Shri Vasudev Gangwani v. Commissioner Of Income Tax, Jaipur

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Income Tax Appeal No. 337 / 2011 Shri Vasudev Gangwani Prop. M/s Yours Fashion B-102, Gaurav Tower, Malviya Nagar, Jaipur ----Appellant Versus 1. Commissioner of Income Tax, Jaipur 2. ITO ward 6(1), Jaipur ----Respondent _____________________________________________________ For Appellant(s) : Mr. P.K. Kasliwal with Mr. Priyesh KasliwalFor Respondent(s) : Mr. R.B. Mathur with Mr. Prateek Kedawat _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE INDERJEET SINGHOrder 24/07/2017 1.By way of this appeal, the appellant has assailed thejudgment and order of the Tribunal whereby the Tribunal haspartly allowed the appeal preferred by the assessee and only forthe statistical purpose confirmed the order of AO and CIT(A). 2.This court while admitting the matter framed the followingquestions of law:- “i) Whether the Tribunal was justified in confirmingthe trading addition of Rs. 933881/- and estimationof sales and gross profit, on the basis ofdiscrepancy found at a time of survey, irrespectiveof the fact that such discrepancy was incorporatedin the books of account, so further estimation ofincome on the same discrepancy does not amountto double taxation?the trading addition of Rs. 933881/- and estimationof sales and gross profit, on the basis ofdiscrepancy found at a time of survey, irrespectiveof the fact that such discrepancy was incorporatedin the books of account, so further estimation ofincome on the same discrepancy does not amountto double taxation? ii) Whether the Tribunal was justified in nowallowing the claim of set off trading addition against the investment in building upheld by theAssessing Officer, such conclusion is legallysustainable?” 3.Counsel for the appellant contended that the Tribunal hasseriously committed an error in partly allowing the appeal andcontended that CIT (A) while considering issue no. 2 in para 5observed as under:- “In this respect it was argued that if the additionfor investment is sustained the set off of the samebe allowed keeping in view Supreme Courtjudgment in the case of AnarnathamVeerasinghaias & Co. vs. CIT 123 ITR 457 andanother judgment of Rajasthan High Court in thecase of CIT vs. Thrayamal Balchand 165 ITR 453.Having considered his submission it is seen that noworking could be given that against which additionthe said set off is eligible and claimed and thereforein absence of such details no such benefit oftelescoping can be worked out and accordingly thisground of appeal is hereby dismissed.” 4.Subsequently, details were given and Tribunal has wrongly confirmed the same addition in para 16 & 17 which reads asunder:- “16. The brief facts of the case are that theassessee has claimed the benefit of telescopingbefore the ld. CIT(A) which was disallowed videpara 5 of ld. CIT(A)’s order. 17. We have heard the rival contentions andperused the facts of the case. We concur withthe view of the ld. CIT(A) vide para 5 of hisorder that no nexus has been proved theassessee against which the addition of said setoff is eligible. Therefore, we find no infirmity inthe order of the ld. CIT(A). Thus Ground No.5 ofthe assessee is dismissed.” 5.On issue no. 1, he has contended that confirming the trading addition of Rs. 933881/- and estimation of sales and gross profiton the basis of discrepancy found at a time of survey, in our considered opinion, there is concurrent finding and therefore, thefirst issue is required to be answered in favour of the departmentagainst the assessee. 17. We have heard the rival contentions andperused the facts of the case. We concur withthe view of the ld. CIT(A) vide para 5 of hisorder that no nexus has been proved theassessee against which the addition of said setoff is eligible. Therefore, we find no infirmity inthe order of the ld. CIT(A). Thus Ground No.5 ofthe assessee is dismissed.” 5.On issue no. 1, he has contended that confirming the trading addition of Rs. 933881/- and estimation of sales and gross profiton the basis of discrepancy found at a time of survey, in our considered opinion, there is concurrent finding and therefore, thefirst issue is required to be answered in favour of the departmentagainst the assessee. 6.For the second issue, the CIT(A) has rightly observed thatunless set off details are given the mistake cannot be cured andno doubt details are given before the Tribunal but when the findinghas already been given by the CIT(A) that no details were given,the mistake cannot be cured at the second appellate stage. Thus,the second issue is also answered against the assessee in favourof the department. 7.Both the issues are answered in favour of the department,the appeal stands dismissed. (INDERJEET SINGH),J. (K.S. JHAVERI),J. A.Sharma/65