DCIT, ALWAR vs. GIRISH DATA, ALWAR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES , JAIPUR Jh fot; iky jko] U;kf;d lnL; ,o Jh HkkxpUn] ys[kk lnL; lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM vk;dj vihy la-@ITA No. 453/JP/2017 fu/kZkj.k o"kZ@Assessment Year: 2013-14 cuke The DCIT Shri Girish Data Circle – 1, Ward No. 7, Khairthal, Vs. Alwar Distt.Alwar LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ABOPD 2301 G

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jktLo dh vksj ls@ Revenue by:Shri A.S. Nehra, DCIT - DR fu/kZkfjrh dh vksj ls@Assessee by: Shri P.C. Parwal, CA lquokbZ dh rkjh[k@ Date of Hearing : 10/01/2018 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 25/01/2018 vkns'k@ ORDER PER BHAGCHAND, AM The Revenue has filed an appeal against the order of the ld. CIT(A), Alwar dated 09-03-2017 for the Assessment Year 2013-14 raising therein following ground of appeal. ‘’On the facts and the circumstances of the case, the ld. CIT(A) should have upheld addition of Rs. 34,25,000/- in the hands of the assessee on protective basis since the issue regarding the taxability of this amount in the hands of the assessee or his brother Shri Padam Chand Data is not final as

ITA No.453/JP/2017 The DCIT, Circle – 1, Alwar vs Shri Girish Data

Shri Padam Chand Data has not accepted the decision of ld. CIT(A) so far.’’

2.1 Apropos solitary ground of the Revenue , the facts as emerges

from the order of the ld. CIT(A) is as under:-

‘’5.5 I have perused the assessment order as well as remand report of the AO, submissions and cross reply of the appellant including judicial citations given therein. Following facts have emerged. 1. That the appellant is engaged in the business of sale/purchase of vegetables on commission basis in the name of M/s. Girish Trading Company besides share of profit from firms in which he is partner 2. That during the year under consideration, a survey u/s 133A of the Act was conducted in the business premises of M/s. Shailja Associates and M/s. Shailja Grits Udyog, Khairtal on 03-01- 2013. 3. That Shri Padam Chand Data, brother Shri Girish Data was present in the premises and as per his own statement he and Shri Girish Data, manages the affairs of the firms. 4. That during the course of survey operation some incriminating documents has been found. One such document i.e. page no.12 of Annexure A-1 reveals recording of following transaction with a proper date also mentioned on the paper.

Prithvi 30,00,000.00 Aabhav 5,00,000.00 DSP 10,00,000.00 Rohitash 22,50,000.00 Total 67,50,000.00 5. That Shri Padam Chand Data has recorded the statement that the above entries are investment in properties made by himself and his brother Shri Girish Data and he has agreed to surrender the entire amount of Rs. 67,50,000/- as unexplained investment in properties for tax. He was also agreed that this amount will be surrendered by both 2

ITA No.453/JP/2017 The DCIT, Circle – 1, Alwar vs Shri Girish Data

the persons i.e. in his own hand and Shri Girish Data (i.e. 50% of each) in their respective returns. 6. That the appellant has filed an affidavit vide letter dated 30-05-2014 confirming as under:- 3.0 that besides partner’s of the firm Shailja Grits Udyog, Khairthal and M/s. Shailja Associates, Khairthal. I am also looking after day to day of these concerns. 7. That the appellant had disowned the statement made by Shri Padam Chand Data during the course of survey operation, wherein he had offered for taxation the amount of investment @ 50% in his own hands and in the hand of Shri Girish Data. 8. That the A.R. vide letter dated 4-02-2016 submitted that the appellant has not made any alleged surrender and also no statement of the assessee has been recorded during the course of survey proceedings, therefore, no question arises for surrender or addition of Rs. 41,67,035/- 9. That the AO went on to reject the submission of the appellant and added Rs. 33,75,000/- (50% of the amount of investment of Rs. 67,50,000/- as per the impounded document i.e. Page No. 12of Annexure A-1) in the hand of the appellant on protective basis, besides Rs. 50,000/- as 50% share of commission earned as per the statement of Shri Padam Chand Data. 5.5.2 I have considered the above mentioned fact of the case. I have taken note of the fact that Shri Girish Data had never given any statement surrendering the amount of investment or even confirming the confession made by Shri Padam Chand Data during the course of survey proceedings. It is only on the basis of a third party statement (i.e. Shri Padam Chand Data) that the AO had made the addition of Rs. 33,75,000/- and Rs. 50,000/-. Therefore, in my considered view there is no justification for the addition of the above mentioned amount in the hands of the appellant on protective basis. Accordingly, the addition of Rs. 34,25,000/- is deleted and the appellant’s ground of appeal on this issue is allowed.’’

2.2 During the course of hearing, the ld. DR relied on the order of the

AO.

ITA No.453/JP/2017 The DCIT, Circle – 1, Alwar vs Shri Girish Data

2.3 On the other hand, the ld.AR of the assessee supported the order of the ld. CIT(A). 2.4 We have heard the rival contentions and perused the materials

available on record. Brief facts of the case are that the AO on perusal of the return of income of the assessee noted that the assessee had not declared unexplained surrendered investment in properties of Rs.

33,75,000/- i.e. 50% of Rs. 67,50,000/- and undisclosed commission / brokerage income of Rs. 50,000/- i.e. 50% of Rs. 1.00 lac and also excess cash of Rs. 7,37,037/- found during the course of survey. The AO in this

regard required the assessee to explain the reason vide order sheet entry dated 02-02-2016 for not declaring the surrendered amount of Rs. 33,75,000/- as unexplained investment in properties, Rs. 50,000/-

undisclosed income from commission and Rs. 7,37,037/- on account of cash found during the course of survey in the return filed by him. The ld.AR of the assessee submitted the reply vide letter dated 04-02-2016 but the same was not found tenable by the AO. The AO thus made the

addition of Rs. 34,25,000/- on protective basis in the hand of the assessee by observing as under:-

ITA No.453/JP/2017 The DCIT, Circle – 1, Alwar vs Shri Girish Data

‘’8. ….The statement of Shri Girish Data has also recorded during the assessment proceeding but he has retracted the above surrendered amount. Since, neither Shri Padam Chand Data nor Shri Girish Data has declared the surrendered amount in their returns of income, hence entire undeclared amount of Rs. 67,50,000/- on account of unexplained investment in properties and Rs. 1,00,000/- on account of undisclosed commission/ brokerage has been separately assessed on substantive basis sin the hands of Shri Padam Chand Data who was available at the time of survey. But to protect the revenue, 50% of the undeclared surrender amount i.e. 33,75,000/- on account of unexplained investment in properties and Rs. 50,000/- on account of undisclosed income from commission / brokerage is assessed in the hands of assessee Shri Girish Data on protective basis.’’

In first appeal, the ld. CIT(A) has deleted the addition of Rs. 34,25,000/-

made by the AO. It is noted that Shri Girish Data had not given any statement as to surrendering the amount of investment. We have deleted the whole addition in the hands of Shri Padam Chand Data. . In such circumstances and facts of the case, we concur with the findings of the ld.

CIT(A) on the issue in question. Thus the solitary ground of the Revenue is dismissed.

ITA No.453/JP/2017 The DCIT, Circle – 1, Alwar vs Shri Girish Data

3.0 In the result, the appeal filed by the Revenue is dismissed. Order pronounced in the open Court on 25-01-2018. Sd/- Sd/- ¼ fot; iky jko ½ ¼HkkxpUn½ (Vijay Pal Rao) (Bhagchand) U;kf;d lnL; /Judicial Member ys[kk lnL;@Accountant Member

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