DCIT,CC-XXIV/Kol, Kolkata V. Sri Manab Dutta, Durgapur

ITSSA 103/KOL/2008

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9678 (ITAT-KOLKATA)
• Duration Of Justice: 5 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 13-12-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 03-07-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHT A P
• Assessee Lawyers: V N PUROHIT
• Keywords: Search and seizure; Document seized; Block assessment; Documents seized

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA [BEFORE SHRI R.C. SHARMA, A.M. & SHRI GEORGE MATHAN , J.M. ] I.T.(SS)A. NO.103/KOL/2008 : BLOCK PERIOD : 01.04.1996 TO 12.12.2002 DCIT,CC-XXIV, KOLKATA -VS- S RI MANAB DUTTA, DURGAPUR ( APPELLANT ) (PAN:ADVPD8700E)... ( RESPONDENT ) C.O. NO. 175/KOL/2010 : BLOCK PERIOD : 01.04.1996 TO 12.12.2002 SRI MANAB DUTTA, DURGAPUR -VS- DCIT,CC -XXIV, KOLKATA (CROSS OBJECTOR) (RESPONDENT ) DATE OF CONCLUDING THE HEARING : 12.12.2013 DATE OF PRONOUNCING THE ORDER : 13.12.2013 APPEARANCES : FOR THE ASSESSEE : S/SHRI SOMN ATH GHOSH, ADVOCATE & V.N.PUROHIT, FCA : FOR THE DEPARTMENT : SHRI VARINDER MEHT A, CIT(DR) O R D E R PER SHRI GEORGE MATHAN,J.M. IT(SS)A NO.103/KOL/2008 IS AN APPEAL FILED BY THE R EVENUE AGAINST THE ORDER OF THE LD. CIT(A), CENTRAL-III, KOLKATA IN AP PEAL NO.08/CC- XXIV/CIT(A)C-III/06-07 DATED 7 TH APRIL, 2006 FOR THE BLOCK PERIOD 01.04.1996 TO 12.12.2002 AND THE CROSS OBJECTION 175/KOL/2010 IS AN APPEAL FILED BY THE ASSESSEE IN REVENUES APPEAL IN ITA NO.103/KOL/2008 . 2. SHRI VARINDER MEHTA, CIT(DR), REPRESENTED ON BEH ALF OF THE REVENUE AND SHRI SOMNATH GHOSH, ADVOCATE AND V.N.PUROHIT, FCA R EPRESENTED ON BEHALF OF THE ASSESSEE. 3. IN THE REVENUES APPEAL, THE REVENUE HAS RAISED THE FOLLOWING GROUNDS:- 1. THAT LD. CIT(A) ERRED ON FACT AS WELL AS IN LAW IN DELETING THE ADDITION OF RS.43,71,253/- ON ACCOUNT OF UNDISCLOSE D CAPITAL 2 ITA NO.103 OF 2008 & CO NO.175 OF 2010 SRI MANAB DUTTA INTRODUCTION AND UNACCOUNTED PROFIT OF THE BUSINESS WITHOUT APPRECIATING THE ACTUAL FACTS OF THE CASE. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE LD. CIT(A) ERRED ON FACT BY DELETING THE ADDITION OF RS .62,189/- WHICH WAS UNACCOUNTED DEPOSITS MADE IN INDIAN BANK, BANKU RA. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE LD. CIT(A) ERRED ON FACT AS WELL AS IN LAW IN DELETING THE ADDITION OF RS.1,38,417/- MADE ON ACCOUNT OF UNDISCLOSED RECEIP T AS WELL AS UNDISCLOSED INCOME OF THE ASSESSEE. 3.1 IN THE CROSS OBJECTION, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. ON THE FACT AND IN THE CIRCUMSTANCES OF THE CASE THE LD. C.I.T.(A) ERRED IN DISMISSING THE FIRST GROUND OF APPEAL TAKE N UP BEFORE HIM AGAINST VALIDITY OF BLOCK ASSESSMENT U/S.158BD OF T HE I.T. ACT, 1961 ON THE GROUND OF LACK OF SATISFACTION REQUIRED TO B E ACCORDED BY THE ASSESSING OFFICER OF THE SEARCHED CASE FROM WHICH I MPUGNED PROCEEDINGS U/S.158BD OF THE ACT AROSE. 4. AT THE TIME OF HEARING, IT WAS SUBMITTED BY THE LD. A.R., APPEARING ON BEHALF OF THE ASSESSEE, THAT HE DID NOT WISH TO PRESS THE CROSS-OBJECTION. CONSEQUENTLY, THE CROSS-OBJECTION FILED BY THE ASSESSEE IS DISMIS SED AS NOT PRESSED. 5. IN REGARD TO THE REVENUES APPEAL, IT WAS SUBMIT TED BY THE LD. D.R. THAT THERE WAS A SEARCH AND SEIZURE OPERATION CONDUCTED AT BUS INESS PREMISES OF M/S. DUTTA AUTOMOBILES, DUTTA MOTORS AND AT THE RESIDENCE OF S HRI N.C. DUTTA ON 12.12.2002. IN THE COURSE OF SEARCH, CERTAIN DOCUMENTS MARKED A S BDM/18 CONSISTING OF 5 PAGES WAS FOUND. THE LD. D.R. DREW OUR ATTENTION TO PAGES 47 TO 51 OF THE PAPER BOOK OF THE ASSESSEE, WHICH IS THE COPY OF THE SAID SEIZED DOCUMENTS BDM/18. IT WAS A SUBMISSION THAT THE SAID TRADING AND PROFIT & LOSS A/C. SHOWED DIFFERENT FIGURES FROM THAT OF THE AUDITED BALANCE-SHEET AND TRADING AND PROFIT & LOSS A/C. IT WAS A SUBMISSION THAT THE TRADING AND PROFIT & LOSS A/C. IN RESPECT OF THE SEARCHED MATERIALS AS ALSO AUDITED BOOKED SHOWED THE IDENTIC AL TURNOVER EXCEPT FOR A DIFFERENCE OF ABOUT RS.7.05 LAKHS. IT WAS A SUBMIS SION THAT THE AO HAD TREATED THE 3 ITA NO.103 OF 2008 & CO NO.175 OF 2010 SRI MANAB DUTTA DIFFERENCE BETWEEN THE AUDITED BALANCE-SHEET AND TH E BALANCE-SHEET AS FOUND IN BDM/18 AS THE UNDISCLOSED INCOME OF THE ASSESSEE AN D MADE ADDITION OF RS.43,71,253/-. IT WAS A FURTHER SUBMISSION THAT TH E OTHER ADDITION REPRESENTING UNACCOUNTED DEPOSITS IN INDIAN BANK AS ALSO RECORD OF UNDISCLOSED RECEIPTS HAD BEEN MADE. IT WAS A SUBMISSION THAT THE LD. CIT(A), ON APPEAL, DELETED THE ADDITION REPRESENTING THE DIFFERENCE BETWEEN THE AUDITED BAL ANCE-SHEET AND THE SEIZED DOCUMENTS BY HOLDING THAT THE SEIZED DOCUMENT BDM/1 8 WAS AN UNSIGNED BALANCE-SHEET AND IT WAS NOT FOUND FROM THE PREMISE S OF THE ASSESSEE BUT FROM SOME OTHER PREMISES. FURTHER, THE SUNDRY DEBTORS AS SHOWN IN THE SEIZED DOCUMENT WERE WRONG AS ALSO THE CASH IN THE BANK AND THE LOA N FROM UNION BANK OF INDIA, WHICH WERE ALL VERIFIABLE LIABILITY. IT WAS A SUBMI SSION THAT REGARDING THE OTHER ADDITION ALSO, THE LD. CIT(A) DELETED THE SAME. IT WAS A SUBMISSION THAT THE ORDER OF THE LD. CIT(A) WAS LIABLE TO BE REVERSED. 6. IN REPLY, THE LD. AR VEHEMENTLY SUPPORTED THE OR DER OF THE LD. CIT(A). IT WAS A SUBMISSION THAT THE LD. CIT(A) HAS TAKEN INTO CONSIDERATION THE FACT THAT VERIFIABLE LIABILITIES AS SHOWN IN THE AUDITED BALA NCE-SHEET AND THE SEIZED DOCUMENT IN BDM/18 DIFFERED SUBSTANTIALLY AND THE FIGURES IN THE AUDITED BALANCE-SHEET WERE MUCH HIGHER THAN WHAT HAS BEEN RECORDED IN THE SEIZ ED BDM/18. IT WAS A SUBMISSION THAT BDM/18 HAD BEEN RIGHTLY REJECTED BY THE LD. CIT(A). IT WAS A FURTHER SUBMISSION THAT THE ADDITIONS AS DELETED BY THE LD. CIT(A) WERE RIGHTLY DONE AND NO INTERFERENCE WAS CALLED FOR. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AT THE OUTSET, IT IS NOTICED THAT A PERUSAL OF THE SEIZED MATERIAL IN BDM/18, WHEN COMP ARED TO THE AUDITED BALANCE- SHEET, WHICH WERE SHOWN AT PAGES 9 AND 10, AS ALSO THE RECONCILIATION OF THE BALANCE-SHEET SHOWN AT PAGE 13 OF THE PAPER BOOK CL EARLY SHOW THAT IN THE AUDITED BALANCE-SHEET, THERE IS NO LAND AND BUILDING WHEREA S IN THE SEIZED BDM/18, THERE IS AN ITEM OF LAND AND BUILDING. ADMITTEDLY, IF THE RE IS A LAND AND BUILDING, SUCH AN 4 ITA NO.103 OF 2008 & CO NO.175 OF 2010 SRI MANAB DUTTA ASSET CANNOT BE HIDDEN. FURTHER, EVEN THE SEARCH DI D NOT UNEARTH ANY SUCH LAND AND BUILDING. FURTHER PERUSAL OF THE RECONCILIATION SHO WS THAT THE CASH AND BANK BALANCE SHOW AN AMOUNT OF RS.1,18,774/-, AS PER THE SEIZED BDM/18 AND AS PER THE AUDITED BALANCE-SHEET IS RS.15,88,517.60. HERE, THE REVENUE HAS NOT BEEN ABLE TO IDENTIFY ANY BANK ACCOUNT, WHICH IS HAVING A BALANC E OF RS.1,13,774.43 AS SHOWN IN BDM/18. FURTHER, THE SUNDRY DEBTORS SHOW AN AMOU NT OF RS.13,119/- AS PER BDM/18 WHEREAS AS PER THE AUDITED BALANCE-SHEET, TH E FIGURE IS RS.11,36,148/-, WHICH IS A HIGHER FIGURE IN THE AUDITED BALANCE-SHE ET. ON THE LIABILITIES SIDE, THE SUNDRY CREDITORS SHOWN, AS PER BDM/18, IS RS.1,95,9 65.43 WHEREAS AS PER THE AUDITED BALANCE-SHEET, THE FIGURE IS RS.35,84,244.4 2, WHICH IS AGAIN A HIGHER FIGURE AND THIS INCLUDES AN AMOUNT OF RS.28,48,604/- IN RE SPECT OF DUTTA AUTOMOBILES, WHICH ARE ON THE BASIS OF CONTEMPORANEOUS DOCUMENT AND EVIDENCE. THERE IS ALSO A LOAN FROM UNION BANK, WHICH IS SHOWN IN THE AUDITED BALANCE-SHEET AT RS.4,01,437/- BUT DOES NOT FIND PLACE IN BDM/18. AL L THESE FIGURES, WHICH HAVE BEEN EXTRACTED AND EXPLAINED EARLIER, CLEARLY SHOW THAT BDM/18 IS CLEARLY NOT A TRUE AND FAIR DOCUMENT FOR THE PURPOSE OF MAKING AN ADDITION MUCH LESS A PRESUMPTION OF UNDISCLOSED INCOME. IN THE CIRCUMSTA NCES, WE ARE OF THE VIEW THAT THE FINDING OF THE LD. CIT(A) ON THE ISSUE IS ON TH E RIGHT FOOTING AND DOES NOT CALL FOR ANY INTERFERENCE. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED AND THE CROSS- OBJECTION FILED BY THE ASSESSEE IS ALSO DISMISSED AS NOT PRESSED. THIS ORDER IS PRONOUNCED IN THE COURT ON 13 TH DECEMBER, 2013. SD/- SD/- (R.C.SHARMA) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 13 TH DECEMBER, 2013 5 ITA NO.103 OF 2008 & CO NO.175 OF 2010 SRI MANAB DUTTA COPY OF THE ORDER FORWARDED TO: 1. SRI MANAB DUTTA, PROPRIETOR OF DUTTA MOTORS, BENACH ITI, DURGAPUR- 713 213. 2 DCIT,CC-XXIV, KOLKATA 3. THE CIT(A), 4. CIT, 5. DR, TRUE COPY, BY ORDER, ASSTT. REGISTRAR , ITAT, KOLKATA TALUKDAR(SR.P.S.)