M/s Aggarwal Sales, Zirakpur V. DCIT, Patiala

ITA 84/CHANDI/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0106 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 year(s) 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 11-04-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 01-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 143(3); 68; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS.ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 84/CHD/2013 ASSESSMENT YEAR: 2006-07 M/S AGGARWAL SALES, VS THE DCIT, C/O M/S ROYALE ESTATE, CENTRAL CIRCLE, CHANDIGARH AMBALA HIGHWAY, PATIALA. NAC, ZIRAKPUR. PAN: AAJFA5732C (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUDHIR SEHGAL RESPONDENT BY : SHRI SUSHIL KUMAR DATE OF HEARING : 11.04.2016 DATE OF PRONOUNCEMENT : 13.04.2016 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS)-1, LUDHIANA DATED 01.11.2012 FOR ASSESSMENT YEAR 2006-07 IN WHICH THE ASSESSEE CHALLENGED THE ADDITION OF RS. 23,35,000/- UNDER SECTION 68 OF THE INCOME TAX ACT. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE RELATES TO MOTIA GROUP OF CASES, ZIRAKPUR IN WHICH SEARCH & SEIZURE OPERATION UNDER SECTION 132 OF THE ACT WA S CONDUCTED ON 25.02.2009. THE ASSESSMENT UNDER SECT ION 153A/143(3) OF THE ACT WAS PASSED VIDE ORDER DATED 22.10.2010. THE ASSESSING OFFICER ON THE ISSUE INV OLVED IN THE APPEAL NOTED THAT ASSESSEE FIRM HAS SHOWN AD VANCES 2 RECEIVED AGAINST SALE OF SHOPS TOTALING TO RS.1,09, 20,000/- THE ASSESSEE WAS ASKED TO FURNISH COPY OF THE REGIS TERED DEEDS OF THE SHOPS SOLD OF M/S ROYALE ESTATE BY THE FIRM. THERE ARE TOTAL OF 30 PARTIES FROM WHOM ADVANCES HA VE BEEN RECEIVED AGAINST SALE OF THE SHOPS DURING THE YEAR. IN RESPECT OF 25 PARTIES, THE ASSESSEE FILED THE DA TE OF EXECUTION OF SALE DEED ALONGWITH SALE DEED NUMBER. HOWEVER, IN RESPECT OF SHOP NO. 62, 68, 72, 74 AND 113, THE ASSESSEE COULD NOT GIVE THE DETAILS. THESE PAR TIES ARE NIRMALA RANI, BALIHAR SINGH, RAMESH CHOUDHARY, RANJ IT KAUR AND HANS RAJ GARG, AGAINST WHOM TOTAL ADVANCE OF RS. 23,35,000/- HAVE BEEN SHOWN. IN THESE CASES, TI LL DATE, NO SALE DEEDS HAVE BEEN EXECUTED. THE ASSESSEE DID NOT FILE ANY CONFIRMATION FROM THESE PERSONS AND ASSESS EE HAS SHOWN INABILITY TO FILE ANY DOCUMENTARY EVIDENCE TO SUPPORT THAT THESE ADVANCES WERE ACTUALLY RECEIVED FROM THESE PARTIES. THESE AMOUNTS HAVE BEEN RECEIVED IN CASH AND CREDITED IN THE BOOKS OF ACCOUNT. THE ASSESSEE FAILED TO SUBSTANTIATE THE ADVANCES RECEIVED FROM THESE PE RSONS IN A SUM OF RS. 23,75,000/-, THEREFORE, WHEN BURDEN UPON ASSESSEE HAS NOT BEEN DISCHARGED TO PROVE GENUINE ADVANCE RECEIVED FROM THEE PERSONS, ADDITION OF RS. 23,35,000/- WAS MADE AGAINST THE ASSESSEE. 3. THE LD. CIT(APPEALS) CONFIRMED THE ADDITION AND DISMISSED THIS GROUND OF APPEAL OF THE ASSESSEE. 3 4. THE LD. COUNSEL FOR THE ASSESSEE RESTRICTED HIS ARGUMENT TO ONE POINT ONLY THAT WHILE PASSING ORDER UNDER SECTION 143(3) DATED 30.12.2008 FOR ASSESSMEN T YEAR 2006-07, ASSESSING OFFICER ON THE SAME ISSUE M ADE THE ADDITION OF RS. 15 LACS IN THE REGULAR ASSESSME NT ORDER THEREFORE, SET OFF OF THE SAME MAY BE GIVEN I N ASSESSMENT YEAR UNDER APPEAL BECAUSE IT WOULD AMOUN T TO DOUBLE ADDITION. 5. ON THE OTHER HAND, LD. DR RELIED UPON ORDERS OF THE AUTHORITIES BELOW. 6. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE AR E OF THE VIEW ASSESSEE IS ENTITLED FOR SET OFF OF RS. 15 LACS AGAINST THE ADDITION OF RS. 23,35,000/-. IT IS NOT IN DISPUTE THAT ASSESSEE STATED TO HAVE RECEIVED ADVAN CE OF RS. 23,35,000/- FROM THE ABOVE FIVE PARTIES, BUT ASSESSEE FAILED TO PROVE THE GENUINENESS OF THE AMO UNTS RECEIVED FROM THESE PERSONS. THEREFORE, ADDITION U NDER SECTION 68 OF THE ACT WAS RIGHTLY MADE AGAINST THE ASSESSEE BECAUSE ASSESSEE EVEN COULD NOT FILE ANY CONFIRMATION FROM THESE PARTIES. THE ASSESSING OFF ICER IN THE IMPUGNED ORDER UNDER SECTION 153A/143(3) DAT ED 22.12.2010 RE-COMPUTED THE INCOME OF THE ASSESSEE B Y TAKING THE ASSESSED INCOME OF RS. 28,46,450/- AS PE R ORDER PASSED UNDER SECTION 143(3) DATED 30.12.2008 AND AFTER ADDING THE ABOVE ADDITION UNDER SECTION 68, COMPUTED THE TOTAL INCOME AT RS. 51,81,450/-. THE ASSESSING OFFICER ORIGINALLY PASSED THE ORDER UNDER 4 SECTION 143(3) DATED 30.12.2008 FOR THE SAME ASSESSMENT YEAR 2006-07. THE ASSESSING OFFICER IN THE REGULAR ASSESSMENT ORDER, CONSIDERED THE ISSUE OF S ALE OF SHOPS AND DIRECTED TO PRODUCE SOME OF THE PURCHA SERS BEFORE HIM. THE ASSESSING OFFICER, AFTER CONSIDERI NG THIS ISSUE, REJECTED BOOKS OF ACCOUNT OF THE ASSESS EE UNDER SECTION 145(3) OF THE ACT AND MADE LUMPSUM ADDITION OF RS. 15 LACS. THEREFORE, RS. 15 LACS WA S ADDED TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF S ALE OF SHOPS ETC. THEREFORE, THIS AMOUNT IS AVAILABLE TO THE ASSESSEE FOR THE PURPOSE OF CLAIMING SET OFF AGAINS T THE ADDITION MADE IN THE ASSESSMENT ORDER UNDER SECTION 143(3)/153A OF THE INCOME TAX ACT. SINCE THE ASSES SING OFFICER HAS TAKEN THE ASSESSED INCOME FROM THE ASSESSMENT ORDER DATED 30.12.2008 WHILE PASSING THE IMPUGNED ORDER DATED 22.12.2010, THEREFORE, THE ADDITION OF RS. 15 LACS WOULD AMOUNT TO DOUBLE ADDI TION IN THE IMPUGNED ORDER. THEREFORE, AMOUNT OF RS. 15 LACS SHALL HAVE TO BE REDUCED WHILE COMPUTING THE INCOME AS PER THE IMPUGNED ORDER. FURTHER, SINCE ADDITION OF RS. 15 LACS WAS MADE ON ACCOUNT OF SALE OF THE SHOP, WHICH ISSUE IS INVOLVED IN THE PRESENT AP PEAL, THEREFORE, AS AGAINST ADDITION OF RS. 23,35,000/-, THE ASSESSEE WOULD BE ENTITLED FOR SET OFF OF RS. 15 LA CS AND AS SUCH, THE ADDITION OF RS. 23,35,000/- IS REDUCED BY RS. 15 LACS AND THE ADDITION WOULD BE RESTRICTED TO RS. 8,35,000/- ONLY. 5 7. IN VIEW OF THE ABOVE DISCUSSION, WE SET ASIDE AN D MODIFY THE ORDERS OF AUTHORITIES BELOW TO THE ABOVE EXTENT AND DIRECT THE ASSESSING OFFICER TO MAINTAIN THE ADDITION OF RS. 8,35,000/- AGAINST THE ADDITION OF RS. 23,35,000/- AND TO RECOMPUTE THE INCOME OF THE ASSESSEE ACCORDINGLY. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (ANNAPURNA GUPTA) (BHAVNESH SA INI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13 TH APRIL, 2016. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT,DR ASSISTANT REGISTRAR, ITAT/CHD