DCIT, CC-XIII, Kolkata, Kolkata V. Shri Jugal Kishore Khetawar, Kolkata

ITA 2086/KOL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9357 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2011
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 19-11-2010
• Court: TRIBUNAL
• Department Lawyers: P P SARKAR
• Assessee Lawyers: R SALARPURIA
• Keywords: Block assessment

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH B, KOLKATA () BEFORE . .. . . .. . , , , , , SHRI B.R.MITTAL, JUDICIAL MEMBER. /AND . .. .!' !'!' !'. .. . , #$ SHRI C.D.RAO, ACCOUNTANT MEMBER % % % % / ITA NO . 2086/KOL/2010 &' ()/ ASSESSMENT YEAR : BLOCK PERIOD 1.4.95 TO 8.2.2002. (+, / APPELLANT ) D.C.I.T., CENTRAL CIRCLE-XIII, KOLKATA - & - - VERSUS - . (./+,/ RESPONDENT ) SHRI JUGAL KISHORE KHETAWAT, KOLKATA (PAN:AFCPK 5718 G) +, 0 1 #/ FOR THE APPELLANT: SHRI P.P.SARKAR ./+, 0 1 #/ FOR THE RESPONDENT: SHRI R.SALARPURIA #2 / ORDER ( (( ( . .. .!' !'!' !'. .. . ) )) ), , , , #$ PER SHRI C.D.RAO, AM THIS APPEAL IS FILED BY THE REVENUE AGAINST THE OR DER DATED 12.08.2010 OF THE CIT(A)-CENTRAL-II, KOLKATA PERTAINING TO BLOCK PERI OD 1.4.95 TO 8.2.2002. 2. IN THIS APPEAL THE REVENUE HAS TAKEN THE FOL LOWING GROUNDS OF APPEAL :- 1. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CAS E, LD. CIT(A), KOLKATA HAS ERRED IN RESTRICTING THE ADDITION ON ACCOUNT OF UND ISCLOSED INCOME TO RS.11,86,250/- ONLY IN PLACE OF ADDITION OF RS.36,8 6,250/- MADE BY THE ASSESSING OFFICER WITHOUT APPRECIATING THE FACTS EV ALUATED IN THE ASSESSMENT ORDER. 2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN ALLOWING RELIEF TO THE ASSESSEE TO THE EXT ENT OF RS.25,00,000/- ON THE PRESUMPTION THAT SOURCE OF RETURN OF LOAN OF RS.25, 00,000/- IN SEPTEMBER, 2001 WAS THE LOAN OF RS.25,00,000/- OBTAINED BY THE ASSE SSEE MUCH EARLIER ON 12.08.98, WITHOUT ANY EVIDENCE TO CORRELATE THESE T RANSACTIONS AND WITHOUT CONSIDERING THAT THESE TRANSACTIONS WERE NOT RECORD ED IN THE BOOKS OF ACCOUNTS 2 OF THE ASSESSEE AND THE SOURCE OF REPAYMENT OF LOAN OF RS.25,00,000/- REMAINED UNEXPLAINED. 3. THAT THE DEPARTMENT CRAVES LEAVE TO ADD, MODIFY OR ALTER ANY OF THE GROUND(S) OF APPEAL AND/OR ADDUCE ADDITIONAL EVIDEN CE AT THE TIME OF HEARING OF THE CASE. 3. AT THE TIME OF HEARING BEFORE US, THE LD. AR APP EARING ON BEHALF OF THE ASSESSEE HAS SUBMITTED THAT THIS TRIBUNAL IN ASSESSEES OWN CASE FOR THE SAME ASSESSMENT YEAR AGAINST THE SAME ORDER OF THE LD. CIT(A) HAS ANNULL ED THE ORDER PASSED BY AO U/S 158BD OF THE ACT. SINCE THE ASSESSMENT ORDER HAS BE EN ANNULLED THE REVENUES APPEAL IS LIABLE TO BE DISMISSED. HE FILED COPIES OF THE ORDERS OF THE TRIBUNAL DATED 07.01.2011. 4. ON THE OTHER HAND, THE LD. DR THOUGH RELIED ON T HE ORDERS OF THE REVENUE AUTHORITIES COULD NOT CONTRADICT THE SUBMISSIONS MA DE BY THE LD. COUNSEL APPEARING FOR THE ASSESSEE. 5. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF THE ASSESSMENT ORDER, IT IS OBSERVED THAT THE SUBMISSION OF THE AS SESSEE THAT AGAINST THE LD. CIT(A)S ORDER THIS TRIBUNAL IN ASSESSEES APPEAL IN IT(SS)A .NO.08/KOL/2010 HAS ANNULLED THE ORDER PASSED BY THE LD. AO U/S 158BD OF THE ACT BY OBSERVING THAT BEFORE 158-BD COMES INTO PLAY, IT IS NECESSAR Y THAT THE A.O., WHO IS ASSESSING THE PERSON SEARCHED, IS SATISFIED THAT TH ERE IS ANY UNDISCLOSED INCOME WHICH BELONGS TO A PERSON OTHER THAN THE PERSONS SE ARCHED. THEREAFTER THE BOOKS OF ACCOUNTS, OTHER DOCUMENTS OR ASSETS SEIZED ARE TO BE HANDED OVER TO THE A.O. HAVING JURISDICTION OVER SUCH OTHER PERSON S. IN THE CASE OF THE ASSESSEE, AS THE A.O. HIMSELF ADMITTED, NO SUCH SAT ISFACTION HAS BEEN RECORDED BY THE A.O. OF THE SEARCHED PERSON. THE PROCEEDINGS U/S 58BD OF THE ACT WAS INITIATED IN THE CASE OF THE ASSESSEE SOLELY ON THE BASIS OF SATISFACTION RECORDED BY HIS A.O. THEREFORE, THE FIRST AND FOREMOST REQUI REMENT FOR ATTRACTING PROVISIONS OF SEC.158BD IS MISSING IN THIS CASE. TH EREFORE, IN VIEW OF OUR DISCUSSIONS ABOVE AND NON-COMPLIANCE OF LEGAL AND S TATUTORY REQUIREMENTS BY THE A.O. BEFORE INITIATING PROCEEDING U/S 158-BD OF THE ACT, WE ARE OF THE CONSIDERED OPINION THAT THE INITIATION OF PROCEEDIN G U/S 158BD AND PASSING OF CONSEQUENTIAL BLOCK ASSESSMENT ORDER U/S 158BD/158B C DATED 29/2/2008 IN THE CASE OF THE ASSESSEE WAS VOID INITIO AND THE SA ME CANNOT BE SUSTAINED AS PER LAW. 3 5.1. SINCE THIS TRIBUNAL HAS ALREADY ANNULLED THE O RDER OF THE LD.AO PASSED U/S 158BD OF THE ACT THE RESULTANT APPEAL FILED BY THE REVENUE BECOMES INFACTUOUS AND THE SAME IS DISMISSED AS INFACTUOUS. 6. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON 01.02.2011. SD/- SD/- . .. . . .. . , , , , B.R.MITTAL, JUDICIAL MEMBER . .. .!' !'!' !'. .. . , ,, , #$ #$ #$ #$ , C.D.RAO, ACCOUNTANT MEMBER. ( (( ('$ '$ '$ '$) )) ) DATE: 01.02.2011. #2 0 .3 4#3(5- COPY OF THE ORDER FORWARDED TO: 1. SHRI JUGAL KISHORE KHETAWAT, 19A, SARAT BOSE ROAD, KOLKATA-700020. 2 THE DCIT, CENTRAL CIRCLE-XIII, KOLKATA 3. THE CIT, 4. THE CIT(A)-CENTRAL-II, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA /3 ./ TRUE COPY, #2&:/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES R.G.(.P.S.)