Smt. Afsaribanu Ahmedhusen Shaikh, Ahmedabad V. The Income tax Officer, Ward-10(2), Ahmedabad

ITA 812/AHD/2009

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 2334 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 06-01-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 13-03-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Corroborative evidences
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI A.N. PAHUJA, ACCOUNTANT MEMBER DATE OF HEARING : 06/01/2011 DRAFTED ON: 1 1/1/2011 ITA NO.812/AHD/2009 ASSESSMENT YEAR : 2004-05 SMT. AFSARIBANU AHMEDHUSEN SHAIKH PROP. CONA FOOTWEAR 30,31 MUNICIPAL MARKET CG ROAD, AHMEDABAD VS. THE INCOME TAX OFFICER WARD-10(2) AHMEDABAD PAN/GIR NO. : ACZPS 4155 P ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : NONE (WRITTEN SUBMISSIONS) RESPONDENT BY: SHRI RAJDEEP SINGH, SR. D.R. O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE WHICH HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-XVI , AHMEDABAD DATED 21/01/2009 PASSED FOR ASSESSMENT YEAR 2004-05 . THE SUBSTANTIVE ISSUE IS IN RESPECT OF AN ADDITION U/S. 69 OF THE I.T.ACT, 1961 OF RS.1,87,131/-. 2. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED U/S.143(3) OF THE I.T. ACT, 1961 DATED 19 /01/2009 WERE THAT THE ASSESSEE AS AN INDIVIDUAL IS A PROPRIETOR OF A CONC ERN TRADING IN SHOES. A ITA NO .812/AHD/2009 SMT. AFSARIBANU AHMEDHUSEN SHAIKH ASST.YEAR - 2004-05 - 2 - SURVEY WAS CARRIED OUT ON 05/01/2004. AS A RESULT OF SURVEY, THE ASSESSEE HAS ADMITTED UNACCOUNTED STOCK OF RS.6,65,237/-. T HOUGH HE HAS ADMITTED BUT AS PER ASSESSING OFFICER WHILE FILING THE RETURN OF INCOME FOR ASSESSMENT YEAR 2004-05 HE HAS DECLARED TOTAL I NCOME OF RS.9,02,481/- IN WHICH THE EXCESS STOCK DECLARED WA S ONLY AT RS.4,78,106/-. AN EXPLANATION WAS THAT THE GOODS W ORTH OF RS.2,47,423/- WERE RECEIVED BEFORE THE DATE OF SURVEY OUT OF WHIC H GOODS WORTH OF RS.60,292/- WERE RETURNED AND THE BILLS IN RESPECT OF THOSE PURCHASES WERE RECEIVED SUBSEQUENT TO THE DATE OF SURVEY. BECAUS E OF THE SAID STATED FACTS, IT WAS CONTESTED THAT THE NET FIGURE OF RS.1 ,87,131/- WAS EXPLAINED. IT WAS ALSO MADE CLEAR THAT ON ACCOUNT OF THE SAID EXPLANATION, THE SAID AMOUNT WAS NOT INCLUDED IN THE DISCLOSURE OF THE EX CESS STOCK FILED ALONG WITH THE RETURN OF INCOME. HOWEVER, THE ASSESSI NG OFFICER HAS NEGATED THAT EXPLANATION ON THE GROUND THAT THE STOCK WAS I NVENTORISED IN THE PRESENCE OF THE REPRESENTATIVE OF THE APPELLANT AT THE TIME OF SURVEY AND THAT EXPLANATION WAS NOT OFFERED DURING THE STATEME NT RECORDED. SINCE THERE WAS NO INDICATION IN THE STATEMENT THAT THE B ILLS WERE YET TO BE RECEIVED, THEREFORE, THE ASSESSING OFFICER HAD MADE THE IMPUGNED ADDITION OF RS.1,87,131/-. 3. THE FIRST APPELLATE AUTHORITY HAS AFFIRMED THE A CTION OF THE ASSESSING OFFICER PRIMARILY ON TWO GROUNDS, FIRST, THAT NOWHERE IN THE STATEMENT THE ASSESSEE HAD MENTIONED THAT CERTA IN BILLS WERE YET TO BE RECEIVED, SECOND, THAT IF IT WAS CORRECT, THE N THOSE BILLS COULD HAVE BEEN RECEIVED BY THE ASSESSEE AFTER 10-15 DAYS OF THE SURVEY ITA NO .812/AHD/2009 SMT. AFSARIBANU AHMEDHUSEN SHAIKH ASST.YEAR - 2004-05 - 3 - AND THAT FACT COULD HAVE BEEN BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER AT THAT TIME, BUT NO SUCH FACT WAS PLACED O N RECORD. THE LEARNED CIT(APPEALS) HAS ALSO MENTIONED THAT OFFER WAS ACCEPTABLE TO THE ASSESSEE BECAUSE HE HAS AGREED TO PAY THE TA X ON THE SAID AMOUNT. BY ASSIGNING ALL THESE REASONS, THE ACTIO N OF THE ASSESSING OFFICER WAS CONFIRMED. 4. ON THE DATE OF HEARING, NO ONE HAS ATTENDED ON B EHALF OF THE APPELLANT-ASSESSEE. VIDE A LETTER, IT WAS MENTIONE D THAT IT WAS NOT POSSIBLE TO ATTEND THE PROCEEDING, HOWEVER, THE CAS E MAY BE DECIDED ON THE BASIS OF THE SUBMISSIONS ANNEXED ALONGWITH T HE SAID REQUEST. IN THE ANNEXED SUBMISSION, THE CONTENTION OF THE AS SESSEE IS THAT THE STATEMENT RECORDED AT THE TIME OF SURVEY HAD NO EVI DENTIARY VALUE AS HELD IN THE CASE OF CIT VS. S. KHADERKHAN SON REPOR TED AT [2008]214 CTR 589 (MAD.). IT HAS ALSO BEEN MENTIONED THAT TH E BOOKS OF ACCOUNT OF THE ASSESSEE HAVE BEEN ACCEPTED WHICH ME ANS THAT THE SALES AND THE CLOSING STOCK DECLARED THEREIN HAVE A LSO NOT BEEN DISPUTED BY THE ASSESSING OFFICER. THE STOCK WHICH WAS DISCLOSED AS PER THE BOOKS WAS INCLUSIVE OF THE ABOVE REFERRE D DISPUTED AMOUNT. SUCH AN ADDITION WAS NOTHING BUT DOUBLE TA XATION AND FOR THIS PROPOSITION, RELIANCE WAS PLACED ON THE DECISI ON OF HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. MEHTA G WAR GUM & CO. REPORTED AT [2008]173 TAXMAN 464 (RAJ.). ITA NO .812/AHD/2009 SMT. AFSARIBANU AHMEDHUSEN SHAIKH ASST.YEAR - 2004-05 - 4 - 5. FROM THE SIDE OF THE REVENUE, LEARNED DEPARTMENT AL REPRESENTATIVE PLACED RELIANCE ON THE ORDERS OF THE AUTHORITIES BELOW. 6. CONSEQUENCE UPON A SURVEY ACTION, THE STOCK OF THE ASSESSEE WAS PHYSICALLY INVENTORISED. THE VALUE OF THE PHYSICAL STOCK OF BOTH THE CONCERNS WAS ARRIVED AT RS.60,84,859/- FOUND ON PH YSICAL VERIFICATION. AFTER REDUCING GROSS PROFIT RATE OF 20%, THE VALUE OF STOCK FOR BOTH THE CONCERNS WAS COMPUTED RESPECTIVE LY OF RS.47,54,384/- AND RS.13,30,475/-. THE ASSESSEE WA S VERY SPECIFIC IN RESPECT OF HIS ADMISSION, HENCE, THE REVENUE AUT HORITIES HAVE SAID THAT THE SAID ADDITION WAS WELL CORROBORATED BY THE SAID STATEMENT RECORDED. MEANING THEREBY; THE SAID STA TEMENT WAS HAVING SUPPORTING COGENT EVIDENCE, I.E. PRESENCE OF EXCESS STOCK HENCE, IT WAS NOT MERELY AN UNSUPPORTED STATEMENT B UT A STATEMENT WHICH HAD A SUPPORTING EVIDENCE, THEREFORE, IN THE EYES OF LAW, CAN BE SAID TO BE HAD AN EVIDENTIARY VALUE. FURTHER, THE ASSESSEE HAS NOT ESTABLISHED THE CORRECTNESS OF THE PENDING BILL AND THE NATURE OF THE TRANSACTION. WITH THE RESULT, WE ARE ALSO OF THE VIEW THAT THE LOWER AUTHORITIES WERE RIGHT IN REJECTING THE CLAIM OF TH E ASSESSEE. WE HEREBY CONFIRM THEIR FINDINGS AND DISMISS GROUND NO .1. 7. GROUND NO.2 IS IN RESPECT OF CHARGING OF INTERES T U/S.234-B AND 234-C OF THE I.T.ACT WHICH ARE CONSEQUENTIAL I N NATURE. ITA NO .812/AHD/2009 SMT. AFSARIBANU AHMEDHUSEN SHAIKH ASST.YEAR - 2004-05 - 5 - 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 13/ 1 /2011. SD/- SD/- ( A.N. PAHUJA ) ( MU KUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBE R AHMEDABAD; DATED / /2011 T.C. NAIR, SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-XVI, AHMEDABAD 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD 1. DATE OF DICTATION..10.1.2011 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 11.1.2011 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S13.1.11 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 13.1.11 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER