DCIT, Thrissur V. Sailu Jacob, Thrissur

ITSSA 12/COCH/2005

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8154 (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 POTTOKKARAN

Judgement Text

1 IT(SS)A NO. 12/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. 12/COCH/2005 (BLOCK PERIOD 01-04-1995 TO 20-11-2001) DY.CIT, CENT.CIR. VS SAILU JACOB THRISSUR MECHERY HOUSE OLLUR, THRISSUR PAN : ABIPJ7715L (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. S VIJAYAPRABHA RESPONDENT BY : SHRI JOSE POTTOKKARAN 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 01-11-1995 TO 20- 11-2001. 2. SMT. VIJAYAPRABHA, THE LD.DR SUBMITTED THAT THE ASSESSING OFFICER HAS MADE ADDITION OF RS.7,30,000 BEING THE INVESTMENT MADE B Y THE ASSESSEE IN M/S CHINNAN SONS JEWELLERY FOR THE ASSESSMENT YEAR 2000-01 AND ANOTH ER SUM OF RS.2,08,064 FOR THE ASSESSMENT YEAR 1994-95. ACCORDING TO THE LD.REPRE SENTATIVE, THE ASSESSEE HAS NOT EXPLAINED THE SOURCE OF INVESTMENT. THEREFORE, THE SAME WAS ADDED AS UNDISCLOSED INCOME FOR THE BLOCK PERIOD. THE LD.REPRESENTATIVE SUBMITTED THAT FOR THE ASSESSMENT YEAR 2002-03 THE ASSESSING OFFICER MADE ADDITION OF RS.3,71,427; HOWEVER, THE SAME 2 IT(SS)A NO. 12/COCH/2005 WAS DELETED BY THE COMMISSIONER OF INCOME-TAX(A) ON THE GROUND THAT THE ASSESSEE HAS PAID ADVANCE-TAX OF RS.1 LAKH ON 10-09-2001. ACCOR DING TO THE LD.DR, MERELY BECAUSE ADVANCE-TAX WAS PAID IT CANNOT BE SAID THAT THE ASS ESSEE HAS DISCLOSED THE INCOME TO THE DEPARTMENT. 3. ON THE CONTRARY, SHRI JOSE POTTOKKARAN, THE LD.R EPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT NO MATERIAL IS AVAILABLE ON RECORD T O SUGGEST THAT THE ASSESSEE HAS INVESTED ANY MONEY. THE ASSESSEE HAS SIMPLY DISCLO SED IN THE CASH FLOW STATEMENT FILED BEFORE THE ASSESSING OFFICER IN THE COURSE OF THE A SSESSMENT PROCEEDINGS ABOUT THE INVESTMENT. IN THE ABSENCE OF ANY MATERIAL FOUND D URING THE COURSE OF SEARCH OPERATION, ACCORDING TO THE LD.DR, THERE CANNOT BE ANY UNDISCLOSED INCOME. THE LD.REPRESENTATIVE FURTHER SUBMITTED THAT THE ASSESS EE HAS FILED REGULAR RETURNS OF INCOME. THEREFORE, THE INCOME RETURNED EARLIER TO THE DEPARTMENT WAS USED FOR INVESTMENT IN M/S CHINNAN SONS JEWELLERY. THIS FAC T WAS BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER SUBSEQUENT TO THE SEARCH BY WAY O F A CASH FLOW STATEMENT. THEREFORE, ACCORDING TO THE LD.REPRESENTATIVE, THERE CANNOT BE ANY ADDITION. REFERRING TO THE ADVANCE-TAX PAID BY THE ASSESSEE, THE LD.REPRESENTA TIVE SUBMITTED THAT WHEN THE ASSESSEE HAS PAID THE ADVANCE-TAX, THE INCOME ESTIM ATED THEREIN CANNOT BE TREATED AS UNDISCLOSED FOR THE BLOCK PERIOD. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL ON RECORD. NO MATERIAL IS AVAILABLE ON RE CORD TO SUGGEST THAT THE ASSESSEE HAS INVESTED ANY MONEY EXCEPT THE CASH FLOW STATEMENT F ILED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. SECTION 158BB(1) CLEARLY SAYS THAT THE UNDISCLOSED INCOME HAS TO BE COMPUTED ON THE BASIS OF THE EVIDE NCE FOUND DURING THE COURSE OF SEARCH OPERATION OR THE INFORMATION WHICH IS RELATA BLE TO THE EVIDENCE FOUND DURING THE COURSE OF SEARCH OPERATION. IN THIS CASE, THERE IS NO SEIZED MATERIAL AVAILABLE REGARDING THE INVESTMENT MADE BY THE ASSESSEE IN CHINNAN SONS JEWELLERY. IN THE ABSENCE OF ANY SEIZED MATERIAL, THERE CANNOT BE ANY UNDISCLOSED IN COME FOR THE BLOCK PERIOD. 3 IT(SS)A NO. 12/COCH/2005 5. NOW COMING TO THE ADDITION OF RS.3,71,427 IT IS NOT IN DISPUTE THAT THE ASSESSEE HAS PAID ADVANCE-TAX TO THE EXTENT OF RS.1 LAKH ON 10-09-2001. WHEN THE ASSESSEE HAS PAID THE ADVANCE-TAX AFTER ESTIMATING THE TOTAL INC OME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION AND PAID THE ADVANCE-TAX AS PER THE S CHEME OF THE INCOME-TAX ACT, THIS TRIBUNAL IS OF THE OPINION THAT THE INCOME RELATABL E TO THE ADVANCE-TAX PAYMENT IS DISCLOSED TO THE DEPARTMENT. THEREFORE, THERE CANN OT BE ANY UNDISCLOSED INCOME. 6. IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LOWER AUTHORITY AND ACCORDINGLY THE SAME IS CONFIRM ED. 7. 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