DCIT, CC-VI, Kolkata, Kolkata V. M/s. Maithan Ceramic Ltd., Kolkata

ITA 494/KOL/2011

• Counselvise Citation: 49423514 RSA 2011
• Duration Of Justice: 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2011
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 25-03-2011
• Court: TRIBUNAL
• Department Lawyers: D R SINDHAL
• Assessee Lawyers: RAVI TULSIYAN
• Keywords: Depreciation; Income from undisclosed sources; Opportunity of cross examination; Difference of opinion; Retraction; Unabsorbed depreciation; Change of opinion
• Section: 132; 143(3); 153A; 115JB

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH A, KOLKATA () BEFORE , ,, , , SHRI MAHAVIR SINGH, JUDICIAL MEMBER. /AND . .. . ! ! ! !. .. . , '# SHRI C.D.RAO, ACCOUNTANT MEMBER $ $ $ $ / ITA NOS . 494 TO 496/KOL/2011 %& '(/ ASSESSMENT YEARS : 2003-04, 2005-06 & 2008-2009 (*+ / APPELLANT ) D.C.I.T., CENTRAL CIRCLE-VI, KOLKATA - % - - VERSUS - . (-.*+/ RESPONDENT ) M/S.MAITHAN CERAMIC LTD., KOLKATA (PAN : AABCM 7759 A) *+ / 0 '/ FOR THE APPELLANT: SHRI D.R.SINDHAL -.*+ / 0 '/ FOR THE RESPONDENT: SHRI RAVI TULSIYAN 1%2 / !# /DATE OF HEARING : 31.10.2011. 3' / !# /DATE OF PRONOUNCEMENT : 15.12.2011. '4 / ORDER ( (( ( . .. . ! ! ! !. .. . ) )) ), , , , '# PER SHRI C.D.RAO, AM THE ABOVE THREE APPEALS ARE FILED BY THE REVENUE A GAINST THE ORDER DATED 03.01.2011 OF THE LD. CIT(A)-CENTRAL-I, KOLKATA PER TAINING TO A.YRS. 2003-04, 2005- 06 AND 2008-09 RESPECTIVELY. FOR THE SAKE OF CONVEN IENCE ALL THE THREE APPEALS ARE DISPOSED OF TOGETHER BY A COMMON ORDER. ITA NO. 494/KOL/2011 (A.Y. 2003-04) : 2. THE GROUNDS RAISED IN THIS APPEAL BY THE DEPART MENT READ AS UNDER :- 1) THAT, ON THE FACTS AND CIRCUMSTANCES OF THE CAS E, LD. CIT(A) HAS ERRED IN BOTH LAW AND FACTS IN OBSERVING THAT NO ADDITION CAN BE MADE U/S. 153A IN CASES WHERE REGULAR ASSESSMENTS HAVE BEEN COMPLETED AND N O INCRIMINATING DOCUMENTS HAVE BEEN FOUND IN COURSE OF SEARCH & SEI ZURE OPERATION. 2 2) THAT, IN DOING SO, LD. CIT(A) OVERLOOK TH E PROVISIONS OF SECTION 153A WHICH STATES THAT IN CASE OF SEARCH SEIZURE OPERATIONS A SSESSMENT OR RE-ASSESSMENTS ARE REQUIRED TO BE MADE FOR 6 ASSESSMENT YEARS IMME DIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WH ICH SEARCH IS CONDUCTED. 3) THAT, LD. CIT(A) ERRED IN LAW AND FACTS D IRECTING THE A.O. TO COMPUTE THE BOOKS PROFIT AS PER ORIGINAL ORDER WITHOUT APPRECIATING T HE FACT THAT AS PER AUDITED BOOKS OF A/CS THE BROUGHT FORWARD UNABSORBED LOSS O F RS.18,07,794/- IS TO BE REDUCED BEING LOWER OF UNABSORBED BROUGHT FORWARD L OSS AND UNABSORBED BUSINESS LOSS. 3. THE BRIEF FACTS OF THIS ISSUE ARE THAT THE ASSE SSEE-COMPANY IS MAINLY ENGAGED IN THE BUSINESS OF PRODUCTION AND SALE OF BRICKS & REL ATED PRODUCTS. FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, THE ASSESSEE FILED ITS RE TURN ON 28/11/2003 SHOWING TOTAL INCOME AT NIL AND BOOK PROFIT U/S. 115JB OF THE ACT AT RS.44,91,728/-. THE RETURN WAS PROCESSED U/S. 143(1) ON 19/2/2004 AND ASSESSMENT U /S. 143(3) OF THE ACT WAS COMPLETED ON 30/3/2006 AT NIL INCOME AFTER ALLOWING SET OFF OF BROUGHT FORWARD UNABSORBED DEPRECIATION. A SEARCH & SEIZURE OPERAT ION U/S. 132(1) WAS CARRIED OUT AT DIFFERENT PREMISES INCLUDING FACTORY PREMISES OF TH E ASSESSEE-COMPANY AT CHIRKUNDA, DHANBAD AS WELL AS RESIDENCE OF MAITHAN GROUP OF CA SES ON 20/9/2007 AND SUBSEQUENT DATES AND DURING SUCH SEARCH OPERATION VARIOUS DOCU MENTS WERE SUBJECTED TO SEIZURE. IN RESPONSE TO NOTICE U/S. 153A OF THE ACT, THE ASS ESSEE REQUESTED THE LD. A.O. TO TREAT THE ORIGINAL RETURN AS RETURN FILED U/S. 153A. ASS ESSMENT U/S. 143(3)/153A OF THE ACT WAS COMPLETED ON 31/12/2009 AFTER MAKING DISALLOWAN CE OF DEPRECIATION OF RS.3,29,143/-. FURTHER, WHILE COMPUTING BOOK PROFI T U/S. 115JB OF THE ACT, THE LD. A.O. ALLOWED SET OFF OF BROUGHT FORWARD UNABSORBED LOSS OF RS.18,07,794/- INSTEAD OF RS. 1,27,92,220/- CLAIMED BY THE ASSESSEE ON THE GR OUNDD THAT BROUGHT FORWARD LOSS IS TO BE COMPUTED AFTER ADJUSTING PROFITS OF PRIOR YEA RS. BEING AGGRIEVED, THE ASSESSEE WENT IN APPEAL BEFORE THE LD. CIT(A). 3.1. ON APPEAL BEFORE THE LD. C.I.T.(A), THE ASSES SEE SUBMITTED THAT AS ON THE DATE OF SEARCH, THE ASSESSMENT FOR THE ASSESSMENT YEAR UNDE R CONSIDERATION HAS ALREADY BEEN COMPLETED U/S. 143(3) OF THE ACT, WHEREIN THE DEPRE CIATION CLAIMED AND COMPUTATION OF BOOK PROFIT HAD BEEN ACCEPTED BY THE LD. A.O. I T WAS FURTHER CONTENDED THAT NOTHING INCRIMINATING DOCUMENTS IN RESPECT OF CLAIM OF DEPR ECIATION AND COMPUTATION OF BOOK 3 PROFIT WERE FOUND IN THE GROUP CASES. THERE BEING NO CHANGE IN THE FACTS AND CIRCUMSTANCES COMPARED TO THE PAST AND THE ASSESSME NT BEING COMPLETED U/S. 143(3) OF THE ACT, THE ITEMS OF REGULAR ASSESSMENT COULD NOT BE ADDED BACK IN THE ASSESSMENT FRAMED U/S. 153A OF THE ACT MERELY ON THE BASIS OF CHANGE OF OPINION. 3.2. IN SUPPORT OF THE SUBMISSIONS, THE ASSESSEE RE LIED ON THE FOLLOWING DECISIONS :- LMJ INTERNATIONAL LTD. VS. DCIT [(2008) 119 T.T.J. (KOL) 214] SUNCITY ALLOUS (P) LTD. VS. ACIT [(2009 124 T.T.J . 674] ANIL KUMAR BHATIA VS. ACIT (DELHI BENCH) [I.T.A.N O.2660(DEL)/09 3.3. CONSIDERING THE SUBMISSIONS OF ASSESSEE, THE L D. C.I.T.(A) DELETED THE DISALLOWANCE OF DEPRECIATION AND FURTHER DIRECTED T HE LD. A.O. TO RECALCULATE THE BOOK PROFIT AS PER ORIGINAL ORDER PASSED U/S. 143(3) OF THE ACT. THE OBSERVATIONS OF THE LD. C.I.T.(A) ARE AS UNDER :- 4. I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE APPELLANT. IN THE ASSESSEES CASE, AS ON THE DATE OF SEARCH, ASSESSMENT FOR THE YEAR UNDER CONSIDERATION HAD ALREADY BEEN COMPLETED U/S 143(3) OF THE ACT. AT THE TIME O F ORIGINAL ASSESSMENT U/S 143(3), THE CLAIM OF DEPRECIATION AND CALCULATION OF B/F LO SS HAD BEEN ACCEPTED BY THE AO AND THE ASSESSMENTS U/S 143(3) HAD BEEN COMPLETED ACCEP TING THE SAID POSITION. IN COURSE OF THE SEARCH ACTION IN THE GROUP CASE, NOTHING INC RIMINATING IN RESPECT OF SUCH CLAIMS WERE FOUND. SINCE THE ABOVE CLAIMS HAD BEEN ACCEPTE D IN COURSE OF REGULAR ASSESSMENTS U/S 143(3), AND SINCE THERE IS CHANGE I N THE FACTS AND CIRCUMSTANCES COMPARED TO THE PAST, THE AO WAS NOT JUSTIFIED IN R EVIEWING THE COMPLETED ASSESSMENT OF THE SAID YEAR MERELY BECAUSE A SEARCH ACTION HAS BEEN CANNED OUT IN THE BUSINESS PREMISES OF THE COMPANY. S. 1 53A DOES NOT AUTHORI ZE THE MAKING OF A DE NOVO ASSESSMENT. WHILE UNDER THE 1 ST PROVISO, THE AO IS EMPOWERED TO FRAME ASSESSMENT FOR SIX YEARS, UNDER THE 2 ND PROVISO, ONLY THE ASSESSMENTS WHICH ARE PENDING ON THE DATE OF INITIATION OF SEARCH ABATE. THE EFFECT IS T HAT COMPLETED ASSESSMENTS DO NOT ABATE. SINCE, THE DISALLOWANCE ON ACCOUNT OF DEPREC IATION AND BROUGHT FORWARD LOSS DOESNT EMANATE FROM INCRIMINATING MATERIAL FOUND D URING THE COURSE OF SEARCH HENCE THE SAME CANNOT BE THE SUBJECT MATTER OF CONSIDERAT ION UNDER THE PROCEEDING UNDER SECTION 153A. HENCE I MUST FOLLOW THE DECISION OF LMJ INTERNATIONAL VS DCIT (2008) 119 TTJ (KOL) 214 TO MAINTAIN THE JUDICIAL DISCIPLI NE, WHERE IT HAS BEEN HELD THAT WHERE NOTHING INCRIMINATING IS FOUND IN THE COURSE OF SEARCH PROCEEDING RELATING TO ANY ASSESSMENT YEARS, THE COMPLETED ASSESSMENT FOR SUCH YEARS CANNOT BE DISTURBED . ACCORDINGLY THE DISALLOWANCE OF RS. 3,29,143/- ON A CCOUNT OF DEPRECIATION IS DELETED. FURTHER THE A.O IS DIRECTED TO RECALCULATE THE BOOK PROFIT AS PER ORIGINAL ORDER PASSED UNDER SECTION 143(3) OF THE ACT. ACCORDINGLY THE G ROUND NO 1 TO 3 TAKEN BY THE APPELLANT IS ALLOWED. 3.4. AGGRIEVED BY THIS THE REVENUE IS IN APPEAL BEF ORE US. 4 4. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREFUL PERUSAL OF THE MATERIAL PLACED ON RECORD IT IS OBSERVED THAT THE DEPARTMENT IS IN APPEAL AGAINST THE OBSERVATION OF THE LD. C.I.T.(A) THAT NO ADDITION CAN BE MADE I N ASSESSMENT U/S. 153A OF THE ACT WHEN REGULAR ASSESSMENTS HAVE BEEN COMPLETED BEFORE CONDUCTING SEARCH OPERATION AND NO INCRIMINATING DOCUMENTS HAVE BEEN FOUND IN C OURSE OF SUCH SEARCH. WE FURTHER OBSERVE THAT THE RETURN FOR A.Y. 2003-04 WA S FILED U/S. 139 ON 28/11/2003, WHICH WAS PROCESSED U/S. 143(1) ON 19/2/2004 AND AS SESSMENT U/S 143(3) WAS COMPLETED ON 30/3/2006 AT NIL INCOME AFTER ALLOWING SET OFF OF BROUGHT FORWARD UNABSORBED DEPRECIATION AND BOOK PROFIT AS PER AUDI TED ACCOUNTS. IN THIS CASE SEARCH & SEIZURE OPERATION WAS CONDUCTED ON 20/9/2007 AND ASSESSMENT U/S. 143(3)/153A WAS COMPLETED ON 31/12/2009. IN THE ASSESSMENT FRA MED U/S. 143(3)/153A, THE LD. A.O. DISALLOWED DEPRECIATION ON THE PLANT & MACHINE RY TO THE EXTENT OF RS.3,29,143/- ALLEGING EXCESS CLAIM. HE ALSO ALLOWED SET OFF OF UNABSORBED LOSS WHILE COMPUTING BOOK PROFIT U/S. 115JB AT RS.18,07,794/- AS AGAINST CLAIM OF THE ASSESSEE OF RS.1,27,92,220/-. SINCE THESE ISSUES HAVE ALREADY B EEN CONSIDERED BY THE LD. A.O. DURING REGULAR ASSESSMENT PROCEEDINGS AND ASSESSMEN T U/S. 143(3) COMPLETED ACCORDINGLY AFTER TAKING INTO CONSIDERATION THE ACC OUNTS/DETAILS AVAILABLE TO THE LD. A.O AND IN THE ABSENCE OF NO INCRIMINATING DOCUMENTS HA VE BEEN FOUND IN THE COURSE OF SEARCH WE ARE OF THE CONSIDERED VIEW THAT THE DISAL LOWANCE OF DEPRECIATION AND FRESH COMPUTATION OF BOOK PROFIT ON THE SAME VERY MATERIA L TENT AMOUNTS TO CHANGE OF OPINION, WHICH IS NOT PERMISSIBLE IN ASSESSMENT U/S . 153A OF THE ACT. WE, THEREFORE, FIND NO INFIRMITY IN THE ORDER OF THE LD. C.I.T.(A) IN THIS REGARD, WHICH IS UPHELD AND THE GROUNDS RAISED BY THE DEPARTMENT FOR ASSESSMENT YEAR 2003-04 ARE REJECTED. ITA NO. 495/KOL/2011 (A.Y. 2005-06) : 5. THE GROUNDS RAISED IN THIS APPEAL BY THE DEPART MENT READ AS UNDER :- 1) THAT, ON THE FACTS AND CIRCUMSTANCES OF T HE CASE, LD. CIT(A) HAS ERRED IN BOTH LAW AND FACTS IN DELETING THE DISALLOWANCE OF RS.3,55,868/- ON ACCOUNT OF DEPRECIATION OBSERVING THAT NO DISALLOWA NCE CAN BE MADE U/S. 153A IN CASES WHERE REGULAR ASSESSMENT HAS BEE N COMPLETED AND NO INCRIMINATING DOCUMENTS HAVE BEEN FOUND IN COURSE O F SEARCH & SEIZURE OPERATIONS. 5 2) THAT, IN DOING SO, LD. CIT(A) OVERLOOK TH E PROVISIONS OF SECTION 153A WHICH STATES THAT IN CASE OF SEARCH SEIZURE OPERAT IONS ASSESSMENT OR RE- ASSESSMENTS ARE REQUIRED TO BE MADE FOR 6 ASSESSMEN T YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVI OUS YEAR IN WHICH SEARCH IS CONDUCTED. 3) THAT, LD. CIT(A) ERRED IN CHALLENGING THE CONSTITUTIONAL VALIDITY OF SECTION 153A OF I.T. ACT, 1961. 6. THE FACTS IN THIS APPEAL FOR ASSESSMENT YEAR 20 05-06 ARE IDENTICAL TO THOSE OF ASSESSMENT YEAR 2003-04, THE APPEAL FOR WHICH HAS A LREADY BEEN DISPOSED OF ABOVE. FOR THIS ASSESSMENT YEAR ALSO, THE ASSESSEE FILED R ETURN U/S. 139 ON 27/10/2005 SHOWING TOTAL INCOME AT RS. 9,13,87,880/-. THE RET URN WAS PROCESSED U/S. 143(1) ON 29/12/2006 AND ASSESSMENT U/S. 143(3) WAS COMPLETED ON 29/3/2007 ACCEPTING THE DEPRECIATION CLAIMED BY THE ASSESSEE. SEARCH & SEI ZURE OPERATION WAS CARRIED IN THE CASE OF MAITHAN GROUP OF CASES ON 20/9/2007. IN RE SPONSE TO NOTICE U/S. 153A OF THE ACT, THE ASSESSEE REQUESTED THE LD. A.O. TO TREAT T HE ORIGINAL FILED AS RETURN U/S. 153A OF THE ACT AND THE ASSESSMENT U/S. 143(3)/153A WAS COM PLETED ON 31/12/2009. 7. ON THE ABOVE FACTS AND FOR THE REASONS DISCUSSE D ABOVE IN RESPECT OF THE ASSESSEES CASE FOR ASSESSMENT YEAR 2003-04, WE UPH OLD THE ORDER OF THE LD. C.I.T.(A) AND THE GROUNDS RAISED BY THE DEPARTMENT ARE LIABLE TO BE DISMISSED. ITA NO. 496/KOL/2011 (A.Y. 2008-09) : 8. THE GROUNDS RAISED IN THIS APPEAL BY THE DEPART MENT READ AS UNDER :- 1) THAT, ON THE FACTS AND CIRCUMSTANCES OF T HE CASE, LD. CIT(A) HAS ERRED IN BOTH LAW AND FACTS IN DELETING THE ADDITION OF RS.12,0,0 00/- ON ACCOUNT OF UNDISCLOSED INCOME SOLELY ON THE BASIS OF BELATED R ETRACTION OF STATEMENT. 2) THAT, IN DOING SO, LD. CIT(A) FAILED TO A PPRECIATE THE RETRACTION WAS NOT MADE TO THE AUTHORITY TO WHOM THE STATEMENT WAS GIVEN AN D RETRACTION WAS MADE AFTER A GAP OF TWO YEARS. 9. THE UNDISPUTED FACTS RELATING TO THE ABOVE ISSU E ARE THAT SEARCH & SURVEY OPERATION WAS CONDUCTED AT THE FACTORY PREMISES OF THE ASSESSEE ON 20/9/2008. SURVEY OPERATION WAS ALSO CONDUCTED AT THE PREMISES OF THE PARTNERSHIP FIRM M/S. MAITHAN INTERNATIONAL AT MUMBAI WHEREIN ONE HAND WRITTEN PA PER CONTAINING ROUGH ACCOUNT OF 6 A SUM OF RS.5,19,810/- WAS FOUND AND SEIZED FROM TH E POSSESSION OF ONE AVINASH CHAND, V.P., EXPORT OF THE FIRM. THE LD. A.O. OBSE RVED THAT IN HIS STATEMENT RECORDED DURING SURVEY, SRI AVINASH CHAND STATED THAT THE PA PER CONTAINED THE DETAIL OF AMOUNT RECEIVED BY HIM FROM SRI ATUL SHAH AND SRI NARESH S HAH, STOCKIEST & DISTRIBUTOR OF MAITHAN CERAMICS LTD. ON BEHALF OF SRI J.P.AGARWALA , M.D. OF MAITHAN CERAMICS LTD. SUBSEQUENTLY, SRI AVINASH CHAND FURNISHED A DULY SW ORN AFFIDAVIT STATING THAT THE PIECE OF PAPER AND AMOUNT MENTIONED THEREIN BELONGS TO HIM BEING HIS INCOME BY WAY OF SALE OF PAINTINGS AND IN SUPPORT, HE FILED EVIDE NCE OF FILING OF I.T. RETURN FOR THE ASSESSMENT YEAR 2008-09 REFLECTING THE SAID INCOME. HOWEVER, THE LD. A.O. ACTING ON THE STATEMENT OF SRI AVINASH CHAND RECORDED DURING SURVEY OPERATION ADDED THE SUM OF RS.12,00,000/- TO THE INCOME OF THE ASSESSEE-COM PANY AS ITS INCOME FROM UNDISCLOSED SOURCES. 9.1. ON APPEAL BEFORE THE LD. C.I.T.(A), THE ASSES SEE SUBMITTED THAT NO MATERIAL FAR BEHIND ANY INCRIMINATING DOCUMENTS/MATERIALS WERE F OUND DURING SEARCH OPERATION CONDUCTED IN THE CASE OF THE ASSESSEE WHICH RELATED TO THE ADDITION MADE BY THE LD. A.O. THE LD. A.O. SOLELY RELYING UPON THE ALLEGED STATEMENT OF SRI AVINASH CHAND DURING SURVEY OPERATION, WHICH WAS SUBSEQUENTLY RET RACTED WITH DOCUMENTS, HAS PRESUMED THE AMOUNT FOUND IN THE ROUGH PAPER AS ASS ESSEES UNDISCLOSED INCOME, WHICH WAS ARBITRARY AND UNLAWFUL. IN SUPPORT OF TH E ABOVE CONTENTIONS, THE ASSESSEE RELIED ON SEVERAL CASE LAWS WHICH ARE MENTIONED IN THE ORDER OF LD. C.I.T.(A) AT PAGES 3 & 4 OF THE ORDER. THE LD. C.I.T.(A) AFTER TAKIN G INTO CONSIDERATION THE SUBMISSIONS OF THE ASSESSEE AND THE PROVISION OF THE ACT, DELET ED THE ADDITION OF RS.12,00,000/- BY OBSERVING AS UNDER :- 4.1. IT IS A SETTLE PRINCIPLE THAT ADDITION CANN OT BE MADE SIMPLY ON THE BASIS OF SOME LETTERS SEIZED FROM A THIRD PARTY IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE AND WITHOUT ISSUING SUMMONS TO THE CONCERNED PERSON OR MAKING HIM AVAILABLE FOR CROSS EXAMINATION. IN THE CASE UNDER CONSIDERATION THE AD DITION HAS BEEN MADE SIMPLY ON THE BASIS OF STATEMENT OF A THIRD PARTY WITHOUT GIV ING ANY OPPORTUNITY OF CROSS EXAMINATION MOREOVER AS PER SECTION 292C WHERE ANY BOOKS OF ACCOUNT, OTHER DOCUMENTS, MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING ARE OR IS FOUND IN THE PO SSESSION OR CONTROL OF ANY PERSON IN THE COURSE OF A SEARCH UNDER SECTION 132 OR SURVEY UNDER SECTION 1 33A IT MAY, IN ANY PROCEEDING UNDER THIS ACT, BE PRESUMED 7 (I) THAT SUCH BOOKS OF ACCOUNT, OTHER DOCUMENTS, M ONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING BELONG OR BELONGS T O SUCH PERSON; (II) THAT THE CONTENTS OF SUCH BOOKS OF ACCOUNT AN D OTHER DOCUMENTS ARE TRUE; AND (III) THAT THE SIGNATURE AND EVERY OTHER PART OF SU CH BOOKS OF ACCOUNT AND OTHER DOCUMENTS WHICH PURPORT TO BE IN THE HANDWRITING OF ANY PARTICULAR PERSON OR WHICH MAY REASONABLY BE ASSUMED TO HAVE BEEN SIGNED BY, O R TO BE IN THE HANDWRITING OF, ANY PARTICULAR PERSON, ARE IN THAT PERSONS HANDWRI TING, AND IN THE CASE OF A DOCUMENT STAMPED, EXECUTED OR ATTESTED, THAT IT WAS DULY STA MPED AND EXECUTED OR ATTESTED BY THE PERSON BY WHOM IT PURPORTS TO HAVE BEEN SO EXECUTED OR ATTESTED. WHERE AS IN THE CASE UNDER CONSIDERATION THE CONCER NED PERSON NAMELY MR. AVINASH CHAND FROM WHOM POSSESSION THE PAPER HAS BE EN SEIZED HAS ADMITTED BY FILING A DULY SWORN AFFIDAVIT STATING THAT THE P IECE OF PAPER AND AMOUNT MENTIONED THEREIN BELONGS TO HIM. FURTHER THE AMOU NT IN QUESTION HAS BEEN DULY SHOWN IN HIS IT. RETURN FOR THE A.Y. 2008. HENCE AS PER PROVISION OF THE ACT NO ADDITION CAN BE MADE IN THE HAND OF THE APPELLANT. MORE OVER EVEN OTHERWISE ADDITION IF ANY HAS TO MADE ONLY ON THE BASIS OF ST ATEMENT OF SRI MR. AVINASH CHAND, THEN ALSO ADDITION WAS TO BE MADE IN THE HAN D OF SRI. J.P. AGARWALA BECAUSE SRI CHAND IN THE STATEMENT HAS STATED THAT HE HAS RECEIVED CERTAIN AMOUNT ON BEHALF OF SRI. J.P. AGARWALA. HENCE TAKI NG ALL THE FACTS INTO CONSIDERATION AND THE PROVISION OF THE ACT THE ADDI TION OF RS.12,00,000/- MADE BY THE A.O. UNDER THE HEAD INCOME FROM UNDISCLOSED SOURCES IS DELETED. 10. AFTER HEARING THE RIVAL SUBMISSIONS AND ON PER USAL OF THE MATERIAL PLACED ON RECORD, IT IS OBSERVED THAT ONE HAND WRITTEN PAPER CONTAINING SOME FIGURES WERE SEIZED FROM THE POSSESSION OF ONE SRI AVINASH CHAND, WHO G AVE STATEMENT DURING SURVEY OPERATION STATING THAT HE RECEIVED THE MONEY ON BEH ALF OF SRI J.P. AGARWALA, M.D. OF MAITHAN CERAMICS LTD. THE LD. A.O. ACTED SOLELY ON THE STATEMENT OF THAT PERSON DURING SURVEY OPERATION AND HAS COME TO THE CONCLUS ION THAT THE AMOUNT WAS ASSESSEES INCOME FROM UNDISCLOSED SOURCES WITHOUT TAKING INTO THE CONSIDERATION THE RETRACTION MADE BY THAT PERSON SUBSEQUENTLY BY FILI NG AN AFFIDAVIT AND OWNING THE SAID AMOUNT AS HIS INCOME EARNED OUT OF SALE OF PAINTING S. IN PROOF, SRI AVINASH CHAND FILED COPY OF I.T. RETURN FOR ASSESSMENT YEAR 2008- 09. 10.1. UNDER THIS CIRCUMSTANCES, IN OUR CONSIDERED O PINION THE LD. CIT(A) HAS RIGHTLY DELETED THE ADDITION MADE BY ASSESSING OFFICER. THE REFORE WE FIND NO INFIRMITY IN THE ORDERS OF THE LD. CIT(A) AND DISMISS THE APPEAL OF THE REVENUE. 8 11. IN THE RESULT, THE APPEALS OF THE DEPARTMENT A RE DISMISSED. 5 6 789 : #5; <' ;' => ORDER PRONOUNCED IN THE COURT ON 15.12.2011. SD/- SD/- , , , , MAHAVIR SINGH, JUDICIAL MEMBER . .. . ! ! ! !. .. . , , , , '# '# '# '# , C.D.RAO, ACCOUNTANT MEMBER. ( (( (!# !# !# !#) )) ) DATE: 15.12.2011. '4 / -7 ?'7'6- COPY OF THE ORDER FORWARDED TO: 1. M/S.MAITHAN CERAMIC LTD., 20, BRITISH INDIA STREET, KOLKATA-700001. 2 THE D.C.I.T., CENTRAL CIRCLE-VI, KOLKATA. 3. THE CIT, 4. THE CIT(A)-CENTRAL-I, KOLKATA. 5. DR, KOLKATA BENCHES, KOLKATA .7 -/ TRUE COPY, '4%1/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES R.G.(.P.S.)