Amalendu Nayak, Purba Medinipur V. ITO, Ward - 27(2), Haldia, Haldia

ITA 90/KOL/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0231 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 16-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATYAJIT MONDAL CIT DR REVE
• Assessee Lawyers: SAMEER SHARMA
• Keywords: Source of fund
• Section: 133A; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA SMC BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER) ITA NO. 90/KOL/2018 ASSESSMENT YEAR: 2012-13 AMALENDU NAYAK.............................APPELLANT TALGACHARI RAMNAGAR, CONTAI DIST-PURBA MEDNIPUR WEST BENGAL 721 441 [PAN : ACOPN 4169 M] INCOME TAX OFFICER, WARD-27(2), HALDIA ........RESPONDENT APPEARANCES BY: SHRI SAMEER SHARMA, C.A, APPEARED ON BEHALF OF THE ASSESSEE. SHRI SATYAJIT MONDAL, ADDL. CIT, D/R. APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : AUGUST 29 TH , 2018 DATE OF PRONOUNCING THE ORDER : SEPTEMBER 12 TH , 2018 ORDER PER J. SUDHAKAR REDDY, AM :- THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 7 KOLKATA, (HEREINAFTER THE LD. CIT(A)), DT. 17/11/2017, PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT), RELATING TO ASSESSMENT YEAR 2012-13. 2. THOUGH THE ASSESSEE HAS TAKEN SIX GROUNDS OF APPEAL, HE ARGUED ONLY GROUND NO.4, WHICH READS AS FOLLOWS:- 4. FOR THAT THE ASSESSING OFFICER ERRED IN ADDING BACK OF RS.16,77,500/- INVESTED IN LAND AND PROPERTY TREATING THE SAME AS UNDISCLOSED SOURCE U/S 69 OF THE I.T. ACT IS ARBITRARY AND WHIMSICAL 3. THE CASE OF THE ASSESSEE IS THAT THE LOAN WAS PURCHASED BY TWO SONS, SHRI AMIT NAYAK AND SHRI SUMIT NAYAK AND THAT BOTH OF THEM WERE INCOME TAX ASSESSEES AND THE ADDITION IN QUESTION CANNOT BE MADE IN HIS HANDS. THE ASSESSING OFFICER AS WELL AS THE LD. CIT(A), RELIED ON THE STATEMENT RECORDED FROM THE ASSESSEE DURING THE COURSE OF SURVEY U/S 133A OF THE ACT, WHEREIN HE HAS ADMITTED THAT THE PURCHASES IN QUESTION WERE MADE FROM HIS SOURCES ONLY. THEY FURTHER EXAMINED THE SOURCES OF THE SONS OF THE ASSESSEE, SHRI AMIT NAYAK AND SHRI SUMIT NAYAK, AND WERE OF THE OPINION THAT THEY DO NOT HAVE THE 2 ITA NO. 90/KOL/2018 ASSESSMENT YEAR: 2012-13 AMALENDU NAYAK CREDITWORTHINESS TO MAKE THE PURCHASES AND CONFIRMED THE ADDITIONS IN THE HANDS OF THE ASSESSEE. 4. FURTHER AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 5. AFTER HEARING RIVAL CONTENTIONS, I FIND THAT THE LD. CIT(A) AS WELL AS THE ASSESSING OFFICER RELIED ON THE STATEMENT RECORDED DURING THE COURSE OF SURVEY U/S 133A OF THE ACT. IT IS EVIDENT THAT THE ADDITION HAS BEEN MADE IN THE HANDS OF THE ASSESSEE FOR INVESTMENTS MADE IN LOAN. IT IS WELL SETTLED BY VARIOUS JUDICIAL DECISIONS THAT SUCH STATEMENTS RECORDED DURING THE COURSE OF SURVEY DO NOT HAVE ANY EVIDENTIARY VALUE. THE HONBLE MADRAS HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME-TAX V.S. KHADER KHAN SON [2008] 300 ITR 157 (MADRAS) HAS BEEN UPHELD BY THE HONBLE APEX COURT IN THE CASE OF COMMISSIONER OF INCOME- TAX, SALEM V. S. KHADER KHAN SON [2013] 352 ITR 480 (SC). THE APPEAL FILED BY THE REVENUE WAS DISMISSED BY HOLDING THAT SECTION 133A OF THE ACT, DOES NOT EMPOWER ANY INCOME TAX OFFICER TO EXAMINE A PERSON ON OATH. SIMILARLY, IN THE CASE OF PAUL MATHEWS & SONS V. COMMISSIONER OF INCOME-TAX [2003] 263 ITR 101 (KERALA) , A SIMILAR PROPOSITION OF LAW HAS BEEN LAID DOWN. APPLYING THE PROPOSITIONS OF LAW LAID DOWN, TO THE FACTS OF THIS CASE, I HOLD THAT THE RELIANCE PLACED BY THE REVENUE AUTHORITIES ON A STATEMENT RECORDED DURING THE COURSE OF SURVEY FROM THE ASSESSEE HAS NO EVIDENTIARY VALUE. 6. THIS BRINGS US TO THE SECOND ASPECT I.E., WHETHER THE ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE, IF THE OWNERS OF THE LAND IN QUESTION I.E., SHRI AMIT NAYAK AND SHRI SUMIT NAYAK, WHO ARE ALSO INCOME TAX ASSESSEES, COULD NOT SUBSTANTIATE THE SOURCE OF FUND RECORDED IN THEIR BALANCE SHEET. IN MY VIEW, NO SUCH ADDITION CAN BE MADE. AT BEST THE ADDITION CAN BE MADE IN THE HANDS OF THE SONS, WHO HAD PURCHASED/INVESTED IN THE LAND AND NOT IN THE HANDS OF THE ASSESSEE. 7. IN THE RESULT, THE ADDITION IN QUESTION IS DELETED. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 12 TH DAY OF SEPTEMBER, 2018. SD/- [ J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER DATED : 12.09.2018 {SC SPS} 3 ITA NO. 90/KOL/2018 ASSESSMENT YEAR: 2012-13 AMALENDU NAYAK COPY OF THE ORDER FORWARDED TO: 1. AMALENDU NAYAK TALGACHARI RAMNAGAR, CONTAI DIST-PURBA MEDNIPUR WEST BENGAL 721 441 2. INCOME TAX OFFICER, WARD-27(2), HALDIA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES