M.Kamlesh Kumar, CHENNAI V. DCIT, CHENNAI

MA 118/CHNY/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5762 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 03-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS S VIJAYA PRABHA J
• Assessee Lawyers: D ANAND
• Keywords: Unexplained investment; Income from undisclosed sources; Revised return
• Section: 143(3); 142(1); 133A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : CHENNAI , !' #$ , BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER & SHRI GEORGE MATHAN, JUDICIAL MEMBER M.P. NO.118/MDS./2017 ( I.T.A.NO.1675/MDS./2015 ASSESSMENT YEAR : 2011-12 ) SHRI M.KAMLESH KUMAR , 130/68,DHANALAKSHMI COMPLEX, NSC BOSE ROAD, CHENNAI 600 079 VS. THE DCIT, CENTRAL CIRCLE-I(3), 46,NUNGAMBAKKAM HIGH ROAD, CHENNAI 600 034. [PAN AAOPK 0619 B ] ( $% / APPELLANT) ( &'$% /RESPONDENT) / APPELLANT BY : MR.D.ANAND,ADVOCATE /RESPONDENT BY : MRS.S.VIJAYA PRABHA, JCIT,DR / DATE OF HEARING : 28 - 07 - 201 7 !'# / DATE OF PRONOUNCEMENT : 13 - 09 - 201 7 ( / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE SEE KS RECALL /RECTIFICATION OF THE TRIBUNAL ORDER DATED 2 8.11.2016 IN ITA NO. 1675/MDS/2015 FOR ASSESSMENT YEAR 2011-12. 2. BEFORE US, THE LD.A.R SUBMITTED THAT THE ASSESSE E IS AN INDIVIDUAL, ENGAGED IN THE BUSINESS OF TRADING IN S ILVER ARTICLE. MP NO.118/MDS./17 :- 2 -: THERE WAS A SURVEY UNDER SECTION 133A ON 6.01.2011 IN THE BUSINESS PREMISES OF THE ASSESSEE. IN RESPONSE TO N OTICE ISSUED U/S.153C & 142(1) OF THE ACT, THE ASSESSEE FILED HI S RETURN OF INCOME ON 26.10.2012 ADMITTING TOTAL INCOME OF ` 1,17,17,216/-. SUBSEQUENTLY THE PETITIONER FILED REVISED RETURN ON 5.02.2013 ADMITTING TOTAL INCOME AT ` 2,31,92,957/- WHICH INCLUDED A DISCLOSURE OF ` 1,50,000,00/- COMPRISING OF VALUE OF EXCESS STOCK OF SILVER OF RS.120147 GMS@ 30 PER GRAM AND A SUM O F ` 1,06,66,691/- BEING THE AMOUNT RECEIVABLE AS PER LO OSE SHEET. AS AGAINST THE ABOVE, THE ASSESSING OFFICER COMPLET ED THE ASSESSMENT UNDER SECTION 143(3) VIDE HIS ORDER DATE D 22.03.2013 DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT ` 2,87,30,710/- IN DOING SO THE ASSESSING OFFICER ASSESSED THE UNDISCL OSED INCOME AT ` 1,58,55,066/- AS AGAINST A SUM OF ` 1,50,00,000/- BEING THE DISCLOSURE MADE BY THE PETITIONER, WHICH INCLUDED A SUM OF RS.7,56,049/- BEING THE INCOME FROM THE ABOVE TRANS ACTION AND ALSO FURTHER ADDITION OF ` 46,82,685/- TOWARDS GROSS PROFIT ADDITION. 2.1 ACCORDING TO LD.A.R, BEING AGGRIEVED, THE PETI TIONER PREFERRED AN APPEAL BEFORE THELD.CIT(A) . THE LD.CI T(A) ALLOWED THE PETITIONERS APPEAL IN PART. IN DOING SO THE LE ARNED COMMISSIONER SUSTAINED THE UNDISCLOSED INCOME ASSES SED AT MP NO.118/MDS./17 :- 3 -: ` 1,58,55,066/- AND DELETED THE FURTHER ADDITION OF ` 46,82,685/- BEING THE GROSS PROFIT ADDITION MADE BY THE ASSESSI NG OFFICER. THE LEARNED CIT(A) IN PARAS 5.3, 5.5 AND 5.6 OF THE ORD ER HAS GIVEN HIS RATIONALE FOR ARRIVING AT THE SAID DECISION. BEING AGGRIEVED BY THE ORDER OF LD.CIT(A) DATED 27.02.2015, THE DEPARTMEN T PREFERRED AN APPEAL BEFORE THIS TRIBUNAL. THE LD.A.R FURTHER SUBMITTED THAT THE TRIBUNAL VIDE ITS ORDER DATED 28.11.2016, ALLOW ED THE DEPARTMENTAL APPEAL, IN DOING SO, THE TRIBUNAL IN PAGE 6 PARA 5 OBSERVED AS FOLLOWS:- WE CONSIDERED THE APPARENT FACTS, MATERIAL ON RECO RD AND EVIDENCE AND ARE OF THE OPINION THAT THE ASSESSEE H AS MADE A DISCLOSURE IN THE SURVEY OPERATIONS BUT THE LD CIT( A) HAS NOT CONSIDERED THE WORKINGS OF THE ASSESSING OFFICER ES TABLISHING THAT THE ASSESSEE HAS MADE PROFIT ON THE TRANSACTION OF SILVER IN THE LOOSE SHEETS AND THE ASSESSEE HAS NOT DISCLOSED PRO FIT IN HIS DISCLOSURE OF RS. 1.5 CRORE AND THEREFORE WE SET AS IDE THE ORDER OF CIT(A) AND RESTORE THE ORDER OF THE ASSESSING OFFIC ER 2.2 ACCORDING TO LD.A.R, THE TRIBUNAL HAS MADE THE OBSERVATION THAT THE CIT(A) HAS NOT CONSIDERED THE WORKINGS OF THE ASSESSING OFFICER ESTABLISHING THAT THE ASSESSEE HAS MADE PRO FIT ON THE TRANSACTION OF SILVER IN THE LOOSE SHEETS AND THE A SSESSEE HAS NOT DISCLOSED PROFIT IN HIS DISCLOSURE OF RS 1.5 CRORE. HOWEVER THE SAME IS CONTRARY TO FACTS. IT WAS SUBMITTED BY THE LD.A.R THAT THE LEARNED CIT(A) HAS DELIBERATED AND DISCUSSED THE SA ID FACTS IN MP NO.118/MDS./17 :- 4 -: PARA 5.3, 5.5 AND 5.6 OF HIS ORDER. THUS, IT WOULD BE A MISTAKE OF FACTS AND MISTAKE IS APPARENT ON RECORD TO STATE TH AT THE CIT(A) HAS NOT CONSIDERED THE WORKINGS OF THE ASSESSING OF FICER. 2.3. IN VIEW OF THE REASONS, THE LD.A.R PLEADED BE FORE THISTRIBUNAL THAT: A. RECALL THE ORDER IN ITA.NO. 1675/MDS/2015 DATED 28.11.2016. B. GIVE THE PETITIONER A HEARING IN REGARD TO THE V ARIOUS CONTENTIONS WHICH WERE RAISED BEFORE THIS TRIBUNAL C. AND PASS SUCH OR OTHER ORDERS AS THE TRIBUNAL MA Y DEEM FIT IN THE CIRCUMSTANCES OF THE CASE AND THUS RENDER JUSTI CE. 3. ON THE OTHER HAND, THE LD.D.R SUBMITTED THAT THERE WAS NO ERROR IN THE ORDER OF TRIBUNAL SO AS TO RECTIFY THE SAME. THE LD.D.R VEHEMENTLY SUPPORTED THE ORDER OF TRIBUNAL. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD AND THE ORDER OF TRIBU NAL VIDE ORDER DATED 28.11.2016. THE MAIN PLEA OF THE LD.A.R HEREI N IS THAT SUSTAINING THE ADDITION OF ` 46,82,685/- MADE BY THE LD. ASSESSING OFFICER AMOUNTS TO DOUBLE ADDITION AS THIS AMOUNT W AS ALREADY OFFERED BY THE ASSESSEE IN ITS ADDITIONAL INCOME OF ` 1.5 CRORES. MP NO.118/MDS./17 :- 5 -: ADMITTEDLY, IN THIS CASE, THE LD. ASSESSING OFFICER MADE ADDITIONS AS FOLLOWS:- 4.1 AFTER THAT, THE LD. ASSESSING OFFICER, ONCE AG AIN MADE ADDITION AS FOLLOWS:- A) UN-ACCOUNTS INCOME/INVESTMENT IN RESPECT OF EXCESS STOCK FOUND DURING THE COURSE OF SURVEY/SEARCH (EXCESS STOCK FOUND OF 132732 GRAMS -12585 GRAMS EXPLAINED BY ASSESSEE 120147 GMS B) UN-ACCOUNTS INCOME/INVESTMENT IN RESPECT OF NET SILVER ARTICLES TREATED AS SALES AS ASSESSEE HAS ADMITTED THAT HE HAD RECEIVED ` 1,06,66,691/- FROM VARIOUS PARTIES 397316 GMS C) UNEXPLAINED INVESTMENT IN RESPECT OF ABOVE SILVER ARTICLES @ 30.60 PER GM.(AVERAGE PURCHASE PRICE OF THE YEAR) ` `` ` 1,58,55,066/- D) PROFIT ON THE SALE OF 3,97,316 GRAMS OF SILVER @ RS.6.54 (PROFIT MARGIN OF THE YEAR I.E. AVERAGE SAL E PRICE OF THE YEAR AVERAGE PURCHASE PRICE OF THE YEAR) ` `` ` 25,98,446 /- E) PROFIT COMPONENT ON THE BALANCE QUANTITY OF SILV ER (AFTER ALLOWING BENEFIT OF TELESCOPING TO THE ASSESSEE) AS NET SILVER RECEIVED FROM THE ACHARIES 8,36,154 GMS LESS: CONSIDERED IN POINT NO.C)ABOVE 5,17,463 GMS @ 6.54 ` `` ` 20,84,239 / - .. THUS, THE TOTAL UNDISCLOSED INCOME WORKS OUT TO (1,58,55,066 + 25,98,446 + 20,84,239) ` `` ` 2,05,37,751/- MP NO.118/MDS./17 :- 6 -: 4.2 AS SEEN FROM THE ABOVE, THE LD. ASSESSING OFFI CER COMPUTED THE UNACCOUNTED STOCK 1,20,147 GRAMS AND COMPUTED I TS VALUE, THEREAFTER, HE COMPUTED THE ADDITIONAL INCOME FOUND IN THE IMPOUNDED MATERIAL IN THE LOOSE SHEETS, WHICH WAS I MPOUNDED MARKED AS (I) ANN/VJ/IMP/1-10 & (II) ANN/VJ/LS/IMP/ PG1-14(14 SHEETS) AT ` 1,06,66,691/-. THUS, HE ARRIVED AT ` 1,58,55,066/- AS AGAINST THE ADDITIONAL INCOME OFFERED BY THE ASSES SEE AT ` 1.5 CRORES. THEREAFTER, THE LD. ASSESSING OFFICER ONCE AGAIN, COMPUTED THE PROFIT MARGIN ON THE ABOVE AT ` `` ` 25,98,446 /- + ` `` ` 20,84,239/-, THOUGH THE INCOME OF ASSESSEE WAS ALREADY COMPUTED TOWARDS UNACCOUNTED STOCK AND UNACCOUNTED INCOME AT ` 1,58,55,066/-. THE LD.CIT(A) CONSIDERED THESE FACTS IN ITS ORDER IN PARA 5.3, 5.5 & 5.6 AND HE HAS DELETED THE ADDITION OF ` 46,82,685/-. HOWEVER, THE TRIBUNAL WHILE ADJUDICATING THE ISSUE IN DISPUT E COMMITTED AN ERROR AND SUSTAINED THE ADDITION. 4.3 IN OUR OPINION, TRIBUNAL APPARENTLY FELL INTO ERROR IN ALLOWING THE APPEAL OF THE REVENUE AND THE SAID MISTAKE IS A PPARENT ON THE FACE OF RECORD, WHICH IS NOTHING MORE THAN A MI STAKE OF FACT, WHICH FELL WITHIN THE SCOPE OF RECTIFIABLE MISTAKE U/S.254(2) OF THE ACT. ACCORDINGLY, WE ARE INCLINED TO RECALL THE OR DER OF TRIBUNAL MP NO.118/MDS./17 :- 7 -: DATED 28.11.2016 CITED SUPRA AND DIRECT THE REGISTR Y TO FIX THE APPEAL FOR FRESH HEARING IN NORMAL COURSE. 5. FURTHER, WE MAKE IT CLEAR THAT FINDINGS RECORDE D HEREIN IS LIMITED TO RECALL OF THE ORDER OF TRIBUNAL CITED S UPRA AND IT CANNOT BE PREJUDICE THE MIND OF THE BENCH, WHICH WOULD RE -HEAR THE APPEAL ON NEXT OCCASION. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FI LED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 13 TH SEPTEMBER, 2017, AT CHENNAI. SD/ - SD/ - ( !' #$ ) (GEORGE MATHAN) ) / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER $ /CHENNAI %& /DATED: 13 TH SEPTEMBER , 2017. K S SUNDARAM ' ( )* + *' / COPY TO: 1 . / APPELLANT 3. ' ' , () / CIT(A) 5. */0 12 / DR 2. / RESPONDENT 4. ' ' , / CIT 6. 034 5 / GF