Smt. Bebi Balaso Mujawar, Kolhapur V. Deputy Commissioner of Income-tax, Kolhapur

ITA 1291/PUN/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7718 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 20-04-2018
• Assessment Year: 2003-2004
• Appeal Filed On: 13-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained investment; Search and seizure; Validity of assessment
• Section: 132; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO .1291 /P U N/201 6 / ASSESSMENT YEAR : 200 3 - 04 SMT. BEBI BALASO MUJAWAR, WARD NO. 1, HOUSE NO. 370, AMBI GALLI, ICHALKARANJI, DISTT. - KOLHAPUR 416115 PAN : ABNPM0779N ....... / APPELLANT / V/S. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOLHAPUR / RESPONDENT ASSESSEE BY : S HRI M.K. KULKARNI REVENUE BY : SHRI ACHAL SHARMA / DATE OF HEARING : 25 - 04 - 201 8 / DATE OF PRONOUNCEMENT : 26 - 0 4 - 201 8 / ORDER PER VIKAS AWASTHY, JM : TH IS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 11, PUNE DATED 18 - 03 - 2016 FOR THE ASSESSMENT YEAR 2003 - 04. 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORDS ARE : THE ASSESSEE IS RUNNING A COUNTRY LIQUOR SHO P. A SEARCH AND SEIZURE ACTION 2 ITA NO . 1291/PUN/2016, A.Y. 2003 - 04 U/S. 132 O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) WAS CARRIED OUT AT THE RESIDENTIAL AND BUSINESS PREMISES OF BHAGWAN GROUP ON 18 - 05 - 2005. THE ASSESSEE IS ONE OF THE MEMBER OF GROUP AND WAS ALSO CO VERED UNDER SEARCH. DURING SEARCH FIXED DEPOSITS TO THE TUNE OF RS.1,46,570/ - WERE FOUND. THE ASSESSEE PURPORTEDLY COULD NOT EXPLAIN SOURCE OF INVESTMENT IN FIXED DEPOSITS. IN ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER INTER ALIA MADE ADDITION OF RS. 1,46,570/ - ON ACCOUNT OF UNEXPLAINED INVESTMENT IN FIXED DEPOSITS. AGGRIEVED BY THE ASSESSMENT ORDER DATED 30 - 11 - 2007 PASSED U/S. 144 R.W.S. 153A(B) OF THE ACT , THE ASSESSEE FILED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS) IN THE ABSENCE OF ANY EVIDENCE INDICATING SOURCE OF INVESTMENT, CONFIRMED THE ADDITION OF RS.1,46,570/ - . NOW, THE ASSESSEE IS IN SECOND APPEAL AGAINST THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS). 3. THE ASSESSEE IN APPEA L HAS RAISED TWO GROUNDS. IN GROUND NO. 1 THE ASSESSEE HAS ASSAILED THE CONFIRMING OF ADDITION OF RS.1,46,570/ - . IN GROUND NO. 2 THE ASSESSEE HAS CHALLENGED THE ASSESSMENT FRAMED U/S. 144 R.W.S. 153A(B) ON THE GROUND OF NON - ISSUANCE OF STATUTORY NOTICE U /S. 143(2) OF THE ACT. 4. SHRI M.K. KULKARNI APPEARING ON BEHALF OF THE ASSESSEE STATED AT THE OUTSET THAT HE IS NOT PRESSING GROUND NO. 2 OF THE APPEAL. IN SO FAR AS THE MERITS OF ADDITION IS CONCERNED THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IN BALANCE SHEET AS ON 31 - 03 - 2003 HAS DISCLOSED INVESTMENT IN FIXED DEPOSITS, THEREFORE, IT C ANNOT BE SAID THAT THE INVESTMENT IS UNACCOUNTED OR UNEXPLAINED. THE LD. COUNSEL FURNISHED A 3 ITA NO . 1291/PUN/2016, A.Y. 2003 - 04 COPY OF PROFIT AND LOSS ACCOUNT FOR THE YEAR ENDING 31 - 03 - 2003 AND THE BALANCE SHEET AS ON 31 - 03 - 2003. 5. ON THE OTHER HAND SHRI ACHAL SHARMA REPRESENTING THE DE PARTMENT VEHEMENTLY SUPPORTED THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS). THE LD. DR SUBMITTED THAT THE ASSESSEE HAS FAILED TO FURNISH ANY COGENT EVIDENCE TO SUPPORT THAT THE INVESTMENT IN FIXED DEPOSITS IS DULY ACCOUNTED IN THE BOOKS. NO EVIDENCE WAS FURNISHED BY THE ASSESSEE TO SUPPORT HER CONTENTIONS EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). 6. W E HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF AUTH ORITIES BELOW . THE SOLITARY ISSUE PRESSED BEFORE US IS WITH RESPECT TO ADDITION OF RS.1,46,570/ - ON ACCOUNT OF INVESTMENT IN FIXED DEPOSITS. THE LD. COUNSEL FOR THE ASSESSEE HAS DRAWN OUR ATTENTION TO THE BALANCE SHEET AS ON 31 - 03 - 2003 WHEREIN FIXED DEPO SITS OF RS.1,06,570/ - ARE REFLECTED. WE OBSERVE THAT THE AMOUNT WHICH IS SUBJECT MATTER OF APPEAL IS RS.1,46,570/ - , WHEREAS , IN THE BALANCE SHEET THE AMOUNT REFLECTED AGAINST FIXED DEPOSITS IS RS.1,06,570/ - . EVEN THE DETAILS OF FIXED DEPOSITS REFLECTED I N THE BALANCE SHEET ARE NOT FURNISHED BY THE ASSESSEE BEFORE US. THE LD. COUNSEL SUBMITTED THAT AN OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE TO FURNISH THE DETAILS OF FIXED DEPOSITS AS REFLECTED IN THE BOOKS AND EXPLAIN THE SAME. TAKING INTO CONSIDERATION THE TOTALITY OF FACTS , WE DEEM IT APPROPRIATE TO RESTORE THIS ISSUE BACK TO THE FILE OF ASSESSING OFFICER FOR THE LIMITED PURPOSE OF RECONCILIATION OF INVESTMENT MADE IN FIXED DEPOSITS BY THE ASSESSEE. THE ASSESSING OFFICER AFTER CONSIDERING THE DETAILS AND EXPLANATION, IF ANY FURNISHED BY THE ASSESSEE SHALL DECIDE THIS ISSUE, IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THAT THE ASSESSING OFFICER WHILE DECIDING THIS ISSUE SHALL GRANT REASONABLE 4 ITA NO . 1291/PUN/2016, A.Y. 2003 - 04 OPPORTUNITY OF HEARING TO THE ASSESSEE. ACCORDINGLY, GROUND NO. 1 RAISED IN THE APPEAL BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 7. THE LD. COUNSEL FOR THE ASSESSEE HAS STATED AT THE BAR THAT HE IS NOT PRESSING GROUND NO. 2 CHALLENGING THE VALIDITY OF ASSESSMENT ORDER PASSED U/S. 144 R.W.S. 153A(B) OF THE ACT. IN VIEW OF THE STATEMENT MADE BY THE LD. COUNSEL , GROUND NO. 2 RAISED IN THE APPEAL IS DISMISSED. 8. THE GROUND NO. 3 IS GENERAL IN NATURE, HENCE REQUIRES NO ADJUDICATION. 9. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THURSDAY, THE 26 TH DAY OF APRIL, 201 8 . SD/ - SD/ - ( . /D. KARUNAKARA RAO ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 26 TH APRIL, 2018 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 1 1 , PUNE 4. THE D GIT (INV.), PUNE 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE