Shri Abdul Salim, JODHPUR V. ITO, JODHPUR

ITA 99/JODH/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5228 (ITAT-JODHPUR)
• Duration Of Justice: 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 27-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L MOURYA
• Keywords: Unexplained investment; Valuation report

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE: SHRI N. S. SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER I.T.A.NO.99/JODH/2015 ASSESSMENT YEAR: 2006-07 SHRI ABDUL SALIM, G-96, H. I. A, BASNI, JODHPUR PAN :ABBPPS7432L VS. THE INCOME TAX OFFICER, WARD 1(1), JOPDHPUR APPELLANT RESPONDENT APPELLANT BY SHRI AMIT KOTHARI, A R RESPONDENT BY SHRI S. L. MOURYA, D.R. DATE OF HEARING: 14.03.2016 DATE OF PRONOUNCEMENT: 14.03.16 O R D E R PER: GEORGE MATHAN, J.M. : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R OF THE LEARNED CIT (A)-1, JODHPUR DATED 10-03-2015 PASSED IN APPEAL NO .112/2012-13 FOR ASSESSMENT YEAR 2006-07 CONFIRMING LEVY OF PENALTY U/S 271 (1) (C) OF THE IT ACT. 2. SHRI AMIT KOTHARI LEARNED AR REPRESENTED ON BEHA LF OF THE ASSESSEE AND MR. S. L. MOURYA REPRESENTED ON BEHALF OF THE R EVENUE. 2 ITA NO.99/JODH/2015 3. IT WAS SUBMITTED BY THE LEARNED AR THAT THERE WA S A SURVEY ON THE PREMISES OF THE ASSESSEE AND ON THE BASIS OF A STAT EMENT RECORDED IN THE COURSE OF SURVEY FROM THE BROTHER OF THE ASSESSEE A N ADDITION OF RS.6 LACS AND RS.1.10 LACS WAS MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT TOWARDS PURCHASE OF FACTORY LAND AND BUILDING AND CONSTRUCT ION OF RESIDENTIAL HOUSE RESPECTIVELY. IT WAS A SUBMISSION OF THE LEARNED AR THAT NO MATERIAL WAS FOUND DURING THE COURSE OF SURVEY TO SUBSTANTIATE T HIS ADDITION. IT WAS A SUBMISSION THAT EVEN IN THE COURSE OF ASSESSMENT NE ITHER THE FACTORY LAND & BUILDING WERE VALUED NOR THE RESIDENTIAL PROPERTY W AS VALUED BY THE DVO. IT WAS A SUBMISSION THAT ONLY ON THE BASIS OF THE STAT EMENT RECORDED FROM THE ELDER BROTHER OF THE ASSESSEE THE ADDITION WAS MADE . NO OPPORTUNITY TO CROSS EXAMINE WAS ALSO GIVEN IN RESPECT OF THE STATEMENT RECORDED. IT WAS A SUBMISSION THAT THE ADDITION HAVING BEEN MADE ON ES TIMATE BASIS RELYING UPON A STATEMENT WHICH IS UNSUPPORTED NEITHER BY AN Y DOCUMENTARY EVIDENCE NOR BY VALUATION REPORT, PENALTY U/S 271 ( 1) (C) OF THE ACT WAS NOT LIABLE TO BE LEVIED. IT WAS A SUBMISSION THAT THE A DDITION HAS BEEN CONFIRMED BY THE TRIBUNAL. 4. IN REPLY, THE LEARNED DR VEHEMENTLY SUPPORTED TH E ORDER OF THE AO AND THE LEARNED CIT (A). 3 ITA NO.99/JODH/2015 5. WE HAVE HEARD THE RIVAL SUBMISSIONS. ADMITTEDLY, IN THE COURSE OF SURVEY NO EVIDENCE WAS FOUND TO SHOW THAT INVESTMEN T IN THE FACTORY LAND AND BUILDING WAS MORE THAT HAS BEEN DISCLOSED NOR W AS THERE ANY EVIDENCE IN RESPECT OF EXCESS INVESTMENT IN THE RESIDENTIAL PROPERTY. THE STATEMENT RECORDED IN THE COURSE OF SURVEY ADMITTEDLY IS NOT RELIABLE EVIDENCE. IN FACT, COURTS HAVE REPEATEDLY HELD THAT THE STATEMENT RECO RDED IN THE COURSE OF SURVEY CANNOT BE RELIED UPON FOR MAKING AN ADDITION , IN THE ASSESSMENT, MUCH LESS FOR THE PURPOSE OF LEVY OF PENALTY. THE S O-CALLED STATEMENT RECORDED FROM THE BROTHER OF THE ASSESSEE HAS ALSO NOT BEEN PROVIDED TO THE ASSESSEE FOR CROSS EXAMINATION OR REBUTTAL. THE STA TEMENT RECORDED FROM THE ASSESSEES BROTHER HAS ALSO NOT BEEN SUPPORTED BY V ALUATION REPORT. THE ADDITION HAS BEEN MADE ONLY ON THE BASIS OF A STATE MENT RECORDED FROM THE BROTHER OF THE ASSESSEE. IT IS NOTICED THAT THE STA TEMENT HAS BEEN RECORDED IN THE MORNING AT 7 AM ON 13-07-2005 AND THE SAID SURV EY SEEMS TO HAVE BEEN CONVERTED INTO A SEARCH ON 14-07-2005. EVEN, IN THE COURSE OF SEARCH, NO EVIDENCE HAS BEEN FOUND TO GIVE ANY SUPPORT OR CRED ENCE TO THE STATEMENT RECORDED FROM THE ASSESSEES BROTHER IN THE COURSE OF SURVEY. THIS BEING SO, WE ARE OF THE VIEW THAT THE PENALTY AS LEVIED BY TH E AO AND AS CONFIRMED BY THE LEARNED CIT (A) ON THE BASIS OF THE STATEMENT O F RECORDED IN THE COURSE OF SURVEY WHICH CANNOT BE USED AS EVIDENCE IS UNSUSTAI NABLE. CONSEQUENTLY, THE PENALTY LEVIED U/S 271 (1) (C) OF THE ACT STAND S DELETED. 4 ITA NO.99/JODH/2015 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14.03.2016. SD/- SD/- (N. S. SAINI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR, DATED: 14 TH MARCH, 2016 LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA DEKA/ DEKA/ DEKA/ DEKA/- -- - COPY OF THE ORDER FORWARDED TO: 1 . THE APPELLANT 2. THE RESPONDENT 3. CIT CONCERNED 4. CIT (A) CONCERNED 5. DR, ITAT, JODHPUR 6. GUARD FILE BY ORDER, SR. PRIVATE SECRETARY DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 14.03.16 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 15.03.16 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 15.03.16 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 15.03. 16 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 15.03.16 SR.PS 6. DATE OF PRONOUNCEMENT 14.03.116 SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER