Principal Commissioner Of Income Tax, Jaipur-Ii, Jaipur v. M/S Delta Prime Marketing Pvt Ltd. C

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Income Tax Appeal No. 72 / 2016 Principal Commissioner Of Income Tax, Jaipur-II, Jaipur. ----Appellant Versus M/S Delta Prime Marketing Pvt Ltd. C-195, BAN Marg, Behind L.B.S. College, Adarsh Nagar, Jaipur. ----Respondent _____________________________________________________ For Appellant(s) : Mr. K.D. Mathur on behalf of Mr. R.B. Mathur _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment Per Hon’ble Jhaveri J. 14/02/2017 1.By way of this appeal, the appellant has challenged thejudgment and order of the Tribunal whereby the Tribunal hasdismissed the appeal preferred by the department. 2.Counsel for the appellant has taken us to the question of law which reads as under: “Whether on the facts and circumstances ofthe case the ITAT has grossly erred inconfirming the deletion of the addition ofRs.8099430/- made by the AssessingOfficer on account of difference betweenincome admitted during the course ofsurvey u/s. 133A and returned income?” 3.The brief facts of this case are that the assessee derives income from Authorized distributorship of Spice Mobile Handset.The assessee shown sales of Rs.1,88,42,90,809/- declaring grossprofit of Rs.6,88,74,148/- yielding gross profit rate of 3.65%. This is the first year of the assessee hence, no comparable figuresavailable. A Survey operation u/s 133A was carried kout at thebusiness premises of the assessee on 11.03.2010. During thecourse of survey, statements of Shri Dilip Kalra, one of theDirector of the assessee company were recorded. In reply thequestion No.12 Shri Dilip Kalra, Director of assessee companyadmitted total additional income of Rs,1,62,81,065/- being cashreceipts from various parties. During the course of survey anexecutive diary found, which was marked Annexure-A-1. Onperusal of this diary on page 129 some figures with name ofperson and place/town was written. On asking about theseentries assessee replied these entries are pertain to variousdealers from whom assessee received cash amount, which wasnot entered in the books of assessee. On the basis of theseentries the assessee surrendered Rs.1,62,81,065/-. Withreference to above a survey action u/s 133A of Income Tax Act,1961 was conducted on 11.03.2010 at the business premises at244, Frontier Colony, Adarsh Nagar, Jaipur. During the course ofsurvey, statement u/s 133A dated 11.03.2010 of Shri Dilip Kalras/o Sh. G.R. Kalra were recorded wherein the reply of QuestionNo. 18 Sh. Dilip Kalra have categorically admitted theunaccounted income of Rs. 1,62,81,065/- and regular income ofRs. 4,00,00,000. the net total income for the AY 2010-11 admittedat Rs. 5,62,00,000/- as on 12.03.2010, but in the return ofincome filed on 11.10.2010 the assessee has declared totalincome of Rs. 4,81,00,570 only, which is short by Rs. 80,99,430/-. 4.In view of the observations made by the CIT(A) and the Tribunal in para 5 which reads as under: “5.We have heard the rival contentions ofboth the parties and perused the materialavailable on record. The statement recordedu/s 133a as held by the various courtsincluding Hon’ble Supreme Court thatstatement recorded has no evidentiaryvalue and also rebuttable. The assesseeadmitted Rs. 4 crores during the surveyestimated regular income but books had notbeen completed as date of survey was11/3/2010. the statutory deduction such asdepreciation, interest on loan, salary to theDirector and other Statutory liability couldnot ascertain at the time of survey, whichhas been explained by the ld AR. The ld DRhas not controverted the finding given bythe ld CIT (A), therefore, we uphold theorder of the ld CIT (A). Tribunal in para 5 which reads as under: “5.We have heard the rival contentions ofboth the parties and perused the materialavailable on record. The statement recordedu/s 133a as held by the various courtsincluding Hon’ble Supreme Court thatstatement recorded has no evidentiaryvalue and also rebuttable. The assesseeadmitted Rs. 4 crores during the surveyestimated regular income but books had notbeen completed as date of survey was11/3/2010. the statutory deduction such asdepreciation, interest on loan, salary to theDirector and other Statutory liability couldnot ascertain at the time of survey, whichhas been explained by the ld AR. The ld DRhas not controverted the finding given bythe ld CIT (A), therefore, we uphold theorder of the ld CIT (A). 5.In our view, since the counter part of the department is notcontroverted, the statement of fact which has been stated in para 5, no case for entertaining the appeal is made out. 6.Hence, the appeal stands dismissed. (VINIT KUMAR MATHUR)J. (K.S. JHAVERI)J. Asheesh Kr. Yadav/48