Kailash Chand Mundhra, Kolkata V. A.C.I.T., CC-IV, Kol, Kolkata

ITA 2813/KOL/2013

• Counselvise Citation: 281323514 RSA 2013
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 18-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: B C JAIN F
• Keywords: Search and seizure
• Section: 132; 153A

Judgement Text

I.T.A. NO.: 2813/ KOL. / 2013 ASSESSMENT YEAR : 2004-2005 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA SMC BENCH, KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER I.T.A. NO.: 2813/ KOL./ 2013 ASSESSMENT YEAR : 2004-2005 KAILASH CHAND MUNDHRA,............................. ................APPELLANT 7A, DOVER LANE, KOLKATA-700 029 [PAN : ANGPM 8363 H] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,.......... RESPONDENT CENTRAL CIRCLE-IV, KOLKATA AAYAKAR POORVA, KOLKATA APPEARANCES BY: SHRI B.C. JAIN, F.C.A., FOR THE APPELLANT MD. GAYASUDDIN ANSARI, JCIT, SR. D.R., FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : AUGUST 22, 2014 DATE OF PRONOUNCING THE ORDER : 02.09.2014 O R D E R PER SHRI MAHAVIR SINGH, JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS ARISING OUT O F THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS), CENTRAL-I, K OLKATA IN APPEAL NO. 110/CC-IV/CIT(A)C-I/11-12 DATED 05.09.2013 FOR THE ASSESSMENT YEAR 2004-05. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE ORDER OF LD. CIT(APPEALS) CONFIRMING THE ADDITION MADE BY THE AS SESSING OFFICER BEING OPENING CAPITAL AMOUNTING TO RS.1,55,250/-. 3. I HAVE HEARD THE RIVAL SUBMISSIONS AND GONE THRO UGH THE FACTS AND CIRCUMSTANCES OF THE CASE. A SEARCH AND SEIZURE OPE RATION WAS CONDUCTED I.T.A. NO.: 2813/ KOL. / 2013 ASSESSMENT YEAR : 2004-2005 PAGE 2 OF 3 ON THE RESIDENTIAL AND BUSINESS PREMISES OF SOMANI GROUP OF CASES ON 05.11.2009 UNDER SECTION 132 OF THE ACT. A WARRANT IN THE CLAIM OF ASSESSEE AT 7A, DOVER LANE, 85, GARIAHAT, KOLKATA-2 9, WAS EXECUTED AND PANCHNAMA WAS DRAWN AND SEARCH ON HIS PREMISES ALSO CONDUCTED CONSEQUENTLY. DURING THE COURSE OF SEARCH FOLLOWING ASSETS, DOCUMENTS WERE FOUND AND SEIZED:- PLACE CASH JEWELLERY & SILVER UTENSILS DOCUMENTS BEARING I.D. MARK KAILASH CHAND MUNDHRA, 7A, DOVER LANE, KOLKATA-700 029 FOUND SEIZED FOUND SEIZED FOUND SEIZED NIL NIL NIL NIL NIL NIL THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 1 53A OF THE ACT ON 03.11.2010 AND ASSESSEE IN RESPONSE TO THE SAME FIL ED RETURN OF INCOME ON 10.08.2011. ASSESSMENT WAS FRAMED BY THE ASSESSI NG OFFICER AND DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASS ESSING OFFICER REQUESTED THE ASSESSEE TO SUBSTANTIATE OPENING CAPI TAL DECLARED BY THE ASSESSEE AS ON 31.03.2004 IN THE BALANCE-SHEET AS O PENING BALANCE I.E. RS.1,55,250/-. THE ASSESSEE STATED THAT THIS IS ON ACCOUNT OF PAST SAVINGS OUT OF CEREMONIAL AND CUSTOMARY RECEIPTS AS WELL AS OUT OF PAST INCOME. ASSESSING OFFICER WAS NOT CONVINCED AND ADDED ENTIR E OPENING CAPITAL AT RS.1,55,250/-. 4. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(APPEALS), WHO ALSO CONFIRMED THE ACTION OF THE ASSESSING OFFICER THAT THE ASSESSEE COULD NOT JUSTIFY THE HOLDING OF THE OPENING CAPITAL AT R S.1,55,250/-. AGGRIEVED, ASSESSEE NOW CAME IN APPEAL BEFORE THE TRIBUNAL. 5. I FIND THAT THE FACTS ARE VERY CLEAR THAT NOTHIN G WAS FOUND DURING THE COURSE OF SEARCH UNDER SECTION 132 OF THE ACT. THIS IS EVIDENT FROM THE ABOVE CHART REPRODUCED. THE ONLY ISSUE IS WHETHER T HE CLOSING CAPITAL AS I.T.A. NO.: 2813/ KOL. / 2013 ASSESSMENT YEAR : 2004-2005 PAGE 3 OF 3 ON 31.03.2004 I.E. THE OPENING CAPITAL AS ON 01.04. 2003 CAN BE ADDED BACK IN THE TOTAL INCOME OF THE ASSESSEE BEING UNDISCLOS ED INCOME. I AM OF THE FIRM VIEW THAT THIS IS A SEARCH ASSESSMENT UNDER SE CTION 153A OF THE ACT AND NOT A REGULAR ASSESSMENT. HOWEVER, THIS ADDITIO N CAN BE MADE IF INCRIMINATING MATERIAL QUA THIS OPENING CAPITAL IS FOUND FROM THE PREMISES OF THE ASSESSEE. BUT THIS IS MERELY AN OPE NING CAPITAL DECLARED BY THE ASSESSEE HIMSELF IN THE CAPITAL ACCOUNT/BALA NCE-SHEET FILED ALONGWITH THE RETURN OF INCOME. EVEN OTHERWISE THE OPENING CAPITAL AS ON 1 ST DAY OF APRIL, 2003 DECLARED BY THE ASSESSEE CANNOT BE ADDED IN THIS YEAR. IN TERMS OF THE ABOVE, I ALLOW THE APPEAL OF THE ASSESSEE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSE SSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND DAY OF SEPTEMBER, 2014. SD/- MAHAVIR SINGH (JUDICIAL MEMBER) KOLKATA, THE 2 ND DAY OF SEPT., 2014 COPIES TO : (1) KAILASH CHAND MUNDHRA, 7A, DOVER LANE, KOLKATA-700 029 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-IV, KOLKATA AAYAKAR POORVA, KOLKATA (3) CIT (4) CIT(A) (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.