SHRI GHANSHYAM SHARMA, Ujjain V. THE ITO 1(1), Ujjain

ITA 686/IND/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5830 (ITAT-INDORE)
• Duration Of Justice: 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 18-09-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: SHRIRAM GILDA
• Keywords: Unexplained investment
• Section: 80C; 143(3); 68

Judgement Text

GHANSHYM SHARMA ITA NO. 686/IND/2015 1 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, INDORE SHRI B.C. MEENA, HONBLE ACCOUNTANT MEMBER ITA NO. 686/IND/2015 A.Y.2010-11 SHRI GHANSHYAM SHARMA UJJAIN ::: APPELLANT VS INCOME TAX OFFICER 1(1) UJJAIN ::: RESPONDENT APPELLANT BY SHRI SHRIRAM GILDA RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 22.12.10.2015 DATE OF PRONOUNCEMENT 2 .1.201 6 O R D E R THIS APPEAL FILED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LEARNED CIT(A), UJJAIN, DATED 18.2.2015. GHANSHYM SHARMA ITA NO. 686/IND/2015 2 2. THE ASSESSEE HAS SUBMITTED AN APPLICATION ON 11.12.2015 FOR TAKING ADDITIONAL GROUND WITH REGARD TO 80C CLAIM OF RS. 1 LAKH WHICH WAS CLAIMED IN THE RETUR N OF INCOME BUT NOT ALLOWED BY THE ASSESSING OFFICER. THE BENCH DREW ATTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE TOWARDS THE PROVISIONS OF SECTION 253 OF THE ACT AND AFTER GOING THROUGH THE PROVISIONS, THE LEARNED COUNSEL FOR THE ASSESSEE DID NOT PRESS FOR ADMISSION OF ADDITIONAL GROUND. THEREFORE, THE SAME IS DISMISSED. 3. THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE IN THE ORIGINAL APPEAL READ AS UNDER :- 1. THAT THE ASSESSMENT ORDER PASSED U/S 143(3) IS ILLEGAL WRONG AND WITHOUT JURISDICTION 2. THAT THE AUTHORITIES BELOW HAVE GROSS ERRED IN ESTIMATING THE NET PROFIT @ 10% AND REDUCING IT GHANSHYM SHARMA ITA NO. 686/IND/2015 3 TO 8% WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE PROPERLY. 3. THAT THE AUTHORITIES BELOW HAVE GROSS ERRED IN MAKING AND SUSTAINING THE ADDITION OF RS.2,00,000/- ON ACCOUNT OF CASH CREDIT U/S 68 OF THE ACT. 4. THAT THE ADDITION MADE AND SUSTAINED OF RS.2,61,326/- U/S 69 OF THE ACT ON ACCOUNT OF UNEXPLAINED INVESTMENT IS ILLEGAL, WRONG AND UNJUSTIFIED. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR WITHDRAW ANY GROUNDS OF APPEAL ON OR BEFORE THE HEARING OF APPEAL. 4. GROUND NOS.1 AND 5 ARE GENERAL IN NATURE AND WERE NOT PRESSED BEFORE US. THE SAME ARE DISMISSED. GHANSHYM SHARMA ITA NO. 686/IND/2015 4 5. IN GROUND NO. 2 THE ISSUE INVOLVED IS ESTIMATING THE NET PROFIT @ 8% ON THE TOTAL CONTRACT RECEIPTS OF RS.75,79,683/-. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THESE CONTRACT RECEIPTS OF RS. 75,79,6 83/- WERE NOT FROM THE CONTRACT RECEIPTS. RS. 29,52,668/- HAVE BEEN RECEIVED FROM THE MATERIAL SUPPLIED. THEREFORE, ON THAT AMOUNT, THE RATE SHOULD BE ADOPTED @ 5% INSTEAD OF 8% AND HE PLEADED THAT IF THE SAME IS DONE, HE WILL BE SATISFIED WITH THE RELIEF. 6. AFTER HEARING BOTH THE SIDES, I FIND FORCE IN THE PLEADINGS OF THE LEARNED COUNSEL FOR THE ASSESSEE. THEREFORE, ON THE RECEIPTS FOR THE SUPPLIED MATERIAL, I DIRECT TO ADOPT RATE OF 5%. GROUND NO. 2 IS THUS PARTLY ALLOWE D. 7. IN GROUND NO. 3 THE ASSESSEE HAS CHALLENGED SUSTAINING THE ADDITION OF RS. 2 LACS ON ACCOUNT OF CASH CREDIT U/S 68 OF THE ACT. GHANSHYM SHARMA ITA NO. 686/IND/2015 5 8. BEFORE ME IT WAS SUBMITTED THAT THIS CASH CREDIT O F RS. 2 LAKHS FROM KU. ADITI SHARMA WAS FROM EARLIER YEARS AND IT WAS THE OPENING BALANCE. THEREFORE, THE ADDITION CANN OT BE MADE IN THE YEAR UNDER CONSIDERATION. THE ATTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE WAS DRAWN TO THE FACT THAT NOTHING SUCH EVIDENCE WAS SUBMITTED BEFORE THE AUTHORITIES BELOW IN SUPPORT OF THIS CLAIM THAT THIS W AS UNSECURED LOAN RECEIVED IN THE YEAR. HE SUBMITTED BAL ANCE SHEET OF THREE YEARS FOR THE YEAR ENDING 31 ST MARCH, 2009, 31 ST MARCH, 2009 AND 31 ST MARCH, 2010. AS PER THE LEARNED COUNSEL FOR THE ASSESSEE THIS AMOUNT WAS REFLECTED EVE N IN THE BALANCE SHEET FOR THE FINANCIAL YEAR ENDING ON 31 ST MARCH, 2008. THE LEARNED COUNSEL FOR THE ASSESSEE WAS ASKED WHY THESE BALANCE SHEETS WERE NOT SUBMITTED BEFO RE THE AUTHORITIES BELOW. IN ANSWER, HE SUBMITTED THAT TH ESE WERE THE PART OF THE RETURNS FILED BY THE ASSESSEE FO R THE RELEVANT ASSESSMENT YEARS. GHANSHYM SHARMA ITA NO. 686/IND/2015 6 9. AFTER HEARING BOTH THE SIDES, I FIND IT APPROPRIAT E TO SET ASIDE THE ISSUE TO THE FILE OF ASSESSING OFFICER TO VERIFY THE CORRECT FACTS AND DECIDE THE SAME AFRESH AFTER HEARING T HE ASSESSEE ON THIS ISSUE. 10. GROUND NO. 3 IS REGARDING SUSTAINING THE ADDITION OF RS.2,61,336/- MADE U/S 69 OF THE ACT ON ACCOUNT OF UNEXPLAINED INVESTMENT. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT ONCE THE INCOME HAS BEEN ESTIMATED BY REJECTING THE BOOKS OF ACCOUNTS THEN NO SUCH ADDITION CAN BE MADE. AS PER THE REVENUE, THE ASSESSEE HAS PURCHASED CEMENT OF RS.2,61,326/- FROM MANISH TRADING COMPANY WHICH WAS NOT DISCLOSED. 11. AFTER HEARING BOTH THE SIDES, I AM OF THE VIEW T HAT ONCE THE INCOME HAS BEEN ESTIMATED BY TAKING NET PROFIT RATE OF 8% ON CONTRACT RECEIPTS AND 5% ON THE MATERIAL SUPPLY GHANSHYM SHARMA ITA NO. 686/IND/2015 7 THEN THERE WAS NO JUSTIFICATION IN MAKING FURTHER ADDIT ION. THEREFORE, THIS GROUND IS ALLOWED AND ADDITION IS DELE TED. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. PRONOUNCED IN OPEN COURT ON 2 ND FEB., 2016 SD/- (B.C. MEENA) ACCOUNTANT MEMBER 2 ND FEB., 2016 DN/-