Mr. Sanjay M. Agrawal, V. The Dy.CIT., Cent. Circle-1,

ITSSA 81/AHD/2004

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 8929 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 6 month(s) 16 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 15-10-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 12-10-2010
• Assessment Year: misc
• Appeal Filed On: 29-03-2004
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K R MEGHWAL
• Assessee Lawyers: M BAKSHI ARS; S N SOPARKAR
• Keywords: Search and seizure

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE S/SHRI BHAVNESH SAINI, JM AND D.C.AGRAWAL, A M MR. SANJAY M. AGRAWAL, MAHESHKRUPA, BHAYOLWADI, DALIA SOCIETY, BODELI, DIST. BARODA VS. DY. CIT, CENTRAL CIRCLE- 1, BARODA. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI S. N. SOPARKAR & M. BAKSHI, ARS RESPONDENT BY:- SHRI K. R. MEGHWAL, CIT, DR O R D E R PER D.C. AGRAWAL, ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE ASSESSEE RAISING FO LLOWING GROUND:- (1) THE LD. CIT(A)-IV, AHMEDABAD HAS ERRED IN LAW AND I N FACTS IN CONFIRMING THE ACTION OF THE LD. AO IN DETERMINING THE UNDISCLOSED INCOME OF RS.55,000/- THE AMOUNT ALLEGE D TO BE INCURRED IN THE REPAIR OF A TEMPO ON THE BASIS OF S TATEMENT OF SHRI MANUBHAI K. AGRAWAL DURING THE COURSE OF SEARC H PROCEEDINGS. THE FINDING OF THE LD. AO IN COMPUTING THE UNDISCLOSED INCOME OF RS.55,000/- HAS NO BASE IN FA CTS AND ALSO THE LAW AND THEREFORE, THE LD. AO MAY KINDLY BE DIR ECTED TO DEDUCT AND DELETE THE INCLUSION OF THE AMOUNT OF RS .55,000/- IN THE UNDISCLOSED INCOME. 2. A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT A T THE BUSINESS AND RESIDENTIAL PREMISES OF THE ASSESSEE. AS A RESULT T HEREOF THE ASSESSEE FILED RETURN OF INCOME ON 5/10/2001 DECLARING UNDISCLOSED INCOME OF IT(SS)A NO.81/AHD/2004 BLOCK PERIOD1/4/1990 TO 23/1/2001 IT(SS)A NO.81/AHD/2004 BLOCK PERIOD 1/4/1990 TO 23/1/2001 2 RS.1,25,000/-. DURING THE COURSE OF ASSESSMENT PROC EEDINGS THE AO FOUND THAT THE ASSESSEE IS OWNING A TEMPO, TRACTOR AND A TROLLY. IN THE STATEMENT RECORDED DURING SEARCH SHRI SANJAY M. AGR AWAL ADMITTED TO HAVE INVESTED RS.54,850/- IN THE REPAIRS WHICH WAS ALSO REVEALED FROM PAGE 24 OF ANNEXURE-A91. FINDING THAT THERE IS NO S ATISFACTORY EXPLANATION, THE AO PROPOSED AN ADDITION OF RS.55,0 00/-. THE LD. CIT(A) CONFIRMED THE SAME FINDING NO EXPLANATION FROM THE ASSESSEE. 3. BEFORE US, THE LD. AR FOR THE ASSESSEE SUBMITTED THAT UNACCOUNTED CASH SURPLUS AVAILABLE WITH SHRI MANUBHAI K. AGRAWA L SHOULD BE TREATED AS GIVEN TO THE ASSESSEE FOR SUCH INVESTMENT. 4. THE LD. DR SUPPORTED THE ORDER OF LD. CIT(A). 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE DECL INE TO INTERFERE. WHETHER ANY UNACCOUNTED CASH SURPLUS WAS AVAILABLE OR NOT IS A QUESTION OF FACT AND SHOULD HAVE BEEN CLAIMED AT THE INITIAL STAGE ITSELF. THERE IS NO EVIDENCE THAT SUCH CLAIM WAS MADE BY THE ASSESSEE O R BY SHRI MANUBHAI AGRAWAL AT ANY STAGE EXCEPT RAISING THIS ARGUMENT F OR THE FIRST TIME BEFORE US. SINCE THE CLAIM IS NOT SUPPORTED BY ANY MATERIA L EVIDENCE, WE DECLINE TO ACCEPT IT. IN OUR CONSIDERED VIEW THE ACCOUNTS O F SHRI MANUBHAI AGRAWAL AND SHRI SANJAY AGRAWAL ARE DIFFERENT. CASH AVAILABLE WITH THEM IS DIFFERENT AND THERE IS NO TRANSACTION SHOWING FR EQUENT EXCHANGE OF SUCH UNACCOUNTED MONEY BETWEEN THEM. THERE IS NO SUCH RE CORD FOUND DURING THE SEARCH. WE ACCORDINGLY DISMISS THIS CLAIM. AS A RESULT, APPEAL FILED BY THE ASSESSEE IS DISMISSED. IT(SS)A NO.81/AHD/2004 BLOCK PERIOD 1/4/1990 TO 23/1/2001 3 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER WAS PRONOUNCED IN OPEN COURT ON 15/10/10. SD/- SD/- (BHAVNESH SAINI) (D.C. AGRAWAL) JUDICIAL MEMBER ACCOUNTANT ME MBER AHMEDABAD, DATED : 15/10/10. MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD 1.DATE OF DICTATION 12/10/2010. 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 13/10/2010 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 ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..