Appeal details
Counselvise Citation
[2010] 124 COUNSELVISE.COM (IT) 9227 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 month(s) 11 day(s)
Appellant
Respondent
Appeal Type
Income Tax (Search & Seizure) Appeal
Pronouncement Date
02-07-2010
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
D
Next Hearing Date
18-06-2010
Assessment Year
misc
Appeal Filed On
22-03-2010
Judgement Text
- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE S/SHRI MAHAVIR SINGH, JM AND D.C.AGRAWAL, AM SHRI SURYAKANT R. SHAH, SUBHAM, SHYAM GOKUL SOCIETY, OPP. HARNI AIR PORT, BARODA, PAN AJFPS 4535C VS. ASSTT. CIT, CIRCLE-5, BARODA. (APPELLANT) .. (RESPONDENT) ASSESSEE BY :- SHRI BHAVIN MARFATIA,CA REVENUE BY:- SHRI A. K. TIWARI, DR O R D E R PER D. C. AGRAWAL, ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE ASSESSEE RAISING F OLLOWING GROUNDS:- (1) THE LD. CIT(A) ERRED IN FACT AND IN LAW IN CONFIRMI NG THE ACTION OF THE AO IN MAKING THE ADDITION OF RS.1,00,000/- I N FARM HOUSE AT DARJIPURA WITHOUT BRINGING ANYTHING ON RECORD TO SUGGEST THAT THERE WAS INVESTMENT OVER AND ABOVE THAT REFLECTED IN THE BOOKS OF ACCOUNTS MAINTAINED IN THE NORMAL COURSE OF BUSI NESS DESPITE THE FACT THAT THE ITAT AHMEDABAD IN ITS ORDER DATED 22.03.2007 HAD CATEGORICALLY STATED THAT NO ADDITION IS TO BE MADE MERELY ON THE BASIS OF STATEMENT RECORDED DURING THE COURSE O F SEARCH. (2) THE LD. CIT(A) ERRED IN FACT AND IN LAW IN CONFIRMI NG THE ACTION OF THE AO IN INITIATING PENALTY PROCEEDINGS U/S 158 BFA(2) OF THE ACT. IT(SS)A NO.265/AHD/10 BLOCK PERIOD ENDING ON 20.09.2001 2 2. SEARCH IN THIS CASE WAS CARRIED OUT ON 20.9.2001 AT THE RESIDENTIAL AND BUSINESS PREMISES OF THE ASSESSEE WHO IS MAIN T RUSTEE OF B.G. EDUCATION TRUST OF BARODA RUNNING EDUCATIONAL INST ITUTIONS/SCHOOLS VI.Z., JAI AMBE SCHOOL, AMBEY DAV SCHOOL, KARELIBAUG, BARO DA. BLOCK RETURN WAS FILED ON AN UNDISCLOSED INCOME OF RS.7,30,216/- . BLOCK ASSESSMENT WAS COMPLETED ON 30.10.2003 ON AN UNDISCLOSED INCOM E OF RS.13,51,640/-. THE ASSESSEE CONTESTED THE ADDITION BEFORE THE APPELLATE AUTHORITIES. ONE OF THE ISSUES CONTESTED WAS AN ADD ITION OF RS.1 LAC MADE BY THE AO U/S 69B ON ACCOUNT OF INVESTMENT IN FIRM HOUSE AT DARJIPURA. THE ADDITION WAS MADE ON THE BASIS OF STATEMENT REC ORDED U/S 131(1A) ON 7.11.2001 AS UNDER :- ANS: NO SIR, I DO NOT AGREE WITH THIS DISCLOSURE. I HAD NOT MADE PROPER CALCULATION OF MY INVESTMENT IN FARM HOUSE WHILE MA KING THIS DISCLOSURE. ACCORDINGLY, I HAVE PAID RS.3,77,348/- BY CHEQUE FR OM DENA BANK ACCOUNT. I HAVE MADE FURTHER UNDISCLOSED INCOME OF RS. 1 LAKH ONLY IN THIS FAR HOUSE WHICH I DISCLOSE FOR MY BLOCK PERIOD AS U NDISCLOSED INVESTMENT. THE MATTER TRAVELED TO THE TRIBUNAL WHICH SET ASIDE THE ISSUE VIDE ITS ORDER IN ITA NO.298/AHD/2004 DATED 22.03.2007 TO THE FILE OF AO BY OBSERVING AS UNDER :- THE AO ADDED THIS LOWER AMOUNT OF RS.1 LAC TO TAX IN ABSENCE OF ANY CORROBORATION. IT IS TRUE THAT THERE WAS A STATEMEN T BY THE ASSESSEE FOR RS.1 LAC AS UNDISCLOSED INCOME BUT SIMPLY ON THE BA SIS OF STATEMENT THE ADDITION CANNOT BE MADE. IF THE DEPARTMENT HAS ANY MATERIAL FOUND DURING SEARCH PROCEEDINGS OR OTHERWISE, HE MAY ADD THAT AMOUNT TO THE INCOME AND NOT OTHERWISE. ACCORDINGLY THE AO FRAMED THE FRESH ASSESSMENT ON 2 7.12.2007 REPEATING THE ADDITION OF RS. 1 LAC ON THE GROUND THAT ASSESS EE DID NOT FURNISH ANY DOCUMENTARY EVIDENCE TO PROVE CONTRARY TO THE STATE MENT RECORDED U/S 3 131(1A) OR UNDER SECTION 132(4). NO EVIDENCE WAS FI LED AND STATEMENT WAS ALSO NOT RETRACTED. 3. THE LD. CIT(A) VIDE HIS IMPUGNED ORDER DATED 11. 12.2009 CONFIRMED THE ADDITION FOLLOWING THE DECISION IN TH E CASE OF DR. S. C. GUPTA VS. CIT 248 ITR 782 (ALLAHABAD) AND IN THE CA SE OF HOTEL KIRAN VS. ACIT 77 TTJ 87 (PUNE). 4. BEFORE US, LD. AR FOR THE ASSESSEE SUBMITTED THA T ONCE THE TRIBUNAL HAS GIVEN A FINDING THAT ADDITION CANNOT BE MADE ME RELY ON THE BASIS OF STATEMENT AND THE ISSUE WAS SET ASIDE TO THE AO SO AS TO FIND OUT WHETHER SUCH ADDITION IS SUPPORTED BY ANY MATERIAL FOUND IN THE SEARCH OR IN POST SEARCH INVESTIGATION THEN AO HAVING NOT FOUND ANY M ATERIAL CANNOT MAKE SUCH ADDITION. THE ISSUE IS ALREADY SETTLED BY THE TRIBUNAL. 5. ON THE OTHER HAND, LD. DR RELIED ON THE ORDER OF CIT(A). 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW THE ADDITION CANN OT BE SUSTAINED BECAUSE THE TRIBUNAL HAS GIVEN A FINDING THAT THE A DDITION OF RS. 1 LAKH AS UNDISCLOSED INCOME CANNOT BE SUSTAINED ONLY ON THE BASIS OF STATEMENT GIVEN. SINCE THE AO DID NOT HAVE ANY MATERIAL FOUND DURING THE SEARCH OR OTHERWISE THE ADDITION HAS TO BE DELETED. ACCORDING LY, WE DELETE THE ADDITION AND ALLOW THE APPEAL OF ASSESSEE. 4 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER WAS PRONOUNCED IN OPEN COURT ON 02/7/2010 SD/- SD/- (MAHAVIR SINGH) (D.C.AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD, DATED : 02/07/2010 MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD
