Sh. Vardi Chand Jain, JAIPUR V. ACIT, UDAIPUR

ITA 81/JODH/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1601 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 10 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 12-12-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 09-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K KHANDELWAL
• Assessee Lawyers: P C PARWAL SHRI GAUTAM MUTHA
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER ITA NOS. 81 TO 86/JU/2011 ASSESSMENT YEARS 2002-03 TO 2007-08 SHRI VARDI CHAND JAIN VS. THE A.C.I.T NEAR PANI KI TANKI CENTRAL CIRCLE - 2 VILLAGE KANPUR, UDAIPUR UDAIPUR PAN NO: AIUPJ 8888 K (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI P.C. PARWAL SHRI GAUTAM MUTHA DEPARTMENT BY : SHRI A.K. KHANDELWAL DATE OF HEARING : 12.12.2012 DATE OF PRONOUNCEMENT : 22.01.2013 ORDER PER HARI OM MARATHA, J.M:- THIS IS A BUNCH OF SIX APPEALS FILED BY THE SAME ASSESSEE FOR A.YS. 2002-03 TO 2007-08. IN ALL THESE APPEALS , EXACTLY IDENTICAL ISSUE IS INVOLVED. ACCORDINGLY, ALL THES E APPEALS ARE 2 BEING DISPOSED OFF BY A COMMON ORDER FOR THE SAKE O F CONVENIENCE AND BREVITY. 2. THE FOLLOWING CHART WILL DESCRIBE THE ISSUES RAI SED IN ALL THESE APPEALS: NATURE OF ADDITION A.Y.02- 03 A.Y. 03- 04 A.Y.04-05 A.Y.05-06 A.Y. 06- 07 A.Y.07- 08 FOR ACCRUED INTEREST ON ADVANCES BY TREATING THE SAME AS REALIZED 35,1457/- 88,3657/- 1,14,3507/- 1,37,9007/- 1,56,3007/- 1,67,5207/- FOR UNEXPLAINED MONEY LENT 18,1457/- 83,1057/- 6,7447/- 2,39,1607/- 42,9007/- 7,5507/- 3. THE ASSESSEE, SHRI VARDI CHAND JAIN IS THE PROP RIETOR OF M/S MAHAVEER KIRANA STORE. HE ALSO DERIVES INCOME FROM DAIRY ACTIVITIES, HOUSE PROPERTY AND INCOME FROM OTHER SO URCES INCLUDING INTEREST IN MONEY LENDING AND OTHER INTEREST. SEARC H AND SEIZURE OPERATION U/S 132 OF THE INCOME-TAX ACT, 1961 [HERE INAFTER REFERRED TO AS 'THE ACT', FOR SHORT] WAS CARRIED OUT ON 03-0 8- 06 AT THE RESIDENCE AS WELL AS BUSINESS PREMISES OF ASSESSEE. IN SEARCH IT WAS FOUND THAT ASSESSEE IS CARRYING OUT MONEY LENDING A CTIVITIES, INCOME OF WHICH WAS NOT DISCLOSED IN THE RETURN. TH E MONEY LENDING ACTIVITIES WERE NOTED IN THE DIARY WHICH WA S SEIZED AS 3 ANNEXURE A-7, A-8 AND A-11. IT IS CLAIMED BY THE AS SESSEE THAT MONEY LENDING ACTIVITY AS PER ANNEXURE A-11 BELONGE D TO HIS SON JEETMAL JAIN. ACCORDINGLY, THE ASSESSEE AS PER ANN EXURE A-7 AND A- 8 COMPUTED THE INCOME FROM MONEY LENDING ACTIVITIES AND OFFERED THE SAME FOR TAXATION. THE A.O., HOWEVER, CONTRARY TO THE CLAIM OF THE ASSESSEE HAS CONSIDERED ANNEXURE A-11 IN HIS HA NDS AND HAS MADE ADDITION TOWARDS ACCRUED INTEREST AS WELL AS U NEXPLAINED MONEY LENT. BEFORE THE LD. CIT(A), THE ASSESSEE CLA MOURED THAT THIS ANNEXURE A-11 DOES NOT BELONG TO HIM AND BELONGS TO HIS SON JEETMAL JAIN WHO IS A SEPARATE AND INDEPENDENT ASSESSEE AND THAT THE ASSESSEE HAS BEEN FOLLOWING CASH SYSTEM OF ACCOUNTING AND NOT THE MER CANTILE SYSTEM. THE LD. CIT(A) DID NOT ACCEPT THE FIRST PART OF ASSESSEES SUBMISSIONS BUT ACCEPTED THE SECOND PART AND HAS TREATED THE INTEREST AS PER CASH SYSTEM BUT IN ASSESSEES HANDS AND NOT IN HIS SONS HANDS. AGGRI EVED, THE ASSESSEE HAS FILED THE APPEALS BEFORE US. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CAR EFULLY PERUSED THE ENTIRE MATERIAL ON RECORD. WE HAVE FOUND THAT OUT OF THE THREE DIARIES, THE ASSESSEE SHRI VARDI CHAND JAIN HAS ACCEPTED ANNEXUR ES A-7 AND A-8 AS BELONGING TO HIM AND HAS PAID TAXES THEREON, ACCORD INGLY,. BUT FROM THE 4 VERY BEGINNING, HE HAS BEEN CLEARLY DENYING THAT A- 11 DID NOT BELONG TO HIM AND STATED THAT THIS DIARY PERTAINED TO MONEY LENDI NG BUSINESS OF HIS SON JEETMAL JAIN. IT HAS BEEN CLEARLY CONTENDED BY THI S ASSESSEE THAT THE NOTINGS ON ANNEXURE A-11 ARE IN THE HANDWRITING OF HIS SON AND NOT HIM. WE HAVE CONSIDERED EVERY RELEVANT FACT AND FACTOR RELA TING THIS ISSUE AND HAVE FOUND THAT THE ACTION OF THE A.O. AND THAT OF THE L D. CIT(A) IS NOT JUSTIFIED. WHEN THE SON OF THE ASSESSEE HAS CLAIMED IN WRITING THAT THIS EVIDENCE A- 11 PERTAINED TO HIM AND THE ASSESSEE HAS ALSO EXPLA INED THAT THIS DIARY PERTAINED TO HIS SON, THEN IT WILL BE UNJUST ON THE PART OF THE REVENUE TO TREAT A PARTICULAR EVIDENCE TO BELONG TO A PARTICUL AR ASSESSEE WITHOUT GIVING DUE WEIGHTAGE TO THE CLAIMS AND CONTENTIONS MADE BY THE ASSESSEE. ACCORDINGLY, WE HOLD THAT THIS DIARY DOES NOT BELON G TO SHRI VARDHI CHAND JAIN BUT PERTAINED TO HIS SON SHRI JEETMAL JAIN. T HEREFORE, WE DIRECT THE A.O. TO CONSIDER A-11 IN THE HANDS OF THE ASSESSEE S SON SHRI JEETMAL JAIN AND TAKE NECESSARY ACTION IN THIS DIRECTION. ACCOR DINGLY, THESE APPEALS ARE ALLOWED FOR ALLOWED FOR STATISTICAL PURPOSES, AND W E ORDER TO DELETE THE IMPUGNED ADDITIONS, IN ALL THE YEARS, FROM THE HAND S OF THE ASSESSEE. 5 4. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 22-01-2013. SD/- SD/- (N.K.SAINI) [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 22 ND JANUARY, 2013 VL/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) BY ORDER 5. THE DR ASSISTANT REGISTRAR ITAT, JODHPUR