Ramesh Kumar Agarwal, Kolkata V. DCIT, Central Circle - XXVII, Kolkata, Kolkata

ITA 625/KOL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2512 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2010
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 29-03-2010
• Court: TRIBUNAL
• Department Lawyers: B R PURAKAYASTHA
• Assessee Lawyers: A K TIBREWAL
• Keywords: Unexplained expenditure
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA [BEFORE HONBLE SRI D. K. TYAGI, JM & HONBLE SRI B . C. MEENA , AM] I.T.A. NO.625/KOL/2010 ASSESSMENT YEAR: 2007-08 RAMESH KR. AGARWAL -VS- DEPUTY COMMISSIONER OF I NCOME-TAX, (PA NO.ACTPA 5254 H) CENTRAL CIRCLE-XXVII, KOLKA TA. (APPELLANT) (RESPONDENT) APPELLANT BY : SRI A. K. TIBREWAL RESPONDENT BY : SRI B. R. PURAKAYASTHA O R D E R PER D. K. TYAGI, JM: THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF THE LD. CIT(A), KOLKATA DATED 15.02.2010 FOR ASSESSMENT YEA R 2007-08 2. GROUND NO. 1WAS NOT PRESSED AT THE TIME OF HEARI NG BEFORE US, THEREFORE, THE SAME IS DISMISSED BEING NOT PRESSED. 3. GROUND NOS. 2 AND 3 READ AS UNDER : 2. THAT WITHOUT PREJUDICE, THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.2,32,800/- REPRESENTING 12 KG. OF SILVER UTENSI LS ARBITRARILY ESTIMATING THE SAME TO HAVE BEEN PURCHASED BY THE APPELLANT IN THE FINANC IAL YEAR RELEVANT TO THE ASSESSMENT YEAR 2007-08. 3. THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDI TION OF RS.2,32,800 REPRESENTING THE VALUE OF 12 KG. OF SILVER UTENSILS FOUND DURING THE SEARCH U/S. 132 IN JOINT NAMES OF THE APPELLANT AND SMT. SUSHILA DEVI AGARWAL. 4. BRIEF FACTS OF THE CASE ARE THAT A SEARCH AND SE IZURE OPERATION U/S. 132 OF THE I. T. ACT, 1961 WAS CARRIED OUT IN THE CASE OF THE ASSESS EE BY VIRTUE OF A WARRANT OF AUTHORISATION IN THE JOINT NAMES OF THE ASSESSEE AN D SMT. SUSHILA DEVI AGARWAL ON 28 TH MARCH, 2007. DURING THE SEARCH, SILVER UTENSILS VA LUED AT RS.9,50,000/- (NET WEIGHT APPROXIMATELY 49 KGS.) WAS FOUND. THE ASSESSEE WAS ASKED U/S. 142(1) TO EXPLAIN THE SOURCE OF THE SAID SILVER ITEMS ALONG WITH DOCUMENT ARY EVIDENCE. IN REPLY, THE ASSESSEE STATED THAT THOSE UTENSILS WERE OLD AND HOUSEHOLD E FFECTS AND BELONGED TO THE FAMILY AS ANCESTRAL PROPERTY. THE ASSESSEE COULD NOT PUT FOR WARD ANY SUPPORTING DOCUMENTS IN SUPPORT OF HIS CLAIM. IT WAS NOTICED THAT IN COURS E OF SEARCH AT THE ASSESSEES PREMISES IN THE YEAR 1980, NO SILVER UTENSILS WERE INVENTORI SED BY THE DEPARTMENT. CONSIDERING 2 THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, THE VALUE OF THE UNDISCLOSED SILVER ITEMS WAS TREATED AS ASSESSEES EXPENDITURE FROM UNDISCL OSED INCOME. HENCE, RS.9,50,000/- WAS TREATED AS ASSESSEES UNEXPLAINED EXPENDITURE A ND ADDED THE SAME TO THE ASSESSEES TOTAL INCOME IN THE YEAR 2007-08. ON APPEAL, THE L D. CIT(A) RESTRICTED THE ADDITION TO RS.2,32,800/- ON ACCOUNT OF UNACCOUNTED PURCHASE OF SILVER UTENSILS OF 12 KGS. AT THE RATE OF RS.19,400/- PER KG. INSTEAD OF RS.9,50,600/ - AS ADDED BY THE AO. AGGRIEVED BY THE SAID ORDER, NOW THE ASSESSEE IS IN APPEAL BEFOR E US. 5. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE A SSESSEE WHILE REITERATING HIS SAME SUBMISSIONS AS SUBMITTED BEFORE THE LD. CIT(A) FURT HER SUBMITTED THAT BEFORE THE LD. CIT(A) A PLEA WAS TAKEN ON BEHALF OF THE ASSESSEE T HAT SINCE SEARCH U/S. 132 TOOK PLACE IN THE JOINT NAMES OF THE ASSESSEE AND SMT. SUSHILA DEVI AGARWAL, THE ADDITION SHOULD NOT HAVE BEEN MADE IN THE HANDS OF THE ASSESSEE ALO NE AND SHOULD HAVE BEEN MADE IN THE STATUS OF AOP COMPRISING THE ASSESSEE AND SMT. SUSH ILA DEVI AGARWAL. FOR MAKING THIS SUBMISSION, HE RELIED ON A DECISION IN THE CASE OF CIT VS- SMT. VANDANA VERMA (2009) 227 CTR 388 (ALL). HE FURTHER SUBMITTED THAT LD. C IT(A) WAS ALSO NOT JUSTIFIED IN GIVING PART RELIEF TO THE ASSESSEE AND FOR MAKING S UCH SUBMISSIONS, HE PLACED RELIANCE ON THE CASE OF TARA DEVI GOENKA VS- CIT (1980) 122 I TR 14 (CAL). CONCLUDING HIS ARGUMENT, THE LD. COUNSEL SUBMITTED THAT THE ADDITI ON SUSTAINED BY THE LD. CIT(A) MAY KINDLY BE DELETED. 6. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDE RS OF THE LOWER AUTHORITIES. 7. AFTER HEARING BOTH THE PARTIES, PERUSING THE MAT ERIAL AVAILABLE ON RECORD AND THE CASE LAWS CITED BY THE LD. COUNSEL, WE FIND NO MERI T IN THE ARGUMENTS ADVANCED BY THE LD. COUNSEL FOR THE ASSESSEE AS NO GROUND FOR MAKIN G ADDITION IN THE HANDS OF AOP COMPRISING OF ASSESSEE AND SMT. SUSHILA DEVI AGARWA L WAS TAKEN BEFORE THE LD. CIT(A). BEFORE US ALSO NO SUCH GROUND HAS BEEN TAKE N BY THE ASSESSEE. SIMILARLY, WE FIND THAT THE CASE LAW RELIED ON BY THE ASSESSEE OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF TARA DEVI GOENKA (CITED SUPRA) IS ALSO INAPPLICABLE TO THE FACTS OF THIS CASE AS IN THAT CASE THE TRIBUNAL GAVE PART RELIEF TO TH E ASSESSEE BECAUSE THE EVIDENCE PRODUCED IN SUPPORT OF THE CLAIM MADE BY THE ASSESS EE WAS NOT FOUND CREDIBLE. HOWEVER, THE HONBLE JURISDICTIONAL HIGH COURT WAS OF THE VIEW THAT THERE WAS ABSOLUTELY NO JUSTIFICATION FOR DISCARDING THE EVI DENCE PRODUCED BY THE ASSESSEE BEFORE 3 THE TRIBUNAL AND, THEREFORE, IT WAS HELD THAT THE T RIBUNAL WAS NOT JUSTIFIED IN GIVING PART RELIEF TO THE ASSESSEE. BUT IN THE INSTANT CASE, WE FIND THAT BEFORE THE LD. CIT(A) NO EVIDENCE WHATSOEVER WAS PRODUCED IN SUPPORT OF HIS CLAIM THAT SILVER UTENSILS WERE OLD HOUSEHOLD EFFECTS WHICH BELONGED TO THE FAMILY. DE SPITE THIS, THE LD. CIT(A) GAVE RELIEF TO THE ASSESSEE BY RESTRICTING THE ADDITION TO RS.2,32,800/-. IN VIEW OF THE ABOVE, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE DOES NOT DESERVE ANY FURTHER RELIEF. THE APPEAL OF THE ASSESSEE IS, THEREFORE, DISMISSED . 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. 9. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 30. 6.2010 SD/- SD/- (B. C. MEENA) (D. K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED :30 TH JUNE, 2010 PRONOUNCED BY SD/- (CDR) SD/- (DKT) AM JM COPY TO : 1. SRI RAMESH KUMAR AGARWAL, CF-146, SALT LAKE, SECTOR -1, KOLKATA-64. 2. DCIT, CENTRAL CIRCLE XXVII, KOLKATA. 3. CIT(A), KOLKATA. 4. CIT, KOLKATA. 5. D.R., ITAT, KOLKATA. TRUE COPY BY ORDER DEPUTY REGISTRAR JD.(SR.P.S.) I.T.AT., KOLKATA