M/s. Tarika Exclusive, Baroda V. The ACIT.,Cent.Circle-1, Baroda

MA 141/AHD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7455 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 26-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA
• Keywords: Unexplained investment

Judgement Text

-1- IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'A' BEFORE SHRI D K TYAGI - JM AND SHRI A MOHAN ALANKAMONY - AM M A NO.141/AHD/2011 [ARISING OUT OF ITA NO.2245/AHD/2009 (ASSESSMENT YEAR:-2007-08) M/S TAARIKA EXCLUSIVE, RUTAM, OPP. AVERY, B/H ADARSH GENERAL HOSPITAL, GOTRI ROAD, BARODA V/S THE ASST. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-1, BARODA PAN: AABFT 3872 A [APPLICANT] [ORIGINAL APPELLANT] [RESPONDENT] [ORIGINAL RESPONDENT] ASSESSEE BY :- SMT. URVASHI SHODHAN, AR REVENUE BY:- SHRI C K MISHRA, SR. DR DATE OF HEARING:- 06-01-2012 DATE OF PRONOUNCEMENT:- 13-01-2012 O R D E R PER D K TYAGI (JM) :- BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE HAS REQUESTED FOR MODIFICATION OF THE ORDE R DATED 15-07- 2011 PASSED BY THE ITAT IN ITA.NO.2245/AHD/2009 FOR THE AY 2007-08. 2. IN THE MISCELLANEOUS APPLICATION, THE ASSESSEE H AS SUBMITTED AS UNDER: 1. THE APPELLANT ABOVE NAMED FILES THE PRESENT AP PLICATION FOR SETTING ASIDE THE ORDER DATED 15-07-2011 PASSED BY THIS HONBLE TRIBUNAL PARTLY ALLOWING THE APPEAL FILED BY THE AP PELLANT. IT IS 2 RESPECTFULLY SUBMITTED THAT IN THE SAID ORDER OF TH E HONBLE ITAT, THERE IS AN ERROR APPARENT FROM THE RECORD. 2. THE HON'BLE ITAT WHILE ADJUDICATING THE APPEAL G AVE FINDING ON PAGE 4 IN PARA 8 OF THE ORDER NOTED AS BELOW - 'AFTER HEARING BOTH THE PARTIES AND PERUSING THE RE CORD WE FIND THAT SURVEY U/S 133 A OF THE ACT WAS CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE AND AS A RESULT OF WHICH P HYSICAL STOCK AS FOUND AND WORKED OUT BY THE REVENUE WAS AT RS.72 ,41,289/- AS AGAINST BOOK STOCK FOUND WAS RS.58,16, 7007- LEA VING THEREBY EXCESS STOCK OF RS.14,24,589/-. DURING THE ASSESSMENT PROCEEDINGS ASSESSEE SUBMITTED DETAILED EXPLANATION TO EXPLAIN THAT THERE DID NOT EXIST THE DISCREPANCY IN STOCK A S ALLEGED BY THE REVENUE. THE AO AFTER CONSIDERING THE EXPLANATION O FFERED BY ASSESSEE WORKED OUT NET DEFICIT IN STOCK AMOUNTING TO RS.6,54,090/- AND TREATED THIS AS SALES MADE OUTSID E THE BOOKS AND AVERAGE RATE OF GROSS PROFIT OF PRECEDING FIVE YEARS OF 15.90% WAS APPLIED TO WORK OUT THE ADDITION OF INCO ME OF RS.1.04 LAKH ON ACCOUNT OF UNACCOUNTED INVESTMENT I N STOCK. WHILE DOING SO, THE ASSESSING OFFICER DID NOT GIVE EFFECT TO STOCK OF RS.5,73,780/- WHICH WAS DELIVERED BY THE A SSESSEE TO PLACES VIZ. AHMEDABAD AND BARODA WHERE SALES WERE H ELD IN THE MONTH OF APRIL & MAY'06 WHICH ACCORDING TO US WAS N OT PROPER AS THIS TRANSFER OF GOODS WAS WELL SUPPORTED BY THE GATE PASSES PRIOR TO THE DATE OF SURVEY AND THESE PASSES WERE P ART OF SEIZURE MADE BY THE SURVEY PARTY. IN OUR CONSIDERED OPINION THE TRANSFER OF THIS STOCK WORTH OF RS.5,73,780/- SHOULD HAVE BE EN REDUCED FROM THE BOOK STOCK AS IT WAS EVIDENCED BY SEIZED G ATE PASSES AND SHOULD HAVE BEEN TREATED AS THE GENUINE TRANSFE R OF GOODS TO PLACES OF SALE HELD IN THE APRIL & MAY'06. AFTER AC CEPTING THIS CONTENTION OF THE ASSESSEE THE ONLY IRRECONCIBLE DI FFERENCE REMAINS OF RS.80,310/- WHICH ACCORDING TO ASSESSEE WAS ON ACCOUNT OF VALUATION TAKEN ON AVERAGE PRICE AS AGAI NST THE COST PRICE. THIS EXPLANATION IS NOT ACCEPTABLE AS THE VA LUATION OF THE STOCK WAS DONE WITH THE HELP OF THE MANAGER AND THE STAFF OF THE ASSESSEE-FIRM BY THE SURVEY PARTY AND AT THAT TIME THEY DID NOT RAISE ANY SUCH OBJECTION. THEREFORE THE SAME CANNOT BE ACCEPTED NOW. THE AO IS THEREFORE DIRECTED TO RECALCULATE TH E ADDITION BY TREATING THE UNEXPLAINED STOCK FOUND AT THE TIME OF SURVEY OF RS.80,310/- ONLY. THIS GROUND OF THE ASSESSEES APP EAL IS PARTLY ALLOWED. 3 3. THE APPLICANT MOST RESPECTFULLY SUBMITS THAT THO UGH THE HON'BLE ITAT HAS DIRECTED THE ASSESSING OFFICER TO RECALCUL ATE THE ADDITION BY TREATING THE UNEXPLAINED STOCK FOUND AT THE TIME OF SURVEY OF RS.80,310/- ONLY, THE APPELLANT PRAYS THAT IN ORDER TO AVOID ANY CONFUSION AT THE TIME OF PASSING ORDER GIVING EFFEC T TO THE ORDER OF THE HON'BLE ITAT THE DIRECTION MAY KINDLY BE MODIFIED A S - 'THE ASSESSING OFFICER IS THEREFORE DIRECTED TO RECALCULATE THE ADDITION APPLYING AVERAGE RATE OF GROSS PROFIT OF PRECEDING FIVE YEARS OF 15.90% TREATING THE UNEXPLAINED STOC K FOUND AT THE TIME OF SURVEY OF RS.80,310/- ONLY' 4. THE APPLICANT THEREFORE, RESPECTFULLY SUBMITS TH AT IN THE LARGER INTEREST OF JUSTICE THE HON'BLE TRIBUNAL BE PLEASED TO ACCEPT THE PRAYER OF THE APPLICANT/APPELLANT AND MODIFY THE ORDER AS STATED ABOVE SO AS TO RENDER DECISION ON THE ISSUE RAISED IN THE APPEAL. THE LEARNED COUNSEL OF THE ASSESSEE ACCORDINGLY PRA YED THAT THE BONA FIDE OF THE ASSESSEE-APPLICANT NOT BEING IN DO UBT, THE ORDER OF THE TRIBUNAL BE MODIFIED. THE LEARNED DR DID NOT OBJECT TO THIS PRAYER OF THE ASSESESES COUNSEL. 3. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORDS, WE FIND THAT A MISTAKE APPARENT FROM RECORD HAS CREPT IN OUR ORDER WHICH REQUIRES RECTIFICATION AS UNDER: WHILE ALLOWING THE APPEAL OF THE ASSESSEE, WE GAVE FOLLOWING DIRECTION:- THE AO IS THEREFORE DIRECTED TO RECALCULATE THE A DDITION BY TREATING THE UNEXPLAINED STOCK FOUND AT THE TIME OF SURVEY O F RS.80,310/- ONLY. THIS GROUND OF THE ASSESSEES APPEAL IS PARTLY ALLO WED. WHICH SHOULD BE READ AS UNDER:- 4 'THE ASSESSING OFFICER IS THEREFORE DIRECTED T O RECALCULATE THE ADDITION APPLYING AVERAGE RATE OF GROSS PROFIT OF P RECEDING FIVE YEARS OF 15.90% TREATING THE UNEXPLAINED STOCK FOUND AT THE TIME OF SURVEY OF RS.80,310/- ONLY' 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE COURT TODAY ON 13-01-2012 SD/- SD/- (A MOHAN ALANKAMONY) ACCOUNTANT MEMBER (D K TYAGI) JUDICIAL MEMBER DATE : 13-01-2012 COPY OF THE ORDER FORWARDED TO: 1. M/S TAARIKA EXCLUSIVE, RUTAM, OPP. AVERY, B/H ADARSH GENERAL HOSPITAL, GOTRI ROAD, BARODA 2. THE ASST. COMMISSIONER OF INCOME-TAX, CENTRAL CI RCLE-1, BARODA 3. CIT CONCERNED 4. CIT(A)-IV, AHMEDABAD 5. DR, ITAT, AHMEDABAD BENCH-A, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD