Jay Prakash Didwania, Bhubaneswar V. ACIT, Central Circle-2, Bhubaneswar

ITSSA 124/CTK/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5574 (ITAT-CUTTACK)
• Duration Of Justice: 9 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 08-08-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2016-2017
• Appeal Filed On: 15-10-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: D.K.SHETHM.SHETH
• Keywords: Search and seizure; Salary income
• Section: 142(1); 201; 143(2); 13

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH , CUTTACK , . . , BEFORE SHRI CHANDRA MOHAN GARG, J M AND SHRI L .P. SAHU, A M ( ) ./ IT(SS) A NO . 124 /CTK/2018 ( / ASSESSMENT YEAR :201 6 - 201 7 ) JAY PRAKASH DIDWANIA, PLOT NO.1, LAXMI SAGAR, CUTTACK ROAD, BHUBANESWAR - 751006 VS. THE ACIT, CENTRAL CIRCLE - 2, BHUBANESWAR ./ ./ PAN/G IR NO. : A EIPD 9999 P ( / APPELLANT ) .. ( / RESPONDENT ) /AS SESSEE BY : SHRI D.K.SHETH/M.SHETH, AR /REVENUE BY : SHRI S.M.KESHKAMAT, CITDR / DATE OF HEARING : 13 /0 6 /2019 / DATE OF PRONOUNCEMENT : 08 /0 8 /2019 / O R D E R PER L.P.SAHU, A M : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - 2, BHUBANESWAR, DATED 29.08.2018 FOR THE ASSESSMENT YEAR 2016 - 2017, ON THE FOLLOWING GROUNDS OF APP EAL : - 1. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE ADDITION OF RS.3,00,000/ - AS MADE UNDER HEAD UNEXPLAINED AND UNDISCLOSED CASH IS WHOLLY ARBITRARY, UNCALLED FOR AND OTHERWISE UNJUSTIFIED. 2. FOR THAT THE LEARNED COMMISSIONER SHO ULD HAVE ACCEPTED AND APPRECIATED THE CONTENTIONS OF THE APPELLANT. 3. FOR THAT LEARNED COMMISSIONER IS NOT JUSTIFIED TO CONFIRM THE ADDITION AND DISMISS THE APPEAL . IT (SS) A NO .124 /CTK/201 8 2 2. THE SOLE ISSUE INVOLVED IN THE PRESENT APPEAL OF THE ASSESSEE IS WITH REGARD TO CONF IRMATION OF ADDITION MADE BY THE AO ON ACCOUNT OF UNEXPLAINED AND UNDISCLOSED CASH. 3. FACTS OF THE CASE ARE THAT T HE A SSESSEE IS AN INDIVIDUAL SHOWING INCOME FROM SALARY, BUSINESS & HOUSE PROPERTY. THERE WAS A SEARCH AND SEIZURE OPERATION U/S.132 OF THE I . T. ACT, 1961 CONDUCTED ON 06.05.2015 IN THE CASE OF THE GROUP NAMED ' M/S. BHARAT MOTORS LIMITED & GROUP OF CASES' TO WHICH THE A SSESSEE BELONGS. THEREAFTER , THE CASE WAS SELECTED FOR SCRUTINY ASSESSMENT U /S. 1 43(3) OF THE I. T. ACT, 1961 AND THE ASSESSE E FILED ITS RETURN OF INCOME U / S .139(1) ON 04.08.2016 FOR THE A.Y. 2016 - 17 SHOWING TOTAL INCOME OF RS.57,07,860/ - . SUBSEQUENTLY, THE AO ISSUED N OTICES U/S. 143(2) & U/S. 142(1) OF THE I. T. ACT, AND THE REPRESENTATIVE OF THE ASSESSEE WAS APPEARED AND THE CASE WAS DISCUSSED . IN THE RESULT OF SEARCH, FOLLOWING AMOUNTS WERE ADMITTED BY THE FOLLOWING PARTIES AS UNDISCLOSED INCOME WHICH READS AS UNDER : - ASSESSEE ASST. YEAR AMOUNT OF UNDISCLOSED INCOME (RS.) SOURCE AND USE OF UNDISCLOSED INCOME BHARAT CARRIER S LTD. 2011 - 12 1,50,00,000 BEING THE INFLATION OF EXPENDITURE UNDER DIFFERENT HEADS AND UTILIZED IN PAYMENT FOR PURCHASE OF LAND IN THE NAMES OF BHARAT INFRA, BHARAT MOTORS LTD AND SHREE BHARAT MOTORS LTD 2015 - 16 2,50,00,000 INTENDED TO CLAIM EXPENDITURE UNDER DIFFERENT HEADS, WITHDRAWN & RE - DEPOSITED IN DIFFERENT NAMES 2016 - 17 1,00,00,000 INTENDED TO CLAIM EXPENDITURE UNDER DIFFERENT HEADS, WITHDRAWN & RE - DEPOSITED IN DIFFERENT NAMES SHREE BHARAT MOTORS LTD 2015 - 16 2,00,00,000 INTENDED TO CLAIM EXPEND ITURE UNDER DIFFERENT HEADS, WITHDRAWN & RE - DEPOSITED IN DIFFERENT NAMES 2016 - 17 50,00,000 INTENDED TO CLAIM EXPENDITURE UNDER DIFFERENT HEADS, WITHDRAWN & RE - DEPOSITED IN DIFFERENT NAMES BHARAT MOTORS LTD 2015 - 16 1,50,00,000 INTENDED TO CLAIM EXPENDITU RE UNDER DIFFERENT HEADS, WITHDRAWN & RE - DEPOSITED IN DIFFERENT NAMES 2016 - 17 50,00,000 INTENDED TO CLAIM EXPENDITURE UNDER DIFFERENT HEADS, WITHDRAWN & RE - DEPOSITED IN DIFFERENT NAMES JAY PRAKASH DIDWANIA 2016 - 17 25,00,000 BEING THE AMOUNT AS CASH IN H AND FOUND ON THE DAY OF SEARCH OMPRAKASH DIDWANIA 2016 - 17 25,00,000 BEING THE AMOUNT AS CASH IN HAND FOUND ON THE DAY OF SEARCH TOTAL 10,00,00,000 IT (SS) A NO .124 /CTK/201 8 3 4. THE OBSERVATIONS OF THE AO IS AS UNDER : - D U RING THE COURSE OF SEARCH RS.28,00,000/ - WAS FOUND & S EIZED FROM THE RESIDENCE OF THE ASSESSEE. MOREOVER, RS.21,97,730/ - WAS FOUND & SEIZED FROM THE OFFICE OF M/S.BHARAT MOTORS LTD. AT 45, MACHESWAR INDUSTRIAL ESTATE, BHUBANESWAR. AT THE TIME OF ASSESSMENT OF M/S. BHARAT MOTORS LTD. THIS AMOUNT HAS BEEN ADDED TO THE TOTAL INCOME. THE AO ALSO FOUND THAT THE ASSESSEE, SHRI J. P. DIDWANIA HAS DISCLOSED IN THE RETURN THE AMOUNT OF CASH SEIZED AT RS.25.00LAKH. SHRI OM PRA KASH DIDWANIA HAS ALSO DISCLOSED IN THE RETURN A SUM OF RS.25.00LAKH AS CASH SEIZED FROM RESIDE NCE. IN ORDER TO AVOID DOUBLE TAXATION, THE AMOUNT OF RS.25.00LAKH AS SHOWN BY HIM IS DEDUCTED FROM HIS TOTAL INCOME AS PER RETURN BECAUSE THE SAME IS BEING CONSIDERED IN THE HANDS OF SHRI J. P. DIDWANIA, THE ASSESSEE IN THIS CASE. MOREOVER, THE ADDITIONAL AMOUNT OF RS.3,00,000/ - , THE SOURCE OF WHICH COULD NOT BE EXPLAINED IS NOT SHOWN BY THE ASSESSEE, SHRI J. P. DIDWANIA AS A RESULT OF WHICH RS.3,00,000/ - IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. ACCORDINGLY, THE AO MADE ADDITION OF RS.3,00,000/ - ON ACCOUNT OF UNEXPLAINED CASH. 5 . FEELING AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE APPEALED BEFORE THE CIT(A) AND THE CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND FINDINGS OF AO HAS DISMISSED THE APPEAL OF THE ASSESSEE. 6 . FURTHER FEELING AGGRIEVED, THE ASSESSEE IS NOW IN APPEAL BEFORE THE INCOME TAX APPELLATE TRIBUNAL. 7 . LD. AR REITERATED THE SUBMISSIONS MADE BEFORE THE CIT(A) AND SUBMITTED THAT THE CIT(A) HAS ERRED IN CONFIRMING THE ADDITION MADE BY THE AO WITHOUT CONSIDERING THE SUBMISS IONS OF THE ASSESSEE. IT WAS ALSO SUBMITTED BY LD. AR THAT THE AMOUNT HAS DULY BEEN DECLARED BY OM PRAKASH DIDWANIA AND INCLUDED IN HIS TOTAL INCOME WHICH HAS BEEN ACCEPTED BY THE AO, THEREFORE, THE ADDITION MADE BY THE AO AND CONFIRMED BY THE CIT(A) AMOUN TS TO DOUBLE TAXATION, WHICH DESERVES TO BE DELETED. IT (SS) A NO .124 /CTK/201 8 4 8 . ON THE OTHER HAND, LD.DR RELIED ON THE ORDERS OF AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE WAS FAILED TO PROVE ANY DOCUMENTARY EVIDENCE THAT DISPUTED AMOUNT OF RS. 3 LAKHS HAVE BEEN OFFERED FOR TAX IN THE HANDS OF OM PRAKASH DIDWANIA . THEREFORE, THE ORDER OF LOWER AUTHORITIES SHOULD BE RESTORED. 9 . AFTER HEARING BOTH THE PARTIES AND PERUSING THE ENTIRE MATERIALS AVAILABLE ON RECORD, WE NOTED FROM THE ORDER OF LOWER AUTHORITIES THAT D URING SEARCH OPERATION, CASH OF RS 28,00,000/ - WAS FOUND AND SEIZED FROM THE RESIDENCE OF THE ASSESSEE . IT IS ALSO FOUND FROM THE ASSESSMENT ORDER THAT THE ASSESSEE HAS DISCLOSED A SUM OF RS 25,00,000/ - IN HIS RETURN OF INCOME OUT OF THE SEIZED CASH OF RS 28,00,000/ - . HOWEVER, FOR RS . 3,00,000/ - , NO EXPLANATION WAS OFFERED REGARDING SOURCE OF CASH. EVEN DURING THE APPELLATE PROCEEDINGS, THE ASSESSEE COULD NOT SUBSTANTIATE ITS CLAIM BEFORE THE CIT(A). THEREFORE, THE CIT(A) HAS UPHELD THE ADDITION MADE BY THE AO AFTER OBS ERVING AS UNDER : - 5. AS IT CAN BE SEEN FROM THE SUBMISSION OF THE APPELLANT, THE APPELLANT HAS STATED THAT RS 3,00,000/ - WAS OFFERED TO TAX BY OM PRAKASH DIDWANIA. HOWEVER, IT IS SEEN FROM THE ASSESSMENT ORDER THAT OM PRAKASH DIDWANIA HAS NOT OFFERED CAS H OF RS 3,00,000/ - FOR TAXATION IN HIS HANDS. THE APPELLANT HAS ALSO NOT BEEN GIVEN ANY SOURCE OF SEIZED CASH OF RS 3,00,000/ - . THEREFORE, THE ADDITION OF RS 3,00,000/ - IS CONFIRMED. THE GROUND OF APPEAL IS DISMISSED. IT IS CLEAR FROM THE ABOVE OBSERVAT IONS OF THE CIT(A) THAT RS.25 LAKHS HAVE BEEN ADMITTED AS UNDISCLOSED INCOME BY SHRI OM PRAKASH DIDWANIA. WE FURTHER NOTED THAT RS.28 LAKHS HAVE BEEN FOUND FROM THE RESIDENCE OF ASSESSEE WHICH HAS BEEN SEIZED BY THE DEPARTMENT, OUT OF WHICH RS.25 IT (SS) A NO .124 /CTK/201 8 5 LAKHS HAV E BEEN ADMITTED BY JAI PRAKASH DIDWANIA AS HIS UNDISCLOSED INCOME. THE DIFFERENCE OF RS.3 LAKHS HAS NOT BEEN EXPLAINED BY THE ASSESSEE AT ANY STAGE. THERE IS NO SINGLE IOTA OF EVIDENCE THAT THIS AMOUNT HAS BEEN OFFERED FOR TAX BY OM PRAKASH DIDWANIA IN HIS HANDS. THEREFORE, WE DO NOT SEE ANY GOOD REASON TO INTERFERE IN THE FINDINGS OF THE CIT(A) AND THE SAME ARE UPHELD AND THE SOLE GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. 10 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. O RDER PRONOUNCED IN THE OPEN COURT ON 08 /0 8 / 201 9 . SD/ - ( C.M.GARG ) SD/ - ( L.P.SAHU ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK ; DATED 08 / 0 8 /201 9 . . / PKM , S R.P.S. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - . JAY PRAKASH DIDWANIA, PLOT NO.1, LAXMI SAGAR, CUTTACK ROAD, BHUBANESWAR - 751006 2. / THE RESPONDENT - THE ACIT, CENTRAL CIRCLE - 2, BHUBANESWAR 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTA CK 6. / GUARD FILE. //TRUE COPY//