Shri Sudhir Chourasia, Vidisha V. The ACIT 2(1), Bhopal

ITSSA 148/IND/2011

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7501 (ITAT-INDORE)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 26-04-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2003-2004
• Appeal Filed On: 16-11-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: KESHAV SAXENA
• Assessee Lawyers: S S DESHPANDE
• Keywords: Search and seizure
• Section: 143(3); 133A; 153A; 132

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER IT(SS)A NOS. 148 TO 153/IND/2011 A.YS. 2003-04 TO 2008-09 SUDHIR CHOURASIA GANJBASODA, DISTT.VIDISHA PAN AASPC 3460E :: APPELLANT VS ASSTT. COMMISSIONER OF INCOME TAX 2(1), BHOPAL :: RESPONDENT APPELLANT BY SHRI S.S. DESHPANDE RESPONDENT BY SHRI KESHAV SAXENA DATE OF HEARING 26.04.2012 DATE OF PRONOUNCEMENT 27.04.2012 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 19.9.2011 FOR THE ASSESSMENT YEARS 2003-04 TO 2008- 09 ON THE GROUND THAT THE LEARNED FIRST APPELLATE AUTHORITY I S NOT JUSTIFIED IN 2 SUSTAINING THE ADDITION TOWARDS UNEXPLAINED HOUSEHO LD EXPENSES ESPECIALLY WHEN SUBSTANTIAL WITHDRAWAL FOR SUCH EXP ENSES WAS MADE BY THE ASSESSEE. 2. DURING HEARING OF THESE APPEALS, WE HAVE HEARD S HRI S.S.DESHPANDE, LEARNE COUNSEL FOR THE ASSESSEE AND SHRI KESHAV SAXENA, LEARNED CIT DR. THOUGH THE ASSESSEE HAS PR EFERRED VARIOUS GROUNDS BUT DURING HEARING, THE ONLY GROUND ARGUED PERTAINS TO ADDITION TOWARDS LOW HOUSEHOLD WITHDRAW ALS. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS IDEN TICAL TO THE GROUND RAISED. ON THE OTHER HAND, THE LEARNED CIT DR, SHRI KESHAV SAXENA, DEFENED THE ADDITION. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE, AN INDIVIDUAL, IS ENGAGED IN THE BUSINESS OF TRADING IN CIGARETTE, BEEDI, CONFECTIONARY, TEA, FMGC ITEMS, E TC. A SEARCH AND SEIZURE OPERATION U/S 132 OF THE ACT WAS CARRIE D OUT AT THE PREMISES OF THE ASSESSEE ON 22.1.2009. IDENTICAL O PERATION UNDER SECTION 133A WAS CARRIED OUT AT THE BUSINESS PREMIS ES OF M/S SUDHIR ENTERPRISES, PROPRIETARY CONCERN OF THE ASSE SSEE. A COMMON ASSESSMENT ORDER UNDER SECTION 153A READ WIT H SECTION 143(3) OF THE ACT WAS FRAMED ON 31.12.2010. DURING 3 ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED TO F URNISH THE DETAILS OF FAMILY MEMBERS, THEIR AGE, OCCUPATION AN D DETAILS OF EARNINGS ALONG WITH THE DETAILS OF BANK WITHDRAWALS . THE ASSESSEE WAS ALSO ASKED TO JUSTIFY THE REASONABLENE SS OF WITHDRAWALS MADE FOR HOUSEHOLD EXPENSES. AS PER THE AO, THE ASSESSEE DID NOT FURNISH DETAILS OF SUCH EXPENSES E XCEPT THE DETAILS OF FAMILY MEMBERS. BEFORE COMING TO ANY CO NCLUSION, WE ARE REPRODUCING HEREUNDER THE DETAILS OF INCOME SHO WN BY THE ASSESSEE :- A.Y. DATE OF FILING INCOME SHOWN IN THE RETURN (RS.) 2003-04 19.03.2010 61,172 2004-05 -DO- 59,105 2005-06 -DO- 97,654 2006-07 -DO- 2,03,205 2007-08 -DO- 1,02,260 2008-09 -DO- 1,09,980 DURING THE ASSESSMENT PROCEEDINGS, THE CLAIM OF THE ASSESSEE WAS THAT HE WAS LIVING IN A JOINT FAMILY AND THE EN TIRE FAMILY STAYS IN A HOUSE OWNED BY THE MOTHER HAVING COMMON KITCHE N. IT WAS ALSO EXPLAINED THAT THERE WERE TOTAL SIX SCHOOL GOI NG CHILDREN IN THE JOINT FAMILY AND ALL WERE STUDYING EITHER IN PR IMARY OR IN MIDDLE SCHOOL. IT WAS ALSO EXPLAINED THAT THEY ARE RESIDING IN A 4 SMALL TOWN WHERE THE SCHOOL FEE RANGES FROM RS. 100 /- TO RS. 250/-, PER CHILD, PER MONTHS. IT WAS CLAIMED THAT THE FAMILY IS NOT HAVING ANY FOUR WHEELER AND THE MODE OF CONVEYA NCE IS ONE MOTOR CYCLE AND ONE SCOOTER. THE FAMILY WAS CLAIMED TO BE VEGETARIAN, HAVING OWN KIRANA STORES AND THE KIRANA ITEMS WERE AVAILABLE TO THE FAMILY AT WHOLESALE RATES. NO MAJO R CEREMONY, DURING THE PERIOD, WAS CLAIMED TO BE SOLEMNIZED IN THE FAMILY. THE LEARNED AO MADE THE FOLLOWING ADDITIONS ON ACCO UNT OF INADEQUATE HOUSEHOLD WITHDRAWALS :- ASSESSMENT YEAR ADDITION MADE BY THE AO (IN RS.) 2003-04 20,000 2004-05 25,000 2005-06 30,000 2006-07 35,000 2007-08 40,000 2008-09 45,000 ON APPEAL, THE LEARNED CIT(A) AFFIRMED THE ADDITION WHICH IS UNDER CHALLENGE BEFORE THE TRIBUNAL. FOR BETTER APP RECIATION OF FACTS, WE ARE REPRODUCING HEREUNDER THE DETAILS OF WITHDRAWALS MADE BY THE FAMILY MEMBERS 5 NAME OF FAMILY MEMBER RELATION A.Y. 2003-04 A.Y. 2004-05 A.Y. 2005-06 A.Y. 2006-07 A.Y. 2007-08 A.Y. 2008-09 ANIL CHOURASIA BROTHER 14124 10000 9300 16800 24861 23400 ANIL CHOURASIA DECLARED IN RETURN 12500 14500 5000 18000 SUNIL CHOURASIA BROTHER 60250 30500 16513 54000 54500 71082 SUDHIR CHOURASIA SELF 25480 28500 27500 37000 33000 67800 SANJEEV CHOURASIA BROTHER 39000 28480 47039 68617 27098 74053 SUNITA CHOURASIA W/O ANIL 44000 32000 40000 27500 8362 22600 MEENA CHOURASIA W/O SUNIL 55200 30000 32500 9600 14560 19800 SAVITRI DEVI CHOURASIA MOTHER 42868 35600 26590 22230 40000 TOTAL 280922 195080 185352 254607 189611 336735 THE JOINT FAMILY IS RESIDING IN A TOWN, NAMELY, GANJBASODA DISTRICT VIDISHA. THE TOTAL WITHDRAWALS FOR HOUSEHOLD EXPENSES AS SHOWN IN THE AFORESAID TABLE RANGES BETWEEN RS. 1,85,352/-(A.Y. 2005-06) TO RS.3,36,735/- (A.Y. 2008-09). KEEPING IN VIEW THE TOTALITY OF FACTS MENTIONED IN THE ASSESSMENT ORDER , IMPUGNED ORDER AND THE ASSERTION MADE BY THE LEARNE D RESPECTIVE COUNSEL, WE ARE OF THE VIEW THAT IN THE TOWN WHERE THE ASSESSEE IS RESIDING, LESSER EXPENSES ARE EXPECTED TO INCUR IN COMPARISON TO BIGGER CITIES BU T AT THE SAME TIME, IT CANNOT BE ACCEPTED THAT THE EXPEN SES CLAIMED BY THE ASSESSEE ARE SUFFICIENT TO MEET OUT THE 6 NEEDS OF THE JOINT FAMILY CONSISTING OF SO MANY ME MBERS INCLUDING SCHOOL GOING CHILDEREN. AT THE SAME TIME, IT IS SEEN THAT INDIVIDUAL MEMBERS HAVE MADE WITHDRAWALS FROM THEIR RESPECTIVE ACCOUNTS ALSO, THEREFORE, KEE PING IN VIEW THE TOTALITY OF FACTS AND TO PUT AN END TO THE LITIGATION, THE ADDITIONS TOWARDS LOW HOUSEHOLD WITHDRAWALS MADE BY AO AND WHICH WERE FULLY SUSTAIN ED BY THE CIT(A), ARE REDUCED TO 50% FOR EACH ASSESSME NT YEAR. THE IMPUGNED ORDER, ON THE ISSUE, IS MODIFIED TO THIS EXTENT ONLY. FINALLY, THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON 27.4.2012. SD SD (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBE R DATED: 27.4.2012 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/-