M/s. Vijesh Pritamsingh Jamadar, Bharuch v. The ACIT.,Cent.Circle-2,, Baroda

ITSSA 542/AHD/2010 | 2004-2005
Pronouncement Date: 13-01-2011 | Result: Dismissed

Appeal Details

RSA Number 54220516 RSA 2010
Assessee PAN ACHPJ7661F
Bench Ahmedabad
Appeal Number ITSSA 542/AHD/2010
Duration Of Justice 7 month(s) 5 day(s)
Appellant M/s. Vijesh Pritamsingh Jamadar, Bharuch
Respondent The ACIT.,Cent.Circle-2,, Baroda
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 13-01-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 13-01-2011
Assessment Year 2004-2005
Appeal Filed On 07-06-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL : B BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA J.M. & HON' BLE SHRI N.S. SAINI A.M. ) I.T.(S.S.)A. NO. 542/AHD./2010 ASSESSMENT YEAR : 2004-2005 VIJESH PRITAMSINGH JAMADAR -VS.- ASSISTANT C OMMISSIONER OF INCOME TAX BHARUCH (PAN : ACHPJ 7661 F) CENTRAL CIRCLE-2 BA RODA (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MEHUL K. PATEL RESPONDENT BY : SHRI ALOK JOHRI CIT (D .R.) O R D E R PER SHRI T.K. SHARMA JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER DATED 26.03.2010 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV AHMEDABAD FOR THE ASSESSMENT YEAR 2004-05. 2. VARIOUS GROUNDS RAISED BY THE ASSESSEE IN HIS AP PEAL ARE AS UNDER :- 1. THAT THE LD. LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS GRIEVOUSLY ERRED IN NOT AFFORDING SUFFICIENT OPPORT UNITY OF PERSONAL HEARING AND HAS ERRED IN DECIDING THE APPEAL ON THE BASIS OF WRITTE N SUBMISSIONS. (2) THAT ON FACTS AND IN LAW THE LEARNED CIT (APPEA LS) HAS GRIEVOUSLY ERRED IN CONFIRMING THE ADDITION OF RS.32 000/- MADE ON ACCO UNT OF LOW HOUSEHOLD WITHDRAWALS. (3) THAT THE LEARNED CIT (APPEALS) HAS GRIEVOUSLY E RRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.22 100/- MADE ON ACCO UNT OF UNEXPLAINED JEWELLERY. 3. AT THE TIME OF HEARING BEFORE US ON BEHALF OF A SSESSEE SHRI MEHUL K. PATEL LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE CONTENDED THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) PASSED THE IMPUGNED ORDER WITHOUT AFFO RDING SUFFICIENT OPPORTUNITY OF PERSONAL HEARING TO THE ASSESSEE. THEREFORE THE ORDER OF LE ARNED COMMISSIONER OF INCOME TAX (APPEALS) BE SET ASIDE AND HE BE DIRECTED TO RE-DECIDE THE AP PEAL AFTER ALLOWING PERSONAL OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 2 IT(SS)A NO. 542-AHD-2010 4. ON THE OTHER HAND SHRI ALOK JOHRI LD. CIT(D.R. ) APPEARING ON BEHALF OF THE REVENUE OBJECTED TO THE PRAYER OF THE ASSESSEE. HE POINTED OUT THAT SUFFICIENT OPPORTUNITY WAS ALLOWED. THE ASSESSEE FILED THE WRITTEN SUBMISSIONS. THESE W ERE DULY CONSIDERED IN PASSING THE IMPUGNED ORDER THEREFORE NO USEFUL PURPOSE WILL BE SERVED IN GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE. HE ACCORDINGLY CONTENDED THAT THE GROUND NO. 1 BE D ISMISSED. 5. ON MERIT THE LD. COUNSEL OF THE ASSESSEE POINTE D OUT THAT DISALLOWANCE OF RS.32 000/- MADE ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS IS HIG HLY EXCESSIVE AND UNREASONABLE. APART FROM THIS WITH REGARD TO GROUND NO. 3 HE CONTENDE D THAT THE ASSESSEE HAS RETRACTED THE STATEMENT MADE AT THE TIME OF SEARCH THEREFORE TH E ADDITION OF RS.22 100/- CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IN THE IMPUGNED ORDER BE DELETED. ON THE OTHER HAND THE LD. D.R. VEHEMENTLY SUPPORTED THE ORDER O F LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IN RESPECT OF GROUNDS NO. 2 AND 3. 6. HAVING HEARD BOTH THE SIDES WE HAVE CAREFULLY G ONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT THE LEARNED COM MISSIONER OF INCOME TAX (APPEALS) HAS ALLOWED ADEQUATE OPPORTUNITY TO THE ASSESSEE TO REP RESENT HIS CASE PERSONALLY OR THROUGH LD. AUTHORIZED REPRESENTATIVE. ALL THE WRITTEN SUBMISSI ONS FILED BY THE ASSESSEES LD. COUNSEL DURING THE COURSE OF HEARING HAS BEEN DULY CONSIDERED BY T HE LD. LEARNED COMMISSIONER OF INCOME TAX (APPEALS). IN THESE CIRCUMSTANCES IT CANNOT BE SAI D THAT NO SUFFICIENT OPPORTUNITY IS ALLOWED. RESULTANTLY GROUND NO. 1 OF ASSESSEES APPEAL IS A CCORDINGLY REJECTED. 7. IN THE ASSESSMENT ORDER THE ASSESSING OFFICER M ADE THE ADDITION OF RS.32 000/- ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS. THE SUBMISSIO NS OF THE ASSESSEE WHICH WERE FILED BEFORE THE ASSESSING OFFICER AND LEARNED COMMISSIONER OF I NCOME TAX (APPEALS) WERE DULY CONSIDERED BY THE LEARNED COMMISSIONER OF INCOME TA X (APPEALS). THE ASSESSING OFFICER HAS ESTIMATED THE HOUSEHOLD EXPENSES @ RS.8 500/- PER M ONTH. THE FAMILY OF THE ASSESSEE CONSISTS OF SEVEN MEMBERS WHERE ONE OF THE CHILDREN IS SCHOOL G OING. IN THESE CIRCUMSTANCES THE ASSESSING OFFICER WAS MORE THAN REASONABLE IN ESTIMATING THE HOUSEHOLD EXPENSES AND THEREBY MAKING THE ADDITION OF RS.32 000/- ON ACCOUNT OF LOW WITHDRAWA LS FOR HOUSEHOLD EXPENSES FOR THE YEAR UNDER 3 IT(SS)A NO. 542-AHD-2010 CONSIDERATION. WE THEREFORE DECLINE TO INTERFERE. RESULTANTLY GROUND NO. 2 IS ACCORDINGLY REJECTED. 8. IN THE ASSESSMENT ORDER THE ASSESSING OFFICER H AS MENTIONED THAT THE ASSESSEE HAS PURCHASED JEWELLERY OF RS.22 100/- AS PER ENTRIES R ECORDED IN PAGE 12 OF ANNEXURE-A-1 SEIZED DURING THE COURSE OF SEARCH AT THE RESIDENCE OF THE ASSESSEE. DURING THE SEARCH THE ASSESSEE IN HIS STATEMENT ADMITTED THAT THESE PURCHASES WERE MADE F ROM UNACCOUNTED EXPENDITURE. HOWEVER DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS CONTENDED THAT THE SAME ARE ACCOUNTED FOR IN THE PERSONAL BOOKS OF ACCOUNTS. THE ASSESSING OFFIC ER REJECTED THIS STAND. 9. ON APPEAL IN THE IMPUGNED ORDER THE LEARNED CO MMISSIONER OF INCOME TAX(APPEALS) UPHELD THE ACTION OF ASSESSING OFFICER FOR THE DETA ILED REASONS GIVEN IN PARA 3.1 WHICH ARE REPRODUCED HEREUNDER :- 3.1. I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE LD. COUNSEL AND THE FACTS OF THE CASE AS WELL AS THE FINDING OF THE ASSESSING OFFICER. THE LD. COUNSEL HAS FURNISHED THE SAME SUBMISSION A S WAS FURNISHED BEFORE THE ASSESSING OFFICER AND THE SAME WAS CONSI DERED BY HER. THERE IS NO DISPUTE ON THE RECOVERY OF PURCHASE BILLS OF JEWELLERY FROM THE RESIDENCE OF THE ASSESSEE DURING THE COURSE OF SEAR CH. NO PERSO0NAL BOOKS OF ACCOUNT WERE RECOVERED DURING THE COURSE O F SEARCH OR SURVEY AT ANY OF THE PREMISES. THE APPELLANT HAD ADMITTRED DURING THE COURSE OF SEARCH IN HIS STATEMENT THAT THESE PURCHASES WER E MADE FROM UNACCOUNTED INCOME AND THE EXPENDITURE IS NOT RECOR DED. HE HAD NOT CLAIMED DURING THE COURSE OF RECORDING OF HIS STATE MENT THAT THE INVESTMENT/ EXPENDITURE IN THE AFORESAID JEWELLERY WAS DISCLOSED IN THE PERSONAL BOOKS OF ACCOUNT. IF THE PERSONAL BOOKS WE RE IN EXISTENCE THEN THE APPELLANT WOULD DEFINITELY BROUGHT TO THE NOTIC E OF THE AUTHORIZED OFFICER WHO RECORDED HIS STATEMENT. THE CLAIM OF MA INTAINING PERSONAL BOOKS OF ACCOUNT IS AN AFTER THOUGHT. IF THE APPELL ANT WAS HAVING ANY PERSONAL BOOKS HE HAD DEFINITELY PRODUCED THEM DUR ING THE COURSE OF APPELLATE PROCEEDINGS IN WHICH THE APPELLANT FAILED . THE BOOKS OF ACCOUNT ARE EVEN NOT MAINTAINED BY ALL THE BUSINESS CONCERNS WHICH IS INDICATIVE THAT NO PERSONAL BOOKS WERE MAINTAINED. EVERYTHING WAS COOKED UP AFTER SEARCH. NO ANY REASONS WERE BROUGHT ON RECORD BY THE LD. COUNSEL AS TO WHY THE STATEMENT RECORDED DURING THE COURSE OF SEARCH WAS RETRACTED. IT IS THUS HELD THAT THE FRES H CLAIM OF MAINTAINING PERSONAL BOOKS OF ACCOUNTS AND ACCOUNTING OF JEWELL ERY THEREIN IS TOTALLY FALSE AND ONLY AN AFTER THOUGHT. THE STATEM ENT RECORDED DURING THE COURSE OF SEARCH IS THE BEST EVIDENCE. THE APPE LLANT HAD FAILED TO ESTABLISH THAT THERE WAS ANY ERROR OF FACTS OR LAW IN THIS EVIDENCE OF 4 IT(SS)A NO. 542-AHD-2010 STATEMENT. RELIANCE IS PLACED ON THE DECISIONS IN T HE CASES OF K. KUNHANBAM & SONS 219 ITR 235 (KER.) ASSTT. CIT VS .- RAMESHCHANDRA R. PATEL 89 ITD 203 (AHD.) (TM HEERA LAL MANGILAL & CO. VS.- DY. CIT 96 ITD 113 (MUM.) AND HOTEL KIRAN VS.- ASSTT. CIT 82 ITD 453 (PUNE). IN VIEW OF THE ABOVE DISCUSSION THE FINDING RECORDED BY THE ASSESSING OFFICER IS SUSTAINED AND THE ADDITION MADE FOR RS.20 100/- IS CONFIRMED. THE SECOND GROUND OF APPEAL RELATING TO ADDITION ON ACCOUNT OF UNEXPLAINED JEWELLERY IS DIS MISSED. 10. ON A BARE READING OF THE AFORESAID PARA WE ARE CONVINCED THAT THERE IS NO VALID REASON FOR RETRACTING THE STATEMENT RECORDED DURING THE COURSE OF SEARCH. PRIMA FACIE IT APPEARS THAT THIS IS NOTHING BUT AFTER-THOUGHT AND BOTH THE DEPARTMENTAL AUTHORITIES BELOW ARE LEGALLY AND FACTUALLY CORRECT IN NOT ACCEPTING THE RETRACTION. WE THEREF ORE INCLINE TO UPHOLD THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ON THIS ISSUE. RESULTANTLY THIS GROUND OF APPEAL IS ALSO REJECTED. 11. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. THE ORDER WAS PRONOUNCED IN THE COURT ON 13.01.20 11 SD/- SD/- (N.S. SAINI) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 13/ 01 / 2011 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A.) CONCERNED (4) CIT CONCERNED (5) D.R. ITAT AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGI STRAR ITAT AHMEDABAD LAHA/SR.P.S.