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Income Tax Appellate Tribunal, “B” BENCH, PUNE
Before: SHRI D. KARUNAKARA RAO, AM & SHRI VIKAS AWASTHY, JM
आदेश / ORDER
PER VIKAS AWASTHY, JM :
These two appeals by the assessee are directed against the order of Commissioner of Income Tax (Appeals), Kolhapur. In ITA No. 467/PUN/2014 the assessee has assailed the order of Commissioner of Income Tax (Appeals) dated 19-12-2013 for the assessment year 2009-10 and ITA No. 728/PUN/2014 is directed against the order of Commissioner of Income Tax (Appeals) dated 10-01-2014 for the assessment year 2010- 11. Since, issues involved in these appeals are arising from same set of
2 ITA Nos. 467 & 728/PUN/2014, A.Ys. 2009-10 & 2010-11
facts and are similar, these appeals are taken up together for adjudication and are disposed off vide this common order.
The brief facts of the case as emanating from records are: The assessee is engaged in trading of gold and silver ornaments under the name and style of M/s. Balaji Jewellers. A survey action u/s. 133A of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) was carried out at the business premises of the assessee on 10th and 11th February, 2010. In the statement recorded during the course of survey, the assessee voluntarily declared an additional income of Rs.80,30,460/- for the assessment year 2010-11. No return of income for the assessment year 2009-10 u/s. 139(1) of the Act filed by the assessee till survey. The assessee filed his return of income for assessment year 2009-10 after survey on 31-03-2010 declaring total income of Rs.2,66,150/- and agricultural income of Rs.3,69,947/-. During the course of scrutiny assessment proceedings the Assessing Officer rejected the books of account and estimated net profit at 9.89% on estimated sales of Rs.53,08,027/-. The Assessing Officer computed total income of the assessee at Rs.5,24,060/- for the assessment year 2009-10.
2.1 For the assessment year 2010-11 the assessee filed return of income on 15-09-2010 declaring total income at Rs.4,56,000/- and agricultural income of Rs.2,65,300/-. The assessee did not offer Rs.80,30,460/- additional income declared during survey proceedings. The Assessing Officer further estimated business income of assessee as Rs.7,50,000/-. The Assessing Officer assessed total income at Rs.87,80,460/- for the assessment year 2010-11.
3 ITA Nos. 467 & 728/PUN/2014, A.Ys. 2009-10 & 2010-11
Aggrieved by the assessment order for the respective assessment years, the assessee filed appeals before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) dismissed the appeals of assessee in toto vide impugned orders. Now, the assessee is in second appeal before the Tribunal assailing the findings of Commissioner of Income Tax (Appeals) for assessment years 2009-10 and 2010-11.
Shri Sunil Ganoo appearing on behalf of the assessee submitted that in assessment year 2009-10 the Assessing Officer has erred in estimating the sale of assessee at Rs.53,08,027/- as against Rs.35,38,685/- declared by the assessee. The ld. AR submitted that during the course of survey a CD was given to the survey party containing accounts for the period 01-04- 2008 to 31-03-2009 and 1-04-2009 to 31-03-2010. The authorities below failed to take note of the accounts given in CD, therefore, the trading account furnished by the assessee during the course of assessment could not be reconciled. The ld. AR submitted that if an opportunity is granted to the assessee, the assessee would explain and reconcile the accounts furnished during survey with the accounts furnished at the time of assessment. The ld. AR to further assert his prayer to restore the issue back to Assessing Officer tendered following written submissions : 1. “The appellant assessee is an individual and carries on the business of Purchase and sale of Gold ornaments and Silver utensils. 2. There was a survey action on the appellant assessee on 11/02/2010 and during the said action the appellant has disclosed income of Rs.80,30,460.00 on account of unexplained Cash of Rs.6,48,300.00 and excess stock of Rs.73,82,160.00 [Please refer Page No.7 of paper book filed for A.Y.2009-10]. 3. During the course of survey action the CDs of accounts for the period 01/04/2008 to 31/03/2009 and 01/04/2009 to 31/03/2010 were handed over to the survey party.[Please refer Page No.10 of Paper Book filed for A.Y.2009-10]. 4. The tentative Trading and Profit and Loss Account and Balance sheet as on date of survey for the period 01/04/2008 to 11/02/2009 were prepared. The same is reproduced by the learned Assessing Officer in the impugned order for A.Y.2009-10 on Page No.4 & 5.
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Upon finalization of accounts the appellant assessee filed his return of income for the A.Y.2009-10 on 31/03/2010. 6. The learned Assessing Officer observed vast variations in the tentative accounts and accounts prepared at the time of survey. 7. The learned Assessing Officer never compared the final accounts with the accounts given in CDs, the copies of which were handed over to the survey team. 8. The learned Assessing Officer has estimated the Sales and N.P on the basis of assumptions and presumptions. 9. During the course of arguments it was argued on behalf of the appellant that the learned Assessing Officer ought to have compared the final accounts with the CDs in his possession so that the issues involved could have been properly appreciated and settled. 10. It is therefore requested that in the interest of equity and justice the matter may please be restored to the file of the learned Assessing Officer to compare the final accounts with the accounts copies in CDs given to the department.”
On the other hand Shri Mukesh Jha representing the Department vehemently defended the order of Commissioner of Income Tax (Appeals) and prayed for dismissing the appeal of assessee. The ld. DR referred to table in para 2.3 of the assessment order and submitted that the Assessing Officer has already taken into consideration the tentative trading account submitted by the assessee at the time of survey and trading account given during the assessment proceedings.
4.1 The ld. DR further submitted that the assessee in his statement recorded u/s. 133A of the Act had made voluntarily disclosure of Rs.80,30,460/- for the assessment year 2010-11 but has not honoured the same in his return of income.
ITA No. 467/PUN/2014 (A.Y. 2009-10) 5. We have heard the submissions made by representatives of rival sides and have perused the orders of authorities below. The assessee in appeal for assessment year 2009-10 has assailed the order of
5 ITA Nos. 467 & 728/PUN/2014, A.Ys. 2009-10 & 2010-11
Commissioner of Income Tax (Appeals) in confirming the action of Assessing Officer in rejecting of books of account and also estimating sales without their being any supporting documents. The ld. AR of the assessee stated that the assessee would be able to explain and reconcile the accounts furnished at the time of survey and the accounts submitted at the time of assessment proceedings. It is an admitted fact that during survey it was found that the assessee has not maintained proper books of account and no return of income for assessment year 2009-10 was filed. It was only after survey action on 11-02-2010 that the assessee filed his return of income for the assessment year 2009-10. The contention of the assessee is that a CD containing tentative profit and loss accounts was given to the survey party, however, the Assessing Officer has not taken into consideration the contents of CD at the time of assessment. The ld. AR of the assessee has prayed for an opportunity to explain the contents of the CD. We observe that in the assessment order there is no reference to contents of CD. Thus, the facts emanating from the records and the specific prayer made by the assessee to grant opportunity to explain the contents of CD we deem it appropriate to restore the issue raised in the appeal by the assessee to the Assessing Officer for de-novo adjudication. The Assessing Officer before deciding this issue afresh shall grant reasonable opportunity of hearing to the assessee, in accordance with law. Accordingly, the appeal of assessee for assessment year 2009-10 is allowed for statistical purpose.
ITA No. 728/PUN/2014 (A.Y. 2010-11)
Since, we have restored the appeal of assessee for assessment year 2009-10 to Assessing Officer, we are of considered view that appeal for assessment year 2010-11 should also be restored to Assessing Officer as
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there can be possibility of change in closing balances for the Financial Year 2008-09 which would have bearing on the opening balances of Financial Year 2009-10 relevant to assessment year 2010-11. Thus, without going into the merits of appeal we restore the appeal to Assessing Officer for final adjudication of the issues. We hold and direct accordingly. The appeal of assessee for assessment year 2010-11 is allowed for statistical purpose.
In the result, both the appeals of the assessee are allowed for statistical purpose.
Order pronounced on Wednesday, the 09th day of May, 2018.
Sd/- Sd/- (डी. करुणाकरा राव/D. Karunakara Rao) (ववकास अवस्थी / Vikas Awasthy) ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER ऩुणे / Pune; ददनाांक / Dated : 09th May, 2018 RK आदेश की प्रयिलऱवऩ अग्रेवषि / Copy of the Order forwarded to : अऩीऱाथी / The Appellant. 1. प्रत्यथी / The Respondent. 2. आयकर आयुक्त (अऩीऱ) / The CIT(A), Kolhapur 3. आयकर आयुक्त / The CIT-I/II, Kolhapur/CIT(Central), Pune 4. ववभागीय प्रयतयनधध, आयकर अऩीऱीय अधधकरण, “बी” बेंच, 5. ऩुणे / DR, ITAT, “B” Bench, Pune. गाडड फ़ाइऱ / Guard File. 6. //सत्यावऩत प्रयत // True Copy// आदेशानुसार / BY ORDER,
यनजी सधचव / Private Secretary, आयकर अऩीऱीय अधधकरण, ऩुणे / ITAT, Pune