DILIP KUMAR ARORA vs. THE COMMISSIONER OF IT

Judgment 08/03/2017

The present Income Tax Appeal is directed u/Sec.260-A of the Income Tax Act, 1961 against order of the Income Tax Appellate Tribunal dt.26.09.2016. The brief facts of the case which can be noticed & may be relevant for our consideration is that for the Assessment Year 2011-12 a survey of the premises of the assessee was conducted on 03.02.2011 and assessee had accepted the value of the closing stock as per the books of accounts Rs.16,95,184/- and value of the physical stock at Rs.66,98,216/- and assessee surrendered the difference of Rs.50,03,032/- as pointed out by the Assessing Officer and the Assessing Officer has reproduced the statement of Shri Ankur Arora and Dilip Kumar Arora in extenso. Finally the Assessing Officer made additions of (2 of 4) [ITA-291/2016] Rs.44,05,090/- in regard to unexplained investment in excess based on the cogent evidence came on record and that came to be challenged by the assessee before the Commissioner of Income Tax (Appeals) and the question arose before the Commissioner of Income Tax (Appeals) was follows:- “That under the facts & circumstances of the case the Assessing Officer has erred in sustaining additions of Rs.44,05,090/- for unexplained investment in excess stock, as alleged.” The Commissioner of Income Tax (Appeals) under its order dt.27.01.2015 while examining the order under appeal dt.29.03.2014 passed u/Sec.143(3) of the Act, 1961 for the Assessment Year 2011-12 took note of the factual matrix on record & expressed its opinion ad infra:- “5.3 I have considered the contentions of the appellant as well as assessment order. It is seen that the AO has not allowed the cost of construction of Rs.2,45,000/- as per the revised return filed by the assessee on 14.07.2012 stating that no bills/vouchers for purchase of material for construction purposes were submitted. However it is evident from the purchase deed that constructed area at the time of purchase on 27.03.2003 was 146.31 Sq.Mtrs. Consisting of five rooms, kitchen, garage, store, bathroom and toilet. However as per the sale deed dated 23.02.2011, the old construction was demolished and RCC pillars were constructed over 900 Sq.Ft. As per the decision of collector of stamps, the construction has been valued at Rs.12,66,056/- as on 27.03.2012 while determining the value for stamp valuation. Also the assessee has submitted the individual balance sheet as on 30.03.2010 wherein the construction for Rs.2,45,855/- (for indexed cost of improvement of Rs.2,76,587/-) has been shown. In view of above facts, apparently the assessee has demolished the original construction and made the new construction thereon as per the facts stated above. Accordingly the addition made by the AO of Rs.2,75,587/- is deleted.”

(3 of 4) [ITA-291/2016] The order of Commissioner of Income Tax (Appeals) was subject matter of challenge at the instance of the assessee before the Income Tax Appellate Tribunal and in para-3 of order of the Income Tax Appellate Tribunal, detailed reasons have been assigned which are nothing but the factual narration which were recorded during the course of survey conducted on 03.02.2011 and finally arrived to the conclusion in para-5 of the order as follows:- “5. We have heard the rival contentions and carefully perused the material available on record. In terms of ld AR’s contention that there was no retraction but reconciliation of facts and figures as compared to what has been stated and documented at the time of survey, it is noted that though the ld CIT(A) has initially made an observation that there was no immediate retraction and it is a case of delayed retraction and not reliable. At the same time, he has gone through the assessee’s letter dated 30.03.2011 relating to unrecorded purchase bills at the time of survey and expenses in the books of accounts, excess valuation of the stock etc., compared it with the position in the return of income, taken into consideration the remand report of the AO and gone through each of the contentions raised by the ld AR along with the rejoinder to the remand report in terms of unrecorded purchases, valuation, set off etc and has come to a well-reasoned decision. We see no reason to interfere with the order of ld CIT(A) and the same is hereby confirmed.” Counsel for the appellant submits that the statement which has been recorded u/Sec.133-A of the Act, 1961 has no evidentiary value and there is a difference between the statement recorded u/Sec.132(4) & Sec.133-A of the Act, 1961, which has [ITA-291/2016] u/Sec.133-A of the Act, 1961, detailed reference of which has been made by the three authorities consecutively under the order impugned apart from what has been stated in the statement recorded u/Sec.133-A of the Act, 1961 sufficient evidence has come on record and scrutinized in detail & finally a view has been expressed in upholding the addition made by the Assessing Officer & confirmed by the Commissioner of Income Tax (Appeals) & the Income Tax Appellate Tribunal under the order impugned. What is being contended before us is completely based on the factual matrix of the matter and a concurrent finding of fact has been recorded by the concerned authorities. In our considered view after going through the orders impugned, no substantial question of law emerges which deserves to be examined by us in the instant appeal. Consequently, in the light of what has been observed, no substantial question of law arises for our consideration in the instant appeal and the same is hereby dismissed. (KAILASH CHANDRA SHARMA)J. (AJAY RASTOGI)J. Solanki DS, PS/50