Assistant Commissioner of Income-tax, V. Shri Satish Shivajirao Nikate, Solapur

ITA 655/PUN/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7221 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 13-09-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 08-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 133A; 131

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.655/PUN/2015 [ [ / ASSESSMENT YEAR : 2009-10 ASST. COMMISSIONER OF INCOME TAX , CENTRAL CIRCLE 2(3), PUNE, FOURTH FLOOR, C WING, PMT BUILDING, SWARGATE, PUNE 411 044. . / APPELLANT V/S S HRI SATISH SHIVAJIRAO NIKATE, 690, SHUKRAWAR PETH, NEAR KALIKA MANDIR, OPP. JAIN MANDIR, SOLAPUR 413 002. PAN : ADAPN0172F. . / RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI AJAY MODI. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY THE REVENUE IS EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (A) 12, PUNE DT. 11.02.2015 FOR THE ASSESSMENT YEAW4R 2009-10. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER :- / DATE OF HEARING : 13.09.2017 / DATE OF PRONOUNCEMENT: 31.10.2017 2 ASSESSEE IS AN INDIVIDUAL STATED TO BE IN COURIER BUSINESS IN THE NAME AND STYLE OF PADMAVATI COURIERS. AO HAS NOTED THAT ONE SHRI BHAGAWAN SOPAN CHAVAN WAS TRAVELLING WITH CASH OF RS.1.02 CRORE, GOLD JEWELLERY AND GOLD BARS WEIGHING 1.31 KG., WHILE TRAVELLING IN HUSSAIN SAGAR EXPRESS FROM SOLAPUR TO MUMBAI AND HE WAS APPREHENDED BY SR. P.I. RPF. THE SAID INFORMATION WAS PASSED ON TO INVESTIGATING WING OF INCOME TAX DEPARTMENT. THEREAFTER THE STATEMENT OF SHRI BHAGAWAN SOPAN CHAVAN WAS RECORDED U/S 131 OF THE ACT. IT IS NOTED BY AO THAT THE SOURCE OF CASH AND GOLD ITEMS FOUND IN POSSESSION OF SHRI BHAGAWAN CHAVAN WAS NOT SATISFACTORILY EXPLAINED BY HIM. SINCE THE CUSTODY OF CASH AND GOLD ITEMS WERE WITH SENIOR P.I. RPF AT MUMBAI, REQUISITION WAS MADE AND ACTION TAKEN U/S 132A OF THE ACT FOR WHICH WARRANT OF AUTHORIZATION WAS ISSUED BY DIT (INVESTIGATION)-II, MUMBAI. IN VIEW OF THE REQUISITION U/S 132A OF THE ACT, CASH AND GOLD ITEMS WERE RECEIVED BY INCOME TAX DEPARTMENT. THEREAFTER SHRI PUSHPENDRA S. PAREKH ATTENDED THE OFFICE OF ADIT (INVESTIGATION) UNIT-VV(4),MUMBAI AND CLAIMED THE OWNERSHIP OF CASH AND GOLD ITEMS. THE AMOUNT REQUISITIONED WAS CLAIMED BY SHRI PUSHPENDRA PARAKH IN HIS RETURN OF INCOME. ASSESSEE FILED THE AFFIDAVIT DATED 08.09.2011 ACCEPTING THE FACT THAT THE AMOUNT BELONGS TO SHRI PUSHPENDRA PARAKH. ACCORDINGLY, ASSESSMENT WAS COMPLETED ON THE BASIS OF INCOME RETURNED BY SHRI PUSHPENDRA PARAKH. IN THE MEANWHILE, ASSESSEE HAS ALSO CLAIMED THE PART OF AMOUNT REQUISITIONED AND ACCORDINGLY SURVEY ACTION U/S 133A OF THE ACT WAS CARRIED OUT IN THE CASE OF PADMAVATI COURIER. DURING THE COURSE OF SURVEY U/S 133A OF THE ACT, CERTAIN DOCUMENTS I..E, DIARY AND NOTE BOOK, PERTAINING TO ASSESSMENT YEAR, WERE SEIZED FROM THE ASSESSEE AND THE ASSESSEE WAS ASKED TO EXPLAIN THE ENTRIES 3 MADE THEREIN AND ALSO ASKED TO FURNISH THE NAMES AND ADDRESSES OF THE PERSONS FROM WHOM THE MONEY WAS ACCEPTED AND TO WHOM THE MONEY WAS DELIVERED. AO NOTED THAT THE ASSESSEE HAD FAILED TO FURNISH THE DETAILS CALLED FOR BY HIM. AO NOTED THAT IN THE ABSENCE OF ANY CO-OPERATION FROM THE ASSESSEE, HE CONSIDERED THE UN- EXPLAINED CREDIT IN THE BOOKS OF THE ASSESSEE AGGREGATING TO RS.1,42,71,670/- AS INCOME OF THE ASSESSEE. THEREAFTER AO NOTED THAT SINCE ASSESSEE HAD HANDLED CASH OF RS.1,42,71,670/-, AS PER THE PREVALENT PRACTICE AN AMOUNT OF 1% IS CHARGED AS FEE FOR DELIVERY AND THE TOTAL COMMISSION FOR THE 15 DAYS WORKED OUT TO RS.1,42,716/-. ON THE BASIS OF COMMISSION FOR 15 DAYS (AS WORKED OUT BY HIM) HE ESTIMATED THE TURNOVER OF THE ASSESSEE FOR THE ENTIRE YEAR AT RS.34,25,184/- AND THE PROFIT ON SUCH TURNOVER WAS WORKED OUT AT 10% AND THUS THE PROFIT WAS ESTIMATED AT RS.3,42,518/-. AFTER GIVING THE CREDIT OF THE RETURN OF INCOME FILED AT RS.1,53,480/- HE MADE ADDITION TO THE BALANCE AMOUNT. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO GRANTED SUBSTANTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITION AMOUNTING TO RS.1,42,71,670/- MADE BY THE AO., WHEN THE ASSESSEE COULD NOT DISCHARGE HIS PRIMARY ONUS, DESPITE BEING GIVEN VARIOUS OPPORTUNITIES, TO PROVE THAT THE CASH ENTRIES AS FOUND RECORDED IN THE MATERIALS IMPOUNDED AT THE TIME OF SURVEY U/S 133A OF INCOME TAX ACT, WAS NOT PERTAINING TO HIM. 2. ON THE FACT AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) HAS ERRED IN APPLYING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CBI VS. VC SHUKLA (1983) 3 SCC 410 AND GIVING RELIEF TO THE ASSESSEE WITHOUT APPRECIATING THE FACT THAT A JUDICIAL PRECEDENT APPLICABLE TO CRIMINAL PROCEEDINGS, CANNOT BE APPLIED TO THE CIVIL PROCEEDINGS LIKE INCOME TAX ACT. 3. THE ORDER OF LD.CIT(A) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 4 3. ON THE DATE OF HEARING NONE APPEARED ON BEHALF OF ASSESSEE NOR ANY ADJOURNMENT APPLICATION WAS FILED. THE CASE FILE REVEALS THAT AT THE TIME OF LAST HEARING I.E., ON 21.06.2017 AT THE REQUEST OF ASSESSEE, THE CASE WAS ADJOURNED TO PRESENT DATE. ON THE PRESENT DATE ALSO NONE APPEARED ON BEHALF OF THE ASSESSEE NOR WAS ANY ADJOURNMENT APPLICATION FILED. IN THE ABSENCE OF ANY REQUEST FOR ADJOURNMENT, WE PROCEED TO DISPOSE OF THE APPEAL EX-PARTE QUA THE ASSESSEE ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE REVENUE. 4. ALL THE GROUNDS BEING INTER-CONNECTED ARE CONSIDERED TOGETHER. 5. BEFORE US, LD.D.R. SUPPORTED THE ORDER OF AO. HE FURTHER SUBMITTED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS AMPLE OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO EXPLAIN THE CONTENTS OF THE DIARY BUT THERE WAS NO COOPERATION FROM THE SIDE OF THE ASSESSEE. HE THEREFORE SUBMITTED THAT IN SUCH CIRCUMSTANCES, AO WAS FULLY JUSTIFIED IN ESTIMATING THE INCOME OF THE ASSESSEE. HE FURTHER SUBMITTED THAT LD.CIT(A) HAD NOTED THAT ASSESSEE HAS FAILED TO FURNISH ANY EVIDENCE BUT DESPITE OBSERVATION HE HAS PROCEEDED TO GRANT RELIEF TO THE ASSESSEE. LD.D.R. FURTHER RELIED ON THE RECENT DECISION OF BOMBAY HIGH COURT IN THE CASE OF ARUNKUMAR J. MUCHHALA VS. CIT., IN ITA NO.363 OF 2015 DT.24.08.2017, WHEREIN THE HONBLE BOMBAY HIGH COURT HAS HELD THAT WHEN ASSESSEE IS DOING BUSINESS, THEN IT WAS INCUMBENT ON HIM TO MAINTAIN PROPER BOOKS OF ACCOUNTS AND IF HE HAD NOT MAINTAINED IT, THEN HE CANNOT BE ALLOWED TO TAKE ADVANTAGE FROM HIS OWN WRONG. IT WAS FURTHER HELD THAT THE BURDEN IS ON THE PERSON TO SHOW FROM WHERE HE HAD RECEIVED THE AMOUNT AND WHAT ITS NATURE. HE ALSO PLACED ON RECORD 5 THE COPY OF THE AFORESAID DECISION. HE THUS SUPPORTED THE ORDER OF AO. 6. WE HAVE HEARD THE LD.D.R. AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE, THE ADDITION HAS BEEN MADE ON THE BASIS OF THE DIARY AND NOTE BOOK FOUND DURING THE COURSE OF SURVEY. APART FROM THE DIARY AND NOTE BOOK FOUND, NO OTHER CORROBORATIVE EVIDENCE HAS BEEN FOUND BY THE REVENUE AND THE ADDITION HAS BEEN MADE ONLY ON THE BASIS OF THE ENTRIES RECORDED IN THE DIARY. IT IS A SETTLED LAW THAT WHILE MAKING ADDITION, THE MATERIAL FOUND AT THE TIME OF SURVEY HAS TO BE SUPPORTED BY OTHER CORROBORATIVE EVIDENCE. IN THE PRESENT CASE, NO SUCH EVIDENCE HAS BEEN FOUND. IN SUCH CIRCUMSTANCES, WE ARE OF THE VIEW THAT NO INTERFERENCE TO THE ORDER OF LD.CIT(A) IS CALLED FOR. AS FAR AS THE DECISION RELIED UPON BY LD.D.R. IN THE CASE OF ARUNKUMAR MUCHHALA (SUPRA) IS CONCERNED, WE FIND THAT THE FACTS ARE DISTINGUISHABLE AS IN THAT CASE THE ENTRIES WERE FOUND BY THE AO ON THE BASIS OF BANK STATEMENT WHICH IS NOT IN THE PRESENT CASE. CONSIDERING THE TOTALITY OF THE AFORESAID FACTS, WE ARE OF THE VIEW THAT NO INTERFERENCE TO THE ORDER OF LD.CIT(A) IS CALLED FOR. THUS, THE GROUNDS OF REVENUE ARE DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 31 ST DAY OF OCTOBER, 2017. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 31 ST OCTOBER, 2017. YAMINI 6 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3 . 4. 5. 6. CIT(A)-12, PUNE. CIT (CENTRAL), PUNE. , , / DR, ITAT, B PUNE; [ / GUARD FILE. / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE.