JEWELLERY MART, Jaipur V. DCIT, Jaipur

MA 161/JPR/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5440 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-02-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 28-10-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA CIT DHK
• Keywords: Difference of opinion

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ MA NO. 161/JP/16 (ARISING OUT OF ITA NO. 792/JP/13) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07 SHRI JEWELLERY MART, PANCHBATI, M.I. ROAD, JAIPUR CUKE VS. THE DCIT, CIRCLE-2, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAWFS 8911 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A.VERMA (ADDL. CIT ) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 23.12.2016 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 08/02/2017. VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E ASSESSEE AGAINST THE ORDER PASSED BY THE CO-ORDINATE BENCH IN ITA NO . 792/JP/13 DATED 16.05.2016. 2. IN ITS APPLICATION, THE ASSESSEE HAS SUBMITTED T HAT THE ONLY GROUND IN THIS APPEAL WAS AGAINST CONFIRMING THE LEVY OF PENA LTY U/S 271(1)(C). IN THIS CASE, THERE WAS A SURVEY CONDUCTED ON 27.12.2005. IN THE RETURN FILED U/S 139(1), ASSESSEE OFFERED FOR TAX EXCESS STOCK CALCU LATED BY HIM AT RS. 56,49,928/-. THE LD. CIT(A) MADE FURTHER ADDITION OF RS. 2,16,426/- ON ACCOUNT OF EXCESS STOCK. HONBLE ITAT IN QUANTUM APPEAL HE LD THAT EXCESS STOCK OFFERED MA NO/161/JP16 SHRI JEWELLERY MART, JAIPUR VS. DCIT, CIRCLE-2, JAI PUR 2 BY THE ASSESSEE IS MORE BY RS.1,34,582/- BUT STILL CONFIRMED ADDITION OF RS. 5,00,000/- ON ACCOUNT OF LESSER SALE ADJUSTMENT, CA SH PAID OUTSIDE BOOKS OF ACCOUNT AND ON ACCOUNT OF UNVERIFIABLE PURCHASES. ON THIS AMOUNT PENALTY IS CONFIRMED BY HONBLE ITAT AS PER FINDING GIVEN AT PARA 4.7 OF ITS ORDER. 3. IT WAS SUBMITTED BY THE LD AR THAT HONBLE ITAT IN PARA 4.7 OF ITS ORDER HAS ACCEPTED THAT EXCESS STOCK OFFERED BY THE ASSES SEE IS MORE BY RS. 1,34,582/- THE SAME CANNOT BE THE BASIS OF LEVY OF PENALTY . HOWEVER, IT HELD THAT ADDITION OF RS. 5,00,000/- ARE IN ADDITION TO THE EXCESS STOCK FOR WHICH ASSESSEE HAS FAILED TO PROVIDE APPROPRIATE EXPLANAT ION AND THE SAME ARE IN RESPECT OF SPECIFIC ITEMS AND THEREFORE, PENALTY ON THE SAID AMOUNT IS CONFIRMED. 4. IT WAS FURTHER SUBMITTED THAT THE HONBLE ITAT I N GIVING THE ABOVE FINDING INADVERTENTLY DID NOT CONSIDER THAT THE LD. CIT(A) IN QUANTUM PROCEEDINGS HAS GIVEN A FINDING THAT ANY ADDITION O N THE BASIS OF LOOSE PAPER/UNVERIFIABLE PURCHASES IS NOT REQUIRED TO BE MADE SEPARATELY AS THE SAME IS COVERED BY THE EXCESS STOCK DETERMINED AND OFFERED FOR TAX IN THE RETURN FILED BY THE ASSESSEE. THIS APART, THE TWO SPECIFIC AMOUNTS OF RS. 1 LAKH AND RS. 1.01 LAKHS SPECIFIED BY THE HONBLE ITAT IN THE QUANTUM APPEAL RELATE TO THE STOCK. THUS ONCE A FINDING IS GIVEN THAT AS SESSEE HAS OFFERED FOR TAX EXCESS STOCK WHICH IS ALREADY IN EXCESS BY RS. 1,34 ,582/- AND THE SPECIFIC ADDITION SO SPECIFIED IN THE ORDER OF HONBLE ITAT IS COVERED BY EXCESS STOCK OF RS. 56,46,928/- OFFERED FOR TAX, NO PENALTY ON LUMP SUM ADDITION OF RS. 5 LAKHS CONFIRMED IN THE QUANTUM PROCEEDING IS LEVIABLE AS PER LAW. MA NO/161/JP16 SHRI JEWELLERY MART, JAIPUR VS. DCIT, CIRCLE-2, JAI PUR 3 SINCE THE ABOVE FACTUAL ASPECT IS OMITTED TO BE CON SIDERED BY THE HONBLE ITAT, IT IS A MISTAKE APPARENT ON RECORD AND IT IS REQUES TED TO SUITABLE MODIFY PARA 4.7 OF THE ITAT ORDER. 5. THE RELEVANT FINDINGS OF ITAT IN ITA NO. 792/JP /2013 DATED 16.05.2016 WHICH IS SOUGHT TO BE RECTIFIED IS REPRODUCED AS UN DER: (4.7) IN LIGHT OF CLEAR CUT FINDING OF THE COORDINATE BEN CH (SUPRA), WE AGREE WITH THE CONTENTION OF THE LD AR THAT ASSESSEE HAS OFFERED THE EXCESS STOCK FOUND IN COURSE OF SURVEY AND EXCESS STOCK SO OFFERED BY THE ASSESSEE IS MORE BY RS.1,34,582/-. HENCE, WHERE ST OCK HAS ALREADY BEEN OFFERED TO TAX AND SUCH STOCK IS MORE THAT WHAT HAS BEEN FOUND DURING THE COURSE OF SURVEY, THE SAME CANNOT BE THE BASIS FOR LEVY OF PENALTY. HOWEVER, REGARDING CASH PAID OUTSIDE THE BOOKS OF A CCOUNT FOR BANGLES FROM ONE SHRI SONI OF CHENNAI, ON ACCOUNT OF DOCUME NTS FOUND AND ON ACCOUNT OF NON-VERIFIABLE PURCHASES, THE LD AR HAS SUBMITTED THAT FOR ALL THESE REASONS, EXCESS STOCK WAS OFFERED IN THE RETU RN OF INCOME AND THE SAID EXPLANATION OF THE ASSESSEE HAS NOT BEEN FOUND TO BE FALSE OR NOT BONAFIDE OR THAT MATERIAL FACTS IN RELATION THERETO WERE NOT FURNISHED. WE ARE UNABLE TO ACCEDE TO THE SAID EXPLANATION OF THE LD AR. THE COORDINATE BENCH HAS EXAMINED THE MATTER AT LENGTH AND THEREAFTER HAS GIVEN ITS FINDINGS AND THE SAID FINDINGS DOESNT CO RRELATE TO THE CLAIM OF THE LD AR. WE ARE THEREFORE OF THE VIEW THAT IN RE SPECT OF MATTERS OTHER THAN EXCESS STOCK, THE FINDINGS OF THE COORDINATE B ENCH ARE CLEAR THAT THESE ARE THE ITEMS OF DISALLOWANCE IN ADDITION TO THE EXCESS STOCK AND IN RESPECT OF WHICH, THE ASSESSEE HAS FAILED TO PROVID E APPROPRIATE EXPLANATION. FURTHER, WE DO NOT AGREE WITH THE CON TENTION OF THE LD AR THAT THERE WAS DIFFERENCE OF OPINION IN THE QUANTUM OF ADDITION MADE BY CIT(A) AND THAT MADE BY HONBLE ITAT AND THE ADDITI ON MADE ON SUCH DIFFERENCE OF OPINION AS WELL AS ON ESTIMATION DO N OT WARRANT LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. AS WE HAVE HELD EARLIER, THE DISALLOWANCES ARE IN RESPECT OF SPECIFIC ITEMS WHIC H HAVE BEEN CONFIRMED BY THE COORDINATE BENCH AND INSTEAD OF QUANTIFYING EACH OF THE DISALLOWANCES SEPARATELY, ALL THE DISALLOWANCES HAV E BEEN CLUBBED TOGETHER. MA NO/161/JP16 SHRI JEWELLERY MART, JAIPUR VS. DCIT, CIRCLE-2, JAI PUR 4 6. ON PERUSAL OF THE ORDER PASSED BY THE COORDINATE BENCH, IT IS NOTED THAT ALL THE FACTS AND CIRCUMSTANCES OF THE CASE INCLUDI NG THE DECISION OF LD CIT(A) AND COORDINATE BENCH IN QUANTUM PROCEEDINGS HAVE BE EN DULY CONSIDERED. IN VIEW OF THE SAME, WE DO NOT SEE ANY MERIT IN THE PR ESENT APPLICATION. IN THE RESULT, MISC. APPLICATION FILED BY THE ASSES SEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 08/02/ 2017. SD/- SD/- (KUL BHARAT ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 08 /02/2017 PILLAI VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI JEWELLERY MART, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE DCIT, CIRCLE-2, JAIPUR 3. VK;DJ VK;QDR@ CIT I, JAIPUR 4. VK;DJ VK;QDRVIHY@ THE CIT(A)-I, JAIPUR 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (MA NO. 161/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR.