Inland couriers Pvt.Ltd, Kolkata V. ACIT, Cir IV, Kolkata

ITA 53/KOL/2013

• Counselvise Citation: 5323514 RSA 2013
• Duration Of Justice: 2 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 09-01-2013
• Court: TRIBUNAL
• Department Lawyers: KANHIYA LAL KUM AR JCITLD
• Assessee Lawyers: B C JAIN FCA LD
• Keywords: Search and seizure
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA B EFORE H ON BLE SHRI P.K B ANSAL , AM & H ON BLE SHRI RAJPAL YADAV, JM I.T.A NO. 5 3 /KOL/201 3 A.Y 20 10 - 11 M/S. INLAND COURIERS PVT. LTD VS. ASSISTANT C OMMISSIONER OF INCOME - TAX PAN: AACI5609N C.C IV, KOLKATA [ APPELLANT ] [ R ESPONDENT ] APPELLANT BY : SHRI B.C. JAIN, FCA, LD.AR RESPONDENT BY : SHRI KANHIYA LAL KUM AR, JCIT/LD.SR.DR DATE OF HEARING : 28/04/2015 DATE OF PRONOUNCEMENT: 28 /04/2015 ORDER PER BENCH TH E ASSESSEE IS IN APPEAL BEFORE US AGAINST THE ORDER OF LD. CIT(A) DATED 1 4.1 2 . 2012 PASSED FOR ASSESSMENT YEAR 20 10 - 11 . 2. THE SOLITARY SUBSTANTIA L GRIEVANCE OF THE ASSESSEE IS THAT LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.2,75,000/ - . 3. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH AND SEIZURE OPERATION U/S. 132 OF THE I.T ACT 1961 WAS CONDUCTED AT THE BUSINESS/RESIDENTIAL PREMISES O F M/S. INLAND ROAD TRANSPORT PVT. LTD., RADHA K ISHAN SOMANI, KOLMAK CHEMICALS LTD ON 5/11/2009 . THE ASSESSEE HAS FILED RETURN OF INCOME ELECTRONICALLY ON 23/9/2010 DECLARING TOTAL INCOME AT RS.5,10,499. A NOTICE U/S. 143(2 ) WAS SERVED UPON THE ASSESSEE. D URING THE SCRUTINY OF ACCOUNTS, IT REVEALED TO THE ASSESSEE THAT AT THE TIME OF SEARCH CASH OF RS.3,93,350 WAS FOUND AND RS.3,75,000 WAS SEIZED. THE AO CONFRONTED THE ASSESSEE TO EXPLAIN THE SOURCE OF CASH FOUND DURING THE COURSE OF SEARCH. IN RESPONS E TO SHOW CAUSE NOTICE, IT WAS CONTENDED THAT A SUM OF RS.2,75,000 BELONGED TO SMT. SITA D EVI JHANWAR , W IFE OF LOON KARAN JHANWAR. IN ORDER TO SUBSTANTIATE THIS CONTENTION AN AFFIDAVIT OF SMT. SITA DEVI JHANWAR WAS FILED, WHEREIN SHE HAS CONTENDED THAT SU M OF RS.2,75,000 WAS HANDED OVER TO HER HUSBAND, SHRI LOON KARAN JHANWAR [ SHRI L.K.JHANWAR] FOR DEPOSITING IN HER BANK ACCOUNT WITH VIJAYA BANK BEARING ACCOUNT NUMBER 7205010007223 . HOWEVER, THE LD.AO HAS REJECTED THIS CONTENTION OF THE ASSESSEE ON THE GR OUND THAT ON THE DATE OF SEARCH SHRI LOON KARAN JHANWAR , H USBAND OF SMT. SITA DEVI JHANWAR WAS IN GAUHATI. THEREFORE, NO QUESTION COULD ITA NO . 5 3 /KOL/2013 - JM M/S. INLAND COURIERS PVT. LTD. 2 ARISE OF HANDING OVER OF MONEY TO SHRI LOON KARAN JHANWAR [SHRI L.K.JHANWAR] FOR DEPOSITING IN THE SAID BANK ACCOUNT . ACCORDINGLY, THE MONEY CANNOT TRAVEL UPTO THE PREMISES OF THE ASSESSEE. 4. A PPEAL TO THE LD.CIT(A) DID NOT BRING ANY RELIEF TO THE ASSESSEE. THE LD. 1 ST . APPELLATE AUTHORITY HAS CON CURRED WITH THE LD.AO. 5. WITH THE ASSISTANCE OF THE LD. REPRESENTATIV E, WE HAVE GONE THROUGH THE RECORD . A PAPER BOOK FILED BY THE ASSESSEE CONTAINS BANK ACCOUNT OF SMT. SITA DEVI JHANWAR , COPIES OF I.T RETURN FOR A.YS 2009 - 10 AND 2010 - 11 . A PERUSAL OF THE BANK STATEMENT , IT REVEALED THAT SMT. SITA DEVI HAD SUFFICIENT BANK BALANCE , IN THE MONTHS OF JUNE - JULY S HE HAD WITHDRAWN MORE THAN RS.4 LAKHS. THE AO DID NOT DOUBT ABOUT THE AVAILABILITY OF MONEY WITH SMT. SITA DEVI JHANWAR. HE DOUBTED THE EXPLANATION OF THE ASSESSEE ON THE GROUND THAT SHRI L.K.JHANWAR WAS NOT AVAILA BLE IN THE CITY ON THE DAY ON WHICH ALLEGED MONEY WAS STATED TO BE HANDED OVER TO H IM . IN OUR OPINION THE CONDUCT OF HUMAN BEING CANNOT BE APPRECIATED IN A MATHEMATICAL PR ECESSION . IT CANNOT BE IN A LINE WITH STRAIGHT JACKET FORMULAE. THE EXPLANATION IS T HAT SMT. SITA DEVI JHANWAR HAD THE FUNDS THAT HAS TRAVELLED UPTO THE PREMISES OF THE ASSESSEE. SHE ALLEGED THAT IT WAS HANDED OVER TO HER HUSBAND, SHRI L.K. JHANWAR. BUT ACCORDING TO THE AO THE ABSENCE OF SHRI L.K.JHANWAR ON THE DATE OF SEARCH FROM THE COMPANY PREMISES BELIED THE EXPLANATION OF THE ASSESSEE. IN OUR OPINION IF FUNDS ARE AVAILABLE WITH ONE OF THE PERSONS, WHO ALLEGED THAT SHE HANDED OVER THE MONEY FOR DEPOSITING IN HER BANK ACCOUNT, THEN PROBABLY IT COULD TRAVEL TO THE OFFICE ON ANY DATE PRIOR TO THE SEARCH OR THROUGH ANY EMPLOYEE ALSO. THE AO HAS APPRECIATED THE CIRCUMSTANCES AND HUMAN CONDUCT IN A VERY CONSERVATIVE MANNER . TAKING INTO CONSIDERATION THE FACTS AND CIRCUMSTANCES IN TOTALITY , WE ARE OF THE VIEW THAT ASSESSEE IS ABLE T O EXPLAIN THE SOURCE AND NO ADDITION DESERVES TO BE CONFIRMED. WE DELETE THIS ADDITION. 6 . IN THE RESULT , THE APPEAL FILED BY THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 28 - 04 - 2015 SD/ - SD/ - [ P.K BANSAL] [ RAJPAL YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 2 8 - 04 - 2015 ITA NO . 5 3 /KOL/2013 - JM M/S. INLAND COURIERS PVT. LTD. 3 COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT - M/S. INLAND COURIERS PVT. LTD 143/1/1 COTTON ST, KOL - 7. 2 RESPONDENT : ASSISTANT COMMISSIONER OF INCOME TAX, CC - IV, AYKAR PURBA 110 SHANTI PALLY, KOL - 107. 3 . CIT, 4 . CIT(A), 5 . D R, KOLKATA BENCHES, KOLKATA *PP/SPS TRUE COPY] BY ORDER, ASSTT REGISTRAR