M/s. Umashankar Mishra, Mhow V. The ITO 5(3), Indore

ITA 740/IND/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 82694 (ITAT-INDORE)
• Duration Of Justice: 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 18-12-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: SIDDHANT JAIN
• Section: 143(3); 133A

Judgement Text

PAGE 1 OF 8 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. : AFHPA8004Q I.T.A.NO. 18 /IND/201 4 A.Y. : 2005-06 SMT.URMILA AGRAWAL, PROP. M/S. SANJEEVANI NURSING HOME, A. B. ROAD, INDORE. VS. ACIT, 3(1), INDORE. APPELLANT RESPONDENT APPELLANT BY : SHRI RITESH JAIN AND SHRI SIDDHANT JAIN, C. A. RESPONDENT BY : SHRI R.A.VERMA, SR. DR DATE OF HEARING : 28 . 04.2014. DATE OF PRONOUNCEMENT : 30 . 0 4 .201 4 O R D E R PER R. C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A), DATED 8.11.2013 FOR THE ASSESSMENT YEAR 2005-06 IN THE MATTER OF ORDER PASSED BY ASSESSING OFFICER U/ S 143(3) OF THE INCOME-TAX ACT, 1961. SMT.URMILA AGRAWAL, INDORE I.T.A.NO. 18/IND/2014 A.Y. 2005-06 2 PAGE 2 OF 8 2. THE ONLY GRIEVANCE OF THE ASSESSEE RELATES TO NOT ALLOWING ASSESSEES CLAIM OF OPENING CASH BALANCE O F RS. 6,32,583/- AS PER THE REGULAR CASH BOOK MAINTAINED IN THE COURSE OF BUSINESS. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORDS PERUSED. ASSESSEE IS PROPRIETOR OF SANJEEVANI NURSI NG HOME. THERE WAS SURVEY PROCEEDINGS U/S 133A AT THE BUSINE SS PREMISES ON 08.10.2004. DURING COURSE OF SURVEY, TO TAL CASH OF RS. 20,31,623/- WAS FOUND. CASH BALANCE AS PER KACH I CASH BOOK WAS (-) RS. 20,105/-. ACCORDINGLY, DIFFERENCE IN CASH WAS TAKEN BY THE SURVEY OFFICER AS UNEXPLAINED. THE ASS ESSEE HAS ALSO SURRENDERED CASH OF RS. 20,01,518/-. IN THE RE TURN OF INCOME, THE ASSESSEE CLAIMED DEDUCTION ON ACCOUNT O F OPENING CASH BALANCE AS PER REGULAR DAY TO DAY CASH BOOK AM OUNTING TO RS. 6,32,583/-. HOWEVER, THE ASSESSING OFFICER D ID NOT ACCEPT ASSESSEES CONTENTION AND NO CREDIT WAS GIVE N FOR THE CASH AVAILABLE AS PER REGULAR DAY TO DAY CASH BOOK. 4. THAT AGAINST THE ORDER OF THE LD. ASSESSING OFFICER , THE ASSESSEE FILED THE APPEAL BEFORE THE CIT(A). THE LD . CIT(A) VIDE SMT.URMILA AGRAWAL, INDORE I.T.A.NO. 18/IND/2014 A.Y. 2005-06 3 PAGE 3 OF 8 HIS ORDER DATED 08.11.2013 ALSO SUMMARILY REJECTED THE CONTENTION OF THE ASSESSEE. ASSESSEE IS IN FURTHER APPEAL BEFORE US. 5. DURING THE COURSE OF HEARING, THE LD. AUTHORIZED REPRESENTATIVE RELIED ON THE DECISION OF HON'BLE K ERALA HIGH COURT IN THE CASE OF DY. COMMISSIONER OF COMMERCIAL TAX VS. IMPERIAL TRADING CO., 76 STC 183, WHEREIN THE HON'B LE KERALA HIGH COURT HELD AS UNDER :- AN ADMISSION MADE BY A PERSON IS RELEVANT, BUT NOT CONCLUSIVE. IT IS OPEN TO A PERSON, WHO HAS ADMITTED A FACT, TO EXPLAIN OR CLARIFY UNDER WHAT CIRCUMSTANCES IT WAS MADE OR TO PROVE THAT WHAT WAS STATED WAS UNTRUE. IN THE ABSENCE OF ANY DENIAL OR EXPLANATION THEREFORE, AN ADMISSION IS ALMOST CONCLUSIVE REGARDING THE FACTS CONTAINED THEREIN. I T DISPENSES WITH PROOF. 6. RELIANCE WAS ALSO PLACED ON THE DECISION OF APEX COURT IN THE CASE OF PULLANGODE RUBBER PRODUCE CO. LTD. VS. STATE OF KERALA, 91 ITR 18, WHEREIN IT WAS HELD AS UNDER :- SMT.URMILA AGRAWAL, INDORE I.T.A.NO. 18/IND/2014 A.Y. 2005-06 4 PAGE 4 OF 8 ENTRIES MADE BY THE ASSESSEE IN THE ACCOUNT BOOK S TREATING A PORTION OF THE GENERAL EXPENDITURE AS EXPENSES TOWARDS IMMATURE PLANTS AND CAPITALIZING SUCH PORTION AMOUNT TO AN ADMISSION THAT THE AMOUNT IN QUESTION WAS LAID OUT OR EXPENDED FOR THE CULTIVATION, UPKEEP OR MAINTENANCE OF IMMATURE PLANTS FROM WHICH NO AGRICULTURE INCOME WAS DERIVED DURING THE PREVIOUS YEAR FOR THE PURPOSE OF EXPLANATION (2) TO SECTION 5 OF THE KERALA AGRICULT URAL INCOME-TAX ACT, 1950. SUCH ADMISSION IS AN EXTREMEL Y IMPORTANT PIECE OF EVIDENCE BUT IT CANNOT BE SAID T HAT IT IS CONCLUSIVE. IT IS OPEN TO THE ASSESSEE WHO MADE THE ADMISSION TO SHOW THAT IT IS INCORRECT AND THE ASSESSEE SHOULD BE GIVEN A PROPER OPPORTUNITY TO SHOW THAT THE BOOKS OF ACCOUNTS DO NOT DISCLOSE THE CORRECT STATE OF FACTS. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AN D FOUND SMT.URMILA AGRAWAL, INDORE I.T.A.NO. 18/IND/2014 A.Y. 2005-06 5 PAGE 5 OF 8 FROM RECORD THAT ADDITION WAS MADE BY ASSESSING OFF ICER AFTER HAVING THE FOLLOWING OBSERVATIONS :- THE AUTHORIZED OFFICER DURING THE COURSE OF SURVEY IN QUESTION NO. 04 HIMSELF HAD MENTIONED THAT THE CA SH BALANCE AS ON 08.10.2004 FOR COMPUTING THE AMOUNT OF EXCESS CASH BALANCE WAS WORKED OUT ON THE BASI S OF KACHHI CASH BOOK. THE RELEVANT PORTION OF STATEMENT IS RECORDED BY THE AUTHORIZED OFFICER IS READ AS UNDER :- IZ'U % 04 VKT LOSZ{K.K DH DK;ZOKFG;K SA DS NKSJKU VKIDS PSECJ LS RFKK RECEPTION COUNTER LS JKSDM+ TKS UDN LHYD IKBZ XBZ MLDK HKKSFRD LR;KIU DJUS IJ DQY :- 2031623@&:- CHL YK[K BDRHL GTKJ N% LKS RSBZL IKBZ XBZ TCFD VKIDS }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{K.K DS NKSJKU ANNEXURE LP (1TO 25) TKS DOCUMENTS FEYS GS MUES IKBZ XBZ DISCREPANCIES HKH LFEEFYR GSA ,OA MDR V?KKSF'KR VK; :- 20]01]518 = 00'KCNKSA ESA :- CHL YK[K ,D GTKJ IKWP LKS VBKJG EK= IJ FU;EKUQLKJ DJ FU/KKZJ.K O'KZ 2005&06 DS FY, VAFRE VK;DJ VNK DJUS OPU NSRK GWQA 8. AS PER DAY TO DAY CASH BOOK, CASH BALANCE AS ON 08.10.2004 WAS RS. 6,32,583/-, WHICH WAS CLAIMED BY THE ASSESSEE IN HER RETURN OF INCOME, ACCORDINGLY SURRE NDERED CASH WAS REDUCED TO THAT EXTENT. DURING THE COURSE OF ASSESSMENT ALSO, THE ASSESSEE HAS PRODUCED THE BOOK S OF ACCOUNTS INCLUDING CASH BOOK AND THE SAME WERE DULY SMT.URMILA AGRAWAL, INDORE I.T.A.NO. 18/IND/2014 A.Y. 2005-06 7 PAGE 7 OF 8 ACCEPTED BY THE ASSESSING OFFICER, WHICH IS EVIDENT FROM THE ASSESSMENT ORDER PASSED U/S 143(3). HOWEVER, THE AS SESSING OFFICER MERELY EMPHASIZED THE STATEMENT GIVEN DURIN G COURSE OF SURVEY AND BY DISREGARDING THE AVAILABLE CASH AS PER DAY TO DAY CASH BOOK, DECLINED TO GIVE CREDIT OF AVAILABLE CASH AS PER CASH BOOK. 9. IT IS EVIDENT FROM THE SCRUTINY ASSESSMENT ORDER FRAMED BY THE ASSESSING OFFICER THAT HE HAS EXAMINE D THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE INCLUD ING THE CASH BOOK AND THE SAME WAS NOT REJECTED NOR ANY DIS CREPANCY WERE FOUND THEREIN VIS--VIS DOCUMENTS IMPOUNDED DU RING COURSE OF SURVEY PROCEEDINGS. THERE IS NO DISPUTE T O THE WELL SETTLED PROPOSITION THAT STATEMENT GIVEN DURING COU RSE OF SURVEY, ARE RECTIFIABLE, THE ASSESSEE HAS ALL THE R IGHTS TO RECTIFY THE SAME WITH SUPPORT OF DOCUMENTARY EVIDENCE. IF S UCH DOCUMENTARY EVIDENCE ARE FOUND TO BE CORRECT, THE S TATEMENT GIVEN DURING COURSE OF SURVEY IS TO BE RECTIFIED BA SED ON SUCH DOCUMENTARY EVIDENCE. IN THE INSTANT CASE, THE REGU LAR CASH BOOK ALONGWITH OTHER BOOKS OF ACCOUNTS PRODUCED DUR ING THE SMT.URMILA AGRAWAL, INDORE I.T.A.NO. 18/IND/2014 A.Y. 2005-06 8 PAGE 8 OF 8 COURSE OF SURVEY CLEARLY REVEALS OPENING CASH BALAN CE OF RS. 6,32,583/- AS ON 08.10.2004. SINCE CASH BOOKS SO PR ODUCED WERE NEITHER REJECTED NOR ANY DISCREPANCY WAS FOUND THEREIN, THERE IS NO JUSTIFICATION TO DISALLOW CREDIT OF CAS H BALANCE SO AVAILABLE IN THE DAY TO DAY CASH BOOK. ACCORDINGLY, THE ASSESSING OFFICER IS DIRECTED TO REDUCE THE ADDITIO N BY THE CASH BALANCE OF RS. 6,32,583/-, WHICH WAS AVAILABLE TO T HE ASSESSEE AS ON 8.10.2004 AS PER DAY TO DAY CASH BOOK. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 30 TH APRIL, 2014. SD/- SD/- (JOGINDER SINGH) (R. C. SHARMA) JUDICIAL MEMBER AC COUNTANT MEMBER DATED : 30 TH APRIL, 2014. CPU* 2829