Kushal Dasot , Jaipur vs Department Of Income Tax

Jh vkj-ih-rksykuh] U;kf;d lnL; ,oa Jh Vh-vkj-ehuk] ys[kk lnL; ds le{k BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM

vk;dj vihy la-@ITA No. 675/JP/2012 fu/kZkj.k o"kZ@Assessment Year : 2009-10

Asstt. Commissioner of cuke Kushal Dasot Income Tax, Vs. Prop. M/s Gambhir Mal Circle-7, Jaipur. Panmal Saraf, Subhash Bazar, Tonk (Raj) LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ACXPD 7867 P vihykFkhZ@Appellant izR;FkhZ@Respondent

jktLo dh vksj ls@ Revenue by : Shri Kailash Mangal (JCIT) fu/kZkfjrh dh vksj ls@ Assessee by : Shri Mahendra Gargia (Adv.)

lquokbZ dh rkjh[k@ Date of Hearing : 14/05/2015 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 05/06/2015

vkns'k@ ORDER

PER: T.R. MEENA, A.M.

This is an appeal filed by the Revenue against the order dated

27/04/2012 passed by the learned CIT (A)-III, Jaipur for A.Y. 2009-10.

The effective grounds of appeal are as under:-

"i The CIT(A) has passed a perverse order in concluding that telescoping was to be necessarily allowed suo moto by the A.O. even when the burden of proving its eligibility was on the assessee.

2 ITA 675/JP/2012_ ACIT Vs. Kushal Dasot

ii. The CIT(A) has thus erred in deleting the addition of Rs. 21 lakhs made on account of unaccounted investment in the house and Rs. 9,97,700/- made on account of unaccounted cash found."

2. The first and second ground of appeal are against allowing the

telescoping benefit by the learned CIT(A) and deleting the addition of

Rs. 21 lakhs on account of unaccounted investment in house and Rs.

9,97,700 made on account of unaccounted cash found. The assessee is

engaged in the business of gold and silver jewellery. As observed by the

Assessing Officer, there was a survey U/s 133A of the Income Tax Act,

1961 (hereinafter referred as the Act) on 10/07/2008. As a result of the

survey proceedings, excess cash, gold stock and incriminating

documents were found. This case was scrutinized U/s 143(3) of the Act.

The assessee had surrendered Rs. 21,00,557/- during the course of

survey proceedings on account of excess cash found. The total

disclosure including cash as per statement was Rs. 1,51,17,149/-. After

taking the advantage of telescopic of undisclosed income with

undisclosed payment the net amount, the assessee had shown returned

income of Rs. 1,20,19,449/-. The Assessing Officer gave reasonable

opportunity of being heard and which was availed by the assessee. The

learned Assessing Officer had not allowed the telescopic benefit to the 3 ITA 675/JP/2012_ ACIT Vs. Kushal Dasot

assessee and under the head cash surrendered, addition of Rs.

11,02,857/- was made.

3. Being aggrieved by the order of the Assessing Officer, the

assessee carried the matter before the learned CIT(A), who had allowed

the appeal by observing that the assessee has submitted the cash-flow

statement before the Assessing Officer, however, the learned Assessing

Officer did not allow the telescopic claim of the assessee on the grounds

that the relevant documents of investment made in the Sayyed Colony

were not bearing any date, therefore, nexus between cash-inflow and

outflow of the same and the investment made in purchases of the

house are not established. It is undisputed fact that unrecorded

transactions were found to the first three months of financial year

2008-09. Therefore, unaccounted transactions were found to only for

the period of the first three months. There is no evidence with the

revenue that the assessee unaccounted income of Rs. 30,95,700/- from

Sayyed Colony scheme, has been invested or spent in any other

manner, then the claim made by the assessee, in this regard. It is also

observed that the telescopic effect is a well accepted principle of

account/fiscal matter on account of income as well as application of 4 ITA 675/JP/2012_ ACIT Vs. Kushal Dasot

fund. Therefore, he accepted the assessee's submission and allowed the

appeal.

4. Now the Revenue is in appeal before us. The learned D.R.

vehemently supported the order of the Assessing Officer.

5. At the outset, the learned A.R. for the assessee relied on the

order of the learned CIT(A) and argued that the assessee is engaged in

the business of Sarafa through its proprietary M/s Ghambirmal Panmal

Saraf. The assessee has surrendered during the course of survey, an

amount of Rs. 1,51,17,149/- in the statement recorded on dated

10/07/2008. However, return of income was filed at total income of Rs.

1,15,92,870/- only, which included the surrendered income of Rs.

1,20,19,449/- only inasmuch as the assessee claimed telescoping of the

unaccounted investment in house of Rs. 21,00,000/- and unaccounted

cash to the extent of Rs. 9,97,700/-, out of the total cash found, against

the unaccounted income of Rs. 30,97,700/-, being the income earned

and offered in respect of Sayyed Colony Scheme, Tonk. He relied on

the following case laws:

(i) CIT Vs. Ashok Kumar Jain (2014) 111 DTR 291 (Raj).

(ii) CIT Vs Tyaryamal Bal Chand (1987) 165 ITR 453 (Raj.)

(iii) CIT Vs Jethmal Boob (2008) 215 CTR 36 (Raj.)

(iv) Dhandia Jewellers Vs. CIT (1995) 214 ITR 712 (Raj) 5 ITA 675/JP/2012_ ACIT Vs. Kushal Dasot

(v) Anand Prakash Soni Vs. DCIT (2006) 101 TTJ 97 (jd)

(vi) CIT Vs. Kulwant Rai 210 CTR 380 (Delhi)

(vii) ACIT Vs Satya Narayan Agarwalla (2002) 255 ITR (AT) 69 (Kol).

(viii) Pullangode Rubber Produce Co. Ltd. vs. State of Kerala & Others 91 ITR 18 (SC).

6. We have heard the rival contentions of both the parties and

perused the material available on record. The learned CIT(A) have

given detailed reasoning for allowing telescopic benefit of income

earned and investment made. The learned DR has not controverted the

finding of the learned CIT(A), therefore, we do not find any reason to

intervene in the order of the learned CIT(A). Accordingly, order of the

learned CIT(A) is upheld.

7. In the result, the revenue's appeal is dismissed.

Order pronounced in the open court on 05/06/2015.

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:- 05th June, 2015 *Ranjan

vkns'k dh izfrfyfi vxzsf'kr@Copy of the order forwarded to:

1. vihykFkhZ@The Appellant- The ACIT, Circle-7, Jaipur 6 ITA 675/JP/2012_ ACIT Vs. Kushal Dasot

2. izR;FkhZ@ The Respondent- Sh. Kushal Dasot, Tonk.

3. vk;dj vk;qDr@ CIT

4. vk;dj vk;qDr¼vihy½@The CIT(A)

5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur

6. xkMZ QkbZy@ Guard File (ITA No. 675/JP/2012)

vkns'kkuqlkj@ By order,

lgk;d iathdkj@Asst. Registrar