DCIT, Thrissur V. M.C. Jose, Thrissur

ITSSA 32/COCH/2005

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8155 (ITAT-COCHIN)
• Duration Of Justice: 7 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 01-06-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 18-04-2012
• Assessment Year: misc
• Appeal Filed On: 10-02-2005
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: JOSE POTTOKKARAN

Judgement Text

1 IT(SS)A NO. 32/COCH/2005 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKARA N(AM) I.T(SS)A NO. 32/COCH/2005 (BLOCK PERIOD 01-04-1995 TO 20-11-2001) THE DY.CIT, CENT.CIR. VS SHRI M.C. JOSE THRISSUR MERCHERY HOUSE, OLLUR THRISSUR PAN : ABIPJ7708F (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)-I, KOCHI DATED 05-11-2004 AND PERTAINS TO THE BLOCK PERIOD 01- 04-1995 TO 20-11-2001. 2. SMT. VIJAYAPRABHA, THE LD.DR SUBMITTED THAT THE ASSESSING OFFICER MADE THE ADDITION OF RS.55,85,961 AS UNDISCLOSED INCOME TOWARDS INVESTMENT IN THE FIRM, M/S CHINNANSONS JEWELLERY. ACCORDING TO THE LD.DR, THE ASSESSEE COULD NOT PRODUCE ANY EVIDENCE TO SUBSTANTIATE THE INVESTMENT MADE IN THE FIRM. IN THE 2 IT(SS)A NO. 32/COCH/2005 ABSENCE OF ANY MATERIAL, ACCORDING TO THE LD.REPRES ENTATIVE, THE ASSESSING OFFICER HAS MADE THE ADDITION. 3. ON THE CONTRARY, SHRI JOSE POTTOKKARAN, THE LD.RE PRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE MAJOR PORTION OF THE IN VESTMENT IN THE FIRM, M/S CHINNANSONS JEWELLERY IS IN THE FORM OF GOLD JEWELL ERY. ACCORDING TO THE LD.REPRESENTATIVE, THE INVESTMENT HAS BEEN RECORDED IN THE BOOKS OF ACCOUNT. THE TRANSACTION RELATING TO JEWELLERY SOLD TO OTHER FIR MS WAS ALSO RECORDED IN THE BOOKS OF ACCOUNT PRIOR TO THE DATE OF SEARCH. THE A SSESSEE HAS ALSO PAID ADVANCE- TAX OF RS.5 LAKHS ON 15-09-2001. THEREFORE, THE AMOUN T DISCLOSED BY WAY OF ESTIMATION OF TOTAL INCOME FOR THE PAYMENT OF ADVAN CE-TAX CANNOT BE CONSIDERED TO BE UNDISCLOSED INCOME. THE LD.REPRESENTATIVE FU RTHER SUBMITTED THAT THE ASSESSEE HAS FILED THE RETURN OF INCOME REGULARLY B EFORE THE DATE OF SEARCH DISCLOSING SUFFICIENT INCOME FOR PURCHASE OF GOLD J EWELLERY. ACCORDING TO THE LD.REPRESENTATIVE, IN FACT, THE INCOME DISCLOSED TO THE DEPARTMENT WAS APPLIED FOR PURCHASE OF GOLD JEWELLERY WHICH WAS SUBSEQUENTLY G IVEN TO THE FIRM. WHEN THE RETURN FILED BY THE ASSESSEE WAS ACCEPTED BY THE DE PARTMENT, IT CANNOT BE CHALLENGED WITH REGARD TO APPLICATION OF SUCH INCOM E. THEREFORE, ACCORDING TO THE LD.REPRESENTATIVE, THE COMMISSIONER OF INCOME-TA X(A) HAS RIGHTLY DELETED THE ADDITION. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOT IN DIS PUTE THAT THE ASSESSEE HAS PAID ADVANCE-TAX OF RS.5 LAKHS ON 15-09-2011. ADMITTEDLY, THE SEARCH WAS CARRIED OUT ON 20-11-2001. THEREFORE, THE ASSESSEE ESTIMATED THE TOTAL INCOME FOR THE PURPOSE OF ADVANCE-TAX PAID BEFORE THE DATE OF SEARC H. MOREOVER, THE COPY OF THE RETURN IS AVAILABLE IN THE PAPER BOOK WHICH SHOW S THAT THE ASSESSEE HAS RETURNED SUFFICIENT INCOME IN THE REGULAR COURSE. THEREFORE, THE DEPARTMENT IS AWARE OF THE CAPACITY OF THE ASSESSEE TO PURCHASE G OLD JEWELLERY. WHEN THE 3 IT(SS)A NO. 32/COCH/2005 ASSESSEE PURCHASED JEWELLERY BY UTILIZING THE INCOM E DECLARED BY THE DEPARTMENT AND THE SAME WAS SUBSEQUENTLY GIVEN TO THE FIRM IT CANNOT BE SAID THAT THE INVESTMENT OR THE JEWELLERY GIVEN TO THE FIRM WAS U NDISCLOSED INCOME. IN VIEW OF THE ABOVE FACTUAL SITUATION THIS TRIBUNAL IS OF THE OPINION THAT THE COMMISSIONER OF INCOME-TAX(A) HAS RIGHTLY DELETED THE ADDITION. THEREFORE, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE LOWER AUT HORITY. WE CONFIRM THE SAME. 5. 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