Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, JAIPUR BENCHE-A, JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 756/JP/2017
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE-A, JAIPUR Jh fot; iky jko] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 756/JP/2017 fu/kZkj.k o"kZ@Assessment Year :2012-13 cuke Shri Mahesh Kumar Makhija ACIT, Vs. Prop. M/s Tulsi Store, Circle-2, 149, GMA Plaza, JP Market, Kota Kota LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ABKPM4766G vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri B. L. Bhojwani (CA) jktLo dh vksj ls@ Revenue by : Shri J. C. Kulhari (JCIT) lquokbZ dh rkjh[k@ Date of Hearing : 20/11/2018 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 20/12/2018 vkns'k@ ORDER
PER: VIKRAM SINGH YADAV, A.M. This is an appeal filed by the assessee against the order of ld. CIT(A)-4, Jaipur dated 31.07.2017 for A.Y 2012-13 wherein the assessee has taken the following sole ground of appeal: “That the learned Assessing Officer has erred on the facts and in the circumstances of the case and in law in holding that there was excess cash of Rs. 3,99,560/- and adding it to the total income of the assessee and the learned Commissioner of Income Tax (Appeals) too has similarly erred in confirming the action of the learned Assessing Officer.”
ITA No. 756/JP/2017 Shri Mahesh Kumar Makhija, Kota Vs. ACIT, Kota 2. Briefly stated, the facts of the case are that during the course of search proceeding conducted on 12.10.2011 in the business premises of assessee, cash balance of Rs. 2,75,620/- as per books was found but physical cash of Rs. 6,75,180/- was found. Thus, cash of Rs. 3,99,560/- was found in excess and in the statement recorded u/s 132(4), the assessee has offered the said excess amount of cash of Rs. 3,99,560/- for taxation. The declaration made by the assessee was later retracted while filing the return of income on 31.10.2012.
During the course of assessment proceedings, a show cause was issued to the assessee to explain the source of excess cash of Rs. 3,99,560/-. In response, the assessee submitted that he maintained his books of account manually, except sale register and party ledger and it was submitted that the print out of the cash book taken during the search from the system of the computer operator cannot be treated as final and the surrender made on its basis too cannot be taken as correct. It was submitted that the cash book maintained manually by the assessee was seized along with some other books of accounts. Even this cash book was incomplete at that time. The ADI (Investigation), during the course of proceedings before him, had asked the Accountant of the assessee to complete the cash book. This was duly done and the completed cash book was submitted to the ADI (Investigation). As per the completed cash book, the closing cash balance as on 11.10.2011 was Rs. 14,69,906. It was submitted that ADI (Investigation), who had obtained the assessee’s statements on the seized material in a very detailed manner, did not ask anything about the surrender made on account of excess cash. The response so filed by the assessee was however not found acceptable and the relevant finding of the Assessing Officer is reproduced as under:-
ITA No. 756/JP/2017 Shri Mahesh Kumar Makhija, Kota Vs. ACIT, Kota “9.1 I have considered the reply of the assessee. The assessee in his submission submitted that the computer operator who printed the cash book was in the learning stage therefore, the print out of the cash book taken from the system cannot be treated as final and the surrender made on its basis too cannot be taken as correct. If it had been the fact the assessee would have brought it before the ADIT(Inv.) during the course of post search inquiries, but this was not the case. In the post search inquiries the assessee nowhere retracted from this surrender, hence the submission of the assessee is not found convincing. During the course of search proceedings the assessee in his sworn statements taken on oath u/s 132(4) of the Act, 1961 on 12.10.2011 himself admitted that the excess cash amounting to Rs. 3,99,560/- was unexplained and offered the same for taxation. Thus, considering all the facts & evidences together and also preponderance of probability, I hereby hold that the excess cash of Rs. 3,99,560/- of the assessee is his unaccounted income and the same is hereby added to the total income of the assessee for the year under consideration.”
On appeal by the assessee, the ld. CIT(A) confirmed the said addition and his findings are contained at para 5 of his order which is reproduced as under:- “5. I have gone through the order of the AO and submissions made in this regard. I am in agreement with the conclusion of the AO that excess cash found is unexplained as a printout of cash book was taken on the day of search and cash as per book and actual cash was tallied. The contention of appellant that he was in confused state of mind does not carry weight as panchnama etc. was drawn in presence of 2 independent witnesses and from the panchnama it is clear that statement etc were taken free from external coercion and threat etc. It is noticeable that even in post search proceedings the retraction was not
ITA No. 756/JP/2017 Shri Mahesh Kumar Makhija, Kota Vs. ACIT, Kota brought on record or before the Investigation wing. It may not be out of place to mention that excess cash amounting u/s 132(4) recorded on the date of search. The averment that cash book was incomplete and certain vouchers were left to be entered is an after though and, in my view, does not deserve to be entertained. The addition of Rs. 3,99,560/- by the AO is confirmed. The order of the AO is upheld in toto.”
The ld DR is heard who has relied on the findings of the lower authorities and submitted that it is a clear case of admission during search and in absence of retraction, the addition has been rightly made by the AO which has been confirmed by the ld CIT(A).
Heard both the parties and perused the material available on record. It is no doubt true that the assessee in statement recorded u/s 132(4) has surrendered the excess cash of Rs. 3,99,560/-. However, it is equally relevant to note the submission of the assessee that print out of the cash book so taken from the computer system was not final and it was incomplete and the cash book so seized was incomplete having not recorded all the transactions till the date of the search. Further, the completed cash book was subsequently submitted to the ADI (Investigation) during the course of post- search proceedings and as per the completed cash, closing balance was Rs. 14,69,906/-. However, we find that the lower authorities have completed disregarded this contention of the assessee and has failed to examine the completed cash book so submitted before the ADI(Investigation) and has solely relied on the statement recorded during the course of search. The admission made during the course of search is no doubt carries an evidentiary value but at the same time, where the assessee immediately during the post-search proceedings, has brought the complete picture as far as not recording of
ITA No. 756/JP/2017 Shri Mahesh Kumar Makhija, Kota Vs. ACIT, Kota transactions in the cash book, it is incumbent upon the Revenue to verify the said contention along with supporting documentation in terms of transactions pertaining to period prior to date of search and which have not been recorded in the books of accounts and which have been subsequently recorded and submitted before the ADI(Investigation). It is simpliciter not a case of assessee where the assessee is claiming for the first time before the Assessing officer that the cash book was incomplete rather it is a case where immediately after the search, during the post-search proceedings, the assessee has brought the completed cash book to the knowledge of the ADI(Investigation). It is therefore incumbent on the Assessing officer to verify the same and then take a final view in the matter. In the result, we deem it appropriate to remand the matter to the file of the AO to examine the matter afresh taking into consideration the above discussions and after providing reasonable opportunity to the assessee.
In the result, the appeal of the assessee is allowed for statistical purposes.
Pronounced in the Open Court on 20/12/2018.
Sd/- Sd/- ¼fot; iky jko½ ¼foØe flag ;kno½ (Vijay Pal Rao) (Vikram Singh Yadav) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 20/12/2018 *Ganesh. आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Shri Mahesh Kumar Makhija, Kota 2. izR;FkhZ@ The Respondent- ACIT, Circle-2, Kota 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत.
ITA No. 756/JP/2017 Shri Mahesh Kumar Makhija, Kota Vs. ACIT, Kota 6. xkMZ QkbZy@ Guard File {ITA No. 756/JP/2017} vkns'kkuqlkj@ By order, सहायक पंजीकार@Aेेज. त्महपेजतंत