Santuka Transport, Cuttack V. ACIT, Cuttack

ITSSA 49/CTK/2013

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9287 (ITAT-CUTTACK)
• Duration Of Justice: 1 month(s) 6 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 13-06-2013
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 07-05-2013
• Court: TRIBUNAL
• Department Lawyers: P K DASH
• Assessee Lawyers: P S PANDAK AGARWALLA ARS

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND , HONBLE SHRI GEORGE MATHAN, JUDICIAL MEMBER / I.T (SS) .A.NO. 49/CT K /2013 / ASSESSMENT YEAR 2009 - 10 SANTUKA TRANSPORT, NEW INDUSTERIAL ESTATE ROAD,JAGATPUR, CUTTACK 754 021 PAN:AAEFS 6131 L - - - VERSUS - ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 1(1), CUTTACK. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI P.S.PANDA/K.AGARWALLA, ARS / FOR THE RESPONDENT: / SHRI P.K.DASH, CIT - DR / DATE OF HEARING: 13 .06.2013 / DATE OF PRONOUNCEMENT: 13.06.2013 / ORDER . . , , SHRI K.K.GUPTA, ACCOUNTANT MEMBER. THE ASSESSEE IS IN APPEAL RAISING THE FOLLOWING GROUNDS. 1. THE ORDER PASSED BY LD. CIT (A) IS ARBITRARY AND EXC ESSIVE AND BAD IN LAW. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ID. CIT (A) IS NOT JUSTIFIED IN GOING BEYOND THE OBSERVATIONS OF THE ID. A.O. WHERE IN THE ADDITIONS OF RS. 69,99,354 WERE MADE BY HIM ONLY BECAUSE OF FILING OF NON SIGNED CONFIRMAT IONS OF THE PARTIES HAVING DISCREPANCIES IN FORM NO. 26AS TO JUSTIFY THE SAME. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT (A) IS NOT JUSTIFIED IN CONFIRMING THE ORDER PASSED BY ID. A.O. IN CONSIDERING RS.69,99,354 AS SUPPRESSION OF RECEIPTS BASED ON FORM NO.26 AS, IGNORING THE EXPLANATIONS, PARTY RECONCILIATIONS AND PARTY CONFIRMATIONS. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT (A) IS NOT JUSTIFIED IN ENHANCING THE ORDER PASSED BY ID. A.O.FROM RS.69,99,354 TO RS.1,42,64,603 IGNORING THE EXPLANATIONS, PARTY RECONCILIATIONS AND PARTY CONFIRMATIONS. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ID. CIT (A) HAS ERRED IN CONFIRMING AND ALSO ENHANCING THE ORDER OF THE LD. A.O. FROM RS.69,99,354 TO RS.1,42,64,603 WITHOUT GIVING AN 2 I.T(SS).A.NO. 49/CTK/2013 OPPORTUNITY TO THE APPELLANT TO EXPLAIN AGAINST SUCH ENHANCEMENT. 2. AT THE OUTSET THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUES STAND COVERED BY THE DECISION OF THE TRIBUNAL IN GROUP CASES OF THE ASSESSEE U/S.153A WHEN THE TRIBUNAL W AS PLEASED TO HOLD THAT THE UNDISCLOSED INCOME CANNOT BE CONSIDERED FOR TAXATION IN THE LIGHT OF INFORMATION AVAILABLE ON AS - 26 WHICH INFORMATION WAS SOUGHT TO BE OBTAINED B Y THE ASSESSING OFFICER FOR PAR T OF THE PREVIOUS YEAR RELEVANT TO THE IMPUGNED ASSE SSMENT YEAR IN VIEW OF THE SEARCH WAS CARRIED ON 26. 6.2008. THE TRIBUNAL IN ASSESSEES OWN CASE THEREFORE HAD CONSIDERED THE PARAMETER AVAILABLE TO THE ASSESSING OFFICER WHEN THE ISSUE WITH RESPECT TO FURTHER CORRELATE THE UNDISCLOSED INCOME VIS - - VIS TH E INCOME RENDERED BY THE ASSESSEE HAD ALREADY SUFFERED TAX DID NOT REQUIRE FURTHER ADJUDICATION FOR ADDITION MADE BY THE ASSESSING OFFICER. 3. THE LEARNED DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW FOR HIS PART OF SUBMISSIONS INSOFAR AS THE LEARNED CIT(A) HAD DETERMINED THE INCOME BY PARTLY ALLOWING THE APPEAL OF THE ASSESSEE IN CONFIRMING THE DIFFERENCE AS PER THE 26AS FORM WAS TO BE CONSIDERED AGAINST THE ASSESSEE AGAINST WHICH THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE RIV AL SUBMISSIONS AND PERUSED THE MATERIAL MADE AVAILABLE TO THE TRIBUNAL. WE WERE ALSO PERUSED THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE. WE FIND THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE APPROPRIATE TO THE EXTENT THAT IT WAS NOT THE CASE OF THE ASSESSING OFFICER TO DETERMINE INCOME OVER AND ABOVE WHAT HAS BEEN INSCRIBED IN THE AS - 26 FORM WHEN THE AMOUNT BROUGHT TO TAX BY THE ASSESSING OFFICER WAS A 3 I.T(SS).A.NO. 49/CTK/2013 PORTION OF THE UNDISCLOSED INCOME ALREADY ASSESSED TO TAX BY IT AND NOT FOR ENHANCEMENT . TH EREFORE, IT WAS NOT THE CASE OF THE ASSESSEE TO BE TAXED ON INCOME WHICH WAS NOT REFLECTED IN AS - 26 FORM WHICH THE DOCUMENT CONSIDERED BY THE ASSESSING OFFICER FOR TAXATI ON IN THE HANDS OF THE ASSESSEE WAS NOT TO BE RECONCILED FOR AGAINST ENHANCEMENT. IT W OULD HAVE LE A D TO RECONCILIATION OF DUPLICATION OF TAX INSOFAR AS THE INCOME SO COMPUTED ON THE BASIS OF DIFFERENCE IN AS - 26 FORM WAS TO BE RECONCILED FROM THE UNDISCLOSED INCOME DETERMINED AS INCOME IN THE HANDS OF THE ASSESSEE THEREFORE COULD NOT BE BROU GHT TO TAX SIMPLY BECAUSE THE INCOME WHICH HAS NOW BEEN DETERMINED IS LESS THAN THE INCOME ALREADY BEEN SUBJECTED TAX AND ACCEPTED BY THE ASSESSEE. THIS ISSUE THEREFORE STANDS COVERED BY THE FINDINGS OF THE TRIBUNAL IN THE GROUP CASES WHICH DECISION HAS BE EN PLACED ON RECORD BY THE LEARNED COUNSEL FOR THE ASSESSEE. IN THIS VIEW OF THE MATTER, WE HAVE NO HESITATION IN ALLOWING THE APPEAL OF THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. SD/ - SD/ - ( ) , (GEORGE MATHAN),JUDICIAL MEMBER ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( ) DATE: 13.06.2013 (PRONOUNCED IN OPEN COURT) - COPY OF THE ORDER FORWARDED TO: 1. / THE APPELLANT : 2 / THE RESPONDENT: 3. / THE CIT, 4. ( ) / THE CIT(A), 5. / DR, CUTTACK BENCH 6. GUARD FILE . ( ), (H.K.PADHEE), SENIOR.PRIVATE SECRETARY. 4 I.T(SS).A.NO. 49/CTK/2013 / TRUE COPY, / BY ORDER, APPENDIX XVII SEAL TO BE AFFIXED ON THE ORDER SHEET BY THE SR. P.S./P.S. AFTER DICTATION IS GIVEN 1. DATE OF DICTATION . 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S. /P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER ................ 9. DATE OF DESPATCH OF THE ORDE R ..