DCIT, Thrissur V. Roshini Vinod, Thrissur

ITSSA 13/COCH/2005

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8159 (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
• Keywords: Block assessment

Judgement Text

1 IT(SS)A NO.13/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. 13/COCH/2005 (BLOCK PERIOD 01-04-1995 TO 20-11-2001) DY.CIT, CENT.CIR. VS ROSHNI VINOD THRISSUR MECHERY HOUSE, OLLUR THRISSUR PAN : NOT AVAILABLE (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 THE 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 ASSESSING OFFICER MADE ADDITION OF RS.3,40,450 AS UNDISCLOSED INCOME FOR THE BLOCK PERIOD RELATING TO ASSESSMENT YEAR 2002-03. HOWEVER, THE COMMISSIONER OF INCOME-TAX(A ) DELETED THE ADDITION ON THE GROUND THAT THE ASSESSEE HAS PAID THE ADVANCE-TAX. ACCORDING TO THE LD.DR, MERE PAYMENT OF ADVANCE-TAX CANNOT BE A REASON TO DELETE THE ADDITION MADE BY THE ASSESSING OFFICER. REFERRING TO THE INVESTMENT MAD E BY THE ASSESSEE TO THE EXTENT OF RS.7,30,000 IN CHINNAN SONS JEWELLERY, THE LD.DR SU BMITTED THAT THE ASSESSEE HAS NOT 2 IT(SS)A NO.13/COCH/2005 SUBSTANTIATED THE INVESTMENT MADE IN CHINNAN SONS J EWELLERY BEFORE THE ASSESSING OFFICER. IN THE ABSENCE OF ANY MATERIAL, ACCORDING TO THE LD.REPRESENTATIVE, THE ASSESSING OFFICER HAS RIGHTLY MADE THE ADDITION. 3. ON THE CONTRARY, SHRI JOSE POTTOKKARAN, THE LD.R EPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT WHEN THE ASSESSEE PAID THE ADVANCE-T AX THE INCOME RELATABLE TO THE ADVANCE-TAX PAYMENT HAS TO BE TREATED AS INCOME DIS CLOSED TO THE DEPARTMENT. THE COMMISSIONER OF INCOME-TAX(A), AFTER REFERRING TO T HE DECISION OF THE TRIBUNAL IN THE CASE OF VED PRAKASH SANJAY KUMAR VS ASSIST.COMMISS IONER OF INCOME-TAX (2000) 66 TTJ (CHD) 442 HAS DELETED THE ADDITION. THE LD.REPRESE NTATIVE HAS ALSO PLACED HIS RELIANCE ON THE JUDGMENT OF THE APEX COURT IN MANISH MAHESHWARI VS ASSIST.COMMISSIONER OF INCOME-TAX & ANR (2007) 289 ITR 341 (SC) AND SUBMIT TED THAT THE ASSESSING OFFICER HAS NOT RECORDED HIS SATISFACTION BEFORE INITIATING PRO CEEDINGS U/S 158BD OF THE ACT. THE LD.REPRESENTATIVE FURTHER SUBMITTED THAT NO MATERIA L WAS FOUND DURING THE COURSE OF SEARCH OPERATION. THE CASH FLOW STATEMENT FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER WAS THE BASIS FOR MAKING THIS ADDITION. EX CEPT THE CASH FLOW STATEMENT FILED BY THE ASSESSEE NO OTHER MATERIAL IS AVAILABLE ON RECO RD. THEREFORE, IN THE ABSENCE OF ANY SEIZED MATERIAL, ACCORDING TO THE LD.REPRESENTATIVE , THERE CANNOT BE ANY ADDITION. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. A REGARDS THE FIRST ADDITION OF RS.3,40,450 IT IS NOT IN DISPUTE THAT THE ASSESSEE HAS PAID ADVANCE-TAX TO T HE EXTENT OF RS.1 LAKH ON 10-09-2001. WHEN THE ASSESSEE HAS PAID RS.1 LAKH ON 10-09-2001 THE RELATABLE INCOME HAS TO BE TREATED AS INCOME DISCLOSED TO THE DEPARTMENT. THE ASSESSEE IS EXPECTED TO PAY THE ADVANCE-TAX ON THE BASIS OF THE ESTIMATED TOTAL INC OME. THEREFORE, THIS TRIBUNAL IS OF THE OPINION THAT TO THE EXTENT OF INCOME DISCLOSED BY P AYING THE ADVANCE-TAX, THERE CANNOT BE ANY ADDITION ON ACCOUNT OF UNDISCLOSED INCOME FO R THE BLOCK PERIOD. 3 IT(SS)A NO.13/COCH/2005 4.1 NOW COMING TO THE INVESTMENT MADE BY THE ASSESS EE IN CHINNAN SONS JEWELLERY IT IS NOT IN DISPUTE THAT THERE WAS NO MATERIAL FOU ND DURING THE COURSE OF SEARCH OPERATION. THE ASSESSING OFFICER CAME TO KNOW ABOU T THE INVESTMENT MADE BY THE ASSESSEE ONLY ON THE BASIS OF THE CASH FLOW STATEME NT FILED IN THE COURSE OF BLOCK ASSESSMENT PROCEEDINGS. IN THE ABSENCE OF ANY SEAR CH MATERIAL, THIS TRIBUNAL IS OF THE OPINION THAT THERE CANNOT BE ANY ADDITION AS UNDISC LOSED INCOME. NO MATERIAL IS AVAILABLE ON RECORD TO CO-RELATE THE CASH FLOW STAT EMENT FILED BY THE ASSESSEE AFTER THE SEARCH OPERATION. THEREFORE, IN VIEW OF THE LANGUA GE EMPLOYED BY THE LEGISLATURE IN SECTION 158BB(1) THE UNDISCLOSED INCOME HAS TO BE C OMPUTED ONLY ON THE BASIS OF THE EVIDENCE FOUND DURING THE COURSE OF SEARCH OPERATIO N OR SUCH OTHER INFORMATION THAT MAY BE AVAILABLE BEFORE THE ASSESSING OFFICER WHICH IS RELATABLE TO THE EVIDENCE FOUND DURING THE COURSE OF SEARCH OPERATION. IN THE ABSE NCE OF ANY SUCH MATERIAL, THIS TRIBUNAL IS OF THE OPINION THAT THERE CANNOT BE ANY ADDITION AS UNDISCLOSED INCOME FOR THE BLOCK PERIOD. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY I NFIRMITY IN THE ORDER OF THE LOWER AUTHORITY. ACCORDINGLY, THE SAME IS CONFIRMED. 5. IN THE RESULT, APPEAL OF THE REVENUE STANDS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 01 ST JUNE, 2012. (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