Income Tax Appellate Tribunal - Jaipur
Harish Kumar Raimalani, Ajmer vs Assessee on 17 July, 2015
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IN THE INCOME TAX APPELLATE TRIBUNAL,
JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM
M.A. No.04/JP/2012
(Arising out of vk;dj vihy la-@ITA No.327/JP/2011)
fu/kZkj.k o"kZ@Assessment Year : 2007-08
Shri Harish Kumar cuke The DCIT
Raimalani Prop.: M/s. Deta Vs. Circle- 1
Ram Golumal, Naya Bazar, Ajmer
Ajmer
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AFMPR 6417 H
vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrh dh vksj ls@ Assessee by : Shri Mahendra Gargieya, Advocate
jktLo dh vksj ls@ Revenue by : Smt. Neena Jeph, JCIT - DR
lquokbZ dh rkjh[k@ Date of Hearing : 19/06/2015
?kks"k.kk dh rkjh[k@ Date of Pronouncement : 17/07/2015
vkns'k@ ORDER
PER T.R. MEENA, AM
The assessee has filed a Miscellaneous application against the order of this Bench dated 30-09-2011 for the assessment year 2007-08 u/s 254(2) of the Act. The assessee has claimed in his Miscellaneous Application that following mistakes are apparent from record.
''GOA 2: Addition of Rs. 29,79,970/- on account of excess stock of gold and silver:-
3.1 The ITAT at several places stated that the assessee was not willing to produce books of account and also that 2 MA No.04/JP/2012 Harish Kumar Raimalani vs. DCIT, Circle- 1, Ajmer .
books of account were never produced before the AO, however, its kind attention escaped the specific provisions of Section 142(1)(ii) which empowers the AO to call for the books of account. The assessee did maintain account and got them audited, of course after conducting of the survey but the facts remains that the AO never issued any notice u/s 142(1) (ii) or under any other provisions of the Act calling for the accounts though admittedly TAR was submitted (Pg 8 Pr viii) at all stages including the ITAT (PB 8-17). The AO rather ignored such accounts. Moreover, Pg 15, Pr. 1.2 remained to be considered).
3.2 decision CIT vs. Dhingra Metal Works (2010) 328 ITR 0384 (Del.) (pg 27 of TO) and various other decisions of this line were cited in written submissions (reproduced at pg
26), however, have escaped kind attention of the ITAT and has not at all been dealt with. Non-consideration of a decision though cited, certainly constitute a mistake apparent.
3.3 The ITAT at Pg 19, Pr. 3.9 w.r.t. the stock turnover ratio of earlier years to ascertain the disclosed stock this year, observed that the ''the assessee in his statement mentioned that he was disclosing all the four items of trading account on estimate business. Hence, it is not possible to accept the contention of the ld. AR .'' (i) The referred statements are survey statements and Dhingra Metals (supra) and other cases have not been considered (ii) This fact is not supported by any other corroborative evidence (iii) the lower authorities has accepted the accounts upto A.Y. 2006-07 by considering the opening stock of Rs. 13,79,910/- as on 31- 03-2006 as also the Hon'ble ITAT (Pr. 3 above).
3.5 The ITAT again at pg 21, Pr. 3.14 in a chart prepared by them computed increase of 5.34% in turnover as against the correct 534%. This mistake has a direct and visible impact on the next following mistake and over the ultimate result.
3.6 The Hon'ble ITAT at Pg 21 Pr. 3.15 stated that ''There is no explanation as to why there is sudden fall in 3 MA No.04/JP/2012 Harish Kumar Raimalani vs. DCIT, Circle- 1, Ajmer . gross profit rate.'' However, an explanation behind the decrease was already available but escaped kind attention inasmuch as that the declare sale this year has substantially increased many times more than the preceding year. Considering the correct fact will certainly justify the declared gross profit rate of 7.34% and considering all the elements of the trading account, a fair estimation of the recorded closing stock , in absence of accounts could be done, if ready in the light of Pg 15, Pr. 1.3.
3.7 The ITAT completely ignored some important contentions (Ps 16-17, Pr. 3.7) that the stock of Rs. 52,87,062/- found on survey also consisted of stock of Rs. 12,91,360/- of the clients and thus, it was only stock of Rs. 39,95,702/- which would have been considered. The addition was to be reduced to this extent. Such mistake has a direct impact over the ultimate result.
3.8 The ITAT at Pg 19 Pr. 3.9 stated that ''As per Section 69A, the assessee was required to explain the source of acquisition and assessee is simply relying on stock/turnover ratio.'' However, the Hon'ble ITAT has ignored the assessee's contention regarding source being from the books of account though maintained after survey remaining un- rejected (Pg 4, Pr. 5) and the huge amount of sale of Rs. 94.05 lacs declared and admitted by the authorities below (Pg 5 Pr. 2.6 an Pg 3 Pr. 2.4) which itself explain the source. GOA : 3 Addition of Rs. 25,23,200/- on account of investment in house property.
2.1 The Hon'ble ITAT at page 30 Pr. 4.7 observed that no details of loans and advances shown at Rs. 9,45,669/- have been filed before the lower authorities which is however, contrary to the records as the same are available as a part of TAR placed at PB 16 right from the AO to the Hon'ble ITAT.
2.2 The submission of the assessee explaining the source of investment, particularly w.r.t. Rs. 10,00,000/- (reproduced at Pg Pr. 4.5) and a chart, filed alongwith the WS , has 4 MA No.04/JP/2012 Harish Kumar Raimalani vs. DCIT, Circle- 1, Ajmer . escaped full attention of the Hon'ble Bench. There is no reference in TO that the amount were given out of the sale proceeds whereas at Pg 2 Pr. 3.15 the Hon'ble ITAT observed that sale proceeds were diverted for this purpose. ''We have also noticed.....the stock.'' 2.3 The ITAT at Pg 31 Pr. 4.7 incorrectly recorded a fact that the assessee received Rs. 2.25 lacs from his daughter in law as against the correct amount of Rs. 1,76,800/-. 2.4 It is also incorrectly stated that the sales proceeds of the car has been deposited in the bank account of the son. Such findings are contrary to its own reading of AO's order at pg 23 Pr. 4.2 GOA 4: Addition of Rs. 4,65,919/- in respect of investment in pawning.
The ITAT at Pg 35 Pr.5.7 has mentioned in the last line that the addition of Rs. 4,97,731/- is to be reduced by Rs. 3,95,500/- and the balance addition of Rs. 1,02,231/- was sustained whereas the correct figure of the addition made by the AO (as noted by the ITAT at Pg 33 Pr. 5.3) was of Rs. 4,65,919/- only instead of Rs. 4,97,731/-. Accordingly, the correct amount of addition sustained should be Rs. 70,419/- instead of Rs. 1,02,231/-.'' 2.1 The case of the assessee was heard. The ld. AR submitted that while dealing with Ground No. 2, the Coordinate Bench in respect of stock observed that ''We have also noticed that assessee paid substantial amounts for purchase of house from Nov. 2006 to March 2007 and hence the sale proceeds were diverted and funds were substantially not available for keeping the stock.'' The Hon'ble Bench also ignored these findings against Ground No. 3. with respect of payment made to the seller 5 MA No.04/JP/2012 Harish Kumar Raimalani vs. DCIT, Circle- 1, Ajmer . to the extent of Rs. 10.00 lacs. The fact of transfer of Rs. 5.00 lacs each to the respective bank accounts of the son and wife is neither denied nor disputed. Before the AO in respect of Ground No. 3, the assessee submitted that a sum of Rs. 1,76,800/- given by the daughter-in-law out of the sale proceeds of car amounting to Rs. 2.25 lacs deposited in her bank account and after withdrawing therefrom this amount was given to the assessee. The son namely Shri Pradeep Kumar also gave a amount of Rs. 3.20 lacs from his saving bank account. The ITAT while considering this aspect appeared to have mixed up two different issues incorrectly. There was a survey in the case of the assessee and no books of account were found / maintained by the assessee . Thereafter, the books of account were prepared on the basis of survey papers and were got audited by the auditors. This fact has been admitted by this Bench of ITAT in its decision. The AO has not asked the assessee to produce the books of account at the time of assessment and even the books were prepared after survey operations. The AO neither asked to produce the books of account nor rejected the book result before estimating income. Hon'ble ITAT also escaped attention regarding non-rejection of books of account at the time of passing of an order. Hon'ble ITAT has not considered the case laws cited by the ld. AR i.e. CIT vs. Dhingra Metal Works 328 ITR 384 (Del.) and various other decisions though cited. The 6 MA No.04/JP/2012 Harish Kumar Raimalani vs. DCIT, Circle- 1, Ajmer . statement recorded u/s 133A of the Act is not binding and it does not have evidentiary value. It is further argued that non-consideration by the Tribunal of a Supreme Court judgement relevant to the point in issue would give rise to a mistake apparent from record which can be rectified u/s 254(2) of the Act . He relied on the decision of Hon'ble Supreme Court in the case of ACIT vs. Surashtra Kutch Stock Exchange Ltd. (2008) 305 ITR 227 and other case laws also. The ld. AR submitted that ITAT also committed a mistake at page 21 para 3.15 in its order on no explanation for decline in gross profit rate as facts and figures were submitted by the assessee which implied the increase in turnover and decline in gross profit rate. The lower authorities accepted the opening stock, sales and purchase and also putting the gross profit rate as declared, the consequent balancing figurer shall represent the amount of the closing stock which could be treated as reasonably available as per books of account and the different in stock could have been added. This way recasted trading account could have been prepared which otherwise is a normal practice being adopted by the Department in such cases. This Bench of ITAT has escaped its attention on closing stock as per audited balance sheet as on 31-03-2007. On this basis, the addition on account of stock shall remain at Rs. 7.00 lacs. The ITAT had completely ignored the 7 MA No.04/JP/2012 Harish Kumar Raimalani vs. DCIT, Circle- 1, Ajmer . contentions raised by the assessee on excess stock. The ld. AR of the assessee relied on following case laws.
1. Champa Lal Chopra (2002) 257 ITR 74 (Raj.)
2. CIT vs. Ramesh chand Modi(2001)249 ITR 323 (Raj.)
3. Honda Siel Product Ltd. vs. CIT 295 ITR 466 (SC) The ld. AR of the assessee requested to rectify the apparent mistakes committed by the Bench of ITAT.
2.2 At the outset, the ld. DR vehemently supported the order of ITAT and argued that all the evidences to this case have been apprised by the Bench of ITAT. Now the assessee wants to review the order of ITAT which is not permissible u/s 254(2) of the Act. As such, there is no apparent mistake in the order of ITAT. Therefore, the Miscellaneous Application filed by the assessee deserves to be dismissed. 2.3 We have heard the rival contentions and perused the materials available on record. We have gone through the order of ITAT dated 30- 09-2011 in the case of the assessee and whatever submissions made by the assessee at the time of hearing of the appeal has been considered by this Coordinate Bench and decided the case issue-wise on merits. We have also verified the issues raised by the assessee from the assessment order and found that these issues have been decided by this bench after considering the assessee's evidences available at the time of hearing. From the Miscellaneous Application filed by the assessee, we find that 8 MA No.04/JP/2012 Harish Kumar Raimalani vs. DCIT, Circle- 1, Ajmer . the assessee wants to get Tribunal order reviewed which is not permissible u/s 254(2) as there is no infirmity in the order. Therefore, we dismiss the Miscellaneous Application filed by the assessee. 3.0 In the result, the Miscellaneous Application of the assessee is dismissed.
Order pronounced in the open court on 17/07/2015.
Sd/- Sd/- ¼vkj-ih-rksykuh½ ¼Vh-vkj-ehuk½ (R.P.Tolani) (T.R. Meena) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 17 /07/2015 *Mishra
vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- Shri Harish Kumar Raimalani, Ajmer
2. izR;FkhZ@ The Respondent- The DCIT, Circle- 1,Ajmer
3. vk;dj vk;qDr¼vihy½@ CIT(A).
4. vk;dj vk;qDr@ CIT,
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
6. xkMZ QkbZy@ Guard File (MA No.04/JP/2012) vkns'kkuqlkj@ By order, lgk;d iathdkj@ Assistant. Registrar