ACIT, Ernakulam v. Hotel Ashoka, Alappuzha

ITSSA 177/COCH/2005 | misc
Pronouncement Date: 21-11-2014 | Result: Partly Allowed

Appeal Details

RSA Number 17721916 RSA 2005
Bench Cochin
Appeal Number ITSSA 177/COCH/2005
Duration Of Justice 9 year(s) 25 day(s)
Appellant ACIT, Ernakulam
Respondent Hotel Ashoka, Alappuzha
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 21-11-2014
Appeal Filed By Department
Order Result Partly Allowed
Bench Allotted DB
Tribunal Order Date 21-11-2014
Date Of Final Hearing 12-11-2014
Next Hearing Date 12-11-2014
Assessment Year misc
Appeal Filed On 27-10-2005
Judgment Text
1 IT(SS)A NO.177/COCH/2005 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI CHANDRA PO OJARI (AM) I.T(SS)A NO. 177/COCH/2005 (BLOCK PERIOD 01-04-1990 TO 06-05-1999) ACIT CIR.1(2) VS HOTEL ASHOKA ERNAKULAM NEAR BRIDGE ALLEPPEY PAN : NOT AVAILABLE (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI M ANIL KUMAR CIT RESPONDENT BY : SHRI MATHEW JOSPEH DATE OF HEARING : 12-11-2014 DATE OF PRONOUNCEMENT : 21-11-2014 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE ASSESSEE WAS DISPOSED OF EARLIE R BY AN ORDER DATED 16-12-2011. HOWEVER THE REVENUE FILED MISCE LLANEOUS APPLICATION IN M.A. NO.138/COCH/2013 ON THE GROUND THAT GROUNDS NO.12 AND 13 WERE NOT DISPOSED OF. ACCORDINGLY THE APPEAL WAS RESTO RED ON FILE BY AN ORDER DATED 24-01-2014 IN M.A. NO.138 & 139/COCH/2013. A CCORDINGLY THE APPEAL WAS POSTED FOR HEARING ONLY FOR THE PURPOSE OF DISPOSAL OF GROUNDS 12 & 13. 2 IT(SS)A NO.177/COCH/2005 2. SHRI M. ANIL KUMAR THE LD.DR SUBMITTED THAT GRO UND NO.12 IS WITH REGARD TO EXCLUSION OF SALE PROCEEDS OF EMPTY BOTTL ES FROM UNDISCLOSED INCOME. REFERRING TO THE ASSESSMENT ORDER THE LD. DR SUBMITTED THAT THE PROFIT & LOSS ACCOUNT OF THE ASSESSEE DOES NOT SHOW ANY INCOME FROM SALE OF EMPTY BOTTLES. IN THE EARLIER ASSESSMENT YEARS THE ASSESSEE HAS SHOWN SALE PROCEEDS OF EMPTY BOTTLES TO THE EXTENT OF RS.72 465. THESE SALE PROCEEDS OF RS.72 465 WAS DISCLOSED WHEN THE T URNOVER OF THE LIQUOR WAS RS.2 CRORES. FOR THE YEAR UNDER CONSIDERATION THE TURNOVER OF THE LIQUOR WAS RS.2 38 25 804. THEREFORE THE ASSESSIN G OFFICER ESTIMATED THE SALE PROCEEDS OF EMPTY BOTTLES AT RS.1 LAKH. HOWEV ER THE CIT(A) WITHOUT ANY REASON HAS DELETED THE ADDITION MADE BY THE ASS ESSING OFFICER. 3. ON THE CONTRARY SHRI MATHEW JOSEPH THE LD.REPR ESENTATIVE FOR THE ASSESSEE SUBMITTED THAT IN THE PROFIT & LOSS ACCOUN T OF THE EARLIER YEAR THE ASSESSEE HAS SHOWN THE SALE PROCEEDS OF EMPTY BOTTL ES AT RS.72 465. SINCE THERE WAS NO SALE OF BOTTLES DURING THE YEAR UNDER CONSIDERATION I.E. ASSESSMENT YEAR 1998-99 THE SAME WAS NOT DISCLOSED . ACCORDING TO THE LD.REPRESENTATIVE IN THE ABSENCE OF ANY SALE OF BO TTLES THERE IS NO QUESTION OF ANY ESTIMATION OF SALE PROCEEDS OF EMPTY BOTTLES . MOREOVER ACCORDING TO THE LD.DR THIS IS A BLOCK ASSESSMENT FRAMED U/S 158BC OF THE ACT. THEREFORE THE ASSESSING OFFICER HAS TO CONFINE HIM SELF ONLY TO SEIZED MATERIAL FOUND DURING THE COURSE OF SEARCH OPERATIO N. 3 IT(SS)A NO.177/COCH/2005 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ADDI TION OF RS.1 LAKH WAS MADE ON ESTIMATE BASIS ONLY ON THE GROUND THAT THE ASSESSEE HAS NOT DISCLOSED THE SALE PROCEEDS OF THE EMPTY BOTTLES FO R THE ASSESSMENT YEAR 1998-99. WHEN THE ASSESSEE CONTENDS THAT NO BOTTLE S WERE SOLD AND WHEN NO EVIDENCE WAS FOUND DURING THE COURSE OF SEA RCH OPERATION THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THERE CA NNOT BE ANY ADDITION. ASSESSMENT IS ADMITTEDLY FRAMED U/S 158BC OF THE AC T. THEREFORE IN VIEW OF THE LANGUAGE EMPLOYED BY THE PARLIAMENT IN SECTI ON 158BB(1) THE ASSESSING OFFICER HAS TO NECESSARILY CONFINE HIMSEL F TO THE EVIDENCE FOUND DURING THE COURSE SEARCH OPERATION. IN THE ABSENCE OF ANY EVIDENCE FOUND DURING THE COURSE OF SEARCH OPERATION THIS TRIBUNA L IS OF THE CONSIDERED OPINION THAT THERE CANNOT BE ANY ADDITION ONLY BECA USE THE ASSESSEE HAS DISCLOSED SALE PROCEEDS IN THE EARLIER ASSESSMENT Y EAR. THEREFORE THIS TRIBUNAL DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LOWER AUTHORITY. THE SAME IS CONFIRMED. 5. NOW COMING TO GROUND NO.13 SHRI M ANIL KUMAR T HE LD.DR SUBMITTED THAT THE CIT(A) DIRECTED THE ASSESSING OF FICER TO ALLOW 15% REDUCTION ON THE UNDISCLOSED INCOME RETURNED BY THE ASSESSEE. ACCORDING TO THE LD.DR AT THE BEST THE CIT(A) CAN DELETE TH E ADDITION MADE BY THE 4 IT(SS)A NO.177/COCH/2005 ASSESSING OFFICER. THE DELETION MADE BY THE CIT(A) CANNOT GO BELOW THE RETURNED INCOME. THEREFORE THE DISALLOWANCE OF 15 % MADE BY THE CIT(A) CANNOT BE SUSTAINED. 6. WE HEARD SHRI MATHEW JOSEPH THE LD.REPRESENTATI VE FOR THE ASSESSEE ALSO. IN RESPECT OF MESS EXPENSES AND THE EXPENDITURE FOR RUNNING BAR CUM RESTAURANT THE ASSESSING OFFICER D ISALLOWED THE EXPENDITURE AT 75%. HOWEVER THE CIT(A) RESTRICTED THE SAME TO 15% OF THE PROFIT SHOWN. FINALLY THE CIT(A) DIRECTED 15% REDUCTION FROM THE UNDISCLOSED INCOME RETURNED BY THE ASSESSEE. AS RI GHTLY SUBMITTED BY THE LD.DR THE CIT(A) CANNOT REDUCE THE INCOME BELOW TH E RETURNED INCOME. IF THE ASSESSEE CLAIMS THAT THE INCOME WHICH IS NOT OT HERWISE TAXABLE WAS INCLUDED IN THE TOTAL INCOME THEN THE CIT(A) OR OTH ER APPELLATE AUTHORITIES MAY REDUCE THE RETURNED INCOME. FOR EXAMPLE IF AN AGRICULTURAL INCOME IS TAKEN AS TAXABLE INCOME IN COMPUTING THE TOTAL INCO ME THEN THE MISTAKE COMMITTED BY THE ASSESSEE IN THE SELF ASSESSMENT BY INCLUDING THE AGRICULTURAL INCOME IN THE TOTAL INCOME CANNOT BE T AKEN ADVANTAGE OF BY THE ASSESSING OFFICER. THEREFORE IF SUCH AGRICULT URAL INCOME INCLUDED IN THE TOTAL INCOME IS DELETED THE SAME MAY BE JUSTIFIED EVEN IF THE TAXABLE INCOME GOES BELOW THE RETURNED INCOME. HOWEVER IN THIS CASE THAT IS NOT THE ISSUE. HERE THE ISSUE PERTAINS TO DISALLOWANCE OF EXPENSES. THEREFORE WHEN THE CIT(A) DIRECTED FOR RESTRICTION OF DISALLOWANCE OF 5 IT(SS)A NO.177/COCH/2005 EXPENSES AT 15% THE TOTAL INCOME THUS COMPUTED WOU LD GO BELOW THE RETURNED INCOME. THEREFORE WHILE CONFIRMING THE O RDER OF THE CIT(A) RESTRICTING THE DISALLOWANCE OF EXPENSES AT 15% TH E ASSESSING OFFICER IS DIRECTED TO ADOPT THE RETURNED INCOME IF THE TOTAL INCOME SO COMPUTED AFTER MAKING DISALLOWANCE OF EXPENSES AT 15% IS LESS THAN THE INCOME DISCLOSED BY THE ASSESSEE. TO THAT EXTENT THE ORDER OF THE C IT(A) IS MODIFIED. 7. THE ORDER OF THIS TRIBUNAL DATED 16-12-2011 IN R ESPECT OF OTHER ISSUES SHALL REMAIN AS SUCH. 8. IN THE RESULT THE APPEAL OF THE REVENUE IS PART LY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 21 ST NOVEMBER 2014. SD/- SD/- (CHANDRA POOJARI) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN DT : 21 ST NOVEMBER 2014 PK/- COPY TO: 1. THE ACIT CIR.1(2) ERNAKULAM 2. HOTEL ASHOKA NEAR BRIDGE ALLEPPY 3. THE COMMISSIONER OF INCOME-TAX KOCHI 4. THE COMMISSIONER OF INCOME-TAX(A)-II KOCHI 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR INCOME-TAX APPELLATE TRIBUNAL COCHIN BENCH