RADHEY SHYAM MURARI LAL, Alwar v. ITO, Alwar

ITA 432/JPR/2013 | 2004-2005
Pronouncement Date: 11-07-2013 | Result: Partly Allowed

Appeal Details

RSA Number 43223114 RSA 2013
Assessee PAN AACFR0036K
Bench Jaipur
Appeal Number ITA 432/JPR/2013
Duration Of Justice 2 month(s) 18 day(s)
Appellant RADHEY SHYAM MURARI LAL, Alwar
Respondent ITO, Alwar
Appeal Type Income Tax Appeal
Pronouncement Date 11-07-2013
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted SMC
Tribunal Order Date 11-07-2013
Date Of Final Hearing 10-07-2013
Next Hearing Date 10-07-2013
Assessment Year 2004-2005
Appeal Filed On 23-04-2013
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH SMC JAIPUR BEFORE SHRI B.R. JAIN ACCOUNTANT MEMBER ITA NO. 432/JP/20123 ASSESSMENT YEAR: 2004-05 PAN NO. AACFR0036K M/S RADHEY SHYAM MURARI LAL VS. THE INCOME TAX OF FICER CLOTH MARKET ALWAR WARD 1(4) ALWAR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI KRANTI MEHTA RESPONDENT BY : MS. ANITA RITESH DATE OF HEARING : 10.07.2013 DATE OF PRONOUNCEMENT : 11.07.2013 ORDER PER B.R. JAIN A.M. THIS APPEAL BY ASSESSEE AGAINST THE ORDER DATED 20 TH FEBRUARY 2013 OF LD. CIT (APPEALS) ALWAR RAISES THE FOLLOWING GROUNDS :- 1. THAT THE LD. CIT (APPEALS) ALWAR ERRED IN SUST AINING THE ADDITION OF RS. 2 59 949/- U/S 69B ON ACCOUNT OF ALLEGED 678 GMS. O F GOLD ORNAMENTS MADE BY THE ITO WARD 1(4) ALWAR EVEN WHEN UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THERE WAS NO JUSTIFICATIO N FOR SUSTAINING THE IMPUGNED ADDITION. THE CIT(APPEALS) AS WELL AS THE ASSESSING OFFICER ERRED IN NOT APPRECIATING THE REPLY GIVEN BY THE AP PELLANT IN THIS REGARD IN SPITE OF THE FACT THAT THE REPLY SUBMITTED W3AS REL IABLE AND BASED ON RECORDS. ACCORDINGLY THE IMPUGNED ADDITION OF RS. 2 59 949/- DESERVES TO BE DELETED. 2. THAT THE LD. CIT(APPEALS) ALWAR ERRED IN SUSTAI NING PART TRADING ADDITION OF RS. 17 820/- WHICH WAS MADE BY THE ASSESSING OFF ICER BY INVOKING THE PROVISION OF SECTION 145(3) BY ESTIMATING THE SALES AND BY APPLYING ARBITRARY G.P. RATE EVEN WHEN THE APPELLATE HAD MA INTAINED PROPER BOOKS OF ACCOUNT AND THERE WAS NO JUSTIFICATION FOR REJEC TING THE SAME AND SUSTAINING THE IMPUGNED ADDITION. 2 3. THAT THE LD. CIT (APPEALS) ALWAR ERRED IN SUSTA INING THE ADDITION OF RS. 6500/- IN MAJDOORI RECEIPTS EVEN WHEN THE MAJDOORI RECEIPTS WERE FULLY VOUCHED AND THERE WAS NO JUSTIFICATION FOR SUSTAINI NG THE IMPUGNED ADDITION. 4. THAT THE LD. CIT(APPEALS) ALWAR ERRED IN SUSTAI NING THE DISALLOWANCE OF RS. 3000/- IN SHOP EXPENSES EVEN WHEN FULL DETAILS AND EVIDENCES OF THE SHOP EXPENSES OF RS. 15 012/- DEBITED IN P & L A/C WERE AVAILABLE WITH THE APPELLANT. 5. THAT THE APPELLANT PRAYS TO ADD OR ALTER ANY GRO UND OF APPEAL AT OR BEFORE THE TIME OF HEARING. 2. BRIEFLY THE FACTS ARE THAT THE ASSESSEE RETURNED INCOME OF RS. 34 720/- FROM THE BUSINESS OF SALE AND PURCHASE OF SILVER AND GOLD OR NAMENTS. A SURVEY U/S 133A OF THE ACT WAS CARRIED AT BUSINESS PREMISES OF THE ASSESSEE ON 09/10/2003 WHEREIN CERTAIN DISCREPANCIES IN STOCK WERE NOTICED. IN RESPECT OF GOLD ORNAMENTS THE ASSESSING OFFICER NOTICED THAT GOLD WEIGHING 0.678 GMS. WAS FOUND EXC ESS AT THE TIME OF SURVEY. THIS WAS VALUED AT A RATE OF RS. 4700/- PER 10 GMS. THE ASSE SSEE HAD SURRENDERED GOLD OF THE VALUE OF RS. 58 711/- AS HIS INCOME IN THE RETURN OF INCO ME FILED AFTER THE DATE OF SURVEY. THE DIFFERENCE OF RS. 2 59 949/- WAS TREATED AS ASSESSE ES INCOME FROM UNDECLARED INVESTMENT BY APPLICATION OF PROVISION OF SECTION 69B OF THE A CT AS THE ASSESSEE WAS NOT ABLE TO PRODUCE THE PARTIES FROM WHOM IT CLAIMED TO HAVE RE CEIVED OLD GOLD ORNAMENTS FOR REMAKING PURPOSES AND THE REGISTER FOUND AS A RESUL T OF SURVEY DID NOT REVEAL IDENTITY OF SUCH PERSONS EVEN THOUGH THE QUANTITY SO CLAIMED T O HAVE BEEN RECEIVED FOR REMAKING PURPOSES WERE DULY RECORDED ALONGWITH REMAKING CHAR GES RECEIVED BY THE ASSESSEE. 3. THE LD. CIT(A) CONFIRMED THE ADDITION OF RS. 2 5 9 949/- MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN BALANCE OF THE GOLD WEIGH ING 547 GMS. AS NO CONFIRMATION 3 FROM THE CUSTOMERS WHO WERE CLAIMED TO HAVE LEFT T HEIR OLD ORNAMENTS FOR REMAKING PURPOSES WAS FILED BEFORE THE ASSESSING OFFICER NOR THEY WERE PRODUCED BEFORE HIM. 4. SHRI KRANTI MEHTA LEARNED COUNSEL FOR THE ASSES SEE CONTENDS THAT THE LD. CIT(A) HAS FALLEN IN ERROR IN CONFIRMING THE ADDITION OF R S. 2 59 949/- TOWARDS UNEXPLAINED INVESTMENT IN THE OLD GOLD ORNAMENTS FOUND AS A RES ULT OF SURVEY. THESE ORNAMENTS WERE RECEIVED BY THE ASSESSEE FROM ITS CUSTOMERS AND THE IR NAMES QUANTITY RECEIVED AND JOB CHARGES RECEIVED WERE DULY RECORDED ALONGWITH DATE OF RECEIPT AND DATE OF RETURN OF SUCH GOLD ORNAMENTS AFTER REMAKING OF THE ORNAMENTS. THE ASSESSING OFFICER ACCEPTED THE MAKING CHARGES AS ASSESSEES INCOME BUT DID NOT ACC EPT THE EXPLANATION ABOUT THE AVAILABILITY OF SUCH ORNAMENTS WITH THE APPELLANT. UNDER SUCH CIRCUMSTANCES THE ADDITION MADE IS REQUIRED TO BE DELETED. 5. ON THE OTHER HAND LD. DEPARTMENTAL REPRESENTATI VE PLACED STRONG RELIANCE ON THE FINDINGS AND CONCLUSIONS REACHED BY THE AUTHORITIES BELOW. 6. HEARD PARTIES WITH REFERENCE TO MATERIAL ON RECO RD. PRIMARY EVIDENCE IN THE SHAPE OF MAKING CHARGES REGISTER IN WHICH THE DATE OF REC EIPT NAME OF CUSTOMERS QUANTITY OF OLD GOLD ORNAMENTS JOB CHARGES RECEIVED AND DATE O F RETURN OF GOLD ORNAMENTS AFTER REMAKING WERE FOUND AS A RESULT OF SURVEY. THUS TH E PRIMARY EVIDENCE HAD COME ON RECORD TO SUBSTANTIATE THE ASSESSEE CLAIM THAT REMA KING OF ORNAMENTS IS PART OF HIS BUSINESS. THE ASSESSING OFFICER HIMSELF HAD ACCEPTE D THE REMAKING CHARGES RECEIVED FROM THE AFORESAID NINE PERSONS AS ASSESSEES INCOM E FROM BUSINESS AS UNDER:- SL. NO. NAME WEIGHT (GM.) REMAKING CHARGES (GHADAI MAJDOORI) BILL NO. CASH BOOK FOLIO 1. HARI SHANKAR GUPTA 78.500 780 1343 38 2. KEDAR SHARMA 70.370 700 1347 39 3. SHUBHAS GUPTA 72.600 720 1344 38 4 4. SMT. SHEELA DEVI 41.400 410 1342 38 5. HARVEER SINGH CHOUDHARY 75.900 750 1341 38 6. HANUMAN SINGH RAJPUT 50.400 500 1345 38 7. SOHANLAL 56.470 560 1339 38 8. DEENA NATH GUPTA 60.190 600 1346 39 9. SMT. SAVITRI SOMVANSHI 41.500 410 1340 38 MERELY BECAUSE THE ASSESSEE WAS NOT ABLE TO PRODU CE SUCH PARTIES DOES NOT GIVE JURISDICTION TO REJECT THE VALID EXPLANATION G IVEN BY THE APPELLANT. UNDER THE PECULIAR FACT THAT THE RECEIPT OF REMAKING CHARGES STOOD ADM ITTED I FIND NO JUSTIFICATION IN SUSTENANCE OF ADDITION OF RS. 2 59 949/- WHICH I H EREBY DIRECT TO DELETE AND ALLOW THE GROUND NO. 1 RAISED IN APPEAL. 7. GROUNDS NO. 2 TO 4 RAISED IN APPEAL HAVE NOT BEE N PRESSED THEREFORE THE SAME ARE DISMISSED AS NOT PRESSED. 8. IN THE RESULT THE APPEAL BY THE ASSESSEE STANDS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/07/2013. SD/- (B.R. JAIN) ACCOUNTANT MEMBER JAIPUR DATED : 11.07.2013 * RANJAN COPY FORWARDED TO :- 1. M/S RADHEY SHYAM MURARI LAL ALWAR. 2. THE ITO WARD 1(4) ALWAR 3. THE CIT (A) 4. THE CIT 5. THE D/R GUARD FILE (ITA NO. 432/JP/2013) BY ORDER AR ITAT JAIPUR.