Abhishek Anand Mimani, Kolkata V. ACIT(IT),Circle-1(1), Kolkata, Kolkata

ITA 205/KOL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1601 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 06-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N B SOM
• Assessee Lawyers: O P BAID
• Keywords: Unexplained cash credit
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (SMC), KOLKATA [BEFORE SHRI P.M. JAGTAP, AM] I.T.A. NO. 205/KOL/2017 ASSESSMENT YEAR: 2008-09 ABHISHEK ANAND MIMANI..............................APPELLANT 5, CIRCUS RANGE, KOLKATA 700 019. [PAN : ADXPM 7227 R] ACIT (IT) CIR 1(1)........................................RESPONDENT 211, AAYAKAR BHAWAN POORVA, 110, SHANTIPALLY, KOLKATA 700 107 APPEARANCES BY: SHRI O.P. BAID, FCA APPEARING ON BEHALF OF THE ASSESSEE. SHRI N.B. SOM, ADDL. CIT APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JANUARY 29, 2018 DATE OF PRONOUNCING THE ORDER : JANUARY 31, 2018 ORDER PER P.M. JAGTAP, AM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT (APPEALS) -22, KOLKATA DATED 25.11.2016 AND THE SOLITARY ISSUE INVOLVED THEREIN RELATES TO THE ADDITION OF RS. 18,53,317/- MADE BY THE A.O. AND CONFIRMED BY THE LD. CIT(A) ON ACCOUNT OF UNEXPLAINED CREDITS IN BANK ACCOUNT. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL WHO WAS NON- RESIDENT DURING THE YEAR UNDER CONSIDERATION. HE FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION DECLARING NIL INCOME. AS PER THE INFORMATION RECEIVED BY THE A.O., THE ASSESSEE HAD MAINTAINED A BANK ACCOUNT IN STATE BANK OF BIKANER & JAIPUR, 14, N.S. ROAD BRANCH, KOLKATA JOINTLY WITH SHRI GOURI SHANKAR CHANDAK AND THE TOTAL DEPOSITS MADE IN THE SAID ACCOUNT MOSTLY IN CASH WERE TO THE TUNE OF RS. 18,53,317/-. SINCE THE SAID ACCOUNT WAS NOT REFLECTED IN THE 2 I.T.A. NO. 205/KOL/2017 A.Y. 2008-09 ABHISHEK ANAND MIMANI ASSESSEES BALANCE SHEET FILED ALONG WITH THE RETURN OF INCOME, HE WAS ASKED BY THE A.O. TO OFFER HIS EXPLANATION IN THE MATTER. IN REPLY, IT WAS EXPLAINED BY THE ASSESSEE THAT THE BANK ACCOUNT IN STATE BANK OF BIKANER AND JAIPUR WAS BEING OPERATED BY HIS MATERNAL UNCLE, SHRI GOURI SHANKAR CHANDAK AND, THEREFORE, INCOME, IF ANY, ON ACCOUNT OF TRANSACTIONS REFLECTED THEREIN WAS ASSESSABLE IN THE HANDS OF SHRI GOURI SHANKAR CHANDAK. SHRI GOURI SHANKAR CHANDAK HOWEVER DID NOT APPEAR BEFORE THE A.O. FOR EXAMINATION IN RESPONSE TO SUMMONS ISSUED UNDER SECTION 131. THE A.O., THEREFORE, TREATED THE DEPOSITS FOUND TO BE MADE IN THE BANK ACCOUNT WITH STATE BANK OF BIKANER AND JAIPUR AS UNEXPLAINED AND ADDED THE AMOUNT OF SUCH DEPOSITS AGGREGATING TO RS. 18,53,317/- TO THE TOTAL INCOME OF THE ASSESSEE IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 20.12.2010. ON APPEAL, THE LD. CIT(A) CONFIRMED THE SAID ADDITION MADE BY THE A.O. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 3. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE SAME AMOUNT OF DEPOSITS FOUND TO BE MADE IN THE BANK ACCOUNT MAINTAINED WITH STATE BANK OF BIKANER AND JAIPUR HAS ALREADY BEEN TAXED IN THE HANDS OF JOINT HOLDER, SHRI GOURI SHANKAR CHANDAK AS PER THE ORDER OF ASSESSMENT DATED 12.03.2013 MADE UNDER SECTION 147/143(3) OF THE ACT. HE HAS SUBMITTED THAT THE SAID ASSESSMENT MADE IN THE CASE OF LT. GOURI SHANKAR CHANDAK HAS BECOME FINAL AS NO APPEAL AGAINST THE SAME HAS BEEN PREFERRED BEFORE THE LD. CIT(A). HE HAS CONTENDED THAT THE ADDITION OF THE SAME AMOUNT IN THE HANDS OF THE ASSESSEE THUS HAS RESULTED INTO DOUBLE 3 I.T.A. NO. 205/KOL/2017 A.Y. 2008-09 ABHISHEK ANAND MIMANI ADDITION WHICH IS SUSTAINABLE. ALTHOUGH THE LEARNED DR HAS AGREED THAT THE SAME AMOUNT CANNOT BE TREATED AS INCOME OF THE TWO ASSESSEES, HE HAS CONTENDED THAT THE CLAIM OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE ASSESSMENT IN THE CASE OF SHRI GOURI SHANKAR CHANDAK HAS BECOME FINAL NEEDS VERIFICATION BY THE A.O. I ACCORDINGLY DIRECT THE A.O. TO VERIFY THIS ASPECT AND IF IT IS FOUND ON SUCH VERIFICATION THAT THE ADDITION OF RS. 18,53,317/- MADE IN THE CASE OF LT. GOURI SHANKAR CHANDAK HAS ALREADY BECOME FINAL, THE A.O. SHALL DELETE THE ADDITION OF THE SAME AMOUNT MADE IN THE CASE OF THE ASSESSEE. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST JANUARY, 2018. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER DATED: 31/01/2018 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. ABHISHEK ANAND MIMANI, 5, CIRCUS RANGE, KOLKATA 700 019. 2. ACIT (IT), CIR-1(1), 211, AAYAKAR BHAWAN POORVA, 110, SHANTIPALLY, KOLKATA 700 107. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, 4 I.T.A. NO. 205/KOL/2017 A.Y. 2008-09 ABHISHEK ANAND MIMANI SR. P.S. / H.O.O. ITAT, KOLKATA