Kalpit H.Shah, Dahod V. The ACIT.,Cent.Circle-1, Baroda

ITA 766/AHD/2010

• Counselvise Citation: 76620514 RSA 2010
• Duration Of Justice: 2 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 11-03-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DINESH CHANDRA SHARMASR
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT , JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER ITA NO. 766/AHD/2010 ASSESSMENT YEAR :2007-08 KALPIT H SHAH, 1, AMRUTWADI, YAMUNA NIVAS, STATION ROAD, DAHOD V/S . ACIT, CENTRAL CIRCLE-1, BARODA PAN NO. A HFPS0881D (APPELLANT) .. (RESPONDENT) BY APPELLANT SHRI SAKAR SHARMA, A.R. /BY RESPONDENT SHRI DINESH CHANDRA SHARMA,SR. D .R. /DATE OF HEARING 16.05.2012 /DATE OF PRONOUNCEMENT 31.05.2012 O R D E R PER : T.R.MEENA, ACCOUNTANT MEMBER THIS IS APPEAL ARISES OUT OF ORDER OF CIT(A)-IV, A HMEDABAD, ORDER DATED 07.12.2009 FOR ASSESSMENT YEAR 2007-08. THE EFFECT IVE GROUNDS OF APPEAL ARE AS UNDER:- 1. LD. CIT (A) ERRED ON FACTS AND IN LAW IN CONFIR MING ADDITION OF RS. 3,52,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF CASH FOUND IN THE COURSE OF SEARCH. ITA NO. 766/AHD/2010 A.Y.2007-08 PAGE 2 2. LD. CIT (A) ERRED ON FACTS AND IN LAW IN CONFIR MING ADDITION OF RS. 95,200/- MADE BY THE ASSESSING OFFICER ON AC COUNT OF UNEXPLAINED JEWELLERY FOUND IN THE COURSE OF SEARCH . 2. THE FIRST GROUND IS AGAINST THE ADDITION OF RS. 3,52,000/- ON ACCOUNT OF CASH FOUND DURING THE COURSE OF SEARCH. THE A.O. O BSERVED THAT DURING THE COURSE OF SEARCH, THE CASH OF RS. 67,000/- WAS FOUN D FROM THE LOCKER NO. 766 WITH GODHRA CITY COOP. BANK LTD., GODHRA, IN THE NA ME OF ASSESSEE, CASH OF RS. 2,85,000/- IN LOCKER NO. 491 WITH GODHRA CITY C OOP. BANK LTD., GODHRA WAS FOUND AND SEIZED AND CASH OF RS. 1,32,250/- WAS FOUND AT RESIDENCE. OUT OF THIS TOTAL RS. 3,52,000/- WAS SEIZED BY THE DEPA RTMENT. THE ASSESSEE FILED THE EXPLANATION BEFORE THE A.O. BUT THE SAME WAS NO T FOUND TENABLE. HE MADE ADDITION OF RS. 6,72,421/- INCLUDING JEWELLERY OF RS. 1,64,171/- & RS. 24,000/-. 3. BEING AGGRIEVED BY THE ORDER OF A.O., THE ASSESS EE WAS BEFORE LD. CIT(A)-IV, AHMEDABAD, HE CONCLUDED ON PARA NOS. 3.1 & 3.2 WHICH IS REPRODUCED AS UNDER:- I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE LEARNED COUNSEL AS WELL ALSO GONE THROUGH THE ASSESSMENT ORDER. THE L D. COUNSEL HAD SUBMITTED A DETAILED EXPLANATION DURING THE COURSE OF APPELLATE PROCEEDINGS. A REPORT FROM THE ASSESSING OFFICER W AS CALLED FOR VIDE THIS OFFICE LETTER DATED 16.10.2009. THE COPY OF T HE SUBMISSION OF THE LD. COUNSEL WAS ALSO SENT TO HIM. THE REPORT WAS C ALLED FOR ON FIVE SPECIFIC POINTS. THE REPORT WAS CALLED FOR LATEST BY 26.10.2009. HOWEVER, TILL DATE NO REPORT WAS RECEIVED FROM THE ASSESSING OFFICER. THE APPEAL IS THEREFORE, BEING DECIDED CONSIDERING THE MERITS OF THE CASE. IT WAS NOTICED THAT THE APPELLANT USED TO RE SIDE AT GODHRA AND LOOKS AFTER THE FUNCTIONING OF THE MANUFACTURING UN IT OF M/S SHREE ITA NO. 766/AHD/2010 A.Y.2007-08 PAGE 3 YAMUNA PROTEINS, GODHRA. HIS CASE IS THEREFORE, CA N BE DECIDED AS TO WHAT WAS RECOVERED FROM THE BUSINESS AND RESIDENTIA L PREMISES AT GODHRA AND WHAT WAS THE EXPLANATION OF THE APPELLAN T. THE RECOVERY OF CASH OF RS. 4,42,000/- WAS FROM THE FOLLOWING PREMI SES: (1) LOCKER NO. 491 OF SHRI KALPIT SHAH/ SMT. JYOTI SHAH RS. 2,85,000/- (2) LOCKER NO. 766 OF SMT. JYOTI K. SHAH RS. 67,0 00/- (3) GODHRA RESIDENCE OF SHRI KALPIT H. SHAH RS. 1, 30,000/- 3.2 THE LD. COUNSEL HAS FURNISHED A DETAILED EXPLAN ATIOJN FOR THE CASH RECOVERED FROM THE APPELLANT BUT THE SAME IS B ASED ONLY ON IFS AND BUTS. HE WAS REQUIRED TO EXPLAIN THE CASH RECOVERE D FROM THE LOCKERS. THE BUSINESS CASH OF M/S SHREE YAMUNA PROTEINS, GOD HRA AMOUNTING TO RS. 2,26,989/- WAS NOT KEPT IN THE LOCKERS AS NO SUCH ENTRY WAS CLAIMED TO BE APPEARING IN THE BOOKS OF ACCOUNT OF THIS GODHRA CONCERN. THE CASH WAS KEPT IN THE LOCKER AT LEAST AT THE TIM E OF LAST OPERATION OF THE LOCKERS BEFORE THE OPERATION OF LOCKERS DURING THE COURSE OF SEARCH. THE LD. COUNSEL HAS NO WHERE CLAIMED THAT ON SUCH L AST OPERATION OF THE LOCKERS, THE BUSINESS CASH WAS KEPT IN THE LOCK ERS AND SUCH ENTRY WAS RECORDED IN THE BOOKS OF ACCOUNT OF THE GODHRA CONCERN. IN ABSENCE OF SUCH EXPLANATION, THE CASH OF RS. 3,52,0 00/- RECOVERED FROM THE ABOVE REFERRED TWO LOCKERS IS TREATED AS UNEXPL AINED. THE CASH OF RS. 1,30,000/- IS CONSIDERED AS EXPLAINED AS BELONG ING TO THE BUSINESS CONCERN M/S SHREE YAMUNA PROTEINS, GODHRA. THE ADD ITION ON ACCOUNT OF UNEXPLAINED CASH IS THUS RESTRICTED TO RS. 3,52, 000/- AND REST OF THE ADDITION IS DELETED. ITA NO. 766/AHD/2010 A.Y.2007-08 PAGE 4 4. THE LD. D.R. ALSO FAIRLY CONCEDED THAT FACTS OF CASE AS HELD IN CASE OF HARSHADRAY M.SHAH VS. ACIT, BARODA BEFORE THE CO-ORDINATE A BENCH IN ITA NO. 3141/AHD/2009 IN A.Y. 2007-08 . 5. NOW THE ASSESSEE IS IN APPEAL BEFORE US. HE FIL ED THE PAPER BOOK IN GROUP CASES IN WHICH EXPLANATION FOR CASH WAS ALSO SUBMITTED IN CASE OF HARSHADRAY M.SHAH VS. ACIT (SUPRA). THE CO-ORDINATE BENCH HAS DECIDED AFTER CONSIDERING THE SUBMISSION OF ASSESSEE AND DE LETED THE ADDITION. ON VERIFICATION OF ABOVE ORDER THESE THREE AMOUNTS HAV E BEEN CONSIDERED BY THE ASSESSEE IN CASH FLOW STATEMENT IN CASE OF GROUP AN D ADDITIONAL CASH WAS FOUND, HAS BEEN DISCLOSED AN ADDITIONAL INCOME BY T HE GROUP. 6. WE HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW AND THE ABOVE DECISION OF THE CO-ORDINATE BENCH. THE ASSESSEE HA S EXPLAINED THE SOURCE OF CASH, THEREFORE THIS ADDITION IS DISMISSED. 7. THE SECOND GROUND OF APPEAL IS AGAINST THE UNEXP LAINED JEWELLERY OF RS. 95,200/-. 8. THE A.O. OBSERVED THAT DURING THE COURSE OF SEAR CH AND SEIZURE OPERATION IN GROUP CASE ON 19.09.2006 JEWELLERY WOR TH RS. 1,64,171/- RS. 4,55,650/- & RS. 24,000/- (TOTAL 6,43,821/-) WAS FO UND FROM THE RESIDENCE AS WELL AS LOCKER OF THE ASSESSEE. THE ADDITION MADE BY THE A.O. AT RS. 1,64,171/- ON ACCOUNT OF UNEXPLAINED JEWELLERY AND REMAINING RS. 4,79,650/- WAS FOUND EXPLAINED. 9. THE LD. CIT(A) HAS ALSO GIVEN RELIEF IN HIS ORDE R DATED 07.12.2009 IN PARAGRAPH NO. 3.4 OF PAGE NO.4 AND CONFIRMED THE AD DITION AT RS. 95,200/-. ITA NO. 766/AHD/2010 A.Y.2007-08 PAGE 5 THE ASSESSEE FILED A PAPER BOOK IN HIS CASE ALONGWI TH GROUP CASES OF OTHER FAMILY MEMBERS ABOUT THE SOURCE OF JEWELLERY BUT WH ICH REQUIRES VERIFICATION BY THE A.O. THE A.R. OF THE ASSESSEE ALSO ACCEPTED THIS FACT THAT THIS MATTER CAN BE SET ASIDE TO THE A.O. THE D.R. HAS ALSO NOT OBJECTED ON THIS ISSUE. 10. THEREFORE, WE HAVE OPINION TO SEND THIS ISSUE T O THE A.O. FOR DE NOVO. THE A.O. IS DIRECTED TO VERIFY THE RECONCILIATION S TATEMENT SUBMITTED BEFORE US BY THE ASSESSEE AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THUS, THIS ISSUE IS SET ASIDE. 11. IN RESULT, THE APPEAL IS PARTLY ALLOWED AND SET ASIDE AND DECIDED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/ - ( MUKUL KR. SHRAWAT) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER TRUE COPY S.K.SINHA ! ! ! ! '! '! '! '! / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. '(' ) * / CONCERNED CIT 4. *- / CIT (A) 5. !./ ), ) , 12( / DR, ITAT, AHMEDABAD 6. /45 67 / GUARD FILE. BY ORDER/ , 8/ 1 ': ) , ITA NO. 766/AHD/2010 A.Y.2007-08 PAGE 6 12( ; STRENGTHEN PREPARATION & DELIVERY OF ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 28.05.2012 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE XXXX 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 28.05.2012 4) DATE OF CORRECTION 29.05.2012 5) DATE OF FURTHER CORRECTION 6) DATE OF INITIAL SIGN BY MEMBERS 31.05.2012 7) ORDER UPLOADED ON 8) ORIGINAL DICTATION PAD HAS BEEN ENCLOSED IN THIS FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON