Kajal Ghosh, Kolkata V. I.T.O, Wd -20(1), Kolkata, Kolkata

ITA 2438/KOL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4579 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-09-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 20-06-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 09-10-2013
• Court: TRIBUNAL
• Department Lawyers: S M DAS
• Assessee Lawyers: S L KOCHAR
• Keywords: Unexplained investment; Search and seizure; Tax effect
• Section: 133(6); 148

Judgement Text

I.T.A. NO. 2438/KOL./2013 ASSESSMENT YEAR: 2004-2005 & I.T. A. NO. 2817/KOL/2013 ASSESSMENT YEAR: 2004-2005 PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI N.V. VASUDEVAN, JUDICIAL MEMBER I.T.A. NO. 2438/KOL/ 2013 ASSESSMENT YEAR: 2004-2005 DR. (SMT.) KAJAL GHOSH,............................ .......................................APPELLANT CF-101, SECTOR-1, SALT LAKE CITY, KOLKATA-700 064 [PAN: ACVPG 5531 H] -VS.- INCOME TAX OFFICER,................................ ........................................RESPONDENT WARD-20(1), KOLKATA, 169, A.J.C. BOSE ROAD, KOLKATA-700 014 & I.T.A. NO. 2817/KOL/ 2013 ASSESSMENT YEAR: 2004-2005 INCOME TAX OFFICER,................................ ........................................APPELLANT WARD-20(1), KOLKATA, 169, A.J.C. BOSE ROAD, KOLKATA-700 014 -VS.- DR. (SMT.) KAJAL GHOSH,............................ .......................................RESPONDENT CF-101, SECTOR-1, SALT LAKE CITY, KOLKATA-700 064 [PAN: ACVPG 5531 H] APPEARANCES BY: SHRI S.L. KOCHAR, ADVOCATE & SHRI ANIL KOCHAR, ADVO CATE, FOR THE ASSESSEE SHRI S.M. DAS, JCIT, SR. D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : AUGUST 17, 2016 DATE OF PRONOUNCING THE ORDER : SEPTEMBER 02, 2016 O R D E R PER SHRI P.M. JAGTAP :- THESE TWO APPEALS, ONE FILED BY THE ASSESSEE BEING ITA NO. 2438/KOL/2013 AND THE OTHER FILED BY THE REVENUE BE ING ITA NO. 2817/KOL/2013, ARE CROSS APPEALS, WHICH ARE DIRECTE D AGAINST THE ORDER I.T.A. NO. 2438/KOL./2013 ASSESSMENT YEAR: 2004-2005 & I.T. A. NO. 2817/KOL/2013 ASSESSMENT YEAR: 2004-2005 PAGE 2 OF 6 OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XIV , KOLKATA DATED 10.09.2013. 2. FIRST WE SHALL TAKE UP THE APPEAL OF THE ASSESSE E BEING ITA NO. 2438/KOL/2013, WHEREIN THE FOLLOWING GROUNDS ARE RA ISED:- (1) FOR THAT THE APPELLANT HAVING SATISFACTORILY EX PLAINED THE OPENING CAPITAL FOR THE AY 2004-05, THE LD. CIT (A) OUGHT TO HAVE ACCEPTED THE SAME AND OUGHT NOT TO HA VE CONFIRMED ADDITION OF RS.18,43,916/- AS UNEXPLAINED OPENING CAPITAL. (2) FOR THAT THE LD. CIT(A) OUGHT TO HAVE ACCEPTED THE EXPLANATION OF THE APPELLANT AND OUGHT NOT TO HAVE CONFIRMED ADDITION OF RS.2,74,826/- ON THE ALLEGED GROUNDS. (3) FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING ADD ITIONS OF RS.81,631/- AND RS.42,412/- MADE BY THE AO ON AL LEGED GROUNDS. (4) FOR THAT FURTHER GROUNDS OF APPEAL MAY KINDLY B E ALLOWED TO BE TAKEN AT THE TIME OF HEARING OF THE A PPEAL. 3. AT THE TIME OF HEARING BEFORE US, THE LD. COUNSE L FOR THE ASSESSEE HAS NOT PRESSED GROUNDS NO. 2, 3 & 4 RAISED IN THE APPE AL OF THE ASSESSEE. THE SAME ARE ACCORDINGLY DISMISSED AS NOT PRESSED. 4. AS REGARDS THE ISSUE INVOLVED IN GROUND NO. 1 OF THE ASSESSEES APPEAL RELATING TO THE SUSTENANCE BY THE LD. CIT(AP PEALS) OF THE ADDITIONS OF RS.34,10,586/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNDISCLOSED INVESTMENT TO THE EXTENT OF RS.18,43,91 6/-, THE MATERIAL FACTS RELEVANT TO THIS ISSUE ARE AS FOLLOWS:- THE ASSESSEE IS A DOCTOR, WHO IS EMPLOYED WITH THE GOVERNMENT. HER HUSBAND SHRI SUDIPTA GHOSH IS ALSO A GOVERNMENT EMPLOYEE. A SEARCH AND SEIZURE OPERATION WAS CONDUCTED AT THE PREMISES OF SHRI SUDIPTA GHOSH BY CBI ON 18.05.2009. ON THE BASIS OF INFORMA TION RECEIVED FROM THE ASSESSING OFFICER OF SHRI SUDIPTA GHOSH, THE AS SESSMENT OF THE I.T.A. NO. 2438/KOL./2013 ASSESSMENT YEAR: 2004-2005 & I.T. A. NO. 2817/KOL/2013 ASSESSMENT YEAR: 2004-2005 PAGE 3 OF 6 ASSESSEE WAS REOPENED BY THE ASSESSING OFFICER. IN RESPONSE TO NOTICE ISSUED UNDER SECTION 148 BY THE ASSESSING OFFICER, THE RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 09.05.2011 DECLARING H ER TOTAL INCOME FOR THE YEAR UNDER CONSIDERATION AT RS.2,66,920/- AS AGAINS T THE TOTAL INCOME OF RS.2,31,248/- DECLARED EARLIER IN THE RETURN OF INC OME ORIGINALLY FILED ON 22.06.2004. DURING THE COURSE OF ASSESSMENT PROCEED INGS, THE ASSESSEE FURNISHED THE DETAILS OF HER ASSETS AS ON 31.03.200 4 AS PER THE REQUIREMENT OF THE ASSESSING OFFICER AS UNDER:- 1. CASH IN HAND RS.35,817/ - 2. SBI (AVISHEK & KAJAL) RS.59,778/ - 3. SBI (A. NAUG/KAJAL GHOSH/P.K. NAUG) RS.41,148/ - 4. SBI (KAJAL GHOSH) RS.36,392/ - 5. SBI (KAJAL AND SUD IPTA GHOSH) RS.1,00,080/ - 6. FIXED DEPOSIT RS.8,05,000/ - 7. FIXED DEPOSIT (HDFC) RS.1,00,000/ - 8. FIXED DEPOSIT (SBI) RS.7,85,000/ - 9. P.K. NAUG RS.64,800/ - 10. SUDIPTA GHOSH RS.2,16,495/ - 11. HDFC BOND RS.60,000/ - 12. ICICI TAX SAVING BOND RS.50,00 0/ - 13. IDBI TAX SAVING BOND RS.5,000/ - 14. KVP RS.3,40,000/ - 15. MIS RS.2,55,000/ - 16. NSC RS.2,06,000/ - 17. UTI MIP RS.1,00,000/ - 18. UTI US RS.1,02,000/ - 19. SBI MUTUAL FUND RS.48,000/ - TOTAL AMOUNT IS NEAR ABOUT RS.34,10,586/ - I.T.A. NO. 2438/KOL./2013 ASSESSMENT YEAR: 2004-2005 & I.T. A. NO. 2817/KOL/2013 ASSESSMENT YEAR: 2004-2005 PAGE 4 OF 6 SINCE THE ABOVE ASSETS WERE NOT REFLECTED EITHER IN THE RETURN OF INCOME FILED BY THE ASSESSEE FOR THE YEAR UNDER CONSIDERAT ION OR EVEN IN THE RETURNS OF INCOME FILED FOR THE EARLIER YEARS AND T HE EXPLANATION OFFERED BY THE ASSESSEE IN RESPECT THEREOF WAS NOT FOUND SA TISFACTORY BY HIM, THE ASSESSING OFFICER ADDED THE TOTAL VALUE OF ASSETS O WNED BY THE ASSESSEE AS ON 31.03.2004 AT RS.34,10,586/- TO THE TOTAL INCOME OF THE ASSESSEE AS UNEXPLAINED INVESTMENT IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3)/147 VIDE AN ORDER DATED 29.12.2012. 5. 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) DISPUTING, INTER ALIA, THE ADDITION OF RS.34,10,586/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INV ESTMENT AND AFTER CONSIDERING THE SUBMISSIONS MADE BY THE ASSESSEE AS WELL AS THE MATERIAL AVAILABLE ON RECORD, THE LD. CIT(APPEALS) RESTRICTE D THE SAID ADDITION MADE BY THE ASSESSING OFFICER TO RS.18,43,916/- AFT ER HOLDING THAT THE FOLLOWING ASSETS/INVESTMENT COULD NOT BE ADDED TO T HE TOTAL INCOME OF THE ASSESSEE AS UNEXPLAINED FOR THE YEAR UNDER CONSIDER ATION:- (A) BANK BALANCES @ SL. NO. 8, 9, 10, 11 (TOTAL RS. 2,60,357/-) DULY SUPPORTED BY RELEVANT BANK STATEMENTS. (B) KVP RS.3,40,000/- HELP PRIOR TO 31.03.2003 AS P ER INFORMATION U/S 133(6) RECEIVED BY THE AO OF THE HU SBAND OF THE ASSESSEE. (C) FIXED DEPOSITS RS.6,98,082/- HELD BEFORE 31.03. 2003 VIDE EVIDENCES SUBMITTED TO THE A.O. (D) PPF RS.3,72,883/- AS PER PASS BOOK AS ON 31.03. 2003. STILL AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS ), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 6. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LIMITED CONTENTION RAISED BY THE LD. COUNSEL FOR THE ASSESSEE IS THAT EVEN OUT O F THE TOTAL ASSETS AND I.T.A. NO. 2438/KOL./2013 ASSESSMENT YEAR: 2004-2005 & I.T. A. NO. 2817/KOL/2013 ASSESSMENT YEAR: 2004-2005 PAGE 5 OF 6 INVESTMENT HELD BY THE ASSESSEE AS ON 31.03.2004 AN D TREATED AS UNEXPLAINED BY THE LD. CIT(APPEALS) TO THE EXTENT O F RS.18,43,916/-, SOME FIXED DEPOSITS OF THE VALUE OF RS.3,80,600/- WERE H ELD BY THE ASSESSEE BEFORE 31.03.2003 AND THE SAME, THEREFORE, CANNOT B E ADDED TO THE TOTAL INCOME OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERA TION AS UNEXPLAINED INVESTMENT. HE HAS SUBMITTED THAT THE INFORMATION R ELATING TO THESE FIXED DEPOSITS HELD BEFORE 31.03.2003 IS OBTAINED BY THE ASSESSEE AFTER PASSING OF THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) AND H AS URGED THAT THIS MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR VERIFICATION OF THIS INFORMATION OBTAINED BY THE ASSESSEE. SINCE THE LD. D.R. HAS NOT RAISED ANY OBJECTION IN THIS REGARD, WE RESTORE THI S ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR THE LIMITED PURPOSE OF VERIFY ING THE NEW CLAIM MADE BY THE ASSESSEE THAT THE FIXED DEPOSITS OF THE VALU E OF RS.3,80,600/- ADDED TO THE TOTAL INCOME OF THE ASSESSEE AS UNEXPL AINED INVESTMENT FOR THE YEAR UNDER CONSIDERATION WERE ACTUALLY HELD EVE N BEFORE 31.03.2003. THE ASSESSING OFFICER SHALL VERIFY THIS NEW CLAIM A ND ALLOW APPROPRIATE RELIEF TO THE ASSESSEE IN ACCORDANCE WITH LAW. THE BALANCE ADDITION AS SUSTAINED BY THE LD. CIT(APPEALS) ON THIS ISSUE IS, HOWEVER, CONFIRMED. GROUND NO. 1 OF THE ASSESSEES APPEAL IS ACCORDINGL Y TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 7. AS REGARDS THE REVENUES APPEAL BEING ITA NO. 2817/KOL/2013 , THE LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, HA S SUBMITTED THAT THE TAX EFFECT INVOLVED IN THIS APPEAL OF THE REVENUE IS LE SS THAN THE REVISED MONETARY LIMIT FIXED BY THE CBDT VIDE CIRCULAR NO. 21/2015 DATED 10 TH DECEMBER, 2015 AT RS.10,00,000/- FOR FILING THE APP EAL BY THE REVENUE BEFORE THE TRIBUNAL AND THIS POSITION CLEARLY EVIDE NT FROM THE GROUNDS RAISED BY THE REVENUE IN THIS APPEAL IS NOT DISPUTE D EVEN BY THE LD. D.R. IN CIRCULAR NO. 21/2015 (SUPRA) RECENTLY ISSUED BY THE CBDT, THE MONETARY LIMIT FOR FILING THE APPEAL BY THE REVENUE BEFORE THE TRIBUNAL HAS BEEN INCREASED TO RS.10,00,000/- AND AS CLARIFI ED IN THE SAID CIRCULAR, I.T.A. NO. 2438/KOL./2013 ASSESSMENT YEAR: 2004-2005 & I.T. A. NO. 2817/KOL/2013 ASSESSMENT YEAR: 2004-2005 PAGE 6 OF 6 THE SAID MONETARY LIMIT IS APPLICABLE RETROSPECTIVE LY EVEN TO THE APPEALS PENDING BEFORE THE TRIBUNAL. THE CBDT HAS ALSO INST RUCTED THAT SUCH PENDING APPEALS BELOW THIS SPECIFIED TAX LIMIT OF R S.10,00,000/- MAY BE WITHDRAWN/ NOT PRESSED. KEEPING IN VIEW THE INSTRUC TION GIVEN BY THE CBDT VIDE CIRCULAR NO. 21/2015 DATED 10.12.2015, WH ICH IS SQUARELY APPLICABLE IN THE PRESENT CASE, THE APPEAL FILED BY THE REVENUE IN THIS CASE IS TREATED AS WITHDRAWN/NOT PRESSED AND DISMIS SED ACCORDINGLY. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TR EATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES AND THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON SEPTEMBER 02, 2016. SD/- SD/- (N.V. VASUDEVAN) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 2 ND DAY OF SEPTEMBER, 2016 COPIES TO : (1) INCOME TAX OFFICER, WARD-20(1), KOLKATA, 169, A.J.C. BOSE ROAD, KOLKATA-700 014 (2) DR. (SMT.) KAJAL GHOSH, C/O. SRI S.L. KOCHAR, ADVOCATE, 86, CANNING STREET, KOLKATA-700 001 (3) CIT(APPEALS)-XIV, KOLKATA; (4) CIT, KOLKATA; (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.