Shyama Prasad Murarka, Kolkata V. DCIT, CEN. CIR. -3(3), KOLKATA, Kolkata

ITA 534/KOL/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4751 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 9 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 22-05-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 07-05-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P K SRIHARI
• Assessee Lawyers: D S DAMLE
• Keywords: Tangible material; Assessment record
• Section: 271(1)(c); 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C, BENC H KOLKATA BEFORE SHRI A.T.VARKEY, JM &DR. A.L.SAINI, AM ./ITA NOS.533 & 534/KOL/2015 ( / ASSESSMENT YEARS: 2006-07 & 2007-08) SHYAMA PRASAD MURARKA 1/C, MANDEVILLE GARDENS, KOLKATA- 700019 VS. DCIT, CC-3(3), KOLKATA AAYAKAR BHAWAN POORVA, 110, SHANTIPALLY, KOLKATA-700107. ./ ./PAN/GIR NO.: AFCPM 6318 J (ASSESSEE) .. (REVENUE) ASSESSEE BY :SHRI D.S. DAMLE, FCA RESPONDENT BY : SHRI P.K. SRIHARI, CIT DR / DATE OF HEARING : 19/12/2018 /DATE OF PRONOUNCEMENT : 15/02/2019 / O R D E R PER DR. A. L. SAINI: THE CAPTIONED TWO APPEALS FILED BY THE ASSESSEE, PE RTAINING TO ASSESSMENT YEARS2006-07 & 2007-08, ARE DIRECTED AGAINST THE SE PARATE ORDERS PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-21, KO LKATA,[(IN SHORT THE LD. CIT(A)], WHICH IN TURN ARISE OUT OF SEPARATE ASSESS MENT ORDERS PASSED BY THE ASSESSING OFFICER U/S 153A / 143(3) OF THE INCOME T AX ACT, 1961 ( IN SHORT THE ACT), DATED 31.12.2014. 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE SUBMITTED BEFORE THE BENCH THAT AT ASSESSMENT STAGE, THE ASSESSEE HAS NOT BEEN PROVIDED THE CERTIFIED COPY OF THE BANK ACCOUNT IN HSBC, GENEVA, SWITZERLAND. THE ASSESSING OFFICER USED THE INFORMATION SHEETS FOR MAKING THE IMPUGNED ADDITION S IN BOTH THE YEARS, THAT IS A.Y. 2006-07 AND 2007-08. THE ASSESSING OFFICER CLA IMED THAT THESE INFORMATION SHYAMA PRASAD MURARKA ITA NOS.533&534/KOL/2015 ASSESSMENT YEARS:2006-07 & 2007-08 P PP PA AA AG GG GE EE E | || | 2 22 2 SHEETS WERE RECEIVED BY THE GOVERNMENT OF INDIA FRO M A FOREIGN GOVERNMENT UNDER THE PROVISION OF EXCHANGE OF INFORMATION CLAUSES OF THE BILATERAL DOUBLE TAXATION AGREEMENT WITH THAT COUNTRY. THESE INFORMATION SHEE TS RELATE TO ASSESSEE, DAUGHTER OF ASSESSEE, MS.YAMINI AGARWAL AND GRANDDAUGHTER MS .DIPIKSHA MURARKA AND CONTAIN THE INFORMATION LIKE NAME, RESIDENTIAL ADDR ESS, DATE OF BIRTH, ACCOUNT NO. WITH HSBC BANK AND MONEY DEPOSITED IN THESE ACCOUNT S IN DOLLAR CURRENCY. THE MAIN GRIEVANCE OF THE ASSESSEE IS THAT THESE INFORM ATION SHEETS CAN NOT BE A BASE TO MAKE HUGE ADDITION THEREFORE, HE CHALLENGED THESE I NFORMATION SHEETS ON THE FOLLOWING COUNTS: A) ACCORDING TO THE ASSESSEE WHO IS AN INDIVIDUAL C ANNOT BE TERMED TO OWN THE UNDISCLOSED INCOME SINCE THE ASSESSING OFFICER DID NOT BRING ON RECORD ANY MATERIAL ON THE BASIS OF WHICH HE CAME TO A DEFINIT E FINDING THAT AMOUNT WHICH WAS HELD IN ACCOUNT HAVING CLIENT PROFILE CODE NO. 5091157752 WHICH WAS IN THE NAME OF BILIPACK LTD. AND WONDERED AS TO HOW THE A SSESSING OFFICER DETERMINED THE AMOUNT IN THE NAME OF ASSESSEE AS HIS OWN MONE Y. SO ACCORDING TO THE ASSESSEE IT WAS INCUMBENT UPON ASSESSING OFFICER TO FIRST ESTABLISH THE IDENTITY OF THE BILIPACK LTD. AND THEREAFTER IT WAS OBLIGATORY ON HIS PART TO BRING ON RECORD RELEVANT AND TANGIBLE MATERIAL TO HOLD THAT THE MON EY IN THE NAME OF BILIPACK LTD. ACTUALLY BELONGED TO ASSESSEE. B) THE ASSESSEE CHALLENGES THE ASSERTION OF THE ASS ESSING OFFICER THAT THE INFORMATION HAS BEEN RECEIVED FROM THE SWISS GOVERN MENT AS PER THE DOUBLE TAXATION AVOIDANCE AGREEMENT. SO, THEREFORE THE AUT HENCITY OF THE INFORMATION AND THE MATERIAL ON WHICH THE ASSESSING OFFICER HAS STARTED THE INVESTIGATION ITSELF ACCORDING TO THE ASSESSEE IS LEGALLY INVALID. (C). THESE INFORMATION SHEETS DO NOT CONTAIN THE NA ME AND SIGNATURE OF BANK MANAGER/AUTHORIZED PERSON OF HSBC BANK, THEREFORE T HESE ARE FABRICATED INFORMATION SHEETS TO HARASS THE ASSESSEE. (D). THESE INFORMATION SHEETS DO NOT CONTAIN THE SE AL OF THE HSBC BANK. SHYAMA PRASAD MURARKA ITA NOS.533&534/KOL/2015 ASSESSMENT YEARS:2006-07 & 2007-08 P PP PA AA AG GG GE EE E | || | 3 33 3 (E).THESE INFORMATION SHEETS WERE PROVIDED TO THE A SSESSEE DURING THE ASSESSMENT PROCEEDINGS BUT THE ASSESSING OFFICER DID NOT CERTI FY THEM THAT THESE SHEETS WERE RECEIVED BY HIM FROM HSBC BANK SWITZERLAND THROUGH GOVERNMENT OF INDIA. (F).THESE INFORMATION SHEETS HANDED OVER TO THE ASS ESSEE BY THE AO WERE NOT IN ENGLISH BUT ANOTHER FOREIGN LANGUAGE, THEREFORE, AS SESSEE COULD NOT UNDERSTAND THE TRUE AND CORRECT MEANING OF VARIOUS TERMS, WORDSETC , HENCE COULD NOT DEFEND HIS CASE PROPERLY AT THE ASSESSMENT STAGE. THE ASSESSEE ALSO COULD NOT UNDERSTAND FROM THE FOREIGN LANGUAGE WHETHER HE IS OWNER OF ACCOUNT OR JUST ATTORNEY. (G). DURING THE ASSESSMENT PROCEEDINGS A REFERENCE WAS MADE BY THE AO TO THE SWISS AUTHORITIES THROUGH THE FOREIGN TAX AND TAX R ESEARCH DIVISION OF THE CBDT REQUESTING FOR INFORMATION FROM HSBC, GENEVA SWITZE RLAND. THE RESPONSE OF THE SWISS AUTHORITIES IS AWAITED. THEREFORE, LD COUNSEL SUBMITTED BEFORE THE BENCH THAT ASSESSMENT OF INCOME, IF ANY, IN THE ASSESSEE `S CASE SHOULD BE DONE BASED ON THE AUTHENTIC AND CERTIFIED BANK STATEMENT OF HSBC BANK, WHICH IS AWAITED FROM SWISS AUTHORITIES, HENCE MATTER SHOULD BE REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR MAKING FRESH ASSESSMENT (H).IT WILL BE EVIDENT THAT NOWHERE, ON ANY OF THE SIX PAGES, NAME OF HSBC PRIVATE BANK, GENEVA, APPEARS NOR SEAL OF THE BANK APPEARS THEREON. THERE IS ABSOLUTELY NO MATERIAL OR INFORMATION DISCERNIBLE FROM THE SAI D INFORMATION SHEETS, WHICH MAY ENABLE ANY MAN OF PRUDENCE TO CONCLUDE AND HOLD THAT THESE PAGES IN ANY MANNER ESTABLISH AND PROVE THAT INFORMATION CONTAIN ED THEREIN REPRESENTS DETAILS OF BANK ACCOUNT WITH ANY PARTICULAR BANK. NOWHERE IN A NY OF THE SIX PAGES REFERENCE IS MADE TO ANY PARTICULAR BANK OR FINANCIAL INSTITU TION AND THEREFORE BASED ON THESE INFORMATION SHEETS WHICH DID NOT BEAR SIGNATURE OR SEAL OF BANK THE HIGH PITCHED ASSESSMENT SHOULD NOT BE MADE. MOREOVER, THESE INFO RMATION SHEETS DO NOT CONTAIN SIGNATURE OF ANY GOVERNMENTAL AUTHORITY EITHER INDI AN OR FOREIGN. NO STATUTORY AUTHORITY CERTIFIED THE AUTHENTICITY OF THESE DOCUM ENTS NOR SOURCE OF THE INFORMATION WAS DISCLOSED TO THE ASSESSEE. SHYAMA PRASAD MURARKA ITA NOS.533&534/KOL/2015 ASSESSMENT YEARS:2006-07 & 2007-08 P PP PA AA AG GG GE EE E | || | 4 44 4 (I) THE LD. COUNSEL POINTED OUT THAT PAGES 3 TO 6 O F THE INFORMATION SHEETS CONTAINED MONTH WISE VALUE OF ASSETS HELD IN THREE CLIENT PROFILE, PERTAINING TO NOVEMBER, 2005 TO FEBRUARY, 2007. OUT OF MONTH WISE OR ROLLING BALANCES, THE LD. ASSESSING OFFICER SELECTED THE VALUE OF ASSETS FOR THE MONTH OF DECEMBER, 2005 TOTALING USD 21,14,501/- AND MADE ADDITION IN ASSES SMENT YEAR 2006-07. THE ASSESSING OFFICER TOOK UP THE VALUE OF ROLLING BALA NCES FOR THE MONTH OF MAY, 2006 AND DECEMBER, 2006 AGGREGATING TO USD 35,85,08 6/- AND MADE ADDITION IN A.Y. 2007-08 AS WELL. THE LD. COUNSEL THEREFORE SUB MITTED THAT THEN VALUES OF SAME SET OF INVESTMENT FOR THE MONTH OF NOVEMBER, 2 005 TO FEBRUARY, 2007 WERE STATED IN THE INFORMATION SHEETS, THEN THE ASSESSIN G OFFICER COULD NOT SELECTIVELY PICK UP BALANCES FOR THREE MONTHS AND MAKE THE ADDI TION AS UNDISCLOSED INCOME. THE LD. COUNSEL CLAIMED THAT THE ADDITION AMOUNTED TO DOUBLE TAXATION OF THE SAME ASSETS, WHICH WAS NOT PERMISSIBLE AND ADDITION IF A NY, SHOULD HAVE BEEN RESTRICTED IN THE RIGHT HANDS ONLY TO THE PEAK INVESTMENTS. 3. ON THE OTHER HAND, LD DR FOR THE REVENUE HAS FAI RLY AGREED WITH THE SUBMISSIONS OF THE LD. COUNSEL AND STATED BEFORE TH E BENCH THAT THERE IS A DOUBLE ADDITION IN THE HANDS OF THE ASSESSEE WHICH NEEDS T O BE VERIFIED BY ASSESSING OFFICER AFRESH. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD, WE NOTE THAT THERE IS GROSS NEGLIGENCE OF THE PART O F THE OF ASSESSING OFFICER WHICH IS GETTING REFLECTED IN THE CONCLUSION PARA OF THE ASS ESSMENT ORDER, WHICH IS BEING REPRODUCED BELOW FOR READY REFERENCE: IT IS WORTHWHILE TO MENTION THAT DIPIKSHA MURARKA IS GRANDDAUGHTER, SMT. YAMINI AGARWAL IS DAUGHTER AND IN RESPECT OF BILIPACK LTD. , THE SEIZED DOCUMENT VIDE PAGE NO.- 48 OF SPM/8 WAS FOUND FROM HIS RESIDENCE WHICH SPEA KS ABOUT THE CERTIFICATE OF FOREIGN INWARD REMITTANCE ISSUED ON 09.01.2004. THUS, IT IS CRYSTAL CLEAR FROM THE SAID RECORDS/ DOCUMENTS THAT THE UNDISCLOSED AMOUNT WAS DEPOSITED IN TO UNDISCLOSED BANK ACCOUNT VIDE CODE PROFILE CLIENT NO. 5091437453 & NOM (CODE BUP) MURARKA DIPIKSHA(5090183141) IN RESPECT OF ENTRY OF NAME OF DIPIKSHA MURARKA, VIDE CODE PROFILE CLIENT NO. 5091438123 & NOM (CODE BUP) AGAR WAL YAMINI (5090183310) IN RESPECT OF ENTRY OF NAME OF SMT. YAMINI AGARWAL AND VIDE CODE PROFILE CLIENT NO. 5091157752 & NOM STRUCTURE JURIS.(CODE BUP) BILIPAC K LTD (5090224794) IN RESPECT OF ENTRY OF NAME OF BILIPACK LTD WITH HSBC, GENEVA, SWITZERLAND. IN VIEW OF THE FACTS, SUBSTANTIVE ADDITION IS BEING MADE IN THE HANDS OF SHYAMA PRASAD MURARKA. HENCE, SUM OF RS. 1,84,52,164/- (EQUIVALENT TO $ 3,97,419.00 @ RS. 46.4300 PER USD IN MAY 2006) SHYAMA PRASAD MURARKA ITA NOS.533&534/KOL/2015 ASSESSMENT YEARS:2006-07 & 2007-08 P PP PA AA AG GG GE EE E | || | 5 55 5 & RS. 1,68,01,915/- ( EQUIVALENT TO $ 3,79,876.00 @RS . 44.2300 PER USD IN DEC 2006) , RS. 1,36,34,587/- ( EQUIVALENT TO $ 2,93,659.00 @ R S. 46.1300 PER USD IN MAY 2006) & RS. 1,24,20,580/- ( EQUIVALENT TO $ 2,80,818.00 @ R S.44.2300 PER USD IN DEC 2006) AND RS. 8,69,83,726/- ( EQUIVALENT TO $ 18,73,438.00 @ RS. 46.4300 PER USD IN MAY 2006) & RS. 7,39,46,854/- ( EQUIVALENT TO $3,79,876.00 @ RS . 44.230 PER USD IN DEC 2006) , TOTALING TO RS. 22,22,39,826/-( RS. 18452164 + RS.1 6801915 + RS. 13634587 + RS. 12420580 + RS. 86983726 + RS.73946854) IS TREATED A S UNDISCLOSED INCOME DEPOSITED INTO UNDISCLOSED BANK ACCOUNT WITH HSBC, GENEVA, SW ITZERLAND AND ADDED TO THE TOTAL INCOME OF ASSESSEE FOR A.Y- 2007-08. PENALTY PROCEE DING U/S 271(1)(C) IS INITIATED SEPARATELY. FROM THE PERUSAL OF THE ADDITION MADE BY ASSESSING OFFICER, WE NOTE THAT USD $3,79,876/- @ RS.44.230 WHICH COMES TO INR AT RS.1, 68,01,915/- HAS BEEN ADDED TWICE ( SEE HIGHLIGHTED FIGURES NOTED ABOVE). NOT O NLY THAT WHILE COMPUTING THE CONVERSION ITSELF MISTAKE HAS CREPT IT WHICH TANTAM OUNT TO DOUBLE ADDITION WHICH CAN BE CLEARLY OBSERVED FROM THE ABOVE NOTED ITALICS PARA. AT ONE PLACE CONVERSION RATE IS MENTIONED AT RS.1,68,01,915/- WHEREAS WHILE CALCULATING THE SAME FIGURE FOR COVERSION USD AND SAME CONVERSION RATE, THE ADDITIO N WAS WORKED OUT AT RS.7,39,46,854/-($3,79,876/- @ RS.44.230) WHICH IS WRONG. APART FROM THIS, THERE IS OVER ASSESSMENT IN RESPECT OF THE FOLLOWING ADDI TION: RS. 1,36,34,587/- ( EQUIVALENT TO $ 2,93,659.00 @ RS. 46.1300 PER USD IN MAY 2006) THE CONVERSION AMOUNT OUGHT TO BE AT RS.1,35,46,48 9/-, INSTEAD OF RS. 1,36,34,587/-. THEREFORE, PRIMA FACIE ITSELF WE NOTE THAT IT IS N OT ONLY A CASE OF DOUBLE ADDITION BUT HIGH- PITCHED ASSESSMENT ALSO. WE NOTE THAT ANOTHER GRIEVANCE OF THE ASSESSEE IS T HAT ASSESSING OFFICER HAS TAXED MAXIMUM HOLDINGS NOTED FOR THE PERIOD (IN USD) AS WELL AS INDIVIDUAL MONTH WISE ENTRIES. APART FROM THIS, THE MAXIMUM HOLDING S NOTED FOR THE PERIOD (IN USD) 18,73,438, WHICH BELONGS TO BILIPAK LTD. HAS A LSO BEEN ADDED IN THE HANDS OF ASSESSEE AS A PART OF SUBSTANTIVE ADDITION WITHO UT SPELLING OUT THE REASON HOW THE AMOUNT REFLECTED IN BILIPACK LTD. HAS BEEN TAXE D IN THE HANDS OF ASSESSEE. . 5. NOW, WE TAKE CONCLUSION PARA OF THE ASSESSING OF FICER FOR THE ASSESSMENT YEAR 2006-07, WHICH READS AS UNDER: IT IS WORTHWHILE TO MENTION THAT DIPIKSHA MURARKA IS GRANDDAUGHTER, SMT YAMINI AGARWAL IS DAUGHTER AND IN RESPECT OF BILIPA CK LTD. THE SEIZED DOCUMENT SHYAMA PRASAD MURARKA ITA NOS.533&534/KOL/2015 ASSESSMENT YEARS:2006-07 & 2007-08 P PP PA AA AG GG GE EE E | || | 6 66 6 VIDE PAGE NO-48 OF SPM/8 WAS FOUND FROM HIS RESIDEN CE WHICH SPEAKS ABOUT THE CERTIFICATE OF FOREIGN INWARD REMITTANCE ISSUED ON 09.01.2004. THUS, IT IS CRYSTAL CLEAR FROM THE SAID RECORDS/DOCUMENTS THAT THE UNDI SCLOSED AMOUNT WAS DEPOSITED INTO UNDISCLOSED BANK ACCOUNT VIDE CODE PROFILE CLI ENT NO. 5091437453 & NOM (CODE BUP) MURARKA DIPIKSHA (5090183141) IN RESPECT OF ENTRY OF NAME OF DIPIKSHA MURARKA, VIDE CODE PROFILE CLIENT NO. 5091 438123 & NOM (CODE BUP) AGARWAL YAMINI (5090183310) IN RESPECT OF ENTRY OF NAME OF SMT. YAMINI AGARWAL AND VIDE CODE PROFILE CLIENT NO. 5091157752 & NOM STRUCTURE JURIS.(CODE BUP) BILLPACK LTD (5090224794) IN RESPE CT OF ENTRY OF NAME OF BILIPACK LTD WITH HSBC, GENEVA, SWITZERLAND. IN VIE W OF THE FACTS, SUBSTANTIVE ADDITION IS BEING MADE IN THE HANDS OF SRI SHYAMA P RASAD MURARKA. HENCE, A SUM OF RS. 1,65,44,160/- (EQUIVALENT TO $ 3,67,077.00 @ RS. 45.0700 PER USD IN DEC 2005), A SUM OF RS.1,22,48,403/- (EQUIVALENT TO $ 2 ,71,764.00 @ RS. 45.0700 PER USD IN DEC 2005) AND A SUM OF RS.6,65,07,951/- (EQU IVALENT TO $ 14,75,659.00 @ RS. 45.0700 PER USD IN DEC 2005) TOTALING TO RS. 9, 53,00,514/-IS TREATED AS UNDISCLOSED INCOME DEPOSITED INTO UNDISCLOSED BANK ACCOUNT WITH HSBC, GENEVA, SWITZERLAND AND ADDED TO THE TOTAL INCOME OF ASSESS EE FOR AY- 2006-07. PENALTY PROCEEDING U/S 271(1)(C) IS INITIATED SEPARATELY. WE NOTE THAT IN RESPECT OF BILIPACK LTD, CLIENT PRO FILE NO.5091157752, THE SUBSTANTIVE ADDITION MADE BY ASSESSING OFFICER IN RESPECT OF US D $ 14,75,659 IN ASSESSMENT YEAR 2006-07, THE RELEVANT DETAIL IS GIVEN BELOW: RS.6,65,07,951/- (EQUIVALENT TO $ 14,75,659.00 @ R S. 45.0700 PER USD IN DEC 2005) IN ASSESSMENT YEAR 2007-08, THE ASSESSING OFFICER M ADE ADDITION IN RESPECT OF BILIPACK LTD, CLIENT PROFILE NO.5091157752, TAKING INTO ACCO UNT USD $ 18,73,438 WHICH INCLUDES PREVIOUS YEARS` USD $ 14,75,659 FOR WHICH ADDITION HAD ALREADY BEEN MADE BY AO IN ASSESSMENT YEAR 2006-07. THE ADDITION MADE BY AO FO R A.Y. 2007-08 IN RESPECT OF BILIPACK LTD IS GIVEN BELOW FOR READY REFERENCE: RS. 8,69,83,726/- ( EQUIVALENT TO $ 18,73,438.00 @ RS. 46.4300 PER USD IN MAY 2006) FROM THE PERUSAL OF THE ADDITION MADE BY ASSESSING OFFICER, WE NOTE THAT USD $14,75,659 BELONGS TO BILIPAK LTD. HAS BEEN ADDED I N THE ASSESSEES HAND, AS A PART OF SUBSTANTIVE ADDITION BUT WE NOTE THAT T HE USD $ 18,73,438 INCLUDES USD $ 14,75,659, HENCE IT IS A DOUBLE ADDITION IN THE HAN DS OF THE ASSESSEE. 6.ANOTHER GRIEVANCE OF THE ASSESSEE IS THAT THE ASS ESSING OFFICER HAS NOT BROUGHT OUT AS TO THE NEXUS OF BILIPAK LTD, WITH THAT OF AS SESSEE AND WHAT IS THE MATERIAL ON WHICH THE AO INFERRED THAT THE MONEY HELD IN THE AC COUNT OF BILIPAK LTD, ACTUALLY SHYAMA PRASAD MURARKA ITA NOS.533&534/KOL/2015 ASSESSMENT YEARS:2006-07 & 2007-08 P PP PA AA AG GG GE EE E | || | 7 77 7 BELONGS TO THE ASSESSSEE. THE LD COUNSEL SUBMITTED BEFORE US THAT COMPLETE ADDRESS OF BILIPAK LTD, WITH CLIENT PROFILE CODE OF 5091157 72 WAS AVAILABLE IN THE DOCUMENTS AND IS IN THE ASSESSMENT RECORDS OF THE A O, HOWEVER AO HAD NOT SUMMONED DIRECTORS OF THIS COMPANY OR ENFORCED THE ATTENDANCE OF THE DIRECTORS OF THE SAID COMPANY DURING THE ASSESSMENT PROCEEDIN GS AND DID NOT PROVIDE OPPORTUNITY TO ASSESSEE TO CROSS EXAMINE THEM. ACCO RDING TO ASSESSEE HAD THE AO ENFORCED THE ATTENDANCE OF DIRECTORS OF BILIPAK LT D, THE SUBSTANTIVE ADDITION WOULD NOT HAVE BEEN MADE IN THE HANDS OF THE ASSESS EE, IN RESPECT OF AMOUNT REFLECTED IN THE NAME OF BILIPAK LTD. THIS CLEA RLY SHOWS THAT THE AO HAS FAILED TO DISCHARGE HIS OBLIGATION TO CONDUCT A PROPER INQ UIRY TO TAKE THE MATTER TO LOGICAL CONCLUSION. 7. WE NOTE FROM PAGE 26 TO 29 OF PAPER BOOK WHICH C ONTAINS THE MONTH-WISE BALANCES OF ACCOUNT PROFILE OF BILIPAK LTD, 31792YA AND 31791DP FOR THE PERIOD BETWEEN NOVEMBER 2005 TO FEBRUARY, 2007. WE NOTE TH AT THESE PAGES CONTAINED THE SAME INVESTMENTS IN BONDS AND LIQUID ASSETS HEL D IN EACH OF THE THREE ACCOUNTS FOR THE AFORESAID PERIOD. FOR EXAMPLE, A PERUSAL OF PAGE NO.26 SHOWS THAT ACCOUNT PROFILE, BILIPAK LTD- UDS $ 14,75,659.25, ACCOUNT P ROFILE NO.31792YA- USD $2,71,764.26 AND ACCOUNT PROFILE NO.31791DP- USD $3 ,67,077.76, ALL AGGREGATING TO USD $21,14,501. THE INVESTMENTS IN B ONDS AND LIQUID ASSETS CONTINUED IN SUBSEQUENT MONTHS ALSO. OUT OF CONTINU ING INVESTMENTS, THE ASSESSING OFFICER AGAIN SELECTED BALANCES IN THE MONTH OF MAY 2006 AND DECEMBER 2006 IN ALL THE THREE ACCOUNTS AND ASSESS THE VALUE OF INVE STMENTS FOR THESE TWO MONTHS AS INCOME OF THE ASSESEE FOR ASSESSMENT YEAR 2007-08. WE NOTE THAT THE INVESTMENTS WHICH WERE CONTINUING FROM MONTH TO MONTH (THAT IS, CARRY FORWARDING FROM PREVIOUS MONTH TO NEXT MONTH), THERE WAS NO REASON FOR THE ASSESSING OFFICER TO ASSESS THE VALUE OF SAME INVESTMENTS TWO TIMES/THRE E TIMES WHICH NEEDED TO BE EXAMINED, AS IT WILL TANTAMOUNT TO DOUBLE TAXATION WHICH IS NOT PERMISSIBLE IN LAW. THUS, IT IS ABUNDANTLY CLEAR THAT THE ASSESSING OFF ICER HAS NOT PROPERLY DISCHARGED HIS STATUTORY DUTY TO THE ASSESSEE, THE RIGHT INCO ME, IN THE HANDS OF THE RIGHT PERSON AND IN RIGHT ASSESSMENT YEAR. RIGHT MEANS L EGALLY CORRECT AS PER LAW AND NOT THE WRONG HANDS ETC. WE ARE OF THE OPINION THAT ASSESSMENT SHOULD NOT RESULT IN SHYAMA PRASAD MURARKA ITA NOS.533&534/KOL/2015 ASSESSMENT YEARS:2006-07 & 2007-08 P PP PA AA AG GG GE EE E | || | 8 88 8 DOUBLE TAXATION OF THE SAME INVESTMENT, IF ANY, AND IT NEED TO BE VERIFIED BY THE ASSESSING OFFICER FROM THE CORRECT SOURCE AND ASCER TAIN THE TRUE AND CORRECT FACTS KEEPING IN MIND THAT ONLY IN THE RIGHT YEAR THE RI GHT INCOME IN THE RIGHT HANDS ONLY SHOULD BE TAXED. WE RELY ON THE JUDGMENT OF THE HON BLE SUPREME COURT IN ITO VS. CH. ATCHAIAH (1996) 218 ITR 239 (SC). IN THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT RIGHT PERSON HAS NOT BEEN IDENTIFIED BY T HE ASSESSING OFFICER. 8. BASED ON THE ABOVE DISCUSSION, WE ARE CONSTRAIN ED TO OBSERVE THAT THE AO HAS FAILED TO DISCHARGE HIS OBLIGATION TO CONDUCT A PRO PER INQUIRY TO ASCERTAIN THE INCOME OF THE ASSESSEE AND THE TAX PAYABLE BY HIM T O THE UOI. THEREFORE, TAKING INTO ACCOUNT THE DICTUM OF THE HO N`BLE SUPREME COURT IN THE CASE OF CH. ATCHAIAH (SUPRA), PROPER INQUIRY NEEDED TO BE CONDUCTED BY ASSESSING OFFICER TO ASCERTAIN THE INCOME OF THE ASSESSEE. TH EREFORE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO THE FI LE OF AO FOR DE NOVO ASSESSMENT IN ACCORDANCE TO LAW AFTER GIVING OPPORT UNITY OF BEING HEARD TO THE ASSESSEE. 9. IN THE RESULT, THE BOTH APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 15.02.201 9. SD/- ( A.T.VARKEY ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; / DATE: 15/02/2019 ( SB, SR.PS ) SHYAMA PRASAD MURARKA ITA NOS.533&534/KOL/2015 ASSESSMENT YEARS:2006-07 & 2007-08 P PP PA AA AG GG GE EE E | || | 9 99 9 / COPY OF THE ORDER FORWARDED TO : TRUE COPY BY ORDER ASSISTANT REGISTRAR, I.T.A.T, KOLKATA BENCHES, KOLKATA . 1. /THE ASSESSEE SHYAMA PRASAD MURARKA 2. ! / THE REVENUE DCIT, CIRCLE-3(3), KOLKATA 3. ' ( ) / THE CIT(A), 4. ' / CIT 5. #$% &&'( , '( , / DR, ITAT, KOLKATA 6. %)*+ / GUARD FILE. !# &