Deepak Karani, Howrah V. D.C.I.T.,Circle-47, Kolkata

ITA 1488/KOL/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 3298 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 18-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ABHAY NATH KESHARI
• Keywords: Assessment record; Set aside
• Section: 148

Judgement Text

ITA NO. 1488/KOL/2019 ASS ESSMENT YEAR: 2012-2013 D EEPAK KARANI 1 IN THE INCOME TAX APPELLATE TRIBUNAL, C(SMC) BENCH, KOLKATA [VIRTUAL COURT HEARING] BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT I.T.A. NO. 1488/KOL/2019 ASSESSMENT YEAR: 2012-2013 DEEPAK KARANI,............................. ................... APPELLANT D-28/2, NISCO IND. HOUSING ESTATE, SAPUIPARA, BALLY, HOWRAH-711227 [PAN:ANFPK1608L] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,............. ....... RESPONDENT CIRCLE-47, KOLKATA, 3, GOVERNMENT PLACE (WEST), KOLKATA-700001 APPEARANCES BY: SHRI ABHAY NATH KESHARI, FCA, APPEARED ON BEHALF OF THE ASSESSEE SHRI JAYANTA KHANRA, JCIT, SR. D.R., APPEARED ON BE HALF OF THE REVENUE DATE OF CONCLUDING THE HEARING : MARCH 08, 2021 DATE OF PRONOUNCING THE ORDER : MARCH 08, 2021 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-14, KOLKATA DA TED 12.03.2019 AND THE SOLITARY ISSUE INVOLVED THEREIN RELATES TO THE ADDITION OF RS.2,33,970/- MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(APPEALS) ON ACCOUNT OF UNEXPLAINED CASH ALLEGEDLY DEPOSITED BY THE ASSESSEE IN THE BANK ACCOUNT. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O N 02.02.2013 DECLARING TOTAL INCOME OF RS.2,00,940/-. AS PER THE INFORMATION RECEIVED BY THE ASSESSING OFFICER, THE ASSESSEE WAS A PROPRI ETOR OF TWO CONCERNS NAMELY M/S. FINWISE SERVICES AND M/S. VISION ENTERP RISES AND THE CASH ITA NO. 1488/KOL/2019 ASS ESSMENT YEAR: 2012-2013 D EEPAK KARANI 2 DEPOSITS OF RS.2,33,970/- WERE MADE DURING THE YEAR UNDER CONSIDERATION IN THE BANK ACCOUNT MAINTAINED IN THE NAME OF M/S. FINWISE SERVICES WITH ICICI BANK. SINCE THE SAID BANK ACCOUNT WAS NOT DIS CLOSED BY THE ASSESSEE IN THE RETURN OF INCOME FILED FOR THE YEAR UNDER CO NSIDERATION, THE ASSESSMENT WAS REOPENED BY THE ASSESSING OFFICER AN D THE NOTICE UNDER SECTION 148 WAS ISSUED BY HIM TO THE ASSESSEE ON 29 .03.2017. IN REPLY, IT WAS SUBMITTED ON BEHALF OF THE ASSESSEE THAT THE RE TURN ORIGINALLY FILED BY HIM ON 02.02.2013 MAY BE TREATED AS THE RETURN FILE D IN RESPONSE TO THE NOTICE UNDER SECTION 148. DURING THE COURSE OF ASSE SSMENT PROCEEDINGS, THE ASSESSEE DENIED OF HAVING ANY RELATION WITH THE TWO PROPRIETARY CONCERNS NAMELY M/S. FINWISE SERVICES AND M/S. VISI ON ENTERPRISES. THIS STAND OF THE ASSESSEE WAS NOT FOUND ACCEPTABLE BY T HE ASSESSING OFFICER IN THE ABSENCE OF ANY CREDIBLE EVIDENCE AND KEEPING IN VIEW THAT NO EXPLANATION WAS OFFERED BY THE ASSESSEE IN RESPECT OF CASH DEPOSITS OF RS.2,33,970/- FOUND TO BE MADE IN THE BANK ACCOUNT OF M/S. FINWISE SERVICES MAINTAINED WITH ICICI BANK, HE ADDED THE S AID AMOUNT TO THE TOTAL INCOME OF THE ASSESSEE BY TREATING THE SAME A S UNEXPLAINED IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3)/147 OF TH E ACT VIDE AN ORDER DATED 29.12.2017. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3)/147, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) CHALLENGING THE ADDITION OF RS.2,33,97 0/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF CASH DEPOSITS FOUND TO BE MADE IN THE BANK ACCOUNT OF M/S. FINWISE SERVICES MAINTAINED WI TH ICICI BANK AND THE FOLLOWING SUBMISSION, INTER ALIA, WAS MADE ON B EHALF OF THE ASSESSEE IN SUPPORT OF HIS CASE ON THIS ISSUE:- GROUND NO. 1 RELATES TO THE ERROR MADE BY AO IN MA KING ADDITIONS OF CASH DEPOSIT OF RS.2,33,970 ALLEGEDLY MADE IN ICICI BANK ACCOUNT OF M/S FINWISE SERVICES WHICH DOES NOT BELONG TO THE APPELLANT. THE APPELLANT FULLY DE NIED DURING THE COURSE OF INCOME TAX ASSESSMENT PROCEEDI NG FOR THE SAID A. Y. 2012-13 BUT AO DID NOT CONSIDER AND PAY ANY HEED TO THE CONTENTIONS OF APPELLANT. BUT I N AN ITA NO. 1488/KOL/2019 ASS ESSMENT YEAR: 2012-2013 D EEPAK KARANI 3 ASSESSMENT ORDER PASSED SUBSEQUENTLY ON 12.12.2018 THE SUCCESSOR AO FULLY AGREED WITH THE CONTENTION OF TH E APPELLANT AND ACCEPTED THE PLEA OF THE APPELLANT AS EVIDENT FROM THE ASSESSMENT ORDER PASSED, ENCLOSED HEREWITH YOUR KIND PERUSAL. THE ICICI BANK OF M/S FINWISE SERVICES DOES NOT BELONG TO THE APPELLANT S O THERE CANNOT BE ANY ADDITION IF THERE IS ANY DEPOSI T IN THIS ACCOUNT BECAUSE THE DEPOSIT IS NOT MADE BY THE APPELLANT. GROUND NO.2 RELATES TO THE ERROR MADE BY AO IN NOT APPRECIATING THE FACT. THERE WAS AN ACT OF FORGERY DONE BY SOME MISCREANT IN THE NAME OF THE APPELLANT, WHI CH THE SUCCESSOR AO ACKNOWLEDGED WHILE PASSING AN ORDE R SUBSEQUENTLY FOR THE A. Y. 2011-12. SO THIS GROUND OF APPEAL IS RELATED TO THE SAME ISSUE OF GROUND NO. 1 AND CORRELATED WITH THE ADDITION OF CASH AMOUNTING TO RS.2,33,970 IN THE ICICI BANK ACCOUNT OF M/S FINWIS E, WHICH IS NOT OWNED BY THE APPELLANT. 4. THE LD. CIT(APPEALS) DID NOT FIND MERIT IN THE S UBMISSION OF THE ASSESSEE AND PROCEEDED TO CONFIRM THE ADDITION OF R S.2,33,970/- MADE BY THE ASSESSING OFFICER FOR THE REASONS GIVEN IN PARA GRAPH NO. 3.3 OF HIS IMPUGNED ORDER:- 3.3. I HAVE GONE THROUGH AND PERUSED THE RELEVANT ASSESSMENT RECORDS. THE APPELLANT DURING BOTH ASSESSMENT AND A PPEAL PROCEEDING HAD VEHEMENTLY DENIED THAT THE BANK ACCO UNT BEARING NO.090105500015 WITH ICIC BANK KOLKATA BELO NG TO HIM. HE HAD ALSO SUBMITTED THAT UNKNOWN PERSONS HAD FORGED AND MISS-UTILIZED HIS PAN CARD FOR OPENING OF SAID ACCOUNT. THE A.O. IN THE ASSESSMENT ORDER HAD NOTED THAT DURING THE FINANCIAL YEAR 2011-12 A SUM OF RS.2,33,970/- WAS DEPOSITED I N THE ACCOUNT. HOWEVER, THE A.O. HAD NOT ACCEPTED THE CON TENTION OF THE APPELLANT THAT THE BANK ACCOUNT DID NOT BELONG TO HIM AS HE COULD NOT PROVIDE ANY CREDIBLE EVIDENCE TO THE CONT RARY. DURING THE APPEAL PROCEEDINGS, THE A/R OF THE APPELLANT CO ULD ALSO PROVIDE NO CONCLUSIVE EVIDENCE THAT THE BANK ACCOUN T DID NOT BELONG TO HIM. IT MAY BE NOTED THAT TILL DATE OF HE ARING ON 12.03.2019, THE APPELLANT HAD NOT FILED FIR WITH TH E POLICE DEPARTMENT REGARDING FORGERY COMMITTED BY UNKNOWN P ERSONS WHO HAD OPENED BANK ACCOUNT BY MISUSING HIS PAN CAR D. THIS IS INDEED SURPRISING AS ANY NORMAL PERSON WOULD HAVE F ILE FIR WITH THE POLICE DEPARTMENT, IF HIS PAN CARD HAS BEING FR AUDULENTLY USE FOR OPENING BANK ACCOUNT. IT APPEARS THAT THE E XPLANATION GIVEN BY THE APPELLANT WAS JUST A COVER UP IN ORDER TO AVOID TAX ITA NO. 1488/KOL/2019 ASS ESSMENT YEAR: 2012-2013 D EEPAK KARANI 4 LIABILITY ON HIS UNACCOUNTED TRANSACTIONS. THEREFOR E, THE ADDITION OF RS.2,33,970/- IS CONFIRMED. THIS GROUND OF APPEAL FAILS AND IS THEREFORE NOT ALLOWED. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 5. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERV ED THAT THE ADDITION OF RS.2,33,970/- MADE BY THE ASSESSING OFFICER BY TREA TING THE CASH DEPOSITS FOUND TO BE MADE IN THE BANK ACCOUNT OF M/S. FINWIS E SERVICES MAINTAINED WITH ICICI BANK WAS CONFIRMED BY THE LD. CIT(APPEAL S) MAINLY ON THE GROUND THAT THE CLAIM OF THE ASSESSEE OF HAVING NO RELATION WHATSOEVER WITH M/S. FINWISE SERVICES WAS NOT SUPPORTED BY ANY EVIDENCE IN THE FORM OF AN FIR FILED BY THE ASSESSEE WITH THE POLIC E DEPARTMENT REGARDING FORGERY COMMITTED BY UNKNOWN PERSONS, WHO HAD ALLEG EDLY OPENED THE CONCERNED BANK ACCOUNT BY MISUSING THE PAN CARD OF THE ASSESSEE. IN THIS REGARD, LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT SUCH FIR WAS INDEED FILED BY THE ASSESSEE WITH NISCHINDA POLICE STATION ON 19.03.2019 BUT THE LD. CIT(APPEALS) COULD NOT TAKE COGNIZANCE OF THE SAME AS THE IMPUGNED ORDER WAS PASSED BY HIM ON 12.03.2019 ITSE LF. HE HAS SUBMITTED THAT THE ASSESSEE HAS ALSO FILED A COMPLA INT WITH THE RBI OMBUDSMAN GRIEVANCE CELL SINCE NO ACTION WAS TAKEN BY THE CONCERNED POLICE STATION IN THE MATTER TILL 24.10.2019. HE HA S INVITED ATTENTION TO THE COPIES OF THESE TWO COMPLAINTS PLACED IN HIS PA PER BOOK AND SUBMITTED THAT NEITHER ASSESSING OFFICER NOR THE LD . CIT(APPEALS) HAVING GOT AN OPPORTUNITY TO EXAMINE THIS EVIDENCE WHICH S UPPORTS AND SUBSTANTIATES THE CLAIM OF THE ASSESSEE, THE MATTER MAY BE SENT BACK TO THE ASSESSING OFFICER FOR FRESH CONSIDERATION. HE H AS FURTHER SUBMITTED THAT THE ASSESSING OFFICER MAY MAKE FURTHER INQUIRY IN THE MATTER INCLUDING GETTING THE FORENSIC REPORT, IF REQUIRED, TO VERIFY THE CLAIM OF THE ASSESSEE THAT HE WAS NOT THE PROPRIETOR OF M/S. FINWISE SERVICES AND THE BANK ACCOUNT IN THE NAME OF THE SAID CONCERN WA S OPENED WITH ICICI ITA NO. 1488/KOL/2019 ASS ESSMENT YEAR: 2012-2013 D EEPAK KARANI 5 BANK BY SOMEONE ELSE BY FORGING THE PAN CARD AND SI GNATURE OF THE ASSESSEE. 6. HAVING CONSIDERED ALL THE FACTS AND CIRCUMSTANCE S OF THE CASE, I AM INCLINED TO ACCEPT THE CONTENTION OF THE LD. COUNSE L FOR THE ASSESSEE AND SINCE THE LD. D.R. HAS ALSO NOT RAISED ANY OBJECTIO N FOR SENDING THE MATTER BACK TO THE ASSESSING OFFICER FOR PROPER VERIFICATI ON, I SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) ON THIS ISSU E AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRE SH CONSIDERATION WITH A DIRECTION TO VERIFY THE CLAIM OF THE ASSESSEE IN TH E LIGHT OF THE EVIDENCE BROUGHT ON RECORD IN THE FORM OF COMPLAINTS FILED W ITH THE CONCERNED POLICE STATION AS WELL AS RBI. THE ASSESSING OFFICE R SHALL CAUSE ANY FURTHER INQUIRY AS HE MAY DEEM FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON MARCH 08, 202 1. SD/- (P.M. JAGTAP) VICE-PRESIDE NT KOLKATA, THE 8 TH DAY OF MARCH, 2021 COPIES TO : (1) DEEPAK KARANI, D-28/2, NISCO IND. HOUSING ESTATE, SAPUIPARA, BALLY, HOWRAH-711227 (2) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-47, KOLKATA, 3, GOVERNMENT PLACE (WEST), KOLKATA-700001 (3) COMMISSIONER OF INCOME TAX (APPEALS)-14, KOLK ATA; (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.