Kiranmoy Roy Choudhury, Guwahati V. The Income Tax Officer, Ward-1(3), Guwahati

ITA 70/GTY/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6399 (ITAT-GUWAHATI)
• Duration Of Justice: 1 year(s) 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 1992-1993
• Appeal Filed On: 28-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAYANTA MRIDHA
• Assessee Lawyers: RAMESH GOENKA
• Section: 143(3); 2

Judgement Text

1 ITA NO.70/GAU/2019 KIRANMOY ROY CHOUDHURY, AY - 1992 - 93 IN THE INCOME TAX APPELLATE TRIBUNAL GUWAHATI BENCH, VIRTUAL HEARING AT KOLKATA ( ) . . , . , ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, AM ] I.T.A. NO. 70 /GAU/201 9 ASSESSMENT YEAR: 1992 - 93 KIRANMOY ROY CHOUDHURY (PAN: AEKPC3369J) VS. INCOME - TAX OFFICER, WARD - 1(3), GUWAHATI APPELLANT RESPONDENT DATE OF HEARING 10 .0 9 .2020 DATE OF PRONOUNCEMENT .0 9 .2020 1 8 / S E P T / 2 0 2 0 FOR THE APPELLANT SHRI RAMESH GOENKA, ADVOCATE FOR THE RESPONDENT SHRI JAYANTAMRIDHA, JCIT, SR. DR ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A), GUWAHATI - 1, GUWAHATI DATED 03.12.2018 FOR AY 1992 - 93. 2. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SHRI RAMESH GOENKA BROUGHT TO OUR NOTICE THAT THIS IS THE THIRD ROUND OF LITIGATION BEFORE THE TRIBUNAL. W E NOTE THAT TH IS IS AN APPEAL PERTAINING TO AY 1992 - 93. THE ONLY ISSUE IS AGAINST THE ACTION OF THE L D. CIT(A) IN CONFIRMING THE ADDITION OF RS.2,42,473/ - MADE BY THE AO. 3. BRIEF FACTS OF THE CASE ARE THAT THE AO IN THE ORIGINAL ASSESSMENT MADE U/S. 143(3)/147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WHEREIN THE AO MADE AN ADDI TION BY OBSERVING AS UNDER: INCOME FROM OTHER SOURCES: IN THE C A SE OF RC - 1/94 - ACU CBI ALLEGED THAT DR. N. C. MAITRY, DR. R. K. CHOUDHURY (ASSESSEE) BOTH SUB - DIVISIONAL OFFICER, NORTH SALMARA AND SUB - DIVISIONAL OFFICER OF ABHAYAPURI ENTERED INTO A CRIMINAL CONSPIRACY WITH MR. A.C. BARUAH, TREASURY OFFICER, AND OTHER AND DISHONESTLY CAUSED WITHDRAWAL OF RS.24,24,733/ - FROM THE PUBLIC EXCHEQUER AGAINST THE LETTER OF CREDIT LOC OF RS.L,48,000/ - DURING THE PERIOD 1991 - 92 RELEVANT TO ASSESSMENT YEAR 1992 - 93 BY PREPARING FAKE AND FALSE MEDICINE BILLS. 2 ITA NO.70/GAU/2019 KIRANMOY ROY CHOUDHURY, AY - 1992 - 93 DURING THE COURSE OF ASS ESSMENT PROCEEDING THE ASSESSEE APPEARED AND STATED THAT THE MATTER IS STILL SUBJUDICE AND THE ASSESSEE HAS BEEN ADVISED BY HIS LAYER THAT HE SHOULD NOT SAY ANYTHING IN THIS CONNECTION. CONSIDERING THE CHARGE SHEET FILED BY THE CBI IT IS QUITE APPARENT THA T THE ASSESSEE IS INVOLVED IN THE LOC SCAM AND THE ASSESSEE HAD - RECEIVED PECUNIARY BENEFIT BY BECOME A PART OF THIS HIS SHARE OF PECUNIARY BENEFIT IS THUS ESTIMATED AT 10% OF RS.24,24,733/ - WHICH COMES TO RS.2,42,473/ - . 4. AGGRIEVED, THE ASSESSEE WAS KNOCKING AT THE DOOR OF LD. CIT(A) AS WELL AS BEFORE THIS TRIBUNAL. THE TRIBUNAL IN THE SECOND ROUND BEFORE IT ON 29.01.2015 IN ITA NO.125/GAU/2013 HAD REMANDED THE MATTER BACK TO THE FILE OF THE AO FOR FRESH ASSESSMENT BY OBSER VING AS UNDER: 4. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS BEFORE US. WE FIND THAT ASSESSEE HAS NOT PRODUCED THE SEQUENCE OF EVENTS THAT TOOK PLACE BETWEEN THE RECORDING OF FIR AND ORDER OF LD. SPECIAL JUDGE. WE ARE OF THE OPINION THAT IN THE INTEREST OF JUSTICE, MATTER SHOULD BE SENT BACK TO THE FILE OF AO TO DECIDE THE APPEAL AFRESH AFTER CONSIDERING THE DOCUMENTARY EVIDENCE PRODUCED BY THE ASSESSEE IN THIS REGARD. ASSES S EE IS DIRECTED TO OBTAIN CERTIFICATE/DOCUMENT FROM THE AUTHORIT IES CONCERNED TO PROVE HIS CLAIM. WITH THIS DIRECTION, EFFECTIVE GROUND OF APPEAL FILED BY THE ASSESSEE IS DECIDED IN HIS FAVOUR, IN PART. 5. F INALLY THE AO VIDE ORDER DATED 30.03.2016 HAS REITERATED THE ADDITION BY NOTING AS UNDER: THE ASSESSEE APPEARE D ON 10.07/2015 AND SUBMITTED A CERTIFIED COPY FROM THE SPECIAL JUDGES COURT, CBI WHEREIN IT IS WRITTEN AS .. THAT THOUGH THE ASSESSEE WAS AN FIR NAMED ACCUSED IN THE SPL. CASE NO. 31/2004, BUT HE HAS NOT BEEN SENT UP FOR TRIAL TO THE COURT BY THE INVE STIGATING AGENCY. ALSO, HE WAS NOT CHARGED AND NOT FACING ANY TRIAL IN CONNECTION WITH THE SPL. CASE NO. 31/2004.. THOUGH IT IS WRITTEN THAT THE ASSESSEE WAS NOT SENT UP FOR THE TRIAL COURT AND WAS NOT CHARGED AND NOT FACING ANY TRIAL IN CONNECTION WIT H THE SPL CASE NO. 31/2004 IT DOES NOT MEAN THAT THE ASSESSEE WAS NOT INVOLVED TO THE LOC SCAM. SINCE THE ASSESSEE COULD NOT FURNISH/PRODUCE ANY EVIDENCE TO PROVE THAT HE AS NOT INVOLVE IN THE LOC SCAM CASE THE TOTAL INCOME AND TAX PAYABLE THEREON OF THE ASSESSEE IS SAME AS DETERMINED IN ORDER U/S. 143(3) DATED 28.03.2003. TOTAL INCOME AS PER ORDER U/S. 143(3) DATED 28.03.2004 : RS. 2,77,790/ - REVISED TOTAL INCOME : RS.2,77,790/ - AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO CONFIRMED THE SAME. AGGRIEVED, THE ASSESSEE IS BEFORE US. 3 ITA NO.70/GAU/2019 KIRANMOY ROY CHOUDHURY, AY - 1992 - 93 6 . WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. FROM THE ORDER OF THE AO PASSE D IN THE ORIGINAL ASSESSMENT, WE NOTE THAT HE MADE THE ADDITION ON THE BASIS THAT CENTRAL BUREAU OF INVESTIGATION (CBI) HAS ALLEGED THE ASSESSEE DR. R . K . CHOUDHURY AND CERTAIN OTHER OFFICERS HAD ENTERED INTO CRIMINAL CONSPIRACY WITH MR. A. C. BARUAH, TREA SURY OFFICER AND OTHER S AND DISHONESTLY CAUSED WITHDRAWAL OF RS.24,24,733/ - FROM THE PUBLIC EXCHEQUER AGAINST A LETTER OF CREDIT (LOC) OF RS.1,48,000/ - DURING THIS RELEVANT ASSESSMENT YEAR BY PREPARING FAKE AND FALSE MEDICINE BILLS. THE AO CONSIDERING THE CHARGE SHEET FILED BY CBI, WAS OF THE OPINION THAT ASSESSEE WAS INVOLVED IN THE LOC SCAM AND THE ASSESSEE MIGHT HAVE RECEIVED PECUNIARY BENEFIT I.E. A SHARE OF THE SCAM, WHICH HE ESTIMATED AT 10% OF RS.24,24,733/ - WHICH COMES TO RS.2,42,473/ - WHICH WAS AD DED IN THE HANDS OF THE ASSESSEE. THEREAFTER, THE LD. CIT(A) WAS CONFIRMING THE ADDITION. AND FINALLY, W HILE GIVING EFFECT TO THE TRIBUNALS ORDER THE AO BY PASSING THE RE - ASSESSMENT ORDER ON 30.03.2016 REITERATED THE ADDI TION WHICH WAS MADE ON 28.03.200 3 (ORIGINAL ASSESSMENT) RS.2,77,790/ - (TOTAL INCOME) WHICH WAS AGAIN REITERATED IN THE SECOND ROUND ON 28.03.2004 AND THUS MADE AN ADDITION IN THIS THIRD ROUND AT RS.2,42,473/ - . THE LD. CIT(A) HAS CONFIRMED THIS ACTION OF AO. BEFORE US, THE LD. AR DREW OU R ATTENTION TO THE FACT THAT THE CBI WHILE DRAWING THE OFFENCE/CHARGE REPORT IN THIS CASE HAS NOT EVEN SENT THE NAME OF ASSESSEE AS AN ACCUSED FOR FACING THE TRIAL WHICH FACT CAN BE EVIDENCED IF ONE LOOKS AT COLUMN 2 , THE HEADING READS NAME AND ADDRESS OF ACCUSED PERSONS NOT SENT UP FOR TRIAL AND THE LD. AR POINTED OUT THAT UNDERNEATH THIS COLUMN, THE ASSESSEES NAME DR. KIRANMOY ROY CHOUDHURY HAS BEEN MENTIONED/ REFLECTED (REFER COPY OF THE OFFENCE/CHARGE REPORT PLACED AT PAGE 33 OF THE PAPER BOOK). THER EAFTER, THE LD. AR DREW OUR ATTENTION TO THE PAGE NO. 37 OF THE PAPER BOOK WHICH IS THE CERTIFICATE OF THE SPECIAL JUDGE, CBI WHICH IS SELF EXPLANATORY, READS AS UNDER: SPL. CASE NO.31/2004 07.07.2015 C.R. IS PUT UP. SEEN THE PRAYER OF THE PETITIONER KIRONMOY ROY CHOUDHURY PRAYING FOR ISSUING A CERTIFICATE FROM THIS COURT SHOWING HIS NON - INVOLVEMENT IN THE SPL. CASE NO.31/2004 SO THAT HE CAN SUBMIT THE SAME BEFORE THE INCOME TAX APPELLATE, GUWAHATI, AS DESIRED BY THEM. 4 ITA NO.70/GAU/2019 KIRANMOY ROY CHOUDHURY, AY - 1992 - 93 I HAVE PERUSED THE RELEVANT PAPERS AS SUBMITTED ALONG WITH THE ABOVE PETITION AND FOUND THAT THOUGH THE PETITIONER KIRONMOY ROY CHOUDHURY WAS AN FIR NAMED ACCUSED IN THE SPL. CASE NO.31/2004, BUT HE HAS NOT BEEN SENT UP FOR TRIAL TO THE COURT BY THE INVESTIGATING AGENCY. ALSO, HE WAS NOT CHARGED AND NOT FACING ANY TRIAL IN CONNECTION WITH THE SPL. CASE NO.31/2004. THAT APART, THE JUDGMENT OF THE ABOVEMENTIONED CASE HAD ALREADY BEEN PRONOUNCED VIDE JUDGMENT AND ORDER DT.19.04.2008 PASSED B Y THIS COURT AND APPEAL AGAINST THE SAID JUDGMENT AND ORDER IS STILL PENDING BEFORE THE HON'BLE HIGH COURT. (EMPHASIS GIVEN BY US) SD/ - 7.7.15 SPECIAL JUDGE, CBI ASSAM, GUWAHATI 7. THEREAFTER, THE LD. AR DREW OUR ATTENTION TO PAGE N O. 3 TO 32 OF THE PAPER BOOK WHICH IS THE CERTIFIED COPY OF THE JUDGMENT DATED 19.04.2008 PASSED BY THE HONBLE SPECIAL JUDGE, CBI, GUWAHATI, ASSAM IN THE CASE OF STATE (CBI) VS. DR. M. C. MAITRA &ORS IN SPECIAL CASE NO. 31/2004, SPECIAL CASE NO. 2/1997 WH EREIN IT IS NOTED THAT ALL THE CHARGE SHEETED NINE ACCUSED WERE CONVICTED AND THE ASSESSEE DR. KIRANMOY ROY CHOUDHURY WAS NOT EVEN MENTIONED/ FOUND IN THE LIST OF ACCUSED PERSON ARRAIGNED/ APPEARING AT PAGE NO. 3 OF THE PAPER BOOK. THUS, WE NOTE FROM THE AFORESAID DISCUSSION THAT THE ASSESSEE WAS NOT CHARGE SHEETED AND SENT FO R TRIAL AT THE FIRST PLACE ITSE LF WHICH IS EVIDENT FROM PAGE 33 OF THE PAPER BOOK AND THE JUDGMENT PASSED BY THE COURT OF SPECIAL JUDGE, CBI IN THIS CASE HAS GIVEN THE ARRAY OF ACCUSE D NINE PERSONS WHOSE NAMES ARE SEEN AT PAGE 3 ALSO DOES NOT FIGURE THE NAME OF ASSESSEE DR. KIRANMOY ROY CHOUDHURY. WE HAVE GONE THROU GH THE JUDGMENT AND HAVE FOUND THAT THE ASSESSEE WAS MADE NOT MADE AN ACCUSED U/S. 313 OF THE CR. P. C DURING THE TRIAL B Y THE JUDGE . SO, AS PER THE AFORESAID DISCUSSION, W E NOTE THAT ASSESSEE WAS NOT EVEN MADE AN ACCUSED BY THE CBI WHILE SUBMITTING THE OFFENCE/CHARGE UNDER SEC. 173 OF THE CR. P. C. AND WAS NOT CONVICTED ALSO BY THE SPECIAL JUDGE, CBI AND ALSO TAKING NOTE O F THE CORROBORATIVE EVIDENCE WHICH IS THE CERTIFICATE ISSUED BY THE SPECIAL JUDGE, CBI (SUPRA) DATED 07.07.2015 SHOWING THE ASSESSEE WAS NOT PROCEEDED AGAINST BY CBI OR SPECIAL COURT IN THE CASE, THEREFORE, THERE WAS NO BASIS FOR THE ADDITION OF RS.2,42,47 3/ - . WE NOTE THAT THE AO HAS MADE THE ADDITION ONLY ON THE BASIS OF THE ALLEGATION ON THE PART OF THE INVESTIGATIVE AGENCY I.E. CBI INVESTIGATING THE LOC SCAM AT THE F.I.R. STAGE WHERE ASSESSEES NAME ALSO FIGURED AND THAT EVENT MADE THE AO SADDLE THE ASS ESSEE WITH THE ADDITION. NOW SINCE THE FOUNDATION OF THE ADDITION HAS 5 ITA NO.70/GAU/2019 KIRANMOY ROY CHOUDHURY, AY - 1992 - 93 GONE , THE ADDITION CANNOT BE SUSTAINED. WE NOTE THAT THE AO IN THE SECOND AND THIRD ROUND HAS SIMPLY REITERATED THE ADDITION AND THERE WAS NO OTHER MATERIAL OTHER THAN HIS REITERATION OF THE ORIGINAL ASSESSMENT. THEREFORE, TAKING NOTE THAT THE FOUNDATION OF THE ADDITION SINCE HAS BEEN REMOVED, THE SUPER STRUCTURE CANNOT SURVIVE AND IT FALLS, THEREFORE, THE ADDITION OF RS.2,44,473/ - MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) IS DIRE CTED TO BE DELETED. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 1 8 SEPTEMBER, 2020 S D / - S D / - (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 1 8 SEPTEMBER, 2020 **JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SHRI KIRANMOY ROY CHOUDHURY, LUTUMA, BINOVA NAGAR, KAHILIPARA, GUWAHATI - 781018 . 2 RESPONDENT ITO, WARD - 1 (3) , GUWAHATI 3. 4. 5. CIT(A), GUWAHATI - 1, GUWAHATI CIT - , GUWAHATI DR, ITAT, GUWAHATI. / TRUE COPY, BY ORDER, SENIOR PVT. SECY.