Shri Tribhuvanbhai Vasudevbhai Patel, Baroda V. The ACIT,Central Circle-1, Baroda

ITSSA 432/AHD/2013

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 2928 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 20-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 31-01-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 27-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 153A; 132

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER !# I.T.(SS)APPEAL NO.432 & 433/AHD/2013 ( / ASSESSMENT YEAR : 2008-09 & 2009-10) SHRI TRIBHUVANBHAI VASUDEVBHAI PATEL, BARODA. # VS. ACIT CENT. CIRCLE-1, BARODA. $ # % & # PAN/GIR NO. : AGNPP 6808 J ( !$' / APPELLANT ) .. ( ($' # RESPONDENT ) !$') # APPELLANT BY : MS. URVASHI SODHAN, A.R. ($'*) / RESPONDENT BY : SHRI SANJAY AGRAWAL, CIT D.R. + ,*-. / DATE OF HEARING 31/01/2017 /012*-. / DATE OF PRONOUNCEMENT 20/03/2017 3# O R D E R PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE I S DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS )-IV, AHMEDABAD, DATED 23/09/2013 FOR THE ASSESSMENT YEAR (AY) 2008 -09 & 2009-10. 2. APPELLANT HAS TAKEN FOLLOWING GROUNDS OF APPEALS :- ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEAR NED CIT(A) ERRED IN CONFIRMING ADDITION OF RS.4,13,617/- MADE BY THE ASSESSING OFFICER BEING ASSESSEES INCOME FROM POOJA ENGINEERING. IT(SS)A NO.432 & 433/AHD /2013 SHRI TRIBHUVANBHAI VASUDEVBHAI PATEL VS.ACIT ASST.YEAR 2008-09 & 2009-10 - 2 - 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- A SEARCH ACTION UNDER SECTION 132 OF THE IT ACT, 1 961 WAS CARRIED OUT IN THE BARODA BUSHING AND INSULATOR GROUP OF CASES INCLUDING THE CASE OF THE ASSESSEE ON 10/09/2009. CONSEQUENT TO THE SEARC H ACTION, THE PROCEEDINGS U/S. 153A OF THE ACT WERE INITIATED. 4. ACCORDINGLY, NOTICE U/S. 153A WAS ISSUED ON 28/0 4/2010 AND IN COMPLIANCE THERETO THE ASSESSEE HAS FILED HIS RETUR N OF INCOME FOR ASSESSMENT YEAR 2008-09 ON 15/10/2010 SHOWING TOTAL INCOME OF RS.2,22,040/-. HOWEVER, THE RETURN OF INCOME FILED BY THE ASSESSEE U/S. 139(1) OF THE ACT WAS AT RS. 1,67,444/-. 5. DURING THE COURSE OF SURVEY OPERATION AT THE PRE MISES OF M/S. RUSHIKA INDUSTRIES AT 965/K/1 GIDC INDUSTRIAL ESTAT E, MAKARPURA, BARODA, IT WAS NOTICED THAT SHRI TRIBHUVANBHAI IS A PROPRIETOR OF POOJA INDUSTRIES. ACCORDINGLY DURING THE COURSE OF RECORD ING OF STATEMENT HE ASKED WHETHER THE INCOME FROM POOJA ENGINEERING HAS BEEN INCORPORATED IN HIS INCOME. IN RESPONSE TO WHICH HE ADMITTED UND ISCLOSED INCOME FROM POOJA INDUSTRIES AT RS.9,00,000/-. DURING THE COURS E OF ASSESSMENT PROCEEDINGS IT WAS NOTICED FROM HIS RETURN OF INCOM E THAT VERY LESS IT(SS)A NO.432 & 433/AHD /2013 SHRI TRIBHUVANBHAI VASUDEVBHAI PATEL VS.ACIT ASST.YEAR 2008-09 & 2009-10 - 3 - AMOUNT IN RESPECT OF INCOME FROM POOJA ENGINEERING IN COMPARISON TO DISCLOSED AMOUNT HAS BEEN INCORPORATED IN HIS RETUR N OF INCOME. ACCORDINGLY, VIDE ORDER SHEET ENTRY DATED 07/12/201 1 THE ASSESSEE WAS ASKED THAT DURING THE COURSE OF SURVEY OPERATION AT THE PREMISES OF M/S. RUSHIKA INDUSTRIES AT 965/K/1 GIDC INDUSTRIAL ESTAT E, MAKARPURA, BARODA IN HIS STATEMENT SHRI TRIBHUVANBHAI PATEL PR OP. OF POOJA ENGINEERING ADMITTED THAT THE INCOME OF POOJA ENGIN EERING HAD NOT BEEN INCORPORATED IN HIS RETURN OF INCOME ON THE BASIS O F THIS SHRI TRIBHUVANBHAI PATEL ADMITTED THE INCOME FROM POOJA ENGINEERING FOR THE PERIOD FROM F.Y. 2004-05 TO TILL DATE OF SEARCH AT RS.9,00,000/- AS UNDISCLOSED AMOUNT WHICH NEEDED TO BE INCLUDED IN T HE TOTAL INCOME OF SHRI TRIBHUVANBHAI PATEL IT IS ALSO OBSERVED THAT H E HAS INCLUDED ONLY RS.82,748/- ON ACCOUNT OF THE INCOME OF POOJA ENGIN EERING WHICH WAS VERY MUCH LESS THAN THE DISCLOSED AMOUNT. HE WAS SE RVED A NOTICE AND SUM WAS ADDED, BUT AO WAS NOT CONVINCED WITH THE PL EA OF ASSESSEE AND THEREFORE, ADDITION OF RS.4,13,617/- WAS ADDED TO H IS INCOME. 6. AGAINST THE SAID ORDER ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A), WHO CONFIRMED THE APPEAL. 7. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMP UGNED ORDER OF THE AUTHORITY, LD. AR ARGUED THAT LD. CIT(A) FAILED TO APPRECIATE THE FACTUAL AND THE LEGAL POSITION AND CONFIRMED THE AD DITION WITHOUT RECORDING ANY FINDINGS ON THE CONTENTIONS RAISED BY THE ASSESSEE. IT(SS)A NO.432 & 433/AHD /2013 SHRI TRIBHUVANBHAI VASUDEVBHAI PATEL VS.ACIT ASST.YEAR 2008-09 & 2009-10 - 4 - 8. LD. AR CITED SEVERAL JUDGMENTS:- (I) PULLANGODA RUBBER PRODUCE CO. LTD. VS. STATE OF KER ALA (1973) (SC) 91 ITR 18: - IT WAS HELD IN THIS CASE BY THE HONBLE SUPREME COURT THAT AN ADMISSION BY THE ASSESSEE IS NOT A CO NCLUSIVE EVIDENCE AND IT IS OPEN TO THE ASSESSEE WHO MADE THE ADMISSION T O SHOW THAT IT IS INCORRECT. MOREOVER, IT IS WELL SETTLED THAT THE PR . OF LAW THAT ONE CANNOT BE COMPELLED TO ADDUCE EVIDENCE AGAINST HIM OR HERS ELF. (II) NAGUBAI AMMAL VS. SHAMA RAO. AIR 1956 SC 593:- IT WAS HELD BY THE HONBLE SUPREME COURT THAT AN ADMISSION IS N OT CONCLUSIVE AS TO THE TRUTH OF THE MATTERS STATED THEREIN. IT IS ONLY A PIECE OF EVIDENCE. IN THIS CASE IT IS CLEAR THAT THE ADDITION THAT RE STS ON ONLY ON THE BASIS OF STATEMENT WITHOUT CORROBORATING MATERIAL A ND ALSO CONTRARY TO MATERIAL ON RECORD BE JUSTIFIED. 9. AS WE HAVE SEEN THAT APART FROM THE ADMISSION OF THE APPELLANT THERE IS NO OTHER EVIDENCE WHICH CAN SUSTAIN THE CL AIM OF THE REVENUE. 10. THEREFORE, FOLLOWING THE ORDER OF THE HONBLE S UPREME COURT WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND DIRECT TH E AO TO DELETE THE WHOLE ADDITION MADE BY HIM. IT(SS)A NO.432 & 433/AHD /2013 SHRI TRIBHUVANBHAI VASUDEVBHAI PATEL VS.ACIT ASST.YEAR 2008-09 & 2009-10 - 5 - 11. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS A LLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 20/03/2017 SD/- SD/- ( ) 4 5 (N.K. BILLAIYA) (MA HAVIR PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 20/03/2017 PRITI YADAV, SR. PS !'#$ %$' # COPY OF THE ORDER FORWARDED TO : 1. !$' / THE APPELLANT 2. ($' / THE RESPONDENT. 3. 67- + 8- / CONCERNED CIT 4. + 8- 4!5 / THE CIT(A)-IV, AHMEDABAD 5. 9:;-67 !.!672 ! / DR, ITAT, AHMEDABAD 6. ;<=, # GUARD FILE. & / BY ORDER, (9-- //TRUE COPY// '/ () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD TRUE COPY 1. DATE OF DICTATION 08/03/2017 (DICTATION-PAD 2 PAG ES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S .. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK