Shri Premchand Jain, V. Assistanr Commissioner of Income tax,

SA 4/JAB/2014

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1111 (ITAT-JABALPUR)
• Duration Of Justice: 5 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-03-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 03-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K UPADHYAY
• Assessee Lawyers: ABHISHEK OSWAL
• Keywords: Unexplained expenditure; Application of stay
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, JABALPUR BENCH, JABALPUR BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER S.A. NO.04/JAB/2014 (IN ITA NO.42/JAB/2013) ASSESSMENT YEAR: 2002-03 SHRI PREMCHAND JAIN, VS. ASSTT. COMMISSIONER OF INCOME TAX, PROP. M/S. UPKAR AGENCIES, CIRCLE, SAGAR. VARNI COLONY, SAGAR (M.P.) (PAN ABPPJ 8532 F). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ABHISHEK OSWAL, ADVOCATE RESPONDENT BY : SHRI K.K. UPADHYAY, D.R. DATE OF HEARING : 24.03.2014 DATE OF PRONOUNCEMENT : 27.03.2014 ORDER PER T.S. KAPOOR, ACCOUNTANT MEMBER: THIS IS A STAY PETITION FILED BY THE ASSESSEE AGAIN ST THE STAY OF RECOVERY OF AN AMOUNT OF RS.17.08 LACS. 2. AT THE OUTSET, THE LD. AUTHORISED REPRESENTATIVE INVITED OUR ATTENTION TO THE LETTER OF ITO, WARD-I, SAGAR DATED 18.03.2014 REGAR DING STATUS OF AMOUNTS DEPOSITED AGAINST THE SAID DEMAND. HE SUBMITTED TH AT OUT OF TOTAL DEMAND OF RS.18.28 LACS, AN AMOUNT OF RS.5.38 LACS HAS ALREAD Y BEEN DEPOSITED. IN THIS RESPECT, HE REFERRED TO THE ABOVE SAID LETTER ALONG WITH A COPY OF CHALLAN INDICATING S.A. NO.04 /JAB/2014 A.Y. 2002-03 2 A FURTHER PAYMENT OF RS.2.10 LACS. THE LD. AUTHORI SED REPRESENTATIVE SUBMITTED THAT THIS AMOUNT OF RS.2.10 LACS WAS ALSO DEPOSITED AGAINST THE ABOVE SAID DEMAND, HOWEVER, THE PAN WAS WRONGLY MENTIONED AS A BPPJ8532F INSTEAD OF ABPPJ8352E. IN VIEW OF THE ABOVE, IT WAS SUBMITTED THAT A SIGNIFICANT AMOUNT HAS ALREADY BEEN PAID, SO, REST OF THE AMOUNT SHOULD BE STAYED. 3. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHE R HAND, SUBMITTED THAT THE TOTAL OUTSTANDING AGAINST THE ASSESSEE INCLUDING ON ACCOUNT OF PENALTY UNDER SECTION 271(1)(B) AND 271(1)(C) OF THE INCOME TAX ACT, 1961 AMOUNTS TO RS.25.69 LACS AND NO FINANCIAL HARDSHIP HAS BEEN POINTED OUT BY T HE ASSESSEE AND, THEREFORE, THE ASSESSEE SHOULD BE DIRECTED TO PAY THE REMAINING AM OUNT. 4. WE HAVE HEARD THE RIVAL PARTIES AND GONE THROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT THE A.O. HAD MADE THREE MAJOR ADDITIONS IN RESPECT OF CASH FOUND AT THE TIME OF SURVEY, INVESTMENTS IN THE FOR M OF FDS FOUND DURING THE SURVEY AND UNEXPLAINED EXPENDITURE IN THE CONSTRUCT ION ON THE BASIS OF DVOS REPORT IN COMPARISON TO EXPENDITURE BOOKED IN THE B OOKS OF ACCOUNT. WE FIND THAT THE ADDITION OF RS.11.72 LACS CONSISTING OF ALMOST 50% OF TOTAL ADDITION WAS ON ACCOUNT OF UNEXPLAINED EXPENDITURE IN THE PROPERTY ON THE BASIS OF DVOS REPORT. THEREFORE, THIS ISSUE IS DEBATABLE AND THE FINAL OU TCOME OF THIS ADDITION WILL DEPEND UPON THE FACTS AND CIRCUMSTANCES TO BE EXAMINED BY THE TRIBUNAL IN DUE COURSE. THEREFORE, THE ASSESSEE HAS A PRIMA FACIE CASE AND BALANCE OF CONVENIENCE IN HIS S.A. NO.04 /JAB/2014 A.Y. 2002-03 3 FAVOUR. THEREFORE, IN THE INTEREST OF JUSTICE, WE HEREBY STAY THE RECOVERY OF DEMAND SUBJECT TO FURTHER PAYMENT OF RS.1 LAC BEFORE 31.03 .2014. THE RECOVERY OF DEMAND IS STAYED FOR A PERIOD OF SIX MONTHS OR TILL THE DISPOSAL OF APPEAL WHICHEVER EVENT OCCURS FIRST. 5. THE STAY APPLICATION IS DISPOSED OF AS ABOVE. (ORDER PRONOUNCED IN THE OPEN COURT ON 27.03.2014) SD/- SD/- (BHAVNESH SAINI) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 27 TH MARCH, 2014 PBN/* COPY OF THE ORDER FORWARDED TO :- 1) APPELLANT 2) RESPONDENT 3) CIT (APPEALS) CONCERNED 4) CIT CONCERNED 5) D.R., ITAT, JABALPUR BENCH, JABALPUR 6) GUARD FILE. BY ORDER, SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, CAMP AT JABALPUR