Ajit Singh Malhotra, Pipariya V. ACIT Central-II, Bhopal

ITSSA 63/Ind/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4573 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 22-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 06-10-2020
• Assessment Year: 2016-2017
• Appeal Filed On: 09-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Keywords: Loose papers
• Section: 132; 20

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER IT(SS)A NO.63/IND/2019 ASSESSMENT YEAR:2016-17 SHRI AJIT SINGH ME LHOT RA NEAR ALKA TALKIES, NEHRU WARD, PACHMARHI ROAD, PIPARIA / VS. A CIT (CENTRAL) - II BHOPAL ( APPELLANT ) ( REVENUE ) P.A. NO. ABJPM61 67G APPELLANT BY SHRI S.N. AGRAWAL , C A REVENUE BY SMT. ASHIMA GUPTA , CIT - DR DATE OF HEARING: 06.10.2020 DATE OF PRONOUNCEMENT: 22.10.2020 / O R D E R PER KUL BHARAT, J.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)(IN SHORT LD. CIT(A)-3, BHOPAL, DATED 08.02.2019 PERTAINING TO ASSESSMENT Y EAR 2016-17. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEA L: 1.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN AJIT SINGH MELHOTRA /ITANO.63/IND/2019 2 LAW, THE LD. CIT(A) ERRED IN MAINTAINING THE ADDITI ON OF RS.10,00,000/- TO THE TOTAL INCOME OF THE APPELLANT MERELY ON THE BASIS OF STATEMENT OF HIS SON AS RECORDED UNDER SECTION 132(4) OF THE ACT WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE AND SUBMISSION MADE BEFORE HIM EVEN WHEN THERE WAS NO MATERIAL EVIDENCE CORROBORATING SUCH ADDITION TO TH E TOTAL INCOME OF THE APPELLANT. RS.3,09,000/- 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN MAINTAINING THE INTERE ST AS CHARGED BY THE ASSESSING OFFICER UNDER SECTION 234A AND 234 B OF THE ACT. RS.1,23,888/- 3. THE APPELLANT RESERVES HIS RIGHT TO ADD, ALTER A ND MODIFY THE GROUNDS OF APPEAL AS TAKEN BY HIM. 2. THE FACTS IN BRIEF RELATING TO ADDITION OF RS.10,00,00 0/- ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND HAVING INCOME FROM AGRICULTURAL ACTIVITIES ETC. AND VARIOUS FIRMS. SEAR CH AND SEIZURE OPERATION U/S 132 OF THE INCOME TAX ACT 1 961 (HEREINAFTER REFERRED AS THE ACT) WERE CARRIED OUT ON RESIDENTIAL PREMISES OF ASSESSEE ON 05.10.2015. IN RESPONSE ASSESSEE FILED RETURN OF INCOME FOR A.Y. 20 16-17 ON 06.03.2017 DECLARING TOTAL INCOME OF RS.13,67,670/ -. THE AO MADE ADDITION OF RS.10,00,000/- ON ACCOUNT OF DISCLOSURE MADE DURING SEARCH U/S 132(4) OF THE IT AC T. AJIT SINGH MELHOTRA /ITANO.63/IND/2019 3 3. AGGRIEVED AGAINST THIS THE ASSESSEE PREFERRED AN APPE AL BEFORE THE LD. CIT(A) WHO ALSO CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER ON THE GROUND THAT THE RETRAC TION FROM THE STATEMENT WAS BELATED AND AN AFTER-THOUGHT. NOW THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. 4. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ADD ITION WAS MADE MERELY ON THE BASIS OF STATEMENT OF ASSESSEES SON WHEREIN ADDITIONAL INCOME AT RS.10,00,000/- ON ACCOUNT OF LOOSE PAPERS WAS ACCEPTED. HOWEVER, ALL THESE DOCUMENTS WERE PROPERLY RECORDED IN THE REGULAR BOOK S OF ACCOUNTS OF THE PERSONS TO WHICH THESE DOCUMENTS ACTU ALLY PERTAINED. THEREFORE, THE ASSESSEE WHILE FILING OF HI S RETURN OF TOTAL INCOME DID NOT CONSIDER THE AMOUNT OF ADDITIO NAL INCOME WHICH WAS ACCEPTED BY HIS SON AT THE TIME OF SEARCH ON ACCOUNT OF DOCUMENTS/LOOSE PAPERS. 5. ON THE CONTRARY LD. DEPARTMENTAL REPRESENTATIVE (DR) OPPOSED THE SUBMISSIONS OF THE LD. COUNSEL FOR THE AJIT SINGH MELHOTRA /ITANO.63/IND/2019 4 ASSESSEE AND SUPPORTED THE ORDERS OF THE AUTHORITIES B ELOW. 6. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDER S OF AUTHORITIES BELOW. WE FIND THAT THE ADDITION WAS MADE O N THE BASIS OF ADMISSION OF ASSESSEES SON DURING THE C OURSE OF SEARCH. IT WAS CONTENDED BEFORE US, THAT ALL THESE DOCUMENTS WERE PROPERLY RECORDED IN THE REGULAR BOOK S OF ACCOUNTS OF THE PERSONS TO WHICH THESE DOCUMENTS ACTU ALLY PERTAINED. HOWEVER, WE FIND THAT THE ASSESSING OFFICER DID NOT ESTABLISH THE FACT THAT ANY OF THE DOCUMENTS AS FOUN D AND SEIZED WAS NOT RECORDED IN THE BOOKS OF ACCOUNTS OF THE PERSONS TO WHICH THESE DOCUMENTS ACTUALLY PERTAINED. THEREFORE, WE FIND FORCE IN THE CONTENTION OF THE AS SESSEE THAT WITHOUT REFERRING TO ANY OF THE DOCUMENTS WAS NOT BINDING ON THE ASSESSEE AND THE SAME CANNOT BE USED AGAINST THE ASSESSEE AS AN EVIDENCE AND THAT TOO IN SEARCH AJIT SINGH MELHOTRA /ITANO.63/IND/2019 5 ASSESSMENT PROCEEDINGS. OUR VIEW IS SUPPORTED BY RATI O LAID DOWN IN THE FOLLOWING JUDICIAL PRONOUNCEMENT: 1. M/S ULTIMATE BUILDERS VS. ACIT (ITANO.134/IND/20 19 DATED 09.08.2019)(INDORE TRIBUNAL). 2. ACIT VS. SUDEEP MAHESHWARI (ITANO.524/IND/2013 DATED 13.02.2019)(INDORE TRIBUNAL) 3. KAILASHBEN MANHARLAL CHOKSHI VS. CIT (2010)) 328 ITR 0411(GUJ) 4. PULLANGODE RUBBER PRODUCE CO. LTD. VS. STATE OF KE RALA (1973) 91 ITR 18(SC) 7. ON CONSIDERATION OF ABOVE FACTS/SUBMISSIONS IN THE LIGHT OF JUDICIAL PRONOUNCEMENTS (SUPRA ) AND THE FACT THAT NO ADVERSE MATERIAL WAS FILED BY THE REVENUE TO CONTROVERT THE FACTUAL SUBMISSION ADVANCED BEFORE US, WE DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS.10,00 ,00/-. 8 . IN RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 22.10.2 020. SD/- (MANISH BORAD) SD/- (KUL BHARAT) A CCOUNTANT MEMBER JUDICIAL MEMBER INDORE; DATED : 22/10/2020 AJIT SINGH MELHOTRA /ITANO.63/IND/2019 6 PATEL/PS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE