DCIT, Thrissur V. Mini Jose, Thrissur

ITSSA 15/COCH/2005

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8163 (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. 15/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. 15/COCH/2012 (BLOCK PERIOD 01-04-1995 TO 2011-2001) THE DY.CIT, CENT.CIR. VS MINI JOSE THRISSUR MECHERY HOUSE, OLLUR THRISSUR PAN : ABNPJ3445Q (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), KOCHI-I DATED 27-10-2004 AND PERTAIN S TO BLOCK PERIOD 01-04-1995 TO 20- 11-2001. 2. THE FIRST GROUND OF APPEAL IS WITH REGARD TO ADD ITION OF RS.7,30,000 FOR THE ASSESSMENT YEAR 2000-01. 3. SMT. S VIJAYAPRABHA, THE LD.DR SUBMITTED THAT TH E ASSESSING OFFICER MADE ADDITION OF RS.7,30,000 BEING THE INVESTMENT MADE B Y THE ASSESSEE IN M/S CHINNAN SONS JEWELLERY. SINCE THE ASSESSEE COULD NOT PRODUCE AN Y EVIDENCE IN SUPPORT OF THE SOURCE OF INCOME, ACCORDING TO THE LD.DR, THE ASSESSING OF FICER HAS MADE THE ADDITION. 2 IT(SS)A NO. 15/COCH/2005 HOWEVER, THE COMMISSIONER OF INCOME-TAX(A) HAS DELE TED THE SAME WITHOUT ANY REASON. COMING TO THE ADDITION OF RS.4,17,125 FOR THE ASSES SMENT YEAR 2002-03, THE LD.DR SUBMITTED THAT MERELY BECAUSE THE ADVANCE-TAX WAS P AID THAT CANNOT AMOUNT TO DISCLOSURE TO THE DEPARTMENT. THEREFORE, THE COMMI SSIONER OF INCOME-TAX(A) IS NOT CORRECT IN DELETING THE ADDITION. 4. ON THE CONTRARY, SHRI JOSE POTTOKKARAN, THE LD.R EPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER MADE THE ADDIT ION OF RS.7,30,000 BEING THE INVESTMENT IN CHINNAN SONS JEWELLERY. ACCORDING TO THE LD.REPRESENTATIVE, THIS INVESTMENT WAS MADE FROM THE INCOME DISCLOSED TO TH E DEPARTMENT IN THE REGULAR COURSE OF FILING OF RETURN OF INCOME. ACCORDING TO THE LD.REPRESENTATIVE, COPIES OF THE RETURNS ARE PLACED IN THE PAPER BOOK. MOREOVER, NO MATERIAL WAS FOUND DURING THE COURSE OF SEARCH OPERATION WITH REGARD TO THIS INVE STMENT. ACCORDING TO THE LD.REPRESENTATIVE, THE ASSESSING OFFICER MADE THE A DDITION ONLY ON THE BASIS OF THE CASH FLOW STATEMENT FILED BY THE ASSESSEE SUBSEQUENT TO THE SEARCH. IN THE ABSENCE OF ANY MATERIAL, ACCORDING TO THE LD.REPRESENTATIVE, THERE CANNOT BE ANY ADDITION ON THE BASIS OF THE CASH FLOW STATEMENT. COMING TO ASSESSMENT Y EAR 2002-03, THE LD.REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE, AFTER ESTIMATING THE TOTAL INCOME FOR THE ASSESSMENT YEAR 2002-03, HAS PAID THE ADVANCE-TAX A S PER THE SCHEME OF THE INCOME-TAX ACT. THEREFORE, THE PAYMENT OF ADVANCE-TAX AMOUNTS TO DISCLOSURE OF INCOME THAT WAS ESTIMATED FOR PAYING THE ADVANCE-TAX. THEREFORE, I T CANNOT BE TREATED AS UNDISCLOSED INCOME. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE ASSE SSEE HAS PAID ADVANCE-TAX OF RS.1 LAKH ON 10-09-2001. WHEN THE ASSESSEE HAS PAID THE ADVA NCE-TAX AS PER THE SCHEME OF THE INCOME-TAX ACT, THE INCOME RELATABLE TO THAT ADVANC E-TAX HAS TO BE TREATED AS INCOME DISCLOSED TO THE DEPARTMENT. THEREFORE, THE AMOUNT OF RS.4,17,125 CANNOT BE TREATED AS UNDISCLOSED INCOME FOR THE BLOCK PERIOD. IN VIE W OF THE ABOVE DISCUSSION, WE DO NOT 3 IT(SS)A NO. 15/COCH/2005 FIND ANY INFIRMITY IN THE ORDER OF THE LOWER AUTHOR ITY. ACCORDINGLY, THE SAME IS CONFIRMED. 6. NOW COMING TO THE ADDITION OF RS.7,30,000, THE R ESPECTIVE PARTNER HAS DISCLOSED THE INCOME SUFFICIENTLY IN THE REGULAR COURSE BEFOR E THE DATE OF SEARCH. MOREOVER, THE ENTIRE ADDITION OF RS.7,30,000 WAS MADE ON THE BASI S OF THE CASH FLOW STATEMENT FILED BY THE ASSESSEE IN THE COURSE OF THE ASSESSMENT PROCEE DINGS. THE ASSESSING OFFICER HAS NOT BROUGHT ON RECORD ANY SEIZED MATERIAL FOR MAKING AD DITION OF RS.7,30,000. IT IS WELL SETTLED PRINCIPLES OF LAW THAT THE UNDISCLOSED INCO ME HAS TO BE COMPUTED ONLY ON THE BASIS OF EVIDENCE FOUND DURING THE COURSE OF SEARCH . IN THE ABSENCE OF ANY MATERIAL FOUND DURING THE COURSE OF SEARCH, THIS TRIBUNAL IS OF THE OPINION THAT THERE CANNOT BE ANY ADDITION OF RS.7,30,000. ACCORDINGLY, THE ORDE R OF COMMISSIONER OF INCOME-TAX(A) IS CONFIRMED. 6. 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