ITO,Wd-12(3), Kolkata, Kolkata V. Safe Structures (P) Ltd., Kolkata

ITA 459/KOL/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1504 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 10 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 1994-1995
• Appeal Filed On: 19-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA
• Assessee Lawyers: MRS SUDHA ADAK
• Keywords: Search and seizure; Document seized; Documents seized

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI N.V.VASUDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 459 / KOL / 2014 ASSESSMENT YEAR :1994-95 ITO WARD-12(3), P-7, CHOWRINGHEE SQUARE, 7 TH FLOOR, KOLKATA-69 V/S . SAFE STRUCTURES (P) LTD., 11, OLD POST OFFICE STREET, KOLKATA-700 001 [ PAN NO.AAECS 4342 N ] /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI S. DASGUPTA, ADDL. CIT-DR /BY RESPONDENT MRS SUDHA ADAK, ADVOCATE /DATE OF HEARING 23-01-2018 /DATE OF PRONOUNCEMENT 14-02-2018 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-XII, KOLKATA D ATED 23.12.2013. ASSESSMENT WAS FRAMED BY ITO WARD-12(3), KOLKATA U/ S 143(3)/254 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT) VIDE HIS ORDER DATED 30.032.2005 FOR ASSESSMENT YEAR 1994-95. SHRI S. DASGUPTA, LD. DEPARTMENTAL REPRESENTATIVE A PPEARED ON BEHALF OF REVENUE AND SUDHA ADAK, LD. ADVOCATE APPEARED ON BE HALF OF ASSESSEE. 2. SOLITARY ISSUE RAISED BY REVENUE IS AS REGARDS T HAT LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER FOR 25 LAKH ON ACCOUNT OF INCOME DISCLOSED IN THE STATEMENT FURNISHED U/S. 13 2(4) OF THE ACT. ITA NO.459/KOL/2014 A.Y. 1994- 95 ITO WD.12(3), KOL. VS. SAFE STRUCTURES ( P) LTD. PAGE 2 3. BRIEFLY, THE FACTS ARE THAT A SEARCH AND SEIZURE OPERATION WAS CONDUCTED IN THE CASE OF BASAK GROUP ON 24.06.1993. THE ASS ESSEE WAS PART OF SAID GROUP. ACCORDINGLY THE ASSESSEE MADE A DISCLOSURE O F INCOME FOR 25 LAKH U/S 132(4) OF THE ACT. HOWEVER, ASSESSEE FILED ITS ITR DECLARING THE INCOME OF 23,39,379/- AND INCOME DISCLOSED U/S. 132(4) OF THE ACT FOR JUST 1,60,627/-. HOWEVER, THE AO MADE THE ASSESSMENT AT 48,79,813/- AFTER MAKING ADDITION OF 25 LAKH AS DISCLOSED U/S 132(4) OF THE ACT. SUBSEQ UENTLY, THE DISPUTE FOR THE ADDITION OF 25 LAKH TRAVELLED TO TRIBUNAL B BENCH KOLKATA WHE REIN THE IMPUGNED ISSUE WAS RESTORED BACK TO THE FILE OF AO FOR FRESH ADJUDICATION VIDE ORDER DATED 30.10.2003 WITH THE DIRECTION TO ADJUDI CATE THE SAME IN THE LIGHT OF MATERIAL FOUND DURING THE COURSE OF SEARCH PROCEEDI NGS. ACCORDINGLY, MATTER WAS FIXED BY THE AO FOR HEARING ON 29.10.2004 AND A SSESSEE WAS CONFRONTED THAT THE STATEMENT FURNISHED U/S. 132(4) OF THE ACT . THE ASSESSEE ACCORDINGLY SUBMITTED THAT THE INCOME WAS DISCLOSED U/S. 132(4) OF THE ACT UNDER COERCION. AS SUCH, THERE WAS NO INCOME WHICH HAS ESCAPED ASSE SSMENT. HOWEVER, THE AO DISREGARDED THE CONTENTION OF ASSESSEE AND MADE THE ADDITION OF 25 LAKH TO THE TOTAL INCOME OF ASSESSEE. 4. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A) WHO DELETED THE ADDITION MADE BY AO BY OBSERVING AS UND ER:- THE AO, THEREFORE, WHILE FIND THE FRESH ASSESS MENT AS PER DIRECTIONS OF THE ITAT CONTAINED IN THE ORDER DATED OCTOBER, 2003, AGAINST MADE THE ADDITION OF RS.25,00,000/-. IT IS ALSO SEEN THAT THE CIT(A) HAS CONFIRMED THE ADDITION MADE BY THE AO MA INLY RELYING ON THE ASSESSMENT ORDER DATED 30 TH MARCH, 2005 AND REMAND REPORT OF AO DATED 25-07-2006 WHICH RECEIVED BY THE CIT(APPEAL) ON 19-08-2006 WITHOUT AFFORDING OPPORTUNITY OF IT HEARD TO THE AP PELLANT. HOWEVER, AFTER GOING THROUGH THE REMAND REPORT OF T HE AO FURNISHED ON 1 2013, IT IS NOTED THAT THE SET ASIDE ASSESSMENT C OMPLETED AFRESH BY THE AO 143(3)/254 ON 30.03.2005 AS PER THE DIRECTIO N OF THE ITAT DETERMINING THE TOTAL INCOME OF RS.48,45,050/- WITH OUT REFERRING TO THE SEIZED/IMPOUNDED BOOKS OF ACCOUNT & DOCUMENTS AS EV IDENT FROM THE CONFIDENTIAL NOTE OF THE AO. THE PRESENT AO HAS EXP RESSED HIS INABILIT9Y TO OFFER ANY COMMENTS ON THE MATTER OF ARRIVING / D ETERMINATION OF CONCEALED INCOME OF THE APPELLANT ON THE BASIS OF S EIZED MADE AS PER THE DIRECTION OF THE HON'BLE ITAT DUE TO THE NON-AV AILABILITY OF IMPOUNDED/SEIZED MATERIALS AT HIS END. ON THE OTHER HAND, THE A/R OF THE APPELLANT CONTENDED THAT THE APPELLANT HAS NOT CONCEALED ANY ITA NO.459/KOL/2014 A.Y. 1994- 95 ITO WD.12(3), KOL. VS. SAFE STRUCTURES ( P) LTD. PAGE 3 MATERIAL ASSETS/PARTICULARS INCOME AND STATED THAT THE RETURNED INCOME IS INCLUSIVE OF SURRENDERED INCOME, ARGUED THAT THE APPELLANT HAS DISCLOSED THE ACTUAL INCOME/ASSETS AND AS SUCH INCO ME SHOWN BY THE APPELLANT SHOULD BE ACCEPTED AND THE ASSESSMENT SHO ULD FINALIZED ACCORDINGLY ON THE BASIS OF THE INCOME DISCLOSED BY THE APPELLANT. IN THE LIGHT OF THE ABOVE DISCUSSION, AFTER CONSIDE RING THE SUBMISSIONS OF THE APPELLANT AND PERUSING THE ENTIRE FACT AND CIRC UMSTANCES OF THE CASE INCLUDING THE REPOTS AND OBSERVATION OF THE AO, I A M OF THE VIEW THAT THE AO WAS NOT JUSTIFIED IN MAKING ADDITION OF RS.25,00 ,000/- AS CONCEALED INCOME TO THE TOTAL INCOME OF THE APPELLANT SOLELY ON THE BASIS OF THE STATEMENT GIVEN UNDER SECTION 132(4) OF THE ACT WIT HOUT BRINGING ON RECORD ANY MATERIAL EVIDENCE TO SUBSTANTIATE OR COR ROBORATE SUCH CONCEALED INCOME OR POINTING OUT ANY SPECIFIC INCRI MINATING DOCUMENTS OR ENTRIES IN THE SEIZED/IMPOUNDED MATERIALS REPRES ENTING SUCH CONCEALED INCOME / ASSETS. THEREFORE, THE IMPUGNED ADDITION OF RS.25,00,000/- MADE BY THE AO IS HEREBY DIRECTED TO BE DELETED BEING UNSUSTAINABLE AND THE GROUNDS OF APPEAL OF THE APPE LLANT ARE ALLOWED. THE REVENUE, BEING AGGRIEVED, IS IN APPEAL BEFORE U S. 5. LD. DR BEFORE US SUBMITTED THAT THE ADDITION WAS MADE BY AO ON THE BASIS OF DISCLOSURE STATEMENT FURNISHED U/S 132(4) OF THE ACT. WHILE MAKING THE DISCLOSURE OF INCOME U/S. 132(4) OF THE ACT, RE FERENCE WAS MADE BY THE AO TO THE SEVERAL PROPERTIES AS MENTIONED ON PAGE 2 OF THE ASSESSMENT ORDER. THEREFORE THE ADDITION HAS NOT BEEN MERELY MADE ON THE BASIS OF STATEMENT FURNISHED U/S 132(4) OF THE ACT. BUT IT WAS MADE AF TER REFERRING PROPERTIES OF ASSESSEE. HE VEHEMENTLY RELIED ON THE ORDER OF AO. ON THE OTHER HAND, LD. AR FOR THE ASSESSEE SUBMITTE D THAT A CLEAR-CUT DIRECTION WAS ISSUED BY THE HON'BLE TRIBUNAL TO MAK E THE ADDITION ON THE BASIS OF SEIZED DOCUMENTS BUT THE ADDITION WAS MADE MEREL Y ON THE BASIS OF STATEMENT FURNISHED U/S. 132(4) OF THE ACT WHICH WA S SUBSEQUENTLY RETRACTED BY ASSESSEE. THUS, THE ADDITION BASED ON MERE STATE MENT FURNISHED U/S. 132(4) OF THE ACT IS NOT SUSTAINABLE. HE RELIED ON THE ORDER OF LD. CIT(A). 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE INSTANT CASE, WE FIND THAT ADDITION HAS BEEN MADE ON THE BASIS OF STATEMENT FURNISHED BY AS SESSEE U/S 132(4) OF THE ITA NO.459/KOL/2014 A.Y. 1994- 95 ITO WD.12(3), KOL. VS. SAFE STRUCTURES ( P) LTD. PAGE 4 ACT. HOWEVER WE NOTE THAT ON THE EARLIER OCCASION, THE HON'BLE TRIBUNAL HAS RESTORED THE ISSUE BACK TO THE FILE OF AO FOR FRESH ADJUDICATION WITH THE DIRECTION TO MAKE THE ADDITION ON THE BASIS OF SEIZ ED MATERIALS. BUT WE NOTE THAT SUCH DIRECTION HAS NOT BEEN COMPLIED WITH BY A O. NO SEIZED MATERIAL HAS BEEN BROUGHT ON RECORD AS DIRECTED BY THE HONBLE I TAT. THEREFORE, WE CONCLUDE THAT THE ADDITION HAS BEEN MADE MERELY ON THE BASIS OF STATEMENT FURNISHED U/S. 132(4) OF THE ACT. THUS, WE HOLD THA T NO INTERFERENCE IS CALLED FOR IN THE ORDER OF LD. CIT(A). WE UPHOLD THE SAME. THI S GROUND OF REVENUE IS DISMISSED. 7. IN THE RESULT, REVENUES APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 14/ 02/2018 SD/- SD/- ($ &) ( &) (N.V.VASUDEVAN) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP, SR.P.S (- 14 / 02 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ITO WARD-12(3), P-7 CHOWRINGHEE SQUARE, 7 TH FLOOR, KOLKATA-69 2. /RESPONDENT-SAFE STRUCTURES (P) LTD, 11, OLD POST OFFICE STREET, KOLKATA-01 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA 5. 7 $$3, 3, / DR, ITAT, KOLKATA 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO 3,