T.a./32/2007 Of Commissioner Of Incometax Cent v. M/S Tirupati Jewellers Ranchi

IN THE HIGH COURT OF JHARKHAND AT RANCHITax Appeal No. 32 of 2007 Commissioner of Income Tax, Patna -Versus- .... Appellant M/s Tirupati Jewellers, Ranchi ..... Respondent ...... CORAM : HON’BLE THE CHIEF JUSTICE HON’BLE MR.JUSTICE S.CHANDRASHEKHAR .... For the Appellant : Mr.Deepak Roshan,Adv.For the Respondent:M/s Nitin Kumar Pasari & Ranjana Mukherjee,Advocates ..... Dated 20th January, 2014 By Court-This Tax Appeal has been preferred by the Revenue against the order of the Income Tax Appellate Tribunal ( hereinafter referred to as “ ITAT), wherein the ITAT has dismissed the appeal of the Revenue in I.T.(SS)A.No.147/Pat/2005 upholding the order passed by the Commissioner of Income Tax(Appeals). 2.The brief facts are that the assessee is the partnership firm, which deals in gold and silver jewellery and derived income from running a jewellery shop. A search and seizure under Section 132 of the Income Tax Act was conducted on 26.9.2001 and on subsequent dates at the business premises of the assessee. During the course of search, cash, gold, diamond and silver jewellery were found and seized. In course of the assessment proceeding, the Assessing Officer added : (i)Rs.17,00,378/- on account of suppression of gross profit; (ii)The Assessing Officer has also added Rs.37,78,883/- on account of unexplained unsecured loans and on account of unexplained sundry debtors appearing in the loose sheets ; (iii) The Assessing Officer made an addition of Rs. 4,74,658/- on account of excess stock of gold jewellery found during the search; (iv) An addition of Rs.25,235/- on account of deficit in silver and stone stock; (v) Addition of Rs.1,16, 210/- was found at the business premises out of which an addition of Rs. 1,00,000/- was made by the Assessing Officer. 3.Being aggrieved by the assessment order, the assessee preferred appeal before the C.I.T.(Appeals). The C.I.T.(Appeals) vide order 18.2.2005 allowed the appeal of the assessee and deleted all the aforesaid additions. Against the said order, the Revenue preferred appeal before the ITAT. Vide order dated 2.8.2006, the ITAT upheld the order of C.I.T.(Appeals) and dismissed the appeal of the Revenue. Being aggrieved by the order of ITAT, the Revenue has preferred this appeal. 4.The Revenue has preferred this appeal, inter alia, raising various substantial questions of law in respect of deletion on all the five counts. 5.When the appeal was taken up for hearing, learned counsel for the respondent-assessee has drawn our attention to the order passed in T.A. No.31 of 2007 dated 10.12.2007, wherein the appeal preferred by the Revenue against the partner of the Firm Shri Paresh Mukherjee (in the order wrongly mentioned as Prakash Mukherjee) was dismissed by the Court on the ground that the impugned order is based on pure finding of facts and that there is no substantial question of law involved. It is also submitted that the Revenue has not preferred any further appeal as against the order passed in Tax Appeal No.31 of 2007. 6.Even though the Revenue has challenged the order of the Tribunal, in and by which the Tribunal upheld the order of the CIT(Appeals) in respect of deletion of addition of Rs.17,00,378/- on account of suppression of gross profit; addition of Rs.34,99,483/- as undisclosed income on account of unsecured loan and deletion of addition of Rs.4,74,658/- on account of unexplained excess stock ; addition of Rs.25,235/- on account of deficit stock of silver and stone, the learned counsel for the Revenue- Mr.Deepak Roshan submitted that in so far as the deletion of addition on the above four counts, the issues are covered by the earlier order dated 10.12.2007 passed in T.A. No.31 of 2007. preferred any further appeal as against the order passed in Tax Appeal No.31 of 2007. 6.Even though the Revenue has challenged the order of the Tribunal, in and by which the Tribunal upheld the order of the CIT(Appeals) in respect of deletion of addition of Rs.17,00,378/- on account of suppression of gross profit; addition of Rs.34,99,483/- as undisclosed income on account of unsecured loan and deletion of addition of Rs.4,74,658/- on account of unexplained excess stock ; addition of Rs.25,235/- on account of deficit stock of silver and stone, the learned counsel for the Revenue- Mr.Deepak Roshan submitted that in so far as the deletion of addition on the above four counts, the issues are covered by the earlier order dated 10.12.2007 passed in T.A. No.31 of 2007. 7.Having regard to the submissions made, we have heard the submission of the learned counsel for the Revenue only in respect of 5[th] ground, namely, the deletion of addition of Rs.1,00,000/-on account of unexplained cash found during the search. The learned counsel for the Revenue submitted that during the search and seizure operation, Rs.1,16,210/- was found at the business premises and Assessing Officer has made an addition of Rs.1,00,000/- without looking into the System. The learned counsel further submitted that the CIT(Appeals) while considering the unexplained addition of cash of Rs.1,00,000/- ought to have remanded the matter to the Assessing Officer with a direction to verify the System and thereafter to pass a fresh order. The learned counsel further submitted that there is total non consideration of matter by the ITAT and the ITAT has simply extracted the order of the CIT(Appeals) and without consideration of the issues raised by the Revenue, dismissed the Revenue's appeal and, therefore, the impugned order suffers from perversity. In sofar as the addition of Rs.1,00,000/- is concerned, the learned counsel prayed for remanding the matter to the Assessing Officer/C.I.T.(Appeals). 8.The learned counsel for the respondent- Mr.N.K.Pasari has drawn our attention to para-8.3 of the order of C.I.T.(Appeals) and submitted that the cash of Rs.1,16,210 /- found at the business premises, out of which an addition of Rs.1,00,000/- was made by the Assessing Officer, the CIT(Appeals) has clearly recorded statement of assessee that the amount of Rs.1,16,210/- was duly reflected in cash book, which was found in Computer hard disk seized by ADIT(Investigation). The learned counsel for the Assessee submitted that on being satisfied that the said cash was reflected in cash book, which was found in Computer hard disk seized by Assessing ADIT(Investigation), which was accepted by the ITAT, no substantial question of law is involved in the present Tax Appeal. 9.We have carefully considered the submissions of the learned counsel for the Revenue as well as the learned counsel for the Assessee and considered the materials on record. We are of the view the addition of cash found at the business premises, whether the same was reflected in the cash book or not is only a question of fact. G.Jha/ 10.As rightly pointed out by the learned counsel for the Assessee, before the CIT(Appeals) the representative of the Assessee submitted that the cash was duly reflected in cash book, which was found in Computer hard disc seized by ADIT(Investigation), thereupon the CIT(Appeals) accepted the submission of the representative of the Assessee. When the CIT(Appeals) was satisfied on such factual aspect and the ITAT has also upheld the order of the CIT(Appeals), we do not find any substantial question of law is involved on this deletion of addition of Rs.1,00,000/-. 11.Since no substantial question of law is involved, the present Tax Appeal preferred by the Revenue is dismissed . ( R.Banumathi, C.J. )( S.Chandrashekhar, J.)