M/s. Maya Jewellers, Ahmedabad V. The AddlCIT.,Circle-7, Ahmedabad

ITSSA 486/AHD/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 3057 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 10 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 23-11-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 21-11-2012
• Assessment Year: 1998-1999
• Appeal Filed On: 13-05-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D K SINGH SR DR
• Keywords: Business income; Opportunity of being heard; Corroborative evidences
• Section: 153A

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD , .. , '# ' $ BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER (SS) ./ I.T(SS).A NOS.486 & 487/AHD/2010 ( & ' & ' & ' & ' / / / / ASSESSMENT YEARS : 1998-99 & 2003-04 RESPECTIVELY) M/S.MAYA JEWELLERS C/O.SHRI DEVENDRA CHATURVEDI 13, NIRANT PARK SOCIETY PART-1, THALTEJ, AHMEDABAD & & & & / VS. THE ADDL.CIT CIRCLE-7 AHMEDABAD ( '# ./)* ./ PAN/GIR NO. : AAQFM 1739 M ( (+ / // / APPELLANT ) .. ( ,-(+ / RESPONDENT ) (+ . ' / APPELLANT BY : SHRI ASEEM THAKKAR ,-(+ / . ' / RESPONDENT BY : SHRI D.K.SINGH, SR.DR. &0 / # / / / / DATE OF HEARING : 21/11/2012 12' / # / DATE OF PRONOUNCEMENT : 23.11.12 '3/ O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THESE TWO APPEALS PERTAIN TO A.YS. 1998-99 & 2003 -04 ARISING FROM TWO SEPARATE ORDERS OF CIT(A)-XVI AHMEDABAD RESPECT IVELY DATED 16/03/2010 AND 05/03/2010. GROUNDS OF APPEAL FOR A.Y. 1998-99 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN CONFIRMING THE ACTION OF THE A.O. IN PASSI NG AN ORDER U/S.153C RWS.153A & 144 OF THE I.T. ACT, 1961 WHICH IS ILLEGAL AND BAD IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN CONFIRMING THE EX-PARTE ASSESSMENT ORDER P ASSED BY THE ASSESSING OFFICER WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE APPELLANT. IT(SS)A NOS.486 & 487/AH D/2010 M/S. MAYA JEWELLERS VS. ADDL.CIT ASST.YEARS 1998-99 & 2003-04 - 2 - 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN CONFIRMING THE BUSINESS INCOME OF THE APPE LLANT AT RS.79,000/- AS ESTIMATED BY THE ASSESSING OFFICER W ITHOUT ANY BASIS. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OU GHT TO HAVE CONSIDERED THE FACT THAT THE BUSINESS OF THE A PPELLANT DURING THE YEAR UNDER APPEAL HAS BEEN SUSPENDED. GROUNDS OF APPEAL FOR A.Y. 2003-04 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN CONFIRMING THE ACTION OF THE A.O. IN PASSI NG AN ORDER U/S.153C RWS.153A & 144 OF THE I.T. ACT, 1961 WHICH IS ILLEGAL AND BAD IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN CONFIRMING THE EX-PARTE ASSESSMENT ORDER P ASSED BY THE ASSESSING OFFICER WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE APPELLANT. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN CONFIRMING THE BUSINESS INCOME OF THE APPE LLANT AT RS.1,00,,000/- AS ESTIMATED BY THE ASSESSING OFFICE R WITHOUT ANY BASIS. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OU GHT TO HAVE CONSIDERED THE FACT THAT THE BUSINESS OF THE A PPELLANT DURING THE YEAR UNDER APPEAL HAS BEEN SUSPENDED. 2. FOR A.Y. 1998-99, FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED U/S.153C R.W.S. 153A AND 14 4 OF IT ACT ORDER DATED 28/12/2007 WERE THAT THE AO HAS RECEIVED A COMMUNIC ATION IN RESPECT OF A SEARCH U/S.132 TAKEN PLACE ON 17/10/2003 IN THE CAS E OF ONE SMT. ANITA D.CHATURVEDI & OTHERS. IN THE LOCKER OF THAT ASS ESSEE CERTAIN SLIPS WERE RECOVERED AND ON THAT BASIS THE PROCEEDINGS WERE IN ITIATED AGAINST THIS ASSESSEE. HOWEVER, WE HAVE NOTED THAT THE ASSESSEE HAS NOT F ILED THE RETURN NOR MADE IT(SS)A NOS.486 & 487/AH D/2010 M/S. MAYA JEWELLERS VS. ADDL.CIT ASST.YEARS 1998-99 & 2003-04 - 3 - ANY SUBMISSION AND THE ASSESSMENT WAS MADE EX-PARTE . THE BUSINESS INCOME WAS ESTIMATED AT RS.70,000/-. 3. LIKEWISE FOR A.Y. 2003-04, THE BUSINESS INCOME O F THE ASSESSEE WAS ESTIMATED AT RS.1,00,000/-. 4. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APP ELLATE AUTHORITY, THE ACTION OF THE AO WAS CONFIRMED. 5. WITH THIS BRIEF BACKGROUND, WE HAVE HEARD BOTH THE SIDES. AS FAR AS THE LEGAL ISSUE RAISED AGAINST THE ORDER PASSED U/S.153 C IS CONCERNED, WE ARE NOT CONVINCED WITH THE ARGUMENT OF LD.AR MR. ASEEM THAK KAR.. BECAUSE THE AO IN QUESTION HAS RECEIVED THE COMMUNICATION CONSEQUE NCE UPON A SEARCH, WHEREIN CERTAIN LOOSE-PAPERS WERE RECOVERED WHICH W ERE RELATED TO THIS ASSESSEE. WE THEREFORE UPHOLD THE ACTION OF THE AO AND THE VIEW TAKEN BY LD.CIT(A) IN THIS REGARD IS HEREBY AFFIRMED. 6. AS FAR AS THE MERITS OF THE IMPUGNED ADDITIONS A RE CONCERNED, WE HAVE NOTED THAT THE AO HAS NOT DESCRIBED THE NATURE OF THE INCRIMINATING MATERIAL WHICH WAS PASSED ON TO HIM. AN ASSESSMENT OF UNDI SCLOSED INCOME COULD HAVE BEEN MADE ON THE BASIS OF THE INCRIMINATING MA TERIAL UNEARTHED DURING THE COURSE OF SUCH PROCEEDINGS. EVEN WHILE FRAMING TH E ASSESSMENT U/S.153C, IT WAS EXPECTED FROM THE AO TO MAKE OUT A CASE AGAINST THE ASSESSEE ON THE BASIS OF SOME MATERIAL OR DOCUMENT, HOWEVER, IN THE PRESE NT CASE THIS ASPECT IS ALTOGETHER ABSENT. MERELY AN ESTIMATION HAS BEEN M ADE FOR BOTH THE YEARS UNDER APPEAL, BUT THAT ESTIMATION HAS NO SUPPORTING EVIDENCE. MOREOVER, BEFORE US, A COMPILATION HAS BEEN FILED AND IT WAS EXPLAINED THAT THE SEIZED LOOSE-PAPERS, PHOTOCOPIES ANNEXED FROM PAGES 8 TO 2 0 OF THE COMPILATION, WERE NOTHING BUT THE WEIGHT-SLIPS AND SOME DESCRIPTION O F THE JEWELLERY. THE AO IT(SS)A NOS.486 & 487/AH D/2010 M/S. MAYA JEWELLERS VS. ADDL.CIT ASST.YEARS 1998-99 & 2003-04 - 4 - HAS NOT MADE OUT A CASE THAT THE IMPUGNED LOOSE-PAP ERS REPRESENTED THE UNDISCLOSED ASSETS OF THE ASSESSEE. IN THE ABSEN CE OF ANY CONVINCING REASON FOR THE IMPUGNED ESTIMATION, WE HEREBY REVERSE THE VIEW OF THE AO AND DIRECT TO DELETE THE ADDITION FOR BOTH THE YEARS. BEFORE WE PART WITH, IT IS WORTH TO MENTION, THAT THE BENCH HAS ENQUIRED ABOUT THE PEND ENCY OF ANY APPEAL IN RESPECT OF ANY OF THE IN BETWEEN YEARS BEFORE THIS TRIBUNAL. LD.AR HAS STATED AT BAR THAT ONLY THESE TWO YEARS WERE INVOLVED AND REST OF THE YEARS WERE NOT SUBJECTED TO TAX. IN THE RESULT, WE HEREBY DIRECT TO DELETE THE ADDITION(S) FOR BOTH THE YEARS. AS A RESULT, GROUND NOS.1 & 2 ARE DISMISSED AND GROUND NO.3 IS ALLOWED AND REST OF THE GROUNDS ARE CONSEQU ENTIAL IN NATURE. 7. IN THE RESULT, THESE TWO APPEALS OF THE ASS ESSEE ARE PARTLY ALLOWED. SD/- SD/- ( .. ) ( ) '# ( T.R. MEENA ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL ME MBER AHMEDABAD; DATED 23/ 11 /2012 ..&, .&../ T.C. NAIR, SR. PS '3 / ,4 5'4' '3 / ,4 5'4' '3 / ,4 5'4' '3 / ,4 5'4'/ COPY OF THE ORDER FORWARDED TO : 1. (+ / THE APPELLANT 2. ,-(+ / THE RESPONDENT. 3. 6 / CONCERNED CIT 4. 6() / THE CIT(A)-XVI, AHMEDABAD 5. 49: ,& , , / DR, ITAT, AHMEDABAD 6. :; <0 / GUARD FILE. '3& '3& '3& '3& / BY ORDER, -4 , //TRUE COPY// = == =/ // / ) ) ) ) ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD