DIVISION BENCH v. M/s. Ashok Chand Anil

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 of Income Tax (Revenue) under Section 260A of the Income Tax Act, 1961 (for short called "The Act") against the order dated 06/02/2008 passed by the Income Tax Appellate Tribunal Bilaspur Bench, Bilaspur (for short ealled "The Tribunal") in I.T.A. No. 353 (Nag) 2007 for Assessment Year 2004-2005. (2) By impugned order, the Tribunal dismissed the appeal filed by the Revenue and upheld the order passed by the Coraniissioner of Appeals which had allowed the appeal filed by the assessee. So the question which arises for consideration in this (3) appeal is whether tribunal was justi&ed in dismissing the appeal filed by the revenue thereby justified in upholding the order passed by the Commissioner of Appeals?

(4) This appeal was admitted for final hearing on followinj substantial question of law:- •'?:W*^!"S:-. g "Whether on the facts and in the circunistances of the case, the Tribunal was justified in law in deleting the addition of Rs. 13,58,718/- and holding that ainount surrendered for taxatton towards the exist of pawned during the survey U/s. 133 of the Income Tax Act is business 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 business premises ofthe assessee. In this survey, some additional stock was noticed which was not entered by the assessee in their books. In the assessment proceedings, the A.O. called upon the assessee to prove the source of this additional stock but since according to A.O., the assessee failed to prove the source despite affording hira of an opportunity and hence the additional stock was treated as assessee's income from undisclosed sources.

It was accordingly taxed in their hands by adding in their total income. The asse'ssee then appealed to the Commissioner of Appeals. The CIT (Appeals) allowed the appeal. He held that it is the income of assessee from their business. The revenue then felt aggrieved of this order filed appeal to the Tribunal. By iaipugned order, the Tribunal dismissed the appeal and upheld the order passed by the Commissioner of Appeals in assessee's favour. It is against this order; the revenue has felt aggrieved and filed this appeal. (6) Having heard the learned counsel for the parties and on perusal of the record of the case, we have formed an opinion to allow the appeal, set aside the irapugned order and remand the case to the Tribunal for deciding the appeal afresh on nierits again by the Tribunal. (7) The need to reniand the case to the Tribunal has arisen because Tribunal did not give details of the case (Anand Electrical) on which it placed reliance for disraissing the appeal of the Revenue.

True it is that the details of Anand Electrical are mentioned by the Commissioner of Appeals but are at a loss to know the reasoning. Even the Comraissioner of Appeals simply quoted the conclusion of the fs^' -i. •*y ^SS-A-^' i3@/ Anand Electrical but did not mention its reasoning on which the said decision was rendered. A copy of the order passed in Anand Electrical relied on by CIT (appeal) and Tribunal was also not made available to us by any of the counsel for our perusal to enable us to decision of Tribunal are not reported in Journals and hence examine its reasoning. Since the we can not have any access to the decisions of the Tribunal. In our view, it would have been better if the Tribunal had (8) placed reliance on the decisions of the Supreine Court/ High Court while deciding the appeal. By these observations, we do not wish to suggest that no reliance should be placed by the Tribunal on its earlier decision.

All that we wish to say is that since the decisions of the Tribunal are not reported in journals and nor are they binding on the High Court, and hence as and when reliance is placed on any eariier decisions of the Tribunal then the details of such case should be mentioned so that this Court is able to know the reasoning contained in such decision. As observed supra, the issue involved in this case need (9) to be decided by the Tribunal keeping in view the provisions of Section 133 read with Section 69 and 69-A as to whether the additional stock which was detected during survey conducted under Section 133 ibid should be held to be assessees business income or it should be held to be their income from undisclosed sources and secondly whether it was necessaiy for the assessee to explain the source of such income/stock because such incorae/stock was found unaccounted survey proceedings and if so whether they were able to explain the source or not?