Pawan Kumar Jain, CHENNAI V. DCIT, Kumbakonam

ITA 950/CHNY/2011

• Counselvise Citation: 95021714 RSA 2011
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 23-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K E B RENGARAJAN JR
• Assessee Lawyers: T N SEETHARAMAN
• Keywords: Unexplained investment
• Section: 143(3); 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI [BEFORE DR. O.K. NARAYANAN, VICE-PRESIDENT AND SHRI HARI OM MARATHA, JUDICIAL MEMBER] I.T.A NO.950/MDS/2011 (ASSESSMENT YEAR : 2007-08) SHRI PAWAN KUMAR JAIN 169, MAHADHANA STREET MAYILADUTHURAI 609 001 VS THE DY. CIT CIRCLE I KUMBAKONAM [PAN AFUPJ4906P ] (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI T.N.SEETHARAMAN, ADVOCATE RESPONDENT BY : SHRI K.E.B RENGARAJAN, JR. STANDING COUNSEL DATE OF HEARING : 09-08-2011 DATE OF PRONOUNCEMENT : 09-08-2011 O R D E R PER HARI OM MARATHA, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE, FOR ASSESSMENT YE AR 200-07, IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A), TIRUC HIRAPALLI, DATED 8.3.2011. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE IS AN INDIVIDUAL, CARRYING ON BUSINESS AS GOLD SMITH EMPL OYING WORKMEN AND USING MACHINERY AND DERIVING INCOME FROM COOLIE REC EIPTS. HE ALSO ITA 950/11 :- 2 -: MAKES GOLD JEWELLERY ON JOB WORK GIVEN BY JEWELLERY MERCHANTS. THE ASSESSEE DOES NOT SELL JEWELLERY AND DOES NOT MAINT AIN ANY GOLD OR GOLD JEWELLERY AS STOCK-IN-TRADE. HE DOES NOT HAVE ANY SHOW-ROOM OR SHOP FOR SALE OF JEWELLERY. THE JEWELLERY MADE AT THE FACTORY IS KEPT AT THE RESIDENCE-CUM-OFFICE PREMISES OF THE ASSESSEE. HE IS ALSO CONDUCTING AN INFORMAL CHIT ALONGWITH HIS FRIENDS A S SUBSCRIBERS. A SURVEY U/S 133A OF THE ACT WAS CARRIED OUT IN HIS F ACTORY AND RESIDENCE-CUM-OFFICE PREMISES ON 22.3.2007. THE AS SESSMENT WAS COMPLETED AND VARIOUS ADDITIONS WERE MADE. BEFORE THE LD. CIT(A), FIRST APPEAL WAS PREFERRED BY RAISING VARIOUS GROUN DS. BEING NOT SATISFIED WITH THE ORDER OF THE LD. CIT(A), THE ASS ESSEE HAS FILED THE SECOND APPEAL BY RAISING THE FOLLOWING GROUNDS: 1. THE ORDER OF THE COMMISSIONER OF INCOME TAX ( APPEALS) IS SKETCHY, OPPOSED TO LAW, FACTS OF THE CASE AND T HE WEIGHT OF EVIDENCE ADDUCED. 2. THE COMMISSIONER (APPEALS) ERRED IN SUMMARILY CONFIRMING THE ORDER OF THE ASSESSING OFFICER ON AL L ISSUES AND DISMISSING THE APPEAL. 3. THE APPELLANT SUBMITS THAT, HAVING REGARD TO THE NA TURE OF THE ISSUES AND AMOUNTS INVOLVED IN THE APPEAL, T HE COMMISSIONER (APPEALS) ORDER IS A NON-SPEAKING ORDE R HAVING NO MERIT. 4. THE COMMISSIONER ERRED IN NOT TAKING ANY NOTE AT AL L OF THE VARIOUS DOCUMENTS SUBMITTED IN THE FORM OF A PA PER BOOK AND ELABORATE WRITTEN SUBMISSIONS FILED IN SUP PORT OF THE APPELLANT'S CASE. ITA 950/11 :- 3 -: 5. THE APPELLANT SUBMITS THAT THE COMMISSIONER (APPEAL S) ORDER SUFFERS FROM NON CONSIDERATION OF EVIDENCE ON RECORD AND NON APPLICATION OF MIND RESULTING IN ERR0NEOUS CONCLUSIONS PREJUDICIAL TO THE APPELLANT. 6. THE APPELLANT PRAYS THAT THE ORDER OF THE COMMISSIO NER (APPEALS) MAY PLEASE BE SET ASIDE AND THE CASE RESTORED TO THE FILE OF THE COMMISSIONER (APPEALS) FOR (RE) CONSIDERATION WITH REFERENCE TO THE DOCUMENTS AND EVIDENCES ALREADY AVAILABLE WITH THE COMMISSIONER (APPEALS) BUT NOT CONSIDERED BY HIM IN DECIDING THE CASE. 7. WITHOUT PREJUDICE TO THE ABOVE PRELIMINARY GROUNDS THE APPELLANT RAISES THE FOLLOWING GROUNDS ON MERITS. 8. THE COMMISSIONER (APPEALS) ERRED IN CONFIRMING THE ADDITION OF ` 1,02,08,552/- AS 'UNEXPLAINED INVESTMENT IN GOLD JEWELLERY' IN THE COURSE OF JEWELLERY BUSIN ESS WHEREAS THE DOCUMENTS PLACED ON RECORD BY THE APPELLANT PROVE BEYOND ANY DOUBT THAT HE WAS A GOLDSMITH DOING JOB WORK ONLY AND THE GOLD JEWELLER Y FOUND BELONGED TO HIS CUSTOMERS AND NOT TO HIM . 9. THE COMMISSIONER (APPEALS) ERRED IN NOT TAKING NOTE OF THE FACT THAT THE APPELLANT WAS REGISTERED AS A JOB WORKER WITH THE INDUSTRIES DEPARTMENT AND SALES TAX AUTHORITIES AND IN HIS PREVIOUS TWO ASSESSMENTS FOR ASSESSMENT YEARS 2005-06 AND 2006-07 MADE U/S 143(3) ON 28.12.2007, AFTER THE SURVEY U/S 133A ON 22.03.2007, THE NATURE OF HIS BUSINESS WAS ACCEPTED AS 'GOLD SMITH BUSINESS'. 10. THE APPELLANT SUBMITS THAT BOTH THE ASSESSING OFFIC ER AND COMMISSIONER (APPEALS) FAILED TO BRING ON RECOR D ANY MATERIAL TO SHOW THAT THE APPELLANT IS A JEWELL ERY MERCHANT AND NOT A GOLDSMITH DOING JOB WORK. 11. THE APPELLANT PRAYS THAT THE HON'BLE TRIBUNAL BE PLEASED TO DELETE THE ADDITION OF ` 1,02,08,552/- AS 'UNEXPLAINED INVESTMENT IN GOLD JEWELLERY'. 12. THE COMMISSIONER (APPEALS) ERRED IN CONFIRMING THE ADDITION OF ` 1,69,230/- AS 'UNEXPLAINED INVESTMENT IN HOUSEHOLD ARTICLES' DISBELIEVING THE APPELLANT'S EXPLANATION THAT HE HAD ACQUIRED THE HOUSEHOLD ARTI CLES OVER THE YEARS AND WITHOUT BRINGING IN ANY MATERIAL EVIDENCE TO SHOW THAT THE HOUSEHOLD ARTICLES WERE PURCHASED IN THE PRESENT YEAR. ITA 950/11 :- 4 -: 13. THE COMMISSIONER (APPEALS) ERRED IN CONFIRMING THE ADDITION OF ` 61,120/- AS 'UNACCOUNTED INVESTMENT IN PURCHASE OF GOLD JEWELLERY' WHEN THERE WAS NO ADMISSION OR EVIDENCE TO SHOW THAT ANY PART OF THE JEWELLERY WAS PURCHASED DURING THE PRESENT YEAR. 14. THE COMMISSIONER (APPEALS) ERRED IN CONFIRMING THE ADDITION OF ` 15,000/- AS 'UNRECORDED INCOME FROM CHIT BUSINESS' IGNORING THE APPELLANT'S EXPLANATION THAT THE CHIT BUSINESS WAS A NEWLY STARTED ONE AND NO INCOME HAD BEEN DERIVED DURING THE YEAR AND WITHOUT ANY CONTRARY EVIDENCE. 15. FOR THESE AND OTHER GROUNDS THAT MAY BE ADDUCED AT THE TIME OF HEARING THE APPELLANT PRAYS THAT THE HO N'BLE TRIBUNAL BE PLEASED TO SET ASIDE THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) FOR CONSIDERATION AFRESH OR, IN THE ALTERNATIVE, DELETE THE ADDITIONS MADE, ALLOW THE APPEAL AND RENDER JUSTICE . 3. AT THE TIME OF HEARING, IT WAS NOTICED THAT THE L D. CIT(A) HAS NOT PASSED A SPEAKING ORDER AND RATHER THE FACTS AR E NOT COMING OUT IN FULL BEFORE US. THEREFORE, IN THE FACTS AND CIRCUM STANCES OF THE CASE, IT WAS FELT NECESSARY TO RESTORE THE ENTIRE APPEAL TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO REFRAME THE A SSESSMENT. ACCORDINGLY, WE SET ASIDE THE ORDERS OF THE AUTHORI TIES BELOW AND REMIT THE ENTIRE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER TO REDO THE ASSESSMENT. NEEDLESS TO MENTION THAT HE WILL GIVE OPPORTUNITY OF HEARING TO THE ASSESSEE AS PER LAW. ITA 950/11 :- 5 -: 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE STAND S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 0 9-08-2011. SD/- SD/- (DR. O.K. NARAYANAN) VICE-PRESIDENT (HARI OM MARATHA) JUDICIAL MEMBER DATED: 09 TH AUGUST, 2011 RD COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR