Dr.B.Santhanam, Dharmapuri V. ACIT, Salem

ITA 727/CHNY/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 5221 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 21-04-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 15-05-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P B SEKARAN
• Assessee Lawyers: K MEENAKSHI SUNDARAM
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH B CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AN D SHRI GEORGE MATHAN, JUDICIAL MEMBER .. I.T.A. NO. 727/MDS/2009 ASSESSMENT YEAR : 2004-05 DR. B. SANTHANAM, SRI SAKTHI NIVAS, 5/2ASSESSEE1, 132 WINDING DRIVER CHINNASAMY STREET, DHARMAPURI. V. THE INCOME-TAX OFFICER, CIRCLE-III, SALEM. (PAN: ACPPS8018R) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K. MEENAKSHI SUNDARAM RESPONDENT BY : SHRI P.B. SEKARAN O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LEARNED CIT(APPEALS), SALEM IN ITA NO. 29/07-08 DATED 30-1- 2009 FOR THE ASSESSMENT YEAR 2004-05. 2. SHRI K. MEENAKSHISUNDARAM, CA REPRESENTED ON BEH ALF OF THE ASSESSEE AND SHRI P.B. SEKARAN, LEARNED CIT-DR REPRESENTED O N BEHALF OF THE REVENUE. I.T.A. NO.727/MDS/2009 2 3. IT WAS SUBMITTED BY THE LEARNED AUTHORISED REPRE SENTATIVE THAT THE ISSUES IN THIS APPEAL WERE TWO-FOLD. IT WAS THE SUBMISSIO N THAT THERE WAS A SEARCH ON THE PREMISES OF THE ASSESSEE ON 23-03-2004. IT WAS THE SUBMISSION THAT IN THE COURSE OF ASSESSMENT THE ASSESSING OFFICER HAD MADE AN ADDITION OF ` 43 LAKHS ON THE BASIS OF THE STATEMENT RECORDED IN THE COURS E OF THE SURVEY. IT WAS THE SUBMISSION THAT NO ADDITION COULD BE MADE ON THE BA SIS OF A STATEMENT MADE U/S. 133A INSOFAR AS SUCH A STATEMENT DID NOT HAVE ANY EVIDENTIARY VALUE. HE RELIED UPON THE DECISION OF THE HON'BLE JURISDICTIO NAL HIGH COURT IN THE CASE OF CIT V. S. KHADER KHAN SON REPORTED IN 300 ITR 157 ( MAD). IT WAS THE FURTHER SUBMISSION THAT THE ASSESSING OFFICER HAD ALSO MADE AN ADDITION OF ` 9 LAKHS REPRESENTING CERTAIN ENTRIES IN A DIARY WHICH WAS F OUND DURING THE COURSE OF SURVEY. IT WAS THE SUBMISSION THAT THE LOANS AS ADDED BY THE ASSESSING OFFICER WERE AVAILABLE IN THE REGULAR BOOKS OF ACCOUNTS MAI NTAINED BY THE ASSESSEE. IT WAS THE SUBMISSION THAT THE ONLY DIFFERENCE WAS ON ACCOUNT OF THE DATES RECORDED IN THE DIARY AND THE DATES AS RECORDED IN THE REGULAR BOOKS OF ACCOUNTS. IT WAS THE SUBMISSION THAT THE ASSESSING OFFICER WI THOUT CONSIDERING THE SUBMISSIONS OF THE ASSESSEE HAD MADE THE ADDITION O F ` 9 LAKHS REPRESENTING THE ENTRIES IN THE DIARY. IT WAS THE FURTHER SUBMISSIO N THAT EVEN ASSUMING THAT THE ENTRIES IN THE DIARY WERE TO BE CONSIDERED, STILL I T WAS ONLY THE SHORTFALL BETWEEN THE CASH AVAILABLE ON THE DATES AS MENTIONED IN THE DIARY AND AS AVAILABLE IN THE I.T.A. NO.727/MDS/2009 3 CASH BOOK WHICH COULD BE MADE. IT WAS THE SUBMISSI ON THAT HE HAD NO OBJECTION IF THIS ISSUE WAS RESTORED TO THE FILE OF THE ASSES SING OFFICER FOR RE-ADJUDICATION. 4. IN REPLY, THE LEARNED DR VEHEMENTLY SUPPORTED TH E ORDER OF THE LEARNED CIT(A). IT WAS THE SUBMISSION THAT HE HAD NO OBJEC TION IF THIS ISSUE WAS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR RE-ADJUDIC ATION. IN REGARD TO THE ADDITION OF ` 4 LAKHS HE VEHEMENTLY SUPPORTED THE ORDERS OF THE ASSESSING OFFICER AND THE LEARNED CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PER USAL AOF THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE O F S. KHADER KHAN SON, REFERRED TO SUPRA, CLEARLY SHOWS THAT A STATEMENT RECORDED U /S. 133A DOES NOT HAVE ANY EVIDENTIARY VALUE. A PERUSAL OF THE ASSESSMENT ORD ER CLEARLY SHOWS THAT THE ADDITION OF ` 4 LAKHS HAD BEEN MADE ON THE BASIS OF STATEMENT GI VEN BY THE ASSESSEE IN THE COURSE OF SURVEY. AS THE STATEMENT RECORDED IN THE COURSE OF SURVEY DOES NOT HAVE ANY EVIDENTIARY VALUE IN VIEW OF THE DECISION OF THE HON'BLES JURISDICTIONAL HIGH COURT, REFERRED TO SUP RA, THE ADDITION OF ` 4 LAKHS IS UNSUSTAINABLE AND CONSEQUENTLY THE SAME STANDS DELE TED. 6. IN REGARD TO THE ADDITION OF ` 9 LAKHS IT IS NOTICED THAT IN THE DIARY THE ENTRIES HAVE BEEN PASSED ON 11.05.2003 AND 04-06-20 03 IN THE CASE OF SHRI MANI AND IN THE REGULAR BOOKS OF ACCOUNTS THE ENTRIES AR E ON 27.08.2003 AND 27.09.2003. FURTHER IN THE DIARY THE ADVANCE GIVEN TO SHRI K.R. VENU IS ON 11- 05-2003 AND 04-06-2003 WHEREAS AS PER THE BOOKS IT IS 12.10.2003 AND I.T.A. NO.727/MDS/2009 4 27.12.2003. A PERUSAL OF THE ASSESSMENT ORDER ALSO SHOWS THAT THE ASSESSING OFFICER HAS VERIFIED THE DAY-TO-DAY COLLECTION AND PAYMENT BY THE ASSESSEE AND AS RECORDED IN THE DIARY WITH THAT OF THE CASH BOOK . THE ASSESSING OFFICER HAS FURTHER GONE ON TO SAY THAT THERE WAS NO SUFFICIENT CASH BALANCE FOR HAVING GIVEN THE LOANS. IT IS FURTHER NOTICED THAT THERE WAS NO DISPUTE IN REGARD TO THE AMOUNT OF THE LOANS AND THE DISPUTE IS ONLY IN REGA RD TO THE DATES ON WHICH THE LOANS HAD BEEN GRANTED. IF THE LOANS ARE TAKEN TO HAVE BEEN GIVEN AS RECORDED IN THE DAY BOOK, OBVIOUSLY THERE WOULD BE ADEQUATE CASH BALANCE AND NO ADDITION COULD BE CALLED FOR. HOWEVER, IF THE LOAN S ARE TAKEN TO HAVE BEEN GIVEN AS PER THE DATES IN THE DIARY, THEN IT IS ONLY THE SHORTFALL OF THE AMOUNT OF LOAN GIVEN WITH THAT OF THE CASH BALANCE AS AVAILABLE WI TH THE ASSESSEE WHICH COULD BE CONSIDERED FOR MAKING AN ADDITION. IT IS FURTHER N OTICED THAT THE DATES OF GRANTING THE LOAN ITSELF IS DISPUTED. IN THE CIRCU MSTANCES, THIS UISSUE IS RESTORED TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE DATES ON WHICH THE LOANS HAD BEEN GRANTED. FOR THIS PURPOSE THE ASSESSEE SHALL BE AT LIBERTY TO PRODUCE EVIDENCES BEFORE THE ASSESSING OFFICER IN THE FORM OF CONFIRMATION LETTERS OR THE PARTIES TO WHOM THE LOANS HAD BEEN GIVEN FOR EXAMIN ATION BEFORE THE ASSESSING OFFICER AS REQUIRED BY THE ASSESSING OFFICER TO PRO VE THE DATES OF GIVING THE LOANS. IF THE ASSESSEE IS UNABLE TO PROVE THE DATE S OF THE LOANS AS THAT RECORDED IN THE REGULAR BOOKS OF ACCOUNT, THEN THE ASSESSING OFFICER SHALL RESTRICT THE ADDITION TO THE SHORTFALL BETWEEN THE CASH AS AVAIL ABLE IN THE REGULAR BOOKS AS ON I.T.A. NO.727/MDS/2009 5 THE DATES THE LOANS WERE GIVEN AS PER THE DIARIES A ND THE LOANS AS RECORDED IN THE DIARIES ON SUCH DATES. IN THE CIRCUMSTANCES, T HE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 7. THE ORDER WAS PRONOUNCED IN THE COURT ON 21/04/2 011. SD/- SD/- (ABARAHAM P. GEORGE) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 21 ST APRIL, 2011. H. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE