Shashiben Rajendra Jain L/H. of late Rajendra Suganchand Jain, Ahmedabad v. The Addl. CIT, Range-2,, Ahmedabad

ITA 651/AHD/2014 | 2007-2008
Pronouncement Date: 24-04-2014 | Result: Partly Allowed

Appeal Details

RSA Number 65120514 RSA 2014
Assessee PAN AARPJ4275F
Bench Ahmedabad
Appeal Number ITA 651/AHD/2014
Duration Of Justice 1 month(s) 21 day(s)
Appellant Shashiben Rajendra Jain L/H. of late Rajendra Suganchand Jain, Ahmedabad
Respondent The Addl. CIT, Range-2,, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 24-04-2014
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted D
Tribunal Order Date 24-04-2014
Assessment Year 2007-2008
Appeal Filed On 05-03-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH A HMEDABAD (BEFORE SHRI D.K. TYAGI J.M. & SHRI ANIL CHATURVE DI A.M.) I.T. A. NO. 651/AHD/2014 (ASSESSMENT YEAR: 2007-08) SHASHIBEN RAJENDRA JAIN LEGAL HEIR RAJENDRA SUGANCHAN JAIN PROP. M/S. RAJ TRADERS 226 HOLI CHAKLA BHANDERI POLE KALUPUR AHMEDABAD- 380001 V/S THE ADDL. CIT RANGE-2 AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AARPJ 4275 F APPELLANT BY : SHRI ASHWIN C. SHAH A.R. RESPONDENT BY : SHRI K.C. MATHEWS SR. D.R. ( )/ ORDER DATE OF HEARING : 15-04-2014 DATE OF PRONOUNCEMENT : 24 -04-2014 PER SHRI ANIL CHATURVEDI A.M. 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF CIT(A)-XVI AHMEDABAD DATED 08.11.2010 FOR A.Y. 07-08. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS AN INDIVIDUAL RUNNING A PROPRIETARY CON CERN IN THE NAME AND STYLE OF RAJ TRADERS. A SURVEY UNDER SECTION 133A OF THE ACT WAS CARRIED ITA NO 651/AHD/2014 . A.Y. 2007- 08 2 OUT ON 19.01.2007 AT THE BUSINESS PREMISES OF THE A SSESSEE. DURING THE COURSE OF SURVEY STATEMENT OF THE ASSESSEE WAS REC ORDED WHEREIN THE ASSESSEE VOLUNTARILY OFFERED RS. 35 LACS AS INCOME AND ALSO GAVE POST DATED CHEQUES TOWARDS THE PAYMENT OF TAX. LATER ON ASSESSEE FILED RETURN OF INCOME FOR A.Y. 07-08 ON 02.1.2007 DECLARING TOT AL INCOME AT RS. 30 79 643/-. A.O. WAS OF THE VIEW THAT THE INCOME A DMITTED DURING THE COURSE OF SURVEY BY THE ASSESSEE WAS NOT OFFERED AS INCOME IN THE RETURN FILED FOR A.Y. 07-08. THE SUBMISSION OF THE ASSESS EE THAT THE INCOME DECLARED WAS ESTIMATE OF HIS INCOME FOR THE ENTIRE ASSESSMENT YEAR 07-08 AND NOT THE ADDITIONAL INCOME WAS NOT ACCEPTED BY T HE A.O. A.O. WAS OF THE VIEW THAT SINCE THE INCOME HAS BEEN OFFERED VOL UNTARILY DURING THE COURSE OF SURVEY AND ASSESSEE HAD NOT RETRACTED THE STATEMENT THE SUBMISSION OF THE ASSESSEE THAT IT WAS AN ESTIMATE AND NOT AN ADDITIONAL INCOME WAS NOT ACCEPTABLE. HE THEREAFTER MADE ADDI TION OF RS. 35 LACS BEING THE INCOME DECLARED BY THE ASSESSEE DURING TH E COURSE OF SURVEY AND ADDED TO THE INCOME. AGGRIEVED BY THE ORDER OF A.O. ASSESSEE CARRIED THE MATTER BEFORE CIT(A). CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE BY HOLDING AS UNDER:- 2.3 I HAVE CONSIDERED THE SUBMISSION MADE BY THE AP PELLANT AND OBSERVATION OF THE AO. THE PROVISIONS OF SECTION 133A(6) ARE AS UNDER: - (6) IF A PERSON UNDER THIS SECTION IS REQUIRED TO A FFORD FACILITY TO THE INCOME-TAX AUTHORITY TO INSPECT BOOKS OF ACCOUNT OR OTHER DOCU MENTS OR TO CHECK OR VERIFY ANY CASH STOCK OR OTHER VALUABLE ARTICLE OR THING OR T O FURNISH ANY INFORMATION OR TO HAVE HIS STATEMENT RECORDED EITHER REFUSES OR EVADE S TO DO SO THE INCOME-TAX AUTHORITY SHALL HAVE ALL THE POWERS UNDER [SUB-SECT ION (1) OF SECTION 131] FOR ENFORCING COMPLIANCE WITH THE REQUIREMENT MADE FROM THE ABOVE READING IT IS CLEAR THAT HIS STATEM ENT RECORDED UNDER SECTION 133A IS DEEMED TO BE STATEMENT RECORDED UNDER SECTION 131 ( 1). THE STATEMENT IS RECORDED UNDER SECTION 131 HAS ALL THE EVIDENTIARY VALUE AS PER THE CIVIL PROCEDURE CODE AND HENCE THE STATEMENT GIVEN BY THE ASSESSEE DURING TH E SURVEY PROCEEDINGS HAS FULL EVIDENTIARY VALUE. HAVING SAID THAT IT IS ALSO TRUE THAT IF THE STATEMENT IS RECORDED UNDER DURESS OR PRESSURE THEN SUCH A STATEMENT SHOU LD BE RETRACTED OR DRAWN IMMEDIATELY AFTER THE SURVEY PROCEEDINGS. FROM THE CONDUCT OF THE ASSESSEE IT IS CLEAR ITA NO 651/AHD/2014 . A.Y. 2007- 08 3 THAT ASSESSEE HAD NOT ONLY MADE THE STATEMENT BUT H AD NOT RETRACTED IT FOR ALMOST 10 MONTHS BEFORE THE FILING OF INCOME TAX RETURNS. THE ARGUMENT OF THE APPELLANT THAT CHEQUES OF RS. 3.5 LAKH WERE GIVEN TOWARDS ADVANCE TAX PAYMENT ALSO DOES NOT HOLD ANY GROUND BECAUSE THE ASSESSEE HAS SHOWN TOTAL IN COME OF RS. 30.79 LAKH AND THE TAXES ARE PAID MUCH MORE THAN 10.5 LAKH FOR WHICH T HE CHEQUES WERE ISSUED. THE TOTAL PREPAID TAXES ARE RS. 12.5 LAKH AND NOT 10.5 LAKH. IN ANY CASE DURING THE COURSE OF SURVEY AN ESTIMATE OF TOTAL INCOME IS NOT GIVEN. B UT THE ASSESSEE HAD DISCLOSED ADDITIONAL INCOME. TILL THE DATE OF SURVEY THE ASS ESSEE HAD NOT PAID ANY TAX AT ALL. IT IS CLEAR FROM THE QUESTION NUMBER 20 OF THE STATEME NT DURING THE COURSE OF SURVEY ONLY THE UNDECLARED INCOME IS DISCLOSED AND NOT THE DISCLOSED INCOME. THEREFORE THE ARGUMENT OF THE APPELLANT THAT IT HAD DISCLOSED THE ESTIMATED INCOME OF THE FINANCIAL YEAR DOES NOT HOLD ANY GROUND BECAUSE NO SUCH INCOM E NEEDS TO BE DISCLOSED AT ALL. THEREFORE THE DISCLOSURE OF RS. 35 LAKH HAS BEEN C ORRECTLY TAKEN BY THE AO AS UNDISCLOSED INCOME. IT IS SETTLED POSITION OF LAW T HAT IF THE STATEMENT IS NOT WITHDRAWN IMMEDIATELY AFTER THE SURVEY THEN THE STATEMENT HA S EVIDENTIARY VALUE. IN VIEW OF THIS DECISION THE ADDITION MADE BY THE A.O IS CONFIRMED AND THE GROUND OF APPEAL IS DISMISSED. 4. AGGRIEVED BY THE ORDER OF CIT(A) THE ASSESSEE IS N OW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUND:- 1. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 35 00 000 BEING THE DISCLOSURE MADE DURING SURVEY IN AS MUCH AS THE DIS CLOSURE WAS NOT IN RESPECT OF ADDITIONAL INCOME BUT WAS IN RESPECT OF TOTAL INCOM E FOR A.Y. 2007-08 AND THAT ACCORDINGLY THE ADVANCE TAX WAS ALSO PAID. 5. BEFORE US THE REGISTRY INFORMED THAT THERE IS DELA Y IN FILING THE APPEAL BY THE ASSESSEE. BEFORE US ASSESSEE HAS SUBMITTED NO TARIZED AFFIDAVIT EXPLAINING THE REASON FOR DELAY. AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE AND THE AFFIDAVIT FILED WE ARE OF THE VIE W THAT THE DELAY HAS BEEN SUFFICIENTLY EXPLAINED IN THE AFFIDAVIT SUPPOR TING THE APPLICATION FOR CONDONATION OF DELAY AND THUS THE DELAY IS CONDONED . 6. ON MERITS BEFORE US THE LD. A.R. SUBMITTED THAT D URING THE COURSE OF SURVEY THE ASSESSEE HAD ESTIMATED THE INCOME OF RS . 35 LACS FOR THE ENTIRE FINANCIAL YEAR AND HAD ALSO PAID THE ADVANCE TAX ON THE BASIS OF ITA NO 651/AHD/2014 . A.Y. 2007- 08 4 ESTIMATE. HE POINTED TO THE STATEMENT RECORDED UND ER SECTION 133A OF THE ACT TO THE RELEVANT QUESTION AND ANSWER WHICH WERE PLACED AT PAGE 10 OF THE PAPER BOOK. HE FURTHER SUBMITTED THAT THE ASSES SEE IN THE RETURN OF INCOME HAD ADMITTED TO THE GROSS INCOME OF RS. 32 4 9 328/-. BEFORE US THE LD. A.R. FAIRLY SUBMITTED THAT AGAINST THE ADMI TTED INCOME OF RS. 35 LACS AT THE TIME OF SURVEY THE ASSESSEE IN THE RET URN OF INCOME HAS OFFERED INCOME OF RS. 32 49 328/-. HE THEREFORE SUB MITTED THAT THE BALANCE INCOME OF RS. 2 50 672/-( 35 00 000 LESS 32 49 328) BE CONSIDERED INCOME AND THE BALANCE AMOUNT OF RS. 32 49 328/- BE DELETED AS THE SAME IS NOT BASED ON INCRIMINATING MATERIAL BUT IS BASED ONLY ON THE BASIS OF STATEMENT MADE U/S. 133A. HE FURTHER SUBMITTED THAT IT IS A SETTLED LAW THAT THE STATEMENT RECORDED DURING THE COURSE OF SURVEY DOES NOT HAVE ANY EVIDENTIARY VALUE. 7. THE LD. D.R. ON THE OTHER TOOK US THROUGH THE ORDER OF A.O. AND CIT(A) AND SUPPORTED THEIR ORDERS. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT DURING THE COURSE OF SURVEY ASSESSEE ADMITTED TO THE INCOME OF RS. 35 LACS BUT IN THE RE TURN OF INCOME FILED BY THE ASSESSEE THE INCOME OF RS. 32 49 328/- WAS OFFE RED TO TAX. . IT IS ALSO A FACT THAT THE ADDITION OF RS. 35 LACS HAS BEEN MA DE ONLY ON THE BASIS OF ADMISSION MADE BY THE ASSESSEE DURING THE COURSE OF SURVEY. BEFORE US REVENUE HAS NOT BROUGHT ANY MATERIAL ON RECORD TO D EMONSTRATE THAT THE ADDITION OF RS. 35 LACS MADE BY THE A.O. IS BACKED BY TANGIBLE MATERIAL APART FROM THE STATEMENT RECORDED DURING THE COURSE OF SURVEY. CONSIDERING THE AFORESAID FACTS MORE SO WHEN LD. A.R. HAS ADMITTED TO ITA NO 651/AHD/2014 . A.Y. 2007- 08 5 CONFIRMATION OF THE ADDITION OF THE DIFFERENTIAL AM OUNT WE ARE OF THE VIEW THAT IN THE PRESENT CASE THE ADDITION BE RESTRICTE D TO RS. 2 50 672/- BEING THE SHORTFALL IN THE AMOUNT ADMITTED DURING THE COU RSE OF SURVEY AND AS DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME. T HUS THIS GROUND OF THE ASSESSEE IS PARTLY ALLOWED. 9. IN THE RESULT THE APPEAL OF ASSESSEE IS PARTLY ALLO WED. ORDER PRONOUNCED IN OPEN COURT ON 24 - 04 - 2014. SD/- SD/- (D.K. TYAGI) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR. ITAT AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT AHM EDABAD