Shri Aloke Kumar Dutta., Kolkata V. I.T.O Wd - 53(2)/kolkata., Kolkata

ITA 112/KOL/2013

• Counselvise Citation: 11223514 RSA 2013
• Duration Of Justice: 2 year(s) 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 17-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A K TIBREWAL
• Section: 133A; 148

Judgement Text

I.T.A. NO. 112/KOL./2013 ASSESSMENT YEAR: 2008-2009 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 112/KOL/ 2013 ASSESSMENT YEAR : 2008-2009 SHRI ALOKE KUMAR DUTTA,............................ .........................APPELLANT 363, PARNASHREE PALLY, BEHALA, KOLKATA-700 060 [PAN : AFBPD 7183 H] -VS.- INCOME TAX OFFICER,................................ ............................RESPONDENT WARD-53(2), KOLKATA, AAYAKAR BHAWAN (DAKSHIN), 2, GARIAHAT ROAD, 2 ND FLOOR, KOLKATA-700 068 APPEARANCES BY: SHRI A.K. TIBREWAL, FCA & SHRI AMIT AGARWAL, ADVOCA TE , FOR THE ASSESSEE SHRI SRIDHAR BHATTACHARYYA, JCIT, SR. D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : NOVEMBER 02, 2015 DATE OF PRONOUNCING THE ORDER : NOVEMBER 04, 2015 O R D E R PER SHRI P.M. JAGTAP :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXXIII, KOLKAT A DATED 11.10.2012 FOR THE ASSESSMENT YEAR 2008-09 AND THE SOLITARY IS SUE ARISING OUT OF THE SAME RELATES TO THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED GOLD JEWELLERY, WHICH IS SUSTAINED BY T HE LD. CIT(APPEALS) TO THE EXTENT OF RS.3,00,440/-. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND SALE OF JEWELLERY UNDER THE NAME AND STYLE HIS PROPRIETARY CONCERN M/S. MANASA GUNIE MAN SION. A SURVEY UNDER SECTION 133A WAS CARRIED OUT IN THE BUSINESS PREMIS ES OF THE ASSESSEE ON 16.04.2008, DURING THE COURSE OF WHICH, JEWELLERY O F 3,937.04 GRAMS WAS I.T.A. NO. 112/KOL./2013 ASSESSMENT YEAR: 2008-2009 PAGE 2 OF 3 FOUND. THEREAFTER, A NOTICE UNDER SECTION 148 WAS I SSUED BY THE ASSESSING OFFICER, IN RESPONSE TO WHICH, THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY THE ASSESSEE DECLARING T OTAL INCOME OF RS.8,63,110/-. DURING THE COURSE OF ASSESSMENT PROC EEDINGS, GOLD FOUND DURING THE COURSE OF SURVEY WAS EXPLAINED BY THE AS SESSEE BY POINTING OUT THAT THE SAME WAS PARTLY BELONGING TO HIM AND HIS F AMILY MEMBERS AND PARTLY BELONGING TO THE KARIGORS, WHO HAD KEPT THE SAME WITH THE ASSESSEE AS SECURITY DEPOSIT. THIS EXPLANATION OF THE ASSESS EE WAS FOUND TO BE PARTLY ACCEPTABLE BY THE ASSESSING OFFICER AND TREA TING THE GOLD TO THE EXTENT OF 518.73 GRAMS AS UNEXPLAINED, THE VALUE TH EREOF RS.5,79,940/- WAS ADDED BY HIM TO THE TOTAL INCOME OF THE ASSESSE E. ON APPEAL, LD. CIT(APPEALS) RESTRICTED THE ADDITION MADE BY THE AS SESSING OFFICER ON THIS ISSUE TO RS.3,00,440/- AFTER HAVING FOUND THAT THE EXPLANATION OFFERED BY THE ASSESSEE AS REGARDS THE GOLD FOUND DURING TH E COURSE OF SURVEY WAS ACCEPTABLE TO THE EXTENT OF 268.73 GRAMS. AGGRIEVED BY THE ORDER OF LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEA L BEFORE THE TRIBUNAL. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE PRELIMINARY ISSUE THAT IS RAISED BY THE LD. COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING BEFORE US IS THAT THE GOLD TREATED AS UNEXPLAINED HAVING BEEN FOUND DURIN G THE COURSE OF SURVEY CARRIED OUT ON 16.04.2008, THE ADDITION, IF ANY, ON ACCOUNT OF SUCH UNEXPLAINED GOLD CAN BE MADE ONLY IN ASSESSMENT YEA R 2009-10 AND NOT IN THE YEAR UNDER CONSIDERATION, I.E. A.Y. 2008-09. IN THIS REGARD, IT IS OBSERVED THAT AS PER THE PROVISIONS OF SECTION 69A AND 69B, WHEN THE ASSESSEE IS FOUND TO BE THE OWNER OF ANY JEWELLERY IN ANY FINANCIAL YEAR AND HE OFFERS NO EXPLANATION ABOUT THE NATURE AND S OURCE OF ACQUISITION OF SUCH GOLD OR THE EXPLANATION OFFERED BY HIM IS NOT FOUND TO BE SATISFACTORY BY THE ASSESSING OFFICER, THE VALUE OF SUCH GOLD MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE FOR SUCH FI NANCIAL YEAR. IN THE PRESENT CASE, THE ASSESSEE WAS FOUND TO BE THE OWNE R OF THE GOLD DURING THE COURSE OF SURVEY CARRIED OUT ON 16.04.2008, I.E . IN THE FINANCIAL YEAR 2008-09 AND, THEREFORE, THE ADDITION, IF ANY, ON AC COUNT OF SUCH GOLD BY I.T.A. NO. 112/KOL./2013 ASSESSMENT YEAR: 2008-2009 PAGE 3 OF 3 TREATING THE SAME AS UNEXPLAINED, CAN BE MADE ONLY IN THE ASSESSMENT YEAR 2009-10 AND NOT IN THE YEAR UNDER CONSIDERATIO N, I.E. 2008-09. WE FIND THAT THE PRELIMINARY CONTENTION RAISED BY THE LD. COUNSEL FOR THE ASSESSEE IN SUPPORT OF THE ASSESSEES CASE ON THE I SSUE UNDER CONSIDERATION IS FULLY SUPPORTED BY THE RELEVANT PR OVISIONS OF SECTION 69A AND 69B OF THE ACT AND THE LD. D.R. HAVING FAILED T O REBUT OR CONTROVERT THIS POSITION, WE DELETE THE ADDITION MADE BY THE A SSESSING OFFICER AND SUSTAINED BY THE LD. CIT(APPEALS) ON ACCOUNT OF THE ALLEGED UNEXPLAINED GOLD AS THE ASSESSEE WAS FOUND TO BE THE OWNER OF T HE SAID GOLD IN THE FINANCIAL YEAR RELEVANT TO ASSESSMENT YEAR 2009-10 AND NOT IN THE YEAR UNDER CONSIDERATION. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON NOVEMBER 4 TH , 2015. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 4 TH DAY OF NOVEMBER, 2015 COPIES TO : (1) SHRI ALOKE KUMAR DUTTA, 363, PARNASHREE PALLY, BEHALA, KOLKATA-700 060 (2) INCOME TAX OFFICER, WARD-53(2), KOLKATA, AAYAKAR BHAWAN (DAKSHIN), 2, GARIAHAT ROAD, 2 ND FLOOR, KOLKATA-700 068 (3) COMMISSIONER OF INCOME-TAX (APPEALS)- XXXIII, KOLKATA (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.