DCIT, Thrissur V. Dally Martin, Thrissur

ITSSA 11/COCH/2005

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8160 (ITAT-COCHIN)
• Duration Of Justice: 7 year(s) 4 month(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 01-06-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 18-04-2012
• Assessment Year: misc
• Appeal Filed On: 31-01-2005
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: JOSE POTTAKKARAN

Judgement Text

1 IT(SS)A NO. 11/COCH/2005 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T(SS)A NO. 11/COCH/2005 (BLOCK PERIOD 01-04-1995 TO 20-11-2001) DY.CIT, CENT.CIR. VS DALLY MARTIN THRISSUR MECHERY HOUSE, OLLUR THRISSUR PAN : ACAPM3697D (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. S VIJAYAPRABHA RESPONDENT BY : SHRI JOSE POTTAKKARAN DATE OF HEARING : 18-04-2012 DATE OF PRONOUNCEMENT : 01-06-2012 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME-TAX(A)-I, KOCHI DATED 27-10-2004 AND PERTAIN S TO BLOCK PERIOD 01-04-1995 TO 20- 11-2001. 2. SMT. VIJAYAPRABHA, THE LD.DR SUBMITTED THAT THE COMMISSIONER OF INCOME-TAX(A) ALLOWED THE CLAIM OF THE ASSESSEE ON THE GROUND THA T THE ADVANCE-TAX WAS PAID IN RESPECT OF THE UNDISCLOSED INCOME ASSESSED BY THE A SSESSING OFFICER. ACCORDING TO THE LD.DR, MERE PAYMENT OF ADVANCE-TAX CANNOT BE A GROU ND FOR NOT ASSESSING THE AMOUNT AS UNDISCLOSED INCOME. ACCORDING TO THE LD.DR, IN THE ABSENCE OF ANY MATERIAL, THE ASSESSING OFFICER HAS RIGHTLY MADE THE ADDITION. 2 IT(SS)A NO. 11/COCH/2005 3. ON THE CONTRARY, SHRI JOSE POTTAKKARAN, THE LD.R EPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE PAYMENT OF ADVANCE-TAX WOULD AMO UNT TO DISCLOSING THE INCOME RELATABLE TO THE ADVANCE-TAX PAYMENT. THEREFORE, T O THE EXTENT OF ADVANCE-TAX PAYMENT, THE RELATABLE INCOME CANNOT BE TREATED AS UNDISCLOSED INCOME. REFERRING TO THE ADDITION OF RS.7,30,000 BEING THE INVESTMENT MA DE BY THE ASSESSEE IN M/S CHINNAN SONS JEWELLERS, THE LD.REPRESENTATIVE SUBMITTED THA T THE CASH FLOW STATEMENT FILED BEFORE THE LOWER AUTHORITIES CLEARLY ESTABLISHES TH AT FROM THE INCOME DISCLOSED TO THE DEPARTMENT, THE INVESTMENT WAS MADE. NO OTHER MATE RIAL IS AVAILABLE ON RECORD TO SUGGEST THAT THE ASSESSEE HAS ANY UNDISCLOSED INCOM E. ACCORDING TO THE LD.REPRESENTATIVE, THE COMMISSIONER OF INCOME-TAX(A ) HAS RIGHTLY ALLOWED THE CLAIM OF THE ASSESSEE. REFERRING TO THE RETURNS FILED BY TH E ASSESSEE, THE LD.REPRESENTATIVE SUBMITTED THAT THE ASSESSEE HAS DISCLOSED INCOME RE GULARLY BY FILING THE RETURN IN THE REGULAR COURSE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL ON RECORD. THE FIRST ADDITION IS WITH REG ARD TO THE AMOUNT DISCLOSED IN THE RETURN FILED AFTER THE DATE OF SEARCH. WE HAVE CAR EFULLY GONE THROUGH THE ORDERS OF LOWER AUTHORITIES. THE COMMISSIONER OF INCOME-TAX( A) FOUND THAT THE ASSESSEE HAS PAID ADVANCE-TAX OF RS.1 LAKH ON 10-09-2001. WHEN THE A SSESSEE HAS PAID THE ADVANCE-TAX UNDER THE PROVISIONS OF THE INCOME-TAX ACT, THE REL ATABLE INCOME HAS TO BE TREATED AS DISCLOSED TO THE DEPARTMENT. UNDER THE NORMAL CIRC UMSTANCES, THE ASSESSEE IS EXPECTED TO PAY THE TAX ONLY AFTER COMPLETION OF THE ASSESSM ENT. BECAUSE OF THE SCHEME PROVIDED IN THE INCOME-TAX ACT, THE ASSESSEE IS FOR CED TO PAY THE ADVANCE-TAX BEFORE THE END OF THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR. THEREFORE, WHEN THE ASSESSEE PAYS THE ADVANCE-TAX ON ESTIMATION OF THE TOTAL INC OME FOR THE RELEVANT ASSESSMENT YEAR, THE ADVANCE-TAX ALREADY PAID RELATES TO THE E XTENT OF THE INCOME ESTIMATED AND THEREFORE, IT HAS TO BE TREATED AS INCOME DISCLOSED TO THE DEPARTMENT. THEREFORE, THIS TRIBUNAL IS OF THE OPINION THAT THIS AMOUNT OF RS.3 ,64,146 CANNOT BE TREATED AS UNDISCLOSED INCOME FOR THE BLOCK PERIOD. 3 IT(SS)A NO. 11/COCH/2005 4.1 NOW COMING TO THE ADDITION OF RS.7,30,000 FOR T HE ASSESSMENT YEAR 2001-02 AND RS.59,331 FOR THE ASSESSMENT YEAR 1995-96, THE ASSE SSEE HAS DEMONSTRATED BEFORE THE COMMISSIONER OF INCOME-TAX(A) THAT THIS INVESTMENT IN CHINNAN SONS JEWELLERY WAS MADE FROM THE INCOME RETURNED TO THE DEPARTMENT REG ULARLY. THE ASSESSEE HAS ALSO FILED THE COPIES OF THE RETURNS FILED IN THE REGULA R COURSE. ONCE THE ASSESSEE DEMONSTRATED THAT THE INVESTMENT WAS FROM THE INCOM E RETURNED TO THE DEPARTMENT, THIS TRIBUNAL IS OF THE OPINION THAT THERE CANNOT B E ANY ADDITION AS UNDISCLOSED INCOME. THE DEPARTMENT HAS NOT BROUGHT ON RECORD ANY MATERI AL TO CONTROVERT THE FINDINGS RECORDED BY THE COMMISSIONER OF INCOME-TAX(A). THE REFORE, THIS TRIBUNAL DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LOWER AUTHORITY. ACCORDINGLY THE SAME IS CONFIRMED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 01 ST JUNE, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 01 ST JUNE, 2012 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH