ACIT, Madurai v. M/s. MVM Subramania Nadar & Sons, Madurai

ITA 196/CHNY/2010 | 2006-2007
Pronouncement Date: 09-07-2010 | Result: Dismissed

Appeal Details

RSA Number 19621714 RSA 2010
Assessee PAN AABFM5457G
Bench Chennai
Appeal Number ITA 196/CHNY/2010
Duration Of Justice 4 month(s) 21 day(s)
Appellant ACIT, Madurai
Respondent M/s. MVM Subramania Nadar & Sons, Madurai
Appeal Type Income Tax Appeal
Pronouncement Date 09-07-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 09-07-2010
Date Of Final Hearing 30-06-2010
Next Hearing Date 30-06-2010
Assessment Year 2006-2007
Appeal Filed On 18-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BENCH D CHENNAI BEFORE SHRI ABRAHAM P. GEORGE ACCOUNTANT MEMBER AN D SHRI GEORGE MATHAN JUDICIAL MEMBER I.T.A. NOS. 191 192 193 194 195 196 AND 197/MD S/2010 ASSESSMENT YEARS: 2001-02 02-03 03-04 04-05 05 -06 06-07 AND 07-08 THE ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE III MADURAI.. VS. M/S. MVM SUBRAMANIA NADAR & SONS NO. 39 MADURAI MAIN ROAD THIRUMANGALAM MADURAI 625 706. [PAN: AABFM5457G] (APPELLANT) (RESPONDENT) REVENUE BY : SHRI OMKARESHWAR CHIDRA ASSESSEE BY : SHRI M. BALASUBRAMANIYAM O R D E R PER BENCH THESE ARE THE APPEALS FILED BY THE REVENUE AGAINST THE CONSOLIDATED ORDER OF THE LD. CIT(A) II MADURAI IN APPEAL NOS. 209 TO 215/2008-09 DATED 30.11.2009 FOR THE ASSESSMENT YEARS 2001-02 TO 2007 -08. SHRI OMKARESHWAR CHIDRA LD. CIT DR REPRESENTED ON BEHALF OF THE REV ENUE AND SHRI M. BALASUBRAMANIYAM CA REPRESENTED ON BEHALF OF THE A SSESSEE. IN THE REVENUES APPEAL THE REVENUE HAS RAISED THE FOLLOWING GROUND S: 1.A. THE ORDER OF THE LD. CIT(A) GRANTING RELIEF TOWARDS ADDITION ON ACCOUNT OF UNACCOUNTED SALES IS CONTRARY TO LAW AN D OPPOSED TO THE FACTS OF THE CASE. 1.B. THE CIT(A) HAS HELD THAT THE ADDITION WAS BASE D ON CONJUNCTURE SUSPICION AND SURMISES. BUT HE HAS I GNORED THAT THE FACT OF UNACCOUNTED SALES ON RETAIL CUSTOMERS WAS ADMITTED BY THE MANAGER AND IS IN CONFORMITY WITH THE MARKET TREND WHERE RETAIL CUSTOMERS HARDLY INSIST FOR BIL LS. FURTHER SINCE THESE BILLS HAVE NOT BEEN ISSUED AND ACCOUNT ED FOR THAT DOES NOT MEAN THAT THE ASSESSEE IS ENGAGED IN WHOS ESALE BUSINESS ONLY ESPECIALLY WHEN THE MANAGER HIMSELF HAS STATED THE FACTS CONTRARY TO THE CONCLUSION OF CIT (A). 1.C. THE CIT(A) OUGHT TO HAVE NOTED THAT THE JURISD ICTIONAL HIGH COURT IN THE CASE OF P. GOVINDASAMY VS. CIT 244 IT R 510 (MDS) AND THE GUJARAT HIGH COURT IN THE CASE OF RA MILABEN I.T.A. NO I.T.A. NO I.T.A. NO I.T.A. NOS SS S. .. . 191 TO 197 191 TO 197 191 TO 197 191 TO 197/MDS/ /MDS/ /MDS/ /MDS/1 11 10 00 0 2 RATILAL SHAH VS. CIT 282 ITR 178 HAVE HELD THAT AD MISSION MADE DURING THE COURSE OF SEARCH BY WAY OF SWORN S TATEMENT IS AN ADMITTED FACT AND NEED NOT BE PROVED. 2. THE APPELLANT CRAVES LEAVE TO ADD TO AMEND OR ALTER THE ABOVE GROUNDS OF APPEAL AS MAY BE DEEMED NECESSARY . 2. THE GROUNDS RAISED ARE IDENTICAL FOR ALL THE YEA RS. AT THE TIME OF HEARING IT WAS FAIRLY AGREED BY BOTH THE SIDES THAT THE ISSUES IN THESE APPEALS WERE SQUARELY COVERED BY THE DECISION OF THE COORDINATED BENCH OF THIS TRIBUNAL IN THE SISTER CONCERNS CASE OF THE ASSESSEE M/S. SUSEE AG ENCIES IN I.T.A. NOS. 1301 TO 1307/MDS/2009 DATED 29.01.2010 WHEREIN THE COORDIN ATED BENCH HAS HELD AS FOLLOWS: 5. AFTER GIVING OUR THOUGHTFUL CONSIDERATION TO T HE FACTS EVIDENCES AND LEGAL POSITION ON THE ISSUE WE HAVE CLEARLY NO TED THAT AS PER THE ASSESSMENT M/S SUSEE AGENCIES IS A WHOLESALE DEAL ER IN CIGARETTES ETC. WHICH IS CLEARLY EVIDENT FROM COLUMN NO.10 OF THE HEADING OF ASSESSMENT ORDER. THE STATEMENT WAS NOT RECORDED A S STATED BY THE LD. AR DURING SEARCH BUT IT WAS RECORDED DURING SURVEY . IN VIEW OF THE HON'BLE MDRAS HIGH COURT DECISION IT IS SETTLED LE GAL POSITION THAT THE DEPARTMENT IS NOT EMPOWERED TO RECORD SWORN STATEME NT DURING SURVEY. IN ANY CASE EVEN IF THIS STATEMENT IS CON SIDERED IT IS NOT OF ANY HELP TO THE CASE OF THE DEPARTMENT BECAUSE IN T HAT CASE THE ADMISSION IS REGARDING RETAIL SALES AND NOT WHOLESA LE. ADMITTEDLY THE ASSESSEE IS ENGAGED IN WHOLESALE BUSINESS OF CIGARE TTES ETC. THE ASSESSING OFFICER HAS NOT MENTIONED ANYTHING REGARD ING THE BOOKS OF ACCOUNT. IN ANY CASE EVEN IF THE ASSESSEE HAD IND ULGED IN RETAIL SALES FOR WHICH SOME BILLS WERE NOT ISSUED THE BOOKS OF ACCOUNT OF THE ASSESSEE ARE DULY AUDITED AND THE ASSESSING OFFICER HAS NOT POINTED OUT ANY UNACCOUNTED SALES THEREIN. DURING THE COURS E OF SURVEY PHYSICAL STOCK OF PRODUCTS AVAILABLE IN THE BUSINES S PREMISES WAS TAKEN BY THE OFFICERS OF THE DEPARTMENT AND NO DISC REPANCY WAS EITHER NOTICED OR POINTED OUT BY THEM WITH RESPECT TO STOC K REGISTER MAINTAINED BY THE ASSESSEE FIRM. THE ASSESSEE FIRM IS ALSO SUBJECTED TO SALES TAX AND THE SALES TAX ASSESSMENT ORDERS WERE EXAMINED BY THE LD. CIT(A) IN WHICH NO DEFICIENCY WAS NOTICED OR PO INTED OUT. THIS FACT HAS NOT BEEN CONTROVERTED BY THE LD. DR DURING THE COURSE OF HEARING. ALL THE PURCHASES WERE FOUND TO BE COVERED BY PURCH ASE BILLS AND ALL I.T.A. NO I.T.A. NO I.T.A. NO I.T.A. NOS SS S. .. . 191 TO 197 191 TO 197 191 TO 197 191 TO 197/MDS/ /MDS/ /MDS/ /MDS/1 11 10 00 0 3 THE SALES WERE FOUND TO BE COVERED BY SALES BILLS B Y THE SALES TAX AUTHORITIES. CONSEQUENTLY WE ALSO OBSERVE THAT THE ADDITIONS TO THE RETURNED INCOME MADE BY THE ASSESSING OFFICER FOR A LL THESE YEARS ARE NOT PROPERLY SUPPORTED BY ANY PLAUSIBLE EVIDENCE. W ITHOUT ANY BASIS NO SUCH ADHOC ADDITION CAN BE MADE. THESE ADDITIONS ARE SIMPLY BASELESS AND DESERVE TO BE DELETED. HENCE THE LD. CIT(A) HAS CORRECTLY DELETED THEM. WE UPHOLD THE IMPUGNED FIND INGS AND CONFIRM THE IMPUGNED DELETIONS. ACCORDINGLY WE CANNOT ALLO W THESE APPEALS OF THE REVENUE. 3. IN THE CIRCUMSTANCES RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATED BENCH OF THIS TRIBUNAL IN THE CASE OF M /S. SUSEE AGENCIES THE FINDING OF THE LD. CIT(A) IS CONFIRMED AND THE APPE ALS OF THE REVENUE ARE DISMISSED. 4. IN THE RESULT ALL THE APPEALS OF THE REVENUE A RE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09.07.2010. SD/- SD/- (ABRAHAM P. GEORGE) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI DATED THE 09.07.2010. VM/- COPY TO : APPELLANT/RESPONDENT/CIT(A)- /CIT /DR