Shri Sunil U. Ladla, Baroda V. The ACIT, Circle - 5, Baroda

ITSSA 327/AHD/2013

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5438 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 31-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 27-01-2017
• Assessment Year: misc
• Appeal Filed On: 13-08-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: O P VAISHNAV
• Keywords: Block assessment; Set aside
• Section: 201; 131; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: SHR I RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER SHRI SUNIL U LADLA, NR. KALYANJI MANDI, SHETH SHERI BAJWADA, BARODA - 390001 PAN: AAWPL5778Q (APPELLANT) VS THE ACIT, CIRCLE - 5 , BARODA (RESPONDENT) REVENUE BY : S H RI O.P. VAISHNAV , CIT - D . R. ASSESSEE BY: MS. URVASHI SHODHAN, A.R. DATE OF HEARING : 30 - 10 - 2 018 DATE OF PRONOUNCEMENT : 31 - 10 - 2 018 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS ASSES SEE S APPEAL FOR BLOCK PERIOD: 01.04.90 TO 27.06.2000 , ARI SES FROM ORDER OF THE CIT(A) - V, BARODA DATED 09 - 05 - 2 013 , IN P ROCEEDINGS UNDER SECTION 158BC RWS 158BG RWS 254 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - 1. THE LEARNED CIT (APPEALS) ERRED IN HOLDING THAT THE EXAMINATION OF THE PARTIES BY THE ASSESSING OFFICER WAS NOT BEYOND THE SCOPE OF THE TRIBUNAL. 2. THE LEARNED CIT (APPEALS) ERRED IN HOLDING THAT THE APPELLANT HAS NOT BEEN ABLE TO ESTABLISH THAT THE GOLD ORNAMENTS WEIGHING 2869.578 GMS WAS RECEIVED FROM THE CUSTOMERS. I T (SS) A NO . 327 / A HD/20 13 BLOCK PERIOD: 01.04.90 TO 27.06.2000 I.T(SS) A NO. 327 /AHD/20 13 A.Y. BLOCK PERIOD PAGE NO SHRI SUNIL U. LADLA VS. ACIT 2 3. THE LEARNED CIT (APPEALS) ERRED IN HOLDING THAT NO EVIDENCE WAS FOUND FROM THE BUSINESS PREMISES OF THE APPELLANT WHEN IT WAS CATEGORICALLY STATED THAT THESE FACTS WAS NOTED IN THE DIGITAL DAIRY MAINTAINED BY THE APPELLANT. 4. THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.12,33,918/ - . 3. ALL THE GROUNDS OF APPEAL ARE INTER - CONNECTED TO THE COMMON ISSUE, THEREFORE, THE SAME ARE ADJUDICAT ED TOGETHER AS FOLLOWS. 4. IN THIS CASE, SEARCH ACTION U/S. 132 OF THE ACT WAS TAKEN PLACE ON 27 TH JUNE, 2000. AT THE TIME OF ASSESSMENT, THE INCOME OF THE ASSESSEE WAS ASSESSED AFTER MAKING ADDITION OF UNDISCLOSED INCOME OF RS. 12 , 55 , 969/ - PERTAINING TO UNEXPLAINED GOLD ORNAMENT FOUND DURING THE COURSE OF SEARCH AT THE BUSINESS PREMISES OF THE ASSESSEE. THE LD. CIT(A) HAS SUSTAINED THE ADDITION WHICH WAS SET ASIDE BY T H E ITAT VIDE ORDER DATED 19/02/2009 IT(SS)A NO. 137/AHD/2004 SHRI SUNIL U. LADIA PROP . OF LAIDA JEWELLER VS. DCIT ON THE GROUND THAT CONFIRMATION HAS BEEN FILED BY THE ASSESSEE FROM THE CUSTOMER WHICH WAS NOT VERIFIED BY THE ASSESSING OFFICER. THEREFORE, ASSESSMENT WAS SET ASIDE TO THE ASSESSING OFFICER TO RE - FRAME THE BLOCK ASSESSMENT AF TER EXAMINATION OF THE CONFIRMATION .D URING THE COURSE OF RE - ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS ASKED THE ASSESSEE TO PRODUCE THE CUSTOMER/RELATIVES FOR VERIFICATION WHO HAD GIVEN HIM THE GOLD ORNAMENTS FOR REPAIRS FOR MAKING NEW ORNAMENTS. IN ADDITION TO THIS 12 SUMMONS WERE ISSUED TO SUCH PERSONS. IT WAS REPORTED BY THE ASSESSING OFFICER THAT SIX SUMMONS WERE RETURNED UN - SERVED AND THE OTHER SIX HAVE NOT BEEN ATTENDED ON THE DUE DATE GIVEN AS PER THE SUMMONS. THEREFORE, ASSESSEE WAS ASKED TO PRODUCE THE PARTIES WHO WERE SUMMONED AND NOT RESPONDED FOR VERIFICATION. THERAFTER 11 PERSONS HAVE ATTENDED AND THEIR STATEMENT W ERE RECORDED U/S. 131 OF THE AC T AND IT IS NOTICED T HAT NO CONCRETE VERIFIABLE PROOF WAS SUBMITTED B Y T H E RELATIVES, FRIEN DS OF THE ASSESSEE TO SUBSTANTIATE THAT GOLD ORNAMENT S WERE GIVEN BY THEM TO T HE ASSESSEE FOR REPAIRING PURPOSES. CONSEQUENTLY, THE ASSESSING OFFICER HAS DISALLOWED T HE SAME AS UNEXPLAINED AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. I.T(SS) A NO. 327 /AHD/20 13 A.Y. BLOCK PERIOD PAGE NO SHRI SUNIL U. LADLA VS. ACIT 3 5. AGGRIEVED ASSESSE E HAS FILED APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE. RELEVANT PART OF THE DECISION OF LD. CIT(A) IS REPRODUCED AS UNDER: - 3.2 I HAVE GIVEN MY CAREFUL CONSIDERATION TO THE FACTS OF THE CASE AS ALSO THE OBSERV ATION OF THE AO AND THE ARGUMENTS PUT FORTH BY THE AR. I'M NOT IN AGREEMENT WITH THE CLAIM OF THE APPELLANT THAT EXAMINATION OF THE PARTIES WHO HAD CLAIMED TO HAVE GIVEN JEWELLERY FOR X REPAIR/MAKING NEW ORNAMENTS TO THE APPELLANT WAS BEYOND THE SCOPE OF T HE ORDER OF THE HONOURABLE TRIBUNAL. THE HONOURABLE TRIBUNAL HAD DIRECTED THE AO TO EXAMINE THE EVIDENCE SUBMITTED BY THE APPELLANT AND THE AO WAS FULLY JUSTIFIED IN CALLING FOR FURTHER EVIDENCE TO ARRIVE AT A POSITIVE CONCLUSION. I'M IN THE AGREEMENT WITH THE FINDING OF THE AO THAT THE APPELLANT HAS NOT BEEN ABLE TO ESTABLISH IS CLAIM THAT GOLD ORNAMENTS WEIGHING 2869.578 GMS WERE RECEIVED FROM THE CUSTOMERS. NO CORROBORATING EVIDENCE WAS FOUND FROM THE BUSINESS PREMISES OF THE APPELLANT DURING THE COURSE OF SEARCH AND IT IS ALSO NOT CLEAR AS TO HOW THE APPELLANT FOUND THAT A CERTAIN ORNAMENT BELONGED TO A PARTICULAR CUSTOMER. IT IS ALSO NOT CLEAR AS TO WHY IT TOOK ABOUT A MONTHS TO THE APPELLANT TO CLAIM BEFORE THE DDIT THAT CERTAIN STOCK OF ORNAMENTS BELO NGED TO THE CUSTOMERS AND WHY NO ENTRIES WERE MADE IN THE BOOKS OF ACCOUNT MAINTAINED AT THE SHOP. IN VIEW OF THESE FACTS AND THE REASONS GIVEN BY THE AO IN THE ASSESSMENT ORDER, ADDITION OF RS. 12,33,918/ - MADE BY THE AO IS HEREBY CONFIRMED. 6. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD CAREFULLY. THE ASSESSMENT WAS COMPLETED U/S. 158BC RWS 158BG RWS 254 OF THE I.T. ACT. THE ISSUE IN THE APPEAL IS PERTAINED TO THE ADDITION OF RS. 12,55,969/ - AS UNEXPLAINED STOCK OF GOLD ORNAMENTS FOUND DURING THE COURSE OF SEARCH ACTION U/S. 132 OF THE ACT. IN THE ASSESSMENT PROCEEDINGS, THE ASSESSEE HAD EXPLAINED THAT TH E ORNAMENTS FOUND WERE BELONGING TO CUSTOMERS /FRIENDS WHO HAD GIVEN IT FOR REPAIR. HOWEVER, DURING THE COURSE OF ASSESSMENT PRO CEEDINGS, THE ASESSEE COULD N OT SUBSTANTIATE HIS CLAIM WITH CONCRETE EVIDENCES . THE ASSSESEE HAS NOT MAINTAINED DETAIL/ENTR I ES OF SUCH GOLD ORNAMENT IN THE REGULAR BOOKS OF ACCOUNT. HOWEVER , THE CO - ORDINATE BENCH OF THE ITAT VIDE ORDER IT(SS)A NO. 137/AH D/2004 DATED 19/12/1999 HAS SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO REFRAME T HE BOCK ASSESSMENT AFTER EXAMINATION OF THE CONFIRMATIONS FROM THE CUSTOMERS FILED BY THE ASSESSEE. DURING THE SET ASIDE ASSESSMENT PROCEEDINGS , THE ASSESSIN G OFFICER HAS EXAMINED THOSE PERSONS WHO HAVE MADE COMPLIANCE WITH SUMMONS ISSUED U/S. 131 OF THE ACT. THE ASSESSING OFFICER HAS STATED THAT T H E CUSTOMERS/RELATIVE S OF THE ASSESSEEE H AVE NOT SUBSTANTIATED THEIR CLAIM S OF GIVING THE ORNAMENTS FOR REPAIRING TO THE I.T(SS) A NO. 327 /AHD/20 13 A.Y. BLOCK PERIOD PAGE NO SHRI SUNIL U. LADLA VS. ACIT 4 ASSESSEE WITH RELEVANT EVIDENCES I . E . RECEIPT S / BILLS , DESCRIPTION OF THE JEWELLERY , AMOUNT OF REPAIRING C HARGES ETC. EVEN THE ASSESSEE HAS FAILED TO PRODUCE PRIMARY RECORD LIKE RECEIPT S GIVEN TO THE LAB O URER IN T H E PROCESS OF REPAIRING THE OLD ORN AMENTS AND THE ASSESSEE HAD ALSO NOT RECORDED THESE TRANSACTIONS IN THE REGULAR BOOKS OF ACCOUNTS LIKE ORDER SHEET ETC. IN THE LIGHT OF THE ABOVE FACTS AND CIRCUMSTANCES, WE DO NOT FIND ANY ERROR WITH THE FINDINGS OF THE LD. CIT(A). 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 31 - 10 - 201 8 SD/ - SD/ - ( RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 31 /10 /2018 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,