WHILE GIVING EFFECT TO THE ORDER OF TRIBUNAL, THE ASSESSING OFFICER HAS OBSERVED IN PARA 6 OF REASSES SMENT ORDER THAT PAPERS FILED IN SHAPE OF ADDITIONAL EVIDENCE A RE OF NO HELP TO ASSESSEE BECAUSE ASSESSING OFFICER HAS NOT MADE ANY ADDITION FOR INVESTMENT BY CHEQUES AMOUNTING TO RS. 14,30,000/-. THEREAFTER IN PARA 8 ASSESSING OFFICER SUSTAINED SAME ADDITION OF RS. 31.50 LAKHS AFTER OBSERVING TH AT ADDITIONAL EVIDENCE DO NOT RULE OUT THE ASSESSEES ADMISSION DURING THE COURSE OF STATEMENT RECORDED IN SURVEY. 6. BY THE IMPUGNED ORDER, THE LD. CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER AFTER HAVING THE FO LLOWING OBSERVATIONS :- 4. FIRSTLY, I WILL DEAL WITH THE ADDITIONAL EVIDENCE FILED BY ASSESSEE. THE REGISTERED PURCHASE DEED OF 4 SHOPS FILED BY ASSESSEE ALONGWITH BANK ACCOUNTS SHOWS THAT ASSESSEE AND FAMILY MEMBERS HAVE MADE PAYMENTS OF RS.14,30,000/- BY CHEQUE. THIS AMOUNT TALLIES WITH THE AMOUNT OF CHEQUE PAYMENT: ADMITTED SHRI GURUBAX CHUGH, INDORE. I.T.A.NO.65/IND/2013 A.Y. 2004-05 5 PAGE 5 OF 10 BY ASSESSEE IN HIS REPLY TO Q. NO.4 IN HIS STATEMENT DATED 6/2/04. THUS ADDITIONAL EVIDENCE FILED BY ASSESSEE ONLY PROVES THAT ASSESSEE HAS STATED CORRECT FACTS DURING SURVEY. THE ADDITIONAL EVIDENCE STRENGTHENS THE VERACITY OF FACTS DISCLOSED IN THE STATEMENT. OTHERWISE ALSO THE FACTS CONTAINED IN REGISTERED DEED CAN IN NO WAY DISLODGE THE FACT OF PAYMENT OF CASH RECORDED IN LOOSE PAPER AND ADMITTED IN BECAUSE STATEMENT BY ASSESSEE BECAUSE REGISTERED DEEDS OF PROPERTIES NEVER CONTAIN THE DETAILS OF CASH TRANSACTIONS CARRIED OUT IN LIEU OF PROPERTY. THEREFORE, WHILE REGISTERED DEED OF PROPERTY IS GOOD EVIDENCE IN REALM OF BOOKS OF ACCOUNTS OF ASSESSEE, IT IS ONLY A POINT OF REFERENCE TO WORK OUT UNACCOUNTED INVESTMENT IN PROPERTY, WHEN WE MOVE INTO REALM OF BLACK MONEY TRANSACTION FOR PURCHASE OF PROPERTY. HENCE ADDITIONAL SHRI GURUBAX CHUGH, INDORE. I.T.A.NO.65/IND/2013 A.Y. 2004-05 6 PAGE 6 OF 10 EVIDENCE GOES AGAINST ASSESSEE, SINCE IT UPHOLDS THE EVIDENTIARY VALUE OF STATEMENT AND IN NO WAY CONTRADICTS IT. 4.1 NOW COMING BACK TO OTHER OBJECTIONS OF ASSESSEE, AS PAGE NO. 27 OF ANN. BS-II IS FOUND WITH ASSESSEE AND CONTENTS OF WHICH ARE EXPLAINED BY HIM ONLY IN DETAIL IN REPLY TO Q. NO.4, THE DECODING AS WELL AS DATE OF PAYMENT OF CASH WAS TOLD BY HIM. THE AMOUNT AS APPEARING ON PAGE 27 OF 'CASH 30=50' IS ADMITTED BY HIM TO BE CASH PAYMENT OF RS. 30,50,000/- AGAINST PURCHASE OF 4 SHOPS G-5, G-6, G-7 & G-8 IN MEGHDOOT SCHEME NO. 54, VIJAY NAGAR, INDORE AND IN SAME REPLY NO.4, HE DISCLOSED THAT SUCH CASH WAS PAID UP TO 17/10/2003 (15 LAKH + 6 LAKH +7 LAKH + 2.50 LAKH). IN REPLY TO Q. NO. 5 HE AGAIN CONFIRMED THAT SUCH CASH INVESTMENT IN SHOPS OF RS.30.50 LAKHS IS NOT RECORDED IN BOOKS OF ACCOUNTS AND SHRI GURUBAX CHUGH, INDORE. I.T.A.NO.65/IND/2013 A.Y. 2004-05 7 PAGE 7 OF 10 IN REPLY TO Q. NO.6 HE ADMITTED THIS AMOUNT OF RS.30.50 LAKH AS HIS UNDISCLOSED INCOME. HE ADMITTED IT ONCE AGAIN IN REPLY TO Q. NO.14. 4.1.2 RETRACTION OF STATEMENT BY ASSESSEE IS OF NO HELP BECAUSE STATEMENT IS NOT THE SOLITARY PROOF BUT IS WELL SUPPORTED BY THE LOOSE PAPERS IMPOUNDED DURING SURVEY, FROM BS-1 TO BS-6 WHICH SHOWS UNACCOUNTED SALE OF ELECTRONIC GOODS (ANSWER TO Q. 10) AND CASH PAYMENT FOR PURCHASE OF SHOPS. 4.1.3 SECONDLY, WHILE STATEMENT WAS RECORDED ON 6/2/04, RETRACTION WAS MADE AFTER A LONG DELAY ON 28/3/05, WHILE FILING THE RETURN FOR ASSTT. YEAR 04-05. ASSESSEE HAS NOT ADDUCED ANY PROOF OF THREAT OR COERCION IN RECORDING OF STATEMENT. FOR RETRACTION TO BE VALID, THREAT OR COERCION HAS TO BE PROVED AS HELD IN CASE OF AIRPORT AUTHORITY OF INDIA V. CBEC (DEL.) 207 CTR 196 & RAVINDRA D. TRIVEDI (RAJ.) 215 CTR SHRI GURUBAX CHUGH, INDORE. I.T.A.NO.65/IND/2013 A.Y. 2004-05 8 PAGE 8 OF 10 313. THE ASSESSEE COULD NOT BRING ANYTHING ON RECORD TO ESTABLISH THAT EITHER THE STATEMENT OF ADMISSION WAS INCORRECT OR IT WAS CONTRARY TO EVIDENCE FOUND. HENCE THE CASE LAWS RELIED ON BY ASSESSEE WILL NOT APPLY. 4.1.4 IN VIEW OF THE AFORESAID DISCUSSION THE ADDITION OF UNACCOUNTED INVESTMENT IN 4 SHOPS OF RS.30.50 LAKH IS CONFIRMED. 7. AGAINST THE ABOVE ORDER OF LD. CIT(A), THE ASSESSEE IS IN FURTHER APPEAL BEFORE US AND IT WAS CONTENDED BY TH E LD. AUTHORIZED REPRESENTATIVE THAT LOWER AUTHORITIES F AILED TO CONSIDER THE DIRECTION GIVEN BY TRIBUNAL IN ITS ORD ER DATED 30 TH NOVEMBER, 2010. HE FURTHER CONTENDED THAT THE ASSES SEE IS ENTITLED TO RETRACT HIS STATEMENT. THE FACTS FOUND ARE WRONG AND CONTRARY TO THE STATEMENT AND STATEMENT WAS MAD E BY THE ASSESSEE UNDER MENTAL PRESSURE. 8. ON THE OTHER HAND, THE LD. SENIOR DR RELIED ON THE ORDER OF LOWER AUTHORITIES. SHRI GURUBAX CHUGH, INDORE. I.T.A.NO.65/IND/2013 A.Y. 2004-05 9 PAGE 9 OF 10 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOUND FROM RECORD THAT THE ASSESSEE HAS ALREADY BEEN GIVE N OPPORTUNITY TO EXPLAIN THE ADDITION OF RS. 30.50 LA KHS MADE BY THE ASSESSING OFFICER WITH REFERENCE TO THE ADDITIO NAL EVIDENCE. IN THE SET-ASIDE PROCEEDINGS, THE ASSESSING OFFICER HAS EXAMINED THE ADDITIONAL EVIDENCE AND FOUND THAT NO ADDITION WAS MADE WITH REFERENCE TO THE INVESTMENT BY CHEQUE AMOUNTING TO RS. 14.30 LAKHS. THE ASSESSING OFFICER FURTHER OBSERVED THAT ADDITIONAL EVIDENCE DO NOT RULE OUT T HE ASSESSEES ADMISSION DURING THE COURSE OF SURVEY. W E FOUND THAT BOTH THE LOWER AUTHORITIES HAVE EXAMINED THE D OCUMENTS FILED BY THE ASSESSEE AS WELL AS STATEMENT RECORDED DURING THE COURSE OF SURVEY VIS--VIS INCRIMINATING DOCUMENTS FOUND DURING THE COURSE OF SURVEY. AS PER THE INCRIMINATI NG DOCUMENTS, THE ASSESSEE HAS ADMITTED CASH PAYMENT O F RS. 30.50 LAKHS AGAINST PURCHASES OF FOUR SHOPS, REGIST ERED PURCHASE DEED OF WHICH WAS FOUND DURING COURSE OF S URVEY, WHICH INDICATED CHEQUE PAYMENT OF RS. 14.30 LAKHS. DURING SURVEY ITSELF, IN REPLY TO QUESTION NO. 5, THE ASSE SSEE HAS AGAIN SHRI GURUBAX CHUGH, INDORE. I.T.A.NO.65/IND/2013 A.Y. 2004-05 10 PAGE 10 OF 10 CONFIRMED THAT SUCH CASH INVESTMENT IN SHOPS OF RS. 30.50 LAKHS WAS NOT RECORDED IN THE BOOKS OF ACCOUNTS AND IN REPLY TO QUESTION NO.6, HE ADMITTED THIS AMOUNT AS UNDISC LOSED INCOME. DETAILED FINDING RECORDED BY THE LD.CIT(A) AS REPRODUCED HEREINABOVE HAVE NOT BEEN CONTROVERTED B Y THE LD. AUTHORIZED REPRESENTATIVE BY BRINGING ANY POSITIVE MATERIAL ON RECORD. ACCORDINGLY, WE DO NOT FIND ANY REASON TO I NTERFERE IN THE ORDER OF CIT(A). 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMIS SED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 13 TH NOVEMBER, 2013. SD/- SD/- (JOGINDER SINGH) (R. C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 13 TH NOVEMBER, 2013. CPU* 111213