DCIT, Thrissur V. Mary Chinnan, Thrissur

ITSSA 16/COCH/2005

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8162 (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
• Section: 143(3)

Judgement Text

1 IT(SS)A NO. 16/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. 16/COCH/2005 (BLOCK PERIOD 01-04-1995 TO 2011-2001) THE DY.CIT, CENT.CIR. VS MARY CHINNAN THRISSUR MECHERY HOUSE, OLLUR THRISSUR PAN : ABAPC9230A (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 ONLY ISSUE IN THE APPEAL IS WITH REGARD TO I NVESTMENTS MADE BY THE ASSESSEE IN CHINNAN SONS JEWELLERY . 3. SMT. S VIJAYAPRABHA, THE LD.DR SUBMITTED THAT TH E ASSESSEE CLAIMED BEFORE THE LOWER AUTHORITIES THAT THE INVESTMENT WAS MADE FROM THE INCOME REGULARLY RETURNED. ACCORDING TO THE LD.DR, THERE IS NO MATERIAL TO SUG GEST THAT THE ASSESSEE HAS ANY BUSINESS ACTIVITY. THE ASSESSING OFFICER MADE THE ADDITION OF RS.7,13,900 FOR THE 2 IT(SS)A NO. 16/COCH/2005 ASSESSMENT YEAR 2002-03. ACCORDING TO THE LD.DR, T HE COMMISSIONER OF INCOME-TAX(A) HAS DELETED THE ADDITION ON THE GROUND THAT THE ASS ESSEE HAS PAID ADVANCE-TAX ON THE BASIS OF THE JUDGMENT OF THE GAUHATI HIGH COURT IN DR MRS ALAKA GOSWANI VS COMMISSIONER OF INCOME-TAX (2004) 268 ITR 178 (GAU) . ACCORDING TO THE LD.DR, MERE ADVANCE-TAX PAYMENT CANNOT BE TREATED AS DISCLOSURE TO THE INCOME-TAX DEPARTMENT. 4. ON THE CONTRARY, SHRI JOSE POTTOKKARAN, THE LD.R EPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT NO MATERIAL WAS FOUND DURING THE COU RSE OF SEARCH OPERATION WITH REGARD TO THE ADDITION MADE BY THE ASSESSING OFFICER. ACC ORDING TO THE LD.REPRESENTATIVE, THE ASSESSEE HAS DISCLOSED ALL THE INVESTMENTS IN CHINN AN SONS JEWELLERY IN THE COURSE OF REGULAR RETURNS FILED BEFORE THE DATE OF SEARCH. A CCORDING TO THE LD.REPRESENTATIVE, ALL THE COPIES OF THE RETURNS ARE AVAILABLE IN THE PAPE R BOOK. WHEN THE ASSESSEE HAS FILED THE REGULAR RETURNS, THE INCOME DISCLOSED IN THE RE GULAR RETURNS WOULD BE AVAILABLE FOR INVESTMENT. THEREFORE, THE COMMISSIONER OF INCOME- TAX(A), AFTER CONSIDERING THE RETURNS FILED BY THE ASSESSEE IN THE REGULAR COURSE , DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. THE LD.REPRESENTATIVE FURTHER S UBMITTED THAT THERE WAS NO MATERIAL FOUND DURING THE COURSE OF SEARCH WITH REGARD TO TH E INVESTMENT MADE BY THE ASSESSEE. THEREFORE, ACCORDING TO THE LD.REPRESENTATIVE, IN T HE ABSENCE OF ANY MATERIAL THERE IS NO QUESTION OF ANY ADDITION AS UNDISCLOSED INCOME. AT THE BEST, IT MAY BE ADDED AS INCOME IN THE REGULAR COURSE OF ASSESSMENT U/S 143(3) AND NOT AS UNDISCLOSED INCOME FOR THE BLOCK PERIOD U/S 158BC R.W.S. 158BD OF THE ACT. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. WITH REGARD TO THE I NVESTMENT SAID TO BE MADE BY THE ASSESSEE, NO MATERIAL APPEARS TO HAVE BEEN FOUND BY THE REVENUE AUTHORITIES DURING THE COURSE OF SEARCH OPERATION. THE ENTIRE ADDITION WA S MADE ON THE BASIS OF THE SUBMISSION MADE IN THE COURSE OF ASSESSMENT PROCEED INGS THAT THE FAMILY MEMBERS OF THE PARTNERS OF THE FIRM HAVE SOLD THEIR ORNAMENTS TO CHINNAN SONS JEWELLERY. EXCEPT THE STATEMENT MADE BY THE ASSESSEE, AFTER THE SEARC H OPERATION, THERE IS NO OTHER 3 IT(SS)A NO. 16/COCH/2005 MATERIAL AVAILABLE ON RECORD. WITH REGARD TO THE A DDITION OF RS.7,13,900 FOR THE ASSESSMENT YEAR 2002-03, THE SAME WAS DISCLOSED BY WAY OF ESTIMATION OF INCOME WHILE PAYING THE ADVANCE-TAX. THE ADDITION WAS MADE ON T HE BASIS OF THE RETURNS FILED BY THE ASSESSEE SUBSEQUENT TO THE SEARCH. IN THE ABSENCE OF ANY MATERIAL, THIS TRIBUNAL IS OF THE OPINION THAT THERE CANNOT BE ANY ADDITION ON TH E BASIS OF THE RETURNS FILED BY THE ASSESSEE SUBSEQUENT TO THE SEARCH. SECTION 158BB(1 ) CLEARLY SAYS THAT THE UNDISCLOSED INCOME HAS TO BE COMPUTED ONLY ON THE BASIS OF MATE RIAL FOUND DURING THE COURSE OF SEARCH OPERATION. IN THE ABSENCE OF ANY MATERIAL, THIS TRIBUNAL IS OF THE OPINION THAT THE COMMISSIONER OF INCOME-TAX(A) HAS RIGHTLY DELETED T HE ADDITION. THEREFORE, THIS TRIBUNAL HAS NO HESITATION TO UPHOLD THE ORDER OF T HE COMMISSIONER OF INCOME-TAX(A). ACCORDINGLY, THE ORDER OF THE COMMISSIONER OF INCOM E-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. (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