Appeal details
Counselvise Citation
[2013] 121 COUNSELVISE.COM (IT) 9138 (ITAT-INDORE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
9 month(s) 16 day(s)
Appellant
Respondent
Appeal Type
Income Tax (Search & Seizure) Appeal
Pronouncement Date
01-04-2013
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
DB
Assessment Year
2007-2008
Appeal Filed On
15-06-2012
Judgement Text
1 INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER IT(SS)A NO. 425/IND/2012 A.Y. 2007-08 M/S KAKDA ABHINAV HOMES BHOPAL PAN AAHFK - 9674M :: APPELLANT VS ASSTT. COMMISSIONER OF INCOME TAX 3(1) BHOPAL :: RESPONDENT APPELLANT BY SHRI H.P. VERMA RESPONDENT BY SHRI R.R. MEENA DATE OF HEARING 01.04.2013 DATE OF PRONOUNCEMENT 01.04.2013 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A) DATED 25.1.2012 FOR THE A.Y. 2007-08. 2 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHR I H.P. VERMA, LEARNED COUNSEL FOR THE ASSESSEE, AND SHRI R .R. MEENA, LEARNED SENIOR DR. THE FIRST GROUND RAISED BY THE ASSESSEE PERTAINS TO ISSUANCE OF NOTICE U/S 153C OF THE ACT WITHOUT RECORDING THE SATISFACTORY REASONS AND FURTHER SUCH SATISFACTION NOTE, IF ANY, WAS NOT PROVIDED TO THE ASSESSEE. TH E CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS IDENTICAL TO THE GROUND RAISED BY FURTHER INVITING OUR ATTENTION TO PAGE 1 PARA 2 OF THE IMPUGNED ORDER. ON THE OTHER HAND, THE LEARNED SEN IOR DR CONTENDED THAT SUCH SATISFACTION WAS DULY RECORDED BY THE ASSESSING OFFICER AND THE ADDITIONS WERE MADE ON TH E BASIS OF SEIZED DOCUMENTS. 2.1 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS A PARTNERSHIP FIRM, DERIVES INCOME FROM CIVIL CONSTRUCTION. FOR THE YEAR UNDER CONSIDERATION, TH E ASSESSEE DECLARED INCOME OF RS. 17,94,813/- IN ITS RETURN FI LED ON 31 ST OCTOBER, 2009 WHICH INCLUDES SURRENDERED INCOME OF RS. 14,15,027/-. A SEARCH AND SEIZURE OPERATION U/S 132 (1) OF THE ACT WAS CARRIED OUT AT THE PREMISES OF SHRI J.C. SH ARMA GROUP ON 5.4.2007. AS PER THE REVENUE, CERTAIN DOCUMENTS, E VIDENCING 3 UNACCOUNTED INCOME OF THE ASSESSEE, WERE SEIZED. A NOTICE U/S 153C OF THE ACT WAS ISSUED TO THE ASSESSEE ON 13 TH FEBRUARY, 2009 AND IN PURSUANCE TO THAT THE ASSESSEE FILED RE TURN ON 12.3.2009 SHOWING THE SAME INCOME AS RETURNED ORIGI NALLY. THE ASSESSMENT U/S 153C READ WITH SECTION 143(3) OF THE ACT WAS COMPLETED AT THE INCOME OF RS. 45,49,898/- BY MAKIN G ADDITION OF RS. 27,55,085/-. THE CRUX OF ARGUMENTS ON BEHAL F OF THE ASSESSEE IS THAT ADEQUATE REASONS OF SATISFACTION W ERE NOT RECORDED BY THE ASSESSING OFFICER FOR TAKING ACTION U/S 153C OF THE ACT AND ALSO SUCH SATISFACTION NOTE WAS NOT PRO VIDED TO THE ASSESSEE. BEFORE COMING TO ANY CONCLUSION, WE ARE EXPECTED TO EXAMINE WHETHER ANY SATISFACTION WAS RECORDED BY TH E ASSESSING OFFICER. WE FIND THAT AT PAGE 1 OF THE ASSESSMENT ORDER THERE IS A CATEGORICAL FINDING IN THE BRIEF HISTORY OF THE GRO UP ALONG WITH THE FAMILY TREE WHEREIN IT HAS BEEN SPECIFICALLY MENTIO NED (PAGE 2) THAT AFTER RECORDING THE REASONS, NOTICE U/S 153C D ATED 13 TH FEBRUARY, 2009 WAS ISSUED TO THE ASSESSEE IN RESPON SE TO WHICH THE RETURN WAS FILED. THERE IS A FURTHER MENTIONED THAT IN RESPONSE TO NOTICES, THE ASSESSEE ATTENDED THE HEAR ING AND ALSO FILED WRITTEN SUBMISSIONS. EVEN THE LEARNED CIT(A) HAS MENTIONED ON EXAMINATION IT IS FOUND THAT DURING THE COURSE OF SEARCH IN 4 THE CASE OF SHRI J.C. SHARMA, AND HIS GROUP ON 5.4 .2007, THE DOCUMENTS GIVING EVIDENCE OF UNACCOUNTED INCOME OF THE APPELLANT WERE SEIZED. THE ADDITIONS IN IMPUGNED O RDER WERE MADE ON THE BASIS OF SEIZED DOCUMENTS. IN VIEW OF THE ABOVE, IT IS HELD THAT THERE ARE ADEQUATE REASONS FOR THE ASSESS ING OFFICER TO TAKE ACTION U/S 153C OF THE ACT, HENCE THIS GROUND OF APPEAL IS DISMISSED. THIS FACTUAL FINDING HAS NOT BEEN PROVE D WRONG BY THE ASSESSEE. EVEN OTHERWISE, CERTAIN DOCUMENTS WHI CH PERTAIN TO M/S.J.C. SHARMA & SONS AND M/S KAKDA ABHINAV HOM ES WERE SEIZED DURING SEARCH. THE ASSESSING OFFICER WAS VER Y MUCH SATISFIED THAT CERTAIN DOCUMENTS RELATING TO THE AS SESSEE WERE SEIZED INDICATING CONCEALMENT OF INCOME. IN VIEW OF THESE FACTS, WE ARE SATISFIED THAT THE SATISFACTION WAS RECORDED BY THE ASSESSING OFFICER, CONSEQUENTLY, WE FIND NO INFIRMI TY IN THE CONCLUSION DRAWN BY THE CIT(A). THEREFORE, ON THIS GROUND, WE AFFIRM THE STAND OF THE LEARNED CIT(A). 3. THE NEXT GROUND PERTAINS TO SUSTAINING THE ADDIT ION OF RS. 17,59,107/-, BEING UNEXPLAINED EXPENDITURE. THE CRU X OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT THE ASS ESSEE HAS ALREADY SURRENDERED THIS AMOUNT WHICH HAS BEEN ADDE D AS INCOME IN ITS RETURN FILED U/S 139/153C OF THE ACT. THE LEARNED 5 SENIOR DR DEFENDED THE CONCLUSION DRAWN IN THE IMPU GNED ORDER. 3.1 WE HAVE PERUSED THE RECORD AND CONSIDERED THE A SSERTION MADE BY THE LEARNED RESPECTIVE COUNSEL. THE STAND O F THE REVENUE IS THAT DURING SEARCH, EVIDENCES OF UNACCOUNTED EXP ENDITURE OF RS. 17,59,107/- WERE FOUND WHICH WERE ON THE BASIS OF SEIZED DOCUMENTS. THERE IS UNCONTROVERTED FINDING PARA 3. 1 OF THE IMPUGNED ORDER THAT THE FACTUM OF UNACCOUNTED EXPEN DITURE WAS NOT DISPUTED BY THE ASSESSEE. DURING FIRST APPELLA TE STAGE AS WELL AS BEFORE THE TRIBUNAL, THE STAND OF THE ASSESSEE I S THAT THE IMPUGNED AMOUNT WAS SHOWN IN THE RETURN, THEREFORE, IT IS A DOUBLE ADDITION WHEREAS IN PARA 3.3 OF THE IMPUGNED ORDER, THERE IS A CATEGORICAL FINDING THAT TOO ON THE BASIS OF E XAMINATION OF RECORD THAT NO DOUBLE ADDITION WAS MADE BY THE ASSE SSING OFFICER RATHER THE ADDITION WAS MADE ON ACCOUNT OF UNEXPLAI NED EXPENDITURE THAT TOO ON THE BASIS OF SEIZED DOCUMEN TS WHICH WAS NOT DISPUTED BY THE ASSESSEE. EVEN BEFORE US, NOTH ING CONTRARY WAS PRODUCED WITH DOCUMENTARY EVIDENCE THAT THE FAC TUAL FINDING RECORDED BY THE CIT(A) IS CONTRARY TO THE FACTS, TH EREFORE, WE FIND NO JUSTIFICATION TO INTERFERE WITH THE CONCLUSION D RAWN IN THE IMPUGNED ORDER ON THIS ISSUE. IT IS AFFIRMED. 6 4. THE NEXT GROUND PERTAINS TO ADDITION OF RS. 27,3 5,000/- BEING UNACCOUNTED RECEIPTS ON BANK OCR. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT THE EXPLANATION O FFERED BY THE ASSESSEE WAS NOT ACCEPTED WITHOUT EXAMINING THE FAC TS AS NO OCR MONEY WAS RECEIVED BY THE ASSESSEE AND NECESSAR Y DOCUMENTS WERE DULY FILED DURING ASSESSMENT PROCEED INGS. HOWEVER, THE LEARNED SENIOR DR DEFENDED THE ADDITIO N. 4.1 WE HAVE PERUSED THE RECORD AND CONSIDERED THE A RGUMENTS ADVANCED BY THE LEARNED RESPECTIVE COUNSEL. THE FA CTS, IN BRIEF, ARE THAT DURING SEARCH A PRINTING RECEIPT BOOK WHIC H PERTAINS TO THE ASSESSEE WAS FOUND. SOME PAYMENTS WERE ALLEGED LY CLAIMED TO BE RECEIVED THROUGH CHEQUE AND SOME IN CASH. TH E STAND OF THE REVENUE IS THAT THESE RECEIPTS ARE NOT ACCOUNTE D FOR. AT PAGE 3 ONWARDS OF THE ASSESSMENT ORDER, THIS ISSUE HAS B EEN DISCUSSED WHEREIN THE LD. ASSESSING OFFICER HIMSELF MENTIONED THAT IN ORDER TO DISBURSEMENT OF LOAN FROM THE BANK WHEREFROM THE CUSTOMERS ARE AVAILING BANK LOANS, A DOCUMENTAR Y PROOF OF HAVING RECEIVED THE MARGIN MONEY OF THE TOTAL PROJE CT WAS ASKED BY THE BANK. IT HAS BEEN FURTHER MENTIONED THAT THE CUSTOMER DOES NOT PAY ANY MARGIN MONEY AND THEREFORE IN ORDE R TO RECEIVE DISBURSEMENT FROM THE BANK, THEY FURNISHED SOME REC EIPTS 7 SHOWING MARGIN MONEY WAS RECEIVED BUT IN REALTY NO SUCH MARGIN MONEY WAS RECEIVED, THEREFORE, THE SAME WAS NOT ACC OUNTED FOR. THIS IS EXACTLY THE STAND BEFORE US ALSO. KEEPING I N VIEW THE TOTALITY OF FACTS AVAILABLE ON RECORD AND THE ARGUM ENTS ADVANCED BY THE LEARNED COUNSEL FOR THE ASSESSEE, WE FIND TH AT THIS ISSUE NEEDS FRESH EXAMINATION AS THE FACTS ARE NOT CLEAR, CONSEQUENTLY, WE REMAND THIS ISSUE TO THE FILE OF THE LD. ASSESSI NG OFFICER FOR FRESH EXAMINATION. NEEDLESS TO MENTION HERE THAT DU E OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSES SEE WITH FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUP PORT OF ITS CLAIM. THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES ONL Y. 5. THE NEXT GROUND PERTAINS TO ADDITION OF RS.20,0 85/-, ON ACCOUNT OF BACK PAGE 13 OF LPS 1/1 WITHOUT ACCEPTIN G THE EXPLANATION OFFERED BY THE ASSESSEE. THE CRUX OF AR GUMENTS IS TWOFOLD, FIRSTLY, IT IS VERY SMALL AMOUNT AND SECON DLY, THE ADDITION WAS MADE WITHOUT ACCEPTING THE EXPLANATION OF THE A SSESSEE IN PROPER PERSPECTIVE. ON THE OTHER HAND, THE LD. SR. DR DEFENDED THE ADDITION. 5.1 WE HAVE PERUSED THE RECORD AND FOUND THAT IN TH E AOR AS WELL IN THE IMPUGNED ORDER, NO PROPER REASONS HAVE BEEN ASSIGNED FOR MAKING THE ADDITION OF RS.20,085/-, TH EREFORE, 8 KEEPING THE TOTALITY OF FACTS AND THE SMALLNESS OF THE AMOUNT AND ALSO TO PUT AN END TO THE LITIGATION, THIS ADDITION IS REDUCED TO RS.5,000/-. THIS GROUND IS, THEREFORE, PARTLY ALLOW ED. 6. THE LAST EFFECTIVE GROUND PERTAINS TO CHARGING O F INTEREST U/S 234A, 234B AND 234C OF THE ACT. IN THE LIGHT OF THE ABOVE, THESE ADDITIONS ARE CONSEQUENTIAL IN NATURE. 7. THE ISSUE OF INITIATION OF PENALTY PROCEEDINGS U /S 271(1)(C) IS PREMATURE, THEREFORE, REQUIRES NO DELIBERATION FROM OUR SIDE. FINALLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOW ED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 01.4.2013 . SD SD (R.C.SHARMA) (JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 01.4.2013 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/-11
