Taxc/15/2008 Of Assistant Commissioner Of Income Tax v. M/S Ashok Chand Anil Kumar Bhansali

HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE MR. ABHAY MANOHAR SAPRE ficHON'BLE MR. G. MINHAJXIDDIN. JJ. Tax Case (Income Tax Appeal) No. 15/2008 INCOME TAX APPEAL U/S. 260A OF INCOME TAXACT,1961. Present:- Mr. Anand Dadariya, Advocate for the appellant.Mr. Sourabh Sharina, Advocate for the respondent. JUDGMENT (Passedon[13/12/2012)] Per Abhay Manohar Sapre, J:- (1)This is an appeal filed by the Assistant Commissioner ofIncome Tax (Revenue) under Section 260A of the Income TaxAct, 1961 (for short called "The Act") against the order dated06/02/2008 passed by the Income Tax Appellate TribunalBilaspur Bench, Bilaspur (for short ealled "The Tribunal") inI.T.A. No. 353 (Nag) 2007 for Assessment Year 2004-2005. (2)By impugned order, the Tribunal dismissed the appealfiled by the Revenue and upheld the order passed by theCoraniissioner of Appeals which had allowed the appeal filedby the assessee. (3)So the question which arises for consideration in thisappeal is whether tribunal was justi&ed in dismissing theappeal filed by the revenue thereby justified in upholding theorder passed by the Commissioner of Appeals? (4)This appeal was admitted for final hearing on followinjsubstantial question of law:- •'?:W*^!"S:-. g "Whetheronthefactsandinthecircunistances of the case, the Tribunalwas justifiedinlawindeletingtheaddition of Rs. 13,58,718/- and holdingthat ainount surrendered for taxattontowards the exist of pawned during thesurvey U/s. 133 of the Income Tax Act isbusiness inconie?" (5)The issue arise out of the assessment year 2004-2005.The assessee is engaged in the business of pawn brokerage,inoney lending etc. A survey was conducted in the businesspremises ofthe assessee. In this survey, some additional stockwas noticed which was not entered by the assessee in theirbooks. In the assessment proceedings, the A.O. called uponthe assessee to prove the source of this additional stock butsince according to A.O., the assessee failed to prove the sourcedespiteaffording hiraof anopportunityandhencetheadditionalstock wastreatedasassessee'sincomefromundisclosed sources. It was accordingly taxed in their handsby adding in their total income.The asse'ssee then appealedto the Commissioner of Appeals. The CIT (Appeals) allowed theappeal. He held that it is the income of assessee from theirbusiness. The revenue then felt aggrieved of this order filedappeal to the Tribunal.By iaipugned order, the Tribunaldismissed the appeal and upheld the order passed by theCommissioner of Appeals in assessee's favour. It is againstthis order; the revenue has felt aggrieved and filed this appeal. (6)Having heard the learned counsel for the parties and onperusal of the record of the case, we have formed an opinionto allow the appeal, set aside the irapugned order and remandthe case to the Tribunal for deciding the appeal afresh onnierits again by the Tribunal. (7)The need to reniand the case to the Tribunal has arisenbecause Tribunal did not give details of the case (AnandElectrical)on which it placed reliance for disraissing theappeal of the Revenue.True it is that the details of AnandElectrical are mentioned by the Commissioner of Appeals butweareatalosstoknowthereasoning.EventheComraissioner of Appeals simply quoted the conclusion of the fs^' -i.•*y^SS-A-^'i3@/ Anand Electrical but did not mention its reasoning on whichthe said decision was rendered. A copy of the order passed inAnand Electrical relied on by CIT (appeal) and Tribunal wasalso not made available to us by any of the counsel forourperusal to enable us toexamine its reasoning. Since thedecision of Tribunal are not reported in Journals and hencewe can not have any access to the decisions of the Tribunal. fs^' -i.•*y^SS-A-^'i3@/ Anand Electrical but did not mention its reasoning on whichthe said decision was rendered. A copy of the order passed inAnand Electrical relied on by CIT (appeal) and Tribunal wasalso not made available to us by any of the counsel forourperusal to enable us toexamine its reasoning. Since thedecision of Tribunal are not reported in Journals and hencewe can not have any access to the decisions of the Tribunal. (8)In our view, it would have been better if the Tribunal hadplaced reliance on the decisions of the Supreine Court/ HighCourt while deciding the appeal. By these observations, we donot wish to suggest that no reliance should be placed by theTribunal on its earlier decision. All that we wish to say is thatsince the decisions of the Tribunal are not reported in journalsand nor are they binding on the High Court, and hence as andwhen reliance is placed on any eariier decisions of theTribunal then the details of such case should be mentionedso that this Court is able to know the reasoning contained insuch decision. (9)As observed supra, the issue involved in this case needto be decided by the Tribunal keeping in view the provisions ofSection 133 read with Section 69 and 69-A as to whether theadditional stock which was detected during survey conductedunder Section133 ibid should be held to be assesseesbusiness income or it should be held to be their income fromundisclosed sources and secondly whether it was necessaiyfor the assessee to explain the source of such income/stockbecause such incorae/stock was found unaccountedinsurvey proceedings and if so whether they were able to explainthe source or not? (10)We leave this question open to be decided by theTribunal after remand on its merits in the light of what wehave observed supra. (11)In view of foregoing discussion, the appeal succeedsand is allowed. The impugned order is set aside. The case is Tiwari remanded to the Tribunal for deciding the appeal afresh onmerits in accordance with law. (12)No cost(s). Sd/-(Abhay Manohar Sapre)JUDGE Sd/-[G. Minhajuddin)JUDGE ^' ^