Mahendra Prasad Bansal , Kolkata V. ITO, Ward - 31(1), Kolkata , Kolkata

ITA 736/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6700 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 19-04-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHARYA
• Assessee Lawyers: S M SURANA
• Keywords: Tangible material; Borrowed satisfaction
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.736/KOL/2018 ASSESSMENT YEAR:2011-12 MAHENDRA PRASAD BANSAL, C/O. BANSAL SALES, 71, GANESH CHANDRA AVENUE, KOLKATA-700013 [ PAN NO.AEHPB 3823 M ] / V/S . INCOME TAX OFFICER, WARD- 31(1), 10B, MIDDLETON ROW, KOLKATA-700071 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI S.M. SURANA, ADVOCATE /BY RESPONDENT SHRI ARINDAM BHATTACHARYA, ADDL. CIT-DR /DATE OF HEARING 03-01-2019 /DATE OF PRONOUNCEMENT 23-01-2019 /O R D E R THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2011-12 , ARISES AGAINST THE COMMISSIONER OF INCOME-TAX (APPEALS)-9, KOLKATAS O RDER DATED 28.03.2018 PASSED IN CASE NO.296/CIT(A)-9/WD-31(1)/2015-16/KOL INVOLVING PROCEEDINGS U/S. 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961; IN SHORT T HE ACT. 2. THE ASSESSEE PLEADS THE FOLLOWING SUBSTANTIVE GR OUNDS IN THE INSTANT APPEAL:- CIT(A) AO ON THE BASIS OF BORROWED SATISFACTION WI THOUT ANY TANGIBLE MATERIAL AS VALID ALTHOUGH THE REQUIREMENT OF SEC.147 WERE NOT FULFIL LED. 3. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.10,25,000/- MADE BY THE AO ON ACCOUNT OF ALLEGED CASH MONEY RECEIVED ON SALE OF THE PROPORTIONATE SHARE IN THE LAND WHEN THE AO DID NOT EXAMINE DR. R.K. AGARWAL OR THE ASSESSEE AND DID NOT BRING ON RECORD ANY EVIDENCE TO SHOW THAT THE ASSESSEE RECEIVE ANY MONEY OVER AND ABOVE THE APPARENT CONSIDERATION. 4. FOR THAT THE LD. CIT(A) ERRED IN HOLDING THE VIE W THAT THE ASSESSEE WAS ALLOWED OPPORTUNITY TO CROSS EXAMINE SRI R.K. AGARWAL WHEN THE SAID PERSON WAS SERVED EXAMINED BY THE AO WHO SIMPLY RELIED ON THE INFORMATION OF THE INVESTIGATION WING AND THEREBY CONFIRMING THE ADDITION WHEN THE LD. AO SHOULD HIMSELF HAVE EX AMINED SRI R.K AGARWAL AND THEN ALLOWED AN OPPORTUNITY TO CROSS EXAMINE HIM SINCE T HE ASSESSEE DENIED HAVING RECEIVED ANY ON MONEY, THE CONSIDERATION RECEIVED WAS AS PER MAR KET RATE AND THERE WAS NO EVIDENCE EXCEPT THE STATEMENT OR SRI R.K. AGARWAL OR ALLEGED NOTHING IN HIS HAND WRITING. ITA NO.736/KOL/2018 A.Y. 2011-12 MAHENDRA PRASAD BANSAL VS. ITO WD-31(1),KOL. PAG E 2 3. I HAVE HEARD BOTH THE LEARNED REPRESENTATIVES. C ASE FILE PERUSED. THERE IS NO DISPUTE THAT THE SEARCH IN QUESTION HAD BEEN CARRIE D OUT IN CASE OF DR. R.K. AGARWAL. HE GOT RECORDED HIS STATEMENT IN THE COURSE THEREOF FORMING PART OF THE CASE FILE IN PAGES 58 TO 75. HE DEPOSED DURING THE COURSE OF THE REOF THAT THE RELEVANT LAND TRANSACTIONS ALSO INCLUDED CASH COMPONENT AND HE HA D IN FACT RECEIVED THE SAME ON BEHALF OF ALL PERSONS TO THE TUNE OF 3,50,50,000/-. THIS FOLLOWED THE IMPUGNED RE- ASSESSMENT FRAMED IN ASSESSEES CASE ADDING HIS ALL EGED SHARE OF CASH AMOUNT OF 10.25 LAC AS AFFIRMED IN THE LOWER APPELLATE PROCEE DINGS. THE REVENUES CASE BEFORE ME IS THAT SUCH SEARCH STATEMENT OR BOOKS OF ACCOUN T ARE PRESUMED TO BE CORRECT. I FIND THAT U/S 292C(1)(I) MAKES IT CLEAR THAT THE PRESUM PTION OF CORRECTNESS OF THE SPECIFIED MATERIAL FOUND IN THE COURSE OF SEARCH IS PRESUMED TO BE CORRECT ONLY AGAINST THE SEARCHED PERSON THAN A THIRD PARTY. I REITERATE THA T THE INSTANT LIS RELATES TO SEARCH ACTION AND THEREFORE, IT HAS TO BE SUBJECTED TO STRICTER I NTERPRETATION THAN A LIBERAL ONE. I KEEP IN MIND THE SAME TO NOTICE FROM DR. R.K. AGARWALS SEARCH STATEMENT THAT HE HAD NOWHERE ALLEGED TO HAVE PASSED OVER THE CASH COMPON ENT TO ALL THE REMAINING PERSONS INCLUDING ASSESSEE. I THEREFORE DELETE THE IMPUGNED ADDITION OF CASH MONEY ADDITION OF 10.25 LAC ON THIS COUNT ALONE. THE ASSESSEES CHALL ENGE TO VALIDITY OF RE-ASSESSMENT IS RENDERED INFRUCTUOUS AS NOT PRESSED DURING THE COUR SE OF HEARING. 4. THIS ASSESSEES APPEAL IS PARTLY ALLOWED IN ABOV E TERMS. ORDER PRONOUNCED IN OPEN COURT ON 23/01/2019 SD/- (S.S. GODARA) JUDICIAL MEMBE R KOLKATA, *DKP/SR.PS - 23/01/2019 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-MAHENDA PRASAD BANSAL, C/O BANSAL SALES, 71, GANESH CHANDRA AVENUE, KOLKATA-13 2. /RESPONDENT-ITO WARD-31(1), 10B, MIDDLETON ROW, KOL KATA-71 3. ' % / CONCERNED CIT 4. % - / CIT (A) 5. & ))' , ' / DR, ITAT, KOLKATA 6. + / GUARD FILE. BY ORDER/ , /TRUE COPY/ / ',