HARISH KUMAR HEDA, MUMBAI V. DCIT CIR 23(1), MUMBAI

ITA 964/MUM/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9191 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 04-12-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 10-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURINDER JIT SINGH
• Assessee Lawyers: VIJAY KOTHARI
• Keywords: Corroborative evidences
• Section: 143(3)

Judgement Text

. , IN THE INCOME TAX APPELLATE TRIBUNAL SMC , BENCH MUMBAI , BEFORE SHRI R. K. GUPTA , JM ITA NO. 964 / MUM/ 20 1 2 ( ASSESSMENT YEAR : 200 3 - 20 0 4 ) SHRI HARISH KUMAR HEDA, 2/A, VIVEK NIWAS, SAIBAUG SOCIETY, VILLAGE ROAD, BHANDUP (W) , MUMBAI - 78 VS. DCIT CIR 23(1) , MUMBAI PAN/GIR NO. : AA APH 3053 Q ( APPELLANT ) .. ( RESPONDENT ) AND ITA NO. 966 /MUM/20 1 2 ( ASSESSMENT YEAR :200 5 - 200 6 ) SHRI HARISH KUMAR HEDA, 2/A, VIVEK NIWAS, SAIBAUG SOCIETY, VILLAGE ROAD, BHANDUP (W), MUMBAI - 78 VS. DCIT CIR 23(1), MUMBAI PAN/GIR NO. : AAAPH 305 3 Q ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : MR. VIJAY KOTHARI /REVENUE BY : MR. SURINDER JIT SINGH DATE OF HEARING : 4 TH DEC . , 2012 D ATE OF PRONOUNCEMENT : 7 TH DEC. ,2012 O R D E R TH ESE TWO APPEALS HAVE BEEN PREFERRED BY THE ASSESSEE AGAINST THE COMMON ORDER DATED 14 - 12 - 2011 OF LEANED CIT(A) - 36 , MUMBAI RELATING TO THE ASSESSMENT YEAR S 2003 - 04 AND 2005 - 06, RESPECTIVELY , PASSED UNDER SECTION 143(3) R.W.S.153A OF THE ACT . ITA NO S . 964 & 966 /20 1 2 2 2. IN THE APPEAL FOR THE ASSESSMENT YEAR 2003 - 04, THE ONLY ISSUE IS AGAINST THE DENIAL OF EXEMPTION OF AGRICULTURAL INCOME AMOUNTING TO RS. 33,122/ - , WHEREAS IN THE APPEAL FOR THE ASSESSMENT YEAR 2005 - 06, THE ISSUES IS WITH REGARD TO DENIAL OF EXEMPTION OF RS. 22,450/ - ON ACCOUNT OF AGRICULTURAL INCOME. 3 . THE ASSESSEE HAD SHOWN AGRICULTURAL INCOME AMOUNTING TO RS. 33,122/ - AND RS. 2 2,450/ - FOR THE ASSESSMENT YEARS 2003 - 04 & 2005 - 06 , RESPECTIVELY. THE ASSESS ING OFFICER TREATED THIS AGRICULTURAL INCOME AS INCOME FROM OTHER SOURCES FOR THE REASON THAT THE ASSESSEE COULD NOT FILE ANY SUPPORTING EVIDENCE 4 . THE LEARNED CIT(A) HAS ALSO CONFIRMED THE ACTION OF THE ASSESSING OFFICER. NOW, THE ASSESSEE IS IN APPEA L HERE BEFORE THE TRIBUNAL. 5 . AFTER CONSIDERING THE SUBMISSION AND PERUSING THE MATERIAL ON RECORD, I FOUND THAT THE ASSESSEE DESERVES TO SUCCEED ON TH E ISS UE FOR BOTH THE ASSESSMENT YEARS . IT IS NOTED THAT IN PAST ALSO THE AGRICULTURAL INCOME HAS BEEN SHOWN AND THE SAME HAS BEEN ACCEPTED BY THE DEPARTMENT ITSELF. IT IS FURTHER NOTED THAT THIS IS A CASE OF SEARCH UNDER SECTION 132A OF THE ACT, NO MA TERIAL IN RESPECT OF AGRICULTURAL INCOME WAS FOUND. ONLY DURING THE COURSE OF ASSESSMENT PROCEEDINGS, UNDER SECTION 143(3)/153A, THE ASSESSING OFFICER ENQUIRED ABOUT THE SOURCE OF AGRICULTURE INCOME AS EVIDENCE. THE ASSESSEE FILED REPLY, WHICH WAS ITA NO S . 964 & 966 /20 1 2 3 NOT ACCEPTED. ON SIMILAR FACTS, THE AGRICULTURAL INCOME HAS BEEN ACCEPTED IN PAST. EVEN AND OTHERWISE WITHOUT ANY A DVERSE MATERIAL IN CASE OF SEARCH, NO ADVERSE INFERENCE SHOULD HAVE BEEN DRAWN AGAINST THE ASSESSEE. THE ASSESSEE HAS SHOWN A PETTY AGRICULTURAL INCOME. THEREFORE, IT CANNOT BE SAID THAT ASSESSEE HAS BUILT UP CAPITAL UNDER THE GRAB OF AGRICULTURAL INCOME. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, I HOLD THAT THE AGRICULTURAL INCOME SHOWN BY THE ASSESSEE IS LIABLE TO BE ACCEPTED. ACCORDINGLY, I AL LOW THIS GROUND OF THE ASSESSEE FOR BOTH OF THE YEARS. 6 . THE REMAINING ISSUE FOR ASSESSMENT YEA R 2005 - 06 IS AGAINST CONFIRMING THE ADDITION OF RS. 61,115/ - ON ACCOUNT OF INVESTMENT IN STOCK OF SILVER. 7 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS DEALING IN BUSINESS OF MAKING/REPAIRING AND POLISHING OF SILVER ORNAMENTS AND ARTICLE. HE VI SITED RAIPUR AND DURING THAT PERIOD HE LOST HIS LUGGAGE CONTAINING SOME DIARIES , WHICH WAS LATER RECOVERED BY THE RAILWAY POLICE FORCE, HOWEVER, THE SAME WAS NOT HANDED OVER TO THE ASSESSEE BUT INFORMED TO THE DEPARTMENT. ON THAT BASIS, THE DEPARTMENT COND UCTED A SEARCH ON THE ASSESSEE UNDER SECTION 132A. A LIST OF INVENTORY RECORDED IN DIARY WAS PREPARED. FROM THE CONTENTS OF THE DIARY, COPY OF WHICH IS PLACED IN THE PAPER BOOK AT PAGE 5 ONWARDS, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE IS INVOLVED IN THE BUSINESS OF SALE AND PURCHASE OF SILVER AND GOLD ARTICLES. THE CONTENTION OF THE ITA NO S . 964 & 966 /20 1 2 4 ASSESSEE THAT HE IS NOT A TRADER OF BULLION BUT HE IS RECEIVING THE GOODS ON BEHALF OF OTHERS AND REPAIRS THEM AND ALSO MAKE JEWELLERY AND CHARGES LABOUR CHARGES, HOWEVER , THIS CONTENTION WAS NOT ACCEPTED BY THE ASSESSING OFFICER. ON THE BASIS OF THE SAME, THE ASSESSING OFFICER MADE AN ADDITION OF RS. 61,115/ - UNDER SECTION 69A AS THE ASSESSEE COULD NOT PRODUCE ANY SALE AND PURCHASE VOUCHER OF THE SAME. 8 . LEARNED C IT(A) ALSO CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 9 . AFTER CONSIDERING THE SUBMISSION AND PERUSING THE MATERIAL ON RECORD, I FOUND THAT THE ASSESSEE DESERVES TO SUCCEED ON THE ISSUE. I NOTED THAT FROM THE CONTENTS OF DIARY ITSELF, SHOWS THAT THE ASSESSE E HAS CHARGED LABOUR CHARGES AGAINST WEIGHT OF SILVER AN D GOLD. LABOUR CHARGES RECEIVED BY THE ASSESSEE ARE MENTIONED IN THE LAST COLUMN BUT THIS FACT HAS BEEN IGNORED BY THE ASSESSING OFFICER. THE ASSESSEE HAS GIVEN EXPLANATION THAT HE IS NOT MAKING ANY S ALE AND PURCHASE OF JEWELLERY BUT DURING THE BUSINESS OF MAKING JEWELLERY, HE MAKES AND REPAIRS THE SAME ON BEHALF OF THE OTHERS. THIS CONTENTION OF THE ASSESSEE WAS NOT FOUND FALSE, NEITHER ANY MATERIAL HAS BEEN BROUGHT ON RECORD THAT THE ASSESSEE IS INDU LGED IN SALE AND PURCHASE OF GOLD AND SILVER JEWEL L ERY. WITHOUT ANY MATERIAL, ANY ADVERSE INFERENCE DRAWN AGAINST THE ASSESSEE BY NOT ACCEPTING THE EXPLANATION GIVEN BY HIM BEFORE THE ASSESSING OFFICER, IN MY CONSIDERED VIEW, MAKING ADDITION ON ACCOUNT OF INVESTMENT IN JEWELLERY WORKS WAS NOT JUSTIFIED. THERE ITA NO S . 964 & 966 /20 1 2 5 SHOULD BE SOME MATERIAL ON RECORD THAT THE ASSESSEE HAD INVOLVED IN SALE PURCHASE OF JEWELLERY EITHER OF SILVER OR GOLD. ACCORDINGLY, I DELETE THE ADDITION. 10 . IN THE RESULT, APPEAL S OF THE ASSESSEE ARE ALLOWED FOR BOTH OF THE ASSESSMENT YEARS I.E 2003 - 04 & 2005 - 06 . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 7 TH DAY OF DEC . 2012. 2012 -- SD/ - ( ) ( R.K.GUPTA ) / JUDICIAL MEMBER MUMBAI ; DATED : 07 / 1 2 / 2012 . /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) - X, MUMBAI. 4. / CIT 5. / DR, ITAT, M UMBAI 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( DY./ASSTT. REGISTRAR) / ITAT, MUMBAI