Shri Satya Narayan Agarwal, JODHPUR V. ACIT, JODHPUR

MA 8/JODH/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2351 (ITAT-JODHPUR)
• Duration Of Justice: 6 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 13-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Unexplained expenditure

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. M.A. NO. 08 /JODH/2014 (I.T.A.NO. 374/JODH/2012) (A.Y. 200 6 - 07 ) SHRI SATYA NARAYAN AGARWAL, 29, NEHRU PARK, JODHPUR. VS. THE ACIT, CENTRAL CIRCLE - 2, JODHPUR. PAN NO. AAAPA 864 9 A (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AMIT KOTHARI. DEPARTMENT BY : SHRI MAHESH KUMAR - D.R. DATE OF HEARING : 12 / 0 9 /201 4 . DATE OF PRONOUNCEMENT : 17 /0 9 /201 4 . O R D E R PER N.K. SAINI, A.M TH IS MISC. APPLICATION ARISING OUT OF THE ORDER DATED 14/08/2013 IN I.T.A.NO. 374/J ODH /2012 FOR THE A.Y. 2006 - 07 HAS BEEN FILED BY THE ASSESSEE STATING THEREIN THAT THE ITAT WHILE DECIDING GROUND NO. 4 RELATING TO ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT IN CONSTRUCTION OF BHATI HOUSE PROPERTY HAS NOT CONSIDERED THE ARGUMENTS OF THE ASSESSEE 2 THAT THE ASSESSING OFFICER WRONGLY ASSUMED THAT THE ENTIRE CONSTRUCTION WAS NEWLY MADE WHEREAS T HE ASSESSEE PURCHASED OLD PROPERTY WHICH WAS BEING RENOVATED SUBSTANTIALLY AND OLD MATERIAL WAS BEING USED WHICH HAD NOT BEEN CONSIDERED BY THE ASSESSING OFFICER OR BY THE DVO . IT WAS STATED THAT THE SAID ARGUMENT REMAIN ED TO BE DECIDED, SO IT WAS A MISTAKE APPARENT FROM THE RECORD. THE RELEVANT SUBMISSIONS OF THE ASSESSEE IN THE MISC. APPLICATION VIDE PARA 5 TO 9 ARE REPRODUCED AS UNDER: - 5. YOUR HONOUR'S KIND ATTENTION IS INVITED TOWARDS THE SUBMISSIONS OF THE APPELLANT BEFORE THE AUTHORITIES BELOW AND ALSO BEFORE THE HON'BLE ITAT WHICH ARE MENTIONED AT PAGE 4 OF THE APPELLATE ORDER AND THE SAME IS REPRODUCED HEREUNDER FOR YOUR HONOUR'S KIND CONSIDERATION : ' ... IT WAS FURTHER STATED THAT THE ASSESSING OFFICER WRONGLY ASSUMED THAT THE ENTIRE CONSTRUCTION WAS NEWLY MADE. WHEREAS, THE ASSESSEE PURCHASED OLD PROPERTY, WHICH WAS RENOVATED SUBSTANTIALLY AND OLD MATERIAL WAS BEING USED, WHICH HAS NOT BEEN CONSIDERED EITHER BY THE ASSESSING OFFICER O R BY THE DVO. IT WAS FURTHER STATED THAT DURING THE COURSE OF SEARCH, NO INCRIMINATING DOCUMENT WAS FOUND TO SUGGEST ANY SUCH UNEXPLAINED EXPENDITURE INCURRED ON CONSTRUCTION AND THAT FOR THE ASSESSMENT YEAR 2007 - 08, THERE WAS NO BASIS TO MAKE ANY ADDITION ON ACCOUNT OF UNEXPLAINED EXPENDITURE IN CONSTRUCT ION AS THE EXPENDITURE WAS ALREADY SHOWN BY THE ASSESSEE WHICH WAS VERIFIABLE FROM THE BOOKS OF ACCOUNTS.' 6. IT IS VERY HUMBLY SUBMITTED THAT THE SAID ISSUE HAD REMAINED TO BE DECIDED, AND SINCE THE PROPERTY PURCHASED WAS OLD AND WAS BEING RENOVATED THE C REDIT OF THE OLD MATERIAL NEEDS TO BE CONSIDERED. THIS ARGUMENT OF THE APPELLANT HAD NOT BEEN CONSIDERED BY THE HON'BLE ITAT IN THE AFORESAID APPELLATE ORDER, AND THEREFORE IT IS REQUESTED THAT THERE IS AN APPARENT ERROR WHICH NEEDS TO BE DECIDED. 7. IT IS VERY HUMBLY SUBMITTED THAT IF THE SAID ARGUMENT OF THE APPELLANT 3 WOULD HAVE BEEN CONSIDERED, THERE WOULD BEEN VERY NEGLIGIBLE DIFFERENCE IN THE VALUE AS DECLARED BY THE ASSESSEE AND THAT ESTIMATED BY THE DVO, AND IN FACTS NO ADDITION WAS CALLED FOR. 8. IN THE CASE OF SHRI JETH MA L AGARWAL REFERRED TO BY THE APPELLANT, WHICH HAS ALSO BEEN RELIED UPON BY HON'BLE ITAT IN THE CASE OF THE APPELLANT, IT WOULD BE WORTHWHILE TO REFER TO THE FINDINGS GIVEN IN THE SAID ORDER ALSO. AT PAGE 6 OF THE SAID ORDER WHILE D ECIDING THE SIMILAR ISSUE THE HON'BLE ITAT DIRECTED TO GRANT DEDUCTION OF 15% FOR SELF SUPERVISION AND FURTHER 20% DEDUCTION FOR LOCAL PWD RATES. THE HON'BLE ITAT FURTHER OBSERVED THAT AFTER ALLOWING SUCH DEDUCTION NO ADDITION IS CALLED FOR AS THERE WOULD BE NO MATERIAL DIFFERENCE AND THE ADDITION WAS DELETED. 9. SINCE ONE OF THE IMPORTANT ARGUMENT OF THE APPELLANT REMAINED TO BE DECIDED IT IS VERY HUMBLY SUBMITTED THAT THE SAME MAY KINDLY BE RECTIFIED, AND THE SAID ARGUMENT OF THE APPELLANT MAY KINDLY BE D ECIDED. 2 DURING THE COURSE OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE CONTENTS OF THE MISC. APPLICATION AND REQUESTED FOR MODIFICATION IN THE AFORESAID ORDER DATED 14/08/2013. 3. IN HIS RIVAL SUBMISSIONS, LEARNED D.R. SUBMITTED THAT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL, THEREFORE, THIS MISC. APPLICATION DESERVES TO BE DISMISSED. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MA TERIAL AVAILABLE ON RECORD. IN THE PRESENT 4 CASE, IT IS NOTICED THAT THE SUBMISSIONS OF THE ASSESSEE BEFORE THE LD. CIT(A) HAD BEEN MENTIONED AT PAGE 4 OF THE ORDER DATED 14/08/2013 FROM WHICH IT WOULD BE CLEAR THAT ONE OF THE CONTENTION OF THE ASSESSEE WAS THAT THE ASSESSING OFFICER WRONGLY ASSUMED THAT THE ENTIRE CONSTRUCTION WAS NEWLY MADE WHEREAS THE ASSESSEE PURCHASED THE OLD PROPERTY WHICH WAS RENOVATED SUBSTANTIALLY AND OLD MATERIAL WAS BEING USED WHICH HAD NOT BEEN CONSIDERED EITHER BY THE ASSESS ING OFFICER OR BY THE DVO . THE SAID CONTENTION OF THE ASSESSEE REMAINED TO BE DECIDED INADVERTENTLY AND DUE TO OVERSIGHT. WE, THEREFORE, MODIFY THE ORDER DATED 14/08/2013 AND IN PARA 7 AT PAGE 7 BEFORE THE LAST SENTENCE I.E. ACCORDINGLY , THIS GROUND OF THE ASSESSEES APPEAL IS DISPOSED OFF. IT IS ADDED THAT THE ASSESSING OFFICER IS DIRECTED TO CONSIDER THIS CONTENTION OF THE ASSESSEE THAT THE ASSESSEE PURCHASED OLD PROPERTY WHICH WAS RENOVATED SUBSTANTIALLY AND OLD MATERIAL WAS BEING USED. THE ASSESSING OFFICER IS DIRECTED TO ALLOW THE BENEFIT OF THE OLD MATERIAL USED BY THE ASSESSEE , IF ANY, IN RENOVATION OF THE PROPERTY AND IF THE DIFFERENCE REMAIN S MEAGER OR NEGLIGIBLE, THEN NO ADDITION IS CALLED FOR AS WAS DONE IN THE CASE OF ANOTHER ASSESSEE BELONGING TO THE SAME GROUP SHRI JETH MAL AGARWAL VS. ACIT ORDER DATED 28/06/2013 RELIED BY THE ASSESSEE. 5 5. IN THE RESULT , THIS MISC. APPLICATION OF THE ASSESSEE IS ALLOWED AS INDICATED ABOVE. ( ORDER PRONOUNCED IN THE COURT ON 17 TH SEPTEMBER , 201 4) . S D/ - SD/ - ( HARI OM MARATHA ) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 17 TH SEPTEMBER , 201 4 . VR/ - COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE CIT(A) 5. THE D.R SR. PRIVATE SECRETARY , ITAT, JODHPUR .