BAGARIA PROPERTIES & INVESTMENT PVT. LTD., Kolkata V. I.T.O., WARD-3(1), Kolkata

ITA 920/KOL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0674 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 02-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MANISH TIWARI
• Keywords: Search and seizure; Source of fund
• Section: 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA [BEFORE HONBLE SHRI J.SUDHAKAR REDDY, AM & HONBL E SHRI S.S.VISWANETHRA RAVI, JM ] I.T.A NO. 920/KOL/201 7 ASSESSMENT YEAR : 2009-1 0 BAGARIA PROPERTIES & INVESTMENT PVT. LTD. -VS- ITO, WARD-3(1), KOLKATA [PAN: AACCB 4233 F] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI MANISH TIWA RI, FCA FOR THE REVENUE : NONE DATE OF HEARING : 01.11.2017 DATE OF PRONOUNCEMENT : 26.12.2017 ORDER PER J.SUDHAKAR REDDY, AM THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-22, KOLKATA [I N SHORT THE LD CITA] DATED 15.03.2017 AGAINST THE ORDER PASSED BY THE I.T.O, W ARD-3(1), KOLKATA [ IN SHORT THE LD AO] UNDER SECTION 143(3)/153A OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 29.12.2010 FOR THE ASSESSMENT YEAR 20 09-10. 2. THE ASSESSEE IS A COMPANY AND FILED ITS RETURN O F INCOME ON 26.09.2009 DECLARING NIL INCOME. A SEARCH AND SEIZURE OPERATIO N WAS CONDUCTED U/S 132 OF THE ACT ON THE LOCKER OF THE ASSESSEE, IN CONNECTIO N WITH THE SEARCH ON MERLIN GROUP OF CASES. SUBSEQUENT A NOTICE WAS ISSUED U/S 153A OF THE ACT TO THE ASSESSEE. 2 ITA NO.920/KOL/2017 BAGARIA PROPERTIES & INVESTMENT PVT. LTD. A.YR .2009-10 2 3. DURING THE COURSE OF THE SEARCH OPERATION ON THE LOCKER NO. 1719 OF THE ASSESSEE COMPANY MAINTAINED AT SHRI VARDHAN SAFE VA ULTS PVT. LTD., KOLKATA ON 10.11.2008, SILVER UTENSILS GROSS WEIGHT 25 KG WAS FOUND. THIS WAS VALUED AT RS. 4,31,250/- BY THE DEPARTMENTAL VALUER. THE ASSE SSEE WAS ASKED TO EXPLAIN THESE ASSETS. 4. THE ASSESSEE SUBMITTED THAT THE LOCKER BELONGS T O THE OLD MANAGEMENT WHICH HAD NOT HANDED OVER THE KEYS TO THE ASSESSEE. IT WA S FURTHER CONTENDED THAT THE LOCKER WAS NOT OPENED IN THE PRESENCE OF THE ASSESS EE AND THAT PROPER PROCEDURE AS LAID DOWN IN LAW WAS NOT FOLLOWED AND THAT THE C OMPANY HAS NO KNOWLEDGE OF THE SEARCH OF THE LOCKER AND ITS CONTENTS. THIS WAS DENIED BY THE LD. AO. IT WAS STATED THAT THIS LOCKER WAS OPENED IN THE PRESENCE OF ONE MR. SHIV KISHAN MOHTA WHO IS ONE OF THE DIRECTORS OF THE COMPANY. 5. MR. SHIV KISHAN MOHTA IS HIS STATEMENT BEFORE T HE AO, IN REPLY TO A QUESTION, STATED THAT THE ITEMS OF SILVER IN QUESTION, BELONG TO HIM, HIS SON AND DAUGHTER-IN- LAW. HE STATED THAT THIS LOCKER IS BEING USED BY HI M PERSONALLY TO STORE HIS FAMILYS PERSONAL EFFECT. THE ASSESSING OFFICER DIS BELIEVED THE STATEMENT OF SHIV KISHAN MOHTA AND TREATED THE ASSETS IN QUESTION AS UNDISCLOSED INCOME OF THE ASSESSEE AND DETERMINED GROSS INCOME AT RS. 4,28,18 0/-. AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL WITHOUT SUCCESS. 6. FURTHER AGGRIEVED THE ASSESSEE IS IN APPEAL BEFO RE US ON THE FOLLOWING GROUNDS: 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) IS WRONG IN CONFIRMING THE ACTION OF ASSESSING OFFICER WITHOUT ADJUDICATING THE CONTENTION THAT THE THEN DIRECTOR OF THE APPELLANT COMPANY MADE 3 ITA NO.920/KOL/2017 BAGARIA PROPERTIES & INVESTMENT PVT. LTD. A.YR .2009-10 3 CONFESSIONAL STATEMENT /S 132(4) IN COURSE OF SEARC H ON 10.11.2008 TO THE EFFECT THAT ALL THE SILVER ITEMS BELONGED TO HIS FA MILY AND DULY DISCLOSED IN WEALTH TAX RETURN OF HIS DAUGHTER-IN-LAW SMT. SEEMA MOHTA. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) HAS ERRED IN DISMISSING THE APPEAL WITHOUT CONSIDERING THE CONFE SSIONAL STATEMENT U/S 132(4) AVAILABLE AT PAPER BOOK PAGE 16 & 17. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) IS WRONG AND UNJUSTIFIED IN CONFIRMING THE ORDER OF ASSESSING OF FICER WHO CONSIDERED THE VALUE OF SILVER ITEMS FOUND FROM LOCKER AMOUNTI NG TO RS. 4,31,250/- AS UNDISCLOSED INCOME OF THE APPELLANT COMPANY. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, A DDUCE OR AMEND ANY GROUND OR GROUNDS ON OR BEFORE THE DATE OF HEARING OF THE APPEAL. 7. AFTER HEARING THE RIVAL SUBMISSIONS. WE FIND THA T MR. SHIV KISHAN MOHTA HAS IN HIS SWORN STATEMENT U/S 134 ON 10.11.2008, HAS I N RESPONSE TO QUESTION NO. 3 ADMITTED THAT THE SILVER ITEMS IN QUESTION BELONG T O HIM AND NOT TO THE ASSESSEE COMPANY. FURTHER ON 23.12.2010 HE ALSO FILED A LETT ER WITH THE ASSESSING OFFICER CONFIRMING THAT THIS SILVER UTENSILS BELONG TO HIS FAMILY. IN SUPPORT OF THIS CONTENTION HE ALSO FILED A COPY OF WEALTH TAX RETUR NS FOR THE ASSESSMENT YEAR 2009-10 WHEREIN THESE SILVER ARTICLES HAVE BEEN DEC LARED BY HIS FAMILY MEMBERS IN THEIR RETURNS OF WEALTH. IN OUR VIEW, ON THE FAC E OF THESE EVIDENCES FILED BY MR. SHIV KISHAN MOHTA AND THE CONFESSIONAL STATEMENT, N O ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE COMPANY. THE ASSESSING OF FICER IN THIS CASE HAS MERELY REJECTED THE CONTENTION OF THE ASSESSEE WITHOUT ANY EVIDENCE TO THE CONTRARY. THE ASSESSEE HAS DISCHARGED THE ONUS THAT LAY ON IT, AG AINST THE PRESUMPTION IN LAW. THE AO SHOULD HAVE EXAMINED THE SOURCE OF FUNDS FOR ACQUISITION OF ASSETS IN THE HANDS OF MR. SHIV KISHAN MOHTA AND FAMILY MEMBERS I N CASE HE DOUBTED THE EVIDENCES. IN VIEW OF THE ABOVE, WE DELETE THE ADDI TION AND ALLOW THE APPEAL OF THE ASSESSEE. 4 ITA NO.920/KOL/2017 BAGARIA PROPERTIES & INVESTMENT PVT. LTD. A.YR .2009-10 4 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON 26.12.2017 SD/- SD/- [S.S.VISWANETHRA RAVI] [ J.SUDH AKAR REDDY] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 26.12.2017 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. BAGARIA PROPERTIES & INVESTMENT PVT. LTD., 15B,C LIVE ROW, KOLKATA-700001. 2. I.T.O., WARD-3(1), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069 3..C.I.T.(A)- , KOLKATA 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S