Bhabani Charan Rath, Bhubaneswar V. ACIT, Bhubaneswar

ITSSA 19/CTK/2012

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8181 (ITAT-CUTTACK)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 25-06-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 10-02-2012
• Court: TRIBUNAL
• Department Lawyers: M R
• Assessee Lawyers: P S PANDAKAMAL AGARWALLA ARS
• Keywords: Income from undisclosed sources; Search and seizure; Revised return
• Section: 153A; 6; 139

Judgement Text

IN THE INC O ME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE : SHRI K.K.GUPTA, AM , AND SHRI K.S.S.PRASAD RAO, JM IT(SS)A NOS.19 AND 20/CTK/2012 AND ITA NO. 12/CTK/2012 (ASSESSMENT YEAR S 2003 - 04, 2004 - 05 AND 2008 - 09) BHABANI CHARAN RATH, B - 2 0, B.J.B.NAGAR, BHUBANESWAR 751 014 PAN: AAKPR 0120 J VERSUS ASST.COMMISSINER OF INCOME - TAX, CIRCLE 1(2), AYAKAR BHAWAN, BHUBANESWAR. (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI P.S.PANDA/KAMAL AGARWALLA, ARS FOR THE RESPONDENT SHRI M.R.PANIGRAHI, DR DATE OF HEARING : 23.05.2012 DATE OF PRONOUNCEMENT : 25.06.2012 ORDER SHRI K.K.GUPTA, AM : THESE APPEALS FOR THE ASSESSMENT YEARS 2003 - 04, 2004 - 05 AND 2008 - 09 ARE ON THE LEARNED CIT(A) DISMISSING THE CONTENTIONS OF THE ASSESSEE ON THE MERIT ADDITIONS BROUGHT ON RECORD BY THE ASSESSING OFFICER APPEALED AGAINST BEFORE HIM WITHOUT ADJUDICATING THE ISSUE IN ITS ENTIRETY. 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUES INVOLVED ARE COMMON AND INTER RELATED FOR ALL TH E AYS FOR WHICH BE PREFERRED TO SUBMIT COMMON ARGUMENTS. 3. THE BRIEF FACTS RELATING TO THE AYS 2003 - 04 AND 2004 - 05 , AS HAVE BEEN BROUGHT ON RECORD ARE THAT THE ASSESSEE DERIVES THE INCOME FROM CAPITAL GAIN & OTHER SOURCES. HE FILED HIS RETURN OF INCOME U/ S 139 OF THE INCOME TAX ACT, 1961 BY DECLARING AN INCOME OF 13,60,050 IN THE ASSESSMENT YEAR 2003 - 04 AND 4,05,160 IN THE ASSESSMENT YEAR 2004 - 05. SEARCH AND SEIZURE OPERATION WAS CARRIED OUT IN THE PREMISES OF THE ASSESSEE ON 9 TH AUGUST 2005. AFTER SEARCH THE ASSESSEE SURR ENDERED THE TOTAL INCOME OF 1 ,11,00,00 0 ON 5TH SEPTEMBER 2005 OUT OF WHICH 15,00,000 AND 30,000 REIATED THE ASST. YEAR 2003 - 04 AND 2004 - 05 RESPECTIVELY . IN CONSEQUENT TO THE SEARCH IT(SS)A NOS.19 AND 20/CTK/2012 AND ITA NO.12/CTK/2012 2 OPERATION NOTICE U/S 153A WAS ISSUED TO THE ASSESSEE ON MARCH 2006. IN RESPONSE TO THE SAID NOTICE THE ASSESSE E FURNISHED HIS RETURN OF INCOME ON 29 TH MAY 2006 U/S 153A(A) BY WAY OF INCLUDING THE SURRENDERED INCOME DECLARED IN HIS LETTER AND THE TOTAL INCOME AMOUNTING TO 29 ,60,050 IN ASSESSMENT YEAR 2003 - 04 AND 34,05,160 IN THE ASSESSMENT YEAR 2004 - 05 . LATER ON HE DISCOVERED SOME OMISSION OF INCOME IN THE RETURN OF INCOME FILED AND REVISED HIS RETURN S OF INCOME U/S 153A(A) ON 6 TH OF DECEMBER 20 07 BY DECLARING AN INCOME OF 29,46,710 IN THE ASSESSMENT YEAR 2003 - 04 AND 37,70,160 IN THE ASSESSMENT YEAR 2004 - 05 . DU RING THE COURSE OF SEARCH ASSESSMENT PROCEEDINGS THE PARTICULARS REQUISITIONED BY THE ASSESSING OFFICER WERE SUPPLIED AND ALL EXPLANATIONS NEEDED WERE SUBMITTED BY THE ASSESSEE . HOWEVER, THE LEARNED ASSESSING TREATED THE REVISED RETURN OF INCOME FILED ON 6 TH DECEMBER 2007 AS NON - EST AND THE INFORMATION CONTAINED IN THOSE RETURNS WERE TAKEN AS EVIDENCE FOR ASSESSME NT AND ASSESSED AN INCOME OF 63,74,440 IN ASSESSMENT YEAR 2003 - 04 AND 47,70,160 IN THE ASSESSMENT YEAR 2004 - 05 . 4. FOR THE ASSESSMENT YEAR 2008 - 09, THE FACTS AS BROUGHT ON RECORD ARE THAT IN COURSE OF SURVEY OPERATION U/S.133A CONDUCTED ON 27.9.2007, THE ASSESSEE WAS FOUND TO HAVE DEPOSITED CASH TOTALING 1.10CRORES IN ACCOUNT NO.SB 7145 IN THE FEDERAL BANK, BAPUJI NAGAR, BHUBANESWAR BELONGS TO ONE SMT. JAYITA BANERJEE ON DIFFERENT DATES FROM 24.4.2007 TO 1.5.2007, WHICH THE ASSESSING OFFICER HELD THAT THE ACCOUNT ALLEGEDLY OPENED IN THE NAME OF SMT. JAYITA BANERJEE BY INTRODUCTION OF THE ASSESSEE ACTUALLY BELONGS TO THE ASSESSEE AND THEREFORE THE ASSESSING OFFICER ADDED THE SAID AMOUNT OF 1.10 CRORES U/S.68 TO THE TOTAL INCOME OF THE ASSESSEE. IT(SS)A NOS.19 AND 20/CTK/2012 AND ITA NO.12/CTK/2012 3 5. AGGRIEVED, THE ASSESSEE FILED AP PEALS FOR ALL OF THE AYS, WHICH HAVING BEEN CONFIRMED BY THE LEARNED CIT(A), WHICH ISSUES HAVE COME UP IN THE PRESENT APPEALS HERE BEFORE THE TRIBUNAL. 6. THE LEARNED AR OF THE ASSESSEE SUBMITTED THAT FOR THE ASSESSMENT YEAR 2004 - 05 THE AMOUNTS HAVE BEEN C HANGED WHEN THE SURRENDERED INCOME AS PER THE REVISED RETURN WHICH HAS BEEN TAKEN AS NON - EST HAS BEEN CONSIDERED BY THE ASSESSING OFFICER FOR THE PURPOSE OF COMPUTING THE UNDISCLOSED INCOME. HE SUBMITTED THAT THE ASSESSEE HAS SURRENDERED THE INCOME OF 15 LAKHS ON 5 TH SEPTEMBER AND HAD SUFFICIENT OPENING CASH BALANCE IN HAND TO DEPOSIT THE AMOUNT OF 3,50,000 IN THE BANK WHICH THE ASSESSING OFFICER HAS CONSIDERED OTHERWISE EVEN AFTER SUBMISSION BY T HE ASSESSEE APPELLANT BEFORE TH E LEARNED CIT(A). THE L E ARNED CIT(A) HAS FURTHER FINE TUNED THE TAXATION OF THE SAME BY HOLDING THAT THE AMOUNT HELD AS OPENING CASH BALANCE IS AN WEAK ARGUMENT WHEN THE ASSESSING OFFICER HAS NOT CONTROVERTED THE FACT. FOR THE ASSESSMENT YEAR 2003 - 04 A SUM OF 30 LAKHS HAS ALSO B EEN BROUGHT TO TAX BY THE ASSESSING OFFICER INSPITE OF HOLDING THAT THE SAME HAD BEEN RENDERED TO TAX BY WAY OF SURRENDERING THE AMOUNT ON ISSUE OF NOTICE U/S.15 3A. IN OTHER WORDS, THE LEARNED COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED THAT HAVING ACCEPTED THE INCOME AS SURRENDERED U/S.132(4) THE ASSESSING AUTHORITIES HAVE TRIED TO TAX THE INCOME HELD AS AN ASSET BY THE ASSESSEE WHICH IS NOTHING BUT DOUBLE TAXATION. HOWEVER, ON THE ISSUE OF 77,730 BEING THE INTEREST WAS TAXED BY THE ASSESSING AUTHORITIES O NLY ON THE BASIS OF ADDITIONAL INCOME SHOWN IN THE REVISED RETURN THEREFORE CANNOT BE HELD AS INCOME NOT DISCLOSED MAY KINDLY BE CONSIDERED ON THE FACTS AND CIRCUMSTANCES AS HAVE BEEN CONSIDERED BY THE AUTHORITIES BELOW. IT(SS)A NOS.19 AND 20/CTK/2012 AND ITA NO.12/CTK/2012 4 7. FOR THE ASSESSMENT YEAR 2004 - 05, ADDITION OF 10 LAKHS HAS BEEN CONFIRMED IN THE SIMILAR FASHION BEING DEPOSIT IN THE RECURRING DEPO SIT WHEN THE SOURCES OF DEPOSIT HAS BEEN IDENTIFIED BY THE ASSESSING AUTHORITIES TOTALING 36 LAKHS UP TO THE ASSESSMENT YEAR 2003 - 04. THE ASSESSEE HAD DISCLOSED U/S/.13 2(4) AN ADDITIONAL AMOUNT OF 30 LAKHS WHEN THE AMOUNT AVAILABLE AS PER THE BALANCE SHEET PLACED ON RECORD WITH THE ASSESSING AUTHORITIES INDICATED THAT THE SURPLUS FUND GENERATED WAS THE INCOME RENDERED TO TAX HAVE BEEN UTILIZED FOR THE PURPOSE OF DEPOSIT OF 1 0 LAKHS IN THE RECURRING DEPOSIT ACCOUNT. THE LEARNED CIT(A) HOWEVER CHOSE TO REPEAT HIS CONFIRMING THE ADDITION AS IN ASSESSMENT YEAR 2003 - 04 ON THE GROUND THAT THERE WAS NO SPECIFIC BASIS BY THE ASSESSEE TO SURRENDER INCOME WHICH HAS BEEN IDENTIFIE D AS DEPOSITS IN THE RECURRING DEPOSIT ACCOUNT. THE LEARNED COUNSEL FOR THE ASSESSEE ARGUED THAT THE EXPLANATION AND SUBMISSIONS OF THE ASSESSEE ARE BEING CONSTRUED BY THE ASSESSING AUTHORITIES WITHOUT GIVING ANY REASON FOR REJECTION OF THE SAME WHICH GOES TO T HE BASIS OF BRINGING TO TAX INVESTMENT FROM INCOME WHICH HAS BEEN DISCLOSED TO TAX CANNOT BE OTHERWISE TA XED ON ISSUANCE OF NOTICE U/S.15 3A. HE PRAYED THAT THESE ADDITIONS MAY KINDLY BE DIRECTED TO BE DELETED. 8. FOR THE ASSESSMENT YEAR 2008 - 09 ON THE SOLITARY ISSUE WHICH HAS BEEN CONFIRMED BY THE AUTHORITIES BELOW IS THE SUM OF 1.10 CRORES UNDISPUTEDLY HELD BY THE ASSESSING AUTHORITIES AS AMOUNT DEPOSITED IN THE BANK ACCOUNT OF AN IDENTIFIABLE PERSON BUT WAS CONSIDERED FOR TAXATION IN THE HANDS OF TH E ASSESSEE WHEN THE ASSESSEE DENIED THAT THIS MONEY BELONG ED TO HIM. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE WAS SUBJECTED TO SEARCH AND SEIZURE PROCEEDINGS AND THE ASSESSMENT HAS BEEN PASSED SUBSEQUENT TO THE DATE OF SEARCH WHICH SEARCH TOOK PLACE ON 9.8.2005. UP TO IT(SS)A NOS.19 AND 20/CTK/2012 AND ITA NO.12/CTK/2012 5 ASSESSMENT YEAR 2006 - 07 INCOMES WERE SURRENDERED U/S.132(4) WHEN THE REQUI SI TE AMOUNT EXPLAINING THE ASSETS HELD BY THE ASSESSEE WERE EXPLAINED FROM THE INCOMES WHICH HAVE BEEN TAXED BY THE ASSESSING AUTHORITIES ON THE BASIS OF SEARCH MATERIAL. HOWEVER, IN THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2008 - 09 A SURVEY OPERATION U/S.133A ON 27.9.2007 RESULTED IN FINDING THAT THE ASSESSEE WAS OPERATING BENAMI BANK ACCOUNT. THE ASSESSEE WAS IN A DENIAL MODE THAT HE HAS N OTHING TO DO WITH THE SAID BANK ACCOUNT WHEN THE EFFORTS OF THE AUTHORITIES BELOW W ERE TO BRING TO TAX THE AMOUNT DEPOSITED IN THE SAID ACCOUNT AS INCOME FROM UNDISCLOSED SOURCES IN THE HANDS OF THE ASSESSEE. 9. THE ASSESSEE FILED REVISED RETURN FOR THE A YS UP TO 2006 - 07 IN PURSUANCE TO NOTICE U/S.153A WHEN THE AMOUNTS GENERATED AS INCOME BY WAY OF REGULAR RETURNS VIS - A - VIS THE RETURNS IN PURSUANCE TO DISCLOSURE MADE U/S.132(4). THE ASSESSEE WAS ABLE TO GATHER INFORMATION THAT THE ASSESSEE HAD DECLARED A S UM OF 1,11,00,000 UP TO ASSESSMENT YEAR 2005 - 06 AND THEN IT WAS THE ASSESSEES CONTENTION THAT THE BENAMI ACCOUNT WHICH THE AUTHORITIES HAVE CONSIDERED IN A DIFFERENT PERSONS NAME STANDS MODIFIED TO THE EXTENT THAT THE AMOUNT IN THIS ACCOUNT BELONGED TO THE ASSESSEE ON HAVING UNDISCLOSED INCOME TO THE EXTENT THAT THE WITHDRAWAL OF FUNDS FROM THE CAPITAL ACCOUNT OF THE ASSESSEE UP TO THE ASSESSMENT YEAR 2007 - 08 AND PARKING OF THE SAME IN THE ACCOUNT OF SOME OTHER PERSON IN THE EARLY PART OF THE ASSESSMENT YEAR 2008 - 09 WAS NOT CONSIDERED ON ITS MERITS AS THE ADDITIONS MADE BY THE ASSESSING OFFICER WERE CONFIRMED U/S.68 OF THE I.T.ACT. THE LEARNED COUNSEL ARGUED THAT ADDITION U/S.68 COULD ONLY BE MADE NOT WHEN THE CREDITS IN THE BOOKS OF ACCOUNT ARE NOT EXPLA INED TO THE SATISFACTION OF THE ASSESSING OFFICER AND NOT BECAUSE THE ASSESSEES UNDISCLOSED INCOME IT(SS)A NOS.19 AND 20/CTK/2012 AND ITA NO.12/CTK/2012 6 HAS BEEN HELD IN BENAMI ACCOUNTS. HE ARGUED THAT THE STATEMENT OF AFFAIRS UP TO THE ASSESSMENT YEAR 2008 - 09 FILED WITH THE DEPARTMENT CLEARLY INDICATE THAT THE ASSESSEE HAD SUFFICIENT FUNDS AMOUNTING TO MORE THAN 1 CRORE AS ON 31 ST MARCH,2007 THEREFORE CANNOT BE TAXED U/S.143(3) FOR THE ASSESSMENT YEAR 2008 - 09 AS NOT BELONGING TO THE ASSESSEE FOR NEGATING THE CLAIM EARLIER WAS NOT ADHERED TO BY THE DEPARTMENT THEREFORE CLINCHES THE ISSUE IN FAVOUR OF THE ASSESSEE AS OF NOW INSOFAR AS NO CONTROVERTING MATERIAL HAS BEEN FOUND BY THE AUTHORITIES TO HOLD THAT THE AMOUNT IS TO BE TAXED IN THE NAME OF BENAMI HOLDER ONLY. FOR THIS PROPOSITION, HE HAS SUBMITTED THE BALANCE SHEETS OF THE ASSESSMENT YEAR 2007 - 08 AND 2008 - 09 WHEN A SUM OF 1.65 CRORES WAS WITHDRAWN AS PER THE BALANCE SHEET FILED FOR THE EARLIER YEARS ALONG WITH THE SPECIFIC ITEMS OF ASSETS HELD BY THE ASSESSEE BROUGHT TO TAX BY THE ASSESSING OFFICER NEGATING THE CLAIM THAT THE ASSESSEE DID NOT HAVE SUFFICIENT FUNDS FOR THE PURPOSE. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ACTION OF THE ASSESSING AUTHORITIES IN IDENTIFYING THE ASSETS CANNOT AUTOMATICALLY LEAD TO TAX AT THE THRESHOLD HAVING ACCEPTED THE INCOME ON WHICH TAX HAS BEEN PAID THEREFORE WOULD LEAD TO D OUBLE TAXATION AS THE APPEAL HAS BEEN FILED AFTER PAYING THE TAX. HE PRAYED THAT THIS ADDITION ALSO BE DIRECTED TO BE DELETED. 10. THE LEARNED DR INITIATING HIS ARGUMENT SUBMITTED THAT THE LEARNED CIT(A) HAS UPHELD THE ADDITION SO MADE IN THE ASSESSMENT YE AR 2003 - 04 AND 2004 - 05 ON THE BASIS OF FINDING THAT SUCH AMOUNTS COULD NOT BE IDENTIFIED BY THE ASSESSEE FOR HOLDING OF A SUBSEQUENT DEPOSITS IS AN AFTERTHOUGHT. AS NO BOOKS OF ACCOUNT WERE MAINTAINED BY THE ASSESSEE NO EVIDENCE HAS BEEN BROUGHT ON RECORD BY THE LEARNED COUNSEL FOR THE ASSESSEE AS OF NOW EXCEPT FOR THE SUBMISSION THAT THE THESE AMOUNTS WERE HELD WITH THE ASSESSEE AS IT(SS)A NOS.19 AND 20/CTK/2012 AND ITA NO.12/CTK/2012 7 FUNDS AFTER RENDERING INCOME TO TAX. SURRENDERING OF INCOME U/S.132(4) WAS TO BE VERIFIED BY THE ASSESSING OFFICER O N THE BASI S OF SEARCHED MATERIAL HAS NOT BEEN LINKED BY THE ASSESSEE INSOFAR AS THE LEARNED COUNSEL FOR THE ASSESSEE HAS AGREED TO THE PROPOSITION THAT THE INTEREST INCOME ON THE PURPORTED UNDISCLOSED AMOUNT HELD AS RECURRING DEPOSIT O F 30 LAKHS IN THE ASSESSMENT YEAR 2003 - 04 WAS RENDERED TO TAX BY THE ASSESSEE BY WAY OF A REVI SED RETURN. SIMILARLY FOR THE A Y 2004 - 05, THE LEARNED CIT(A) RIGHTLY HELD THAT THERE WAS NO SPECIFIC BASIS OF CALCULATION FOR SELF DISCLOSURE OF INCOME BY THE ASSESSEE. NO NEXUS BETWEEN THE A MOUNT DISCLOSED AND THE AMOUNT CREDITED OR DEPOSITS IN THE RECURRING DEPOSIT ACCOUNTS HAS BEEN BROUGHT ON RECORD. THE LEARNED DR SUBMITTED THAT TH E CLAIM OF ADDITION OF 30 LAKHS IN THE ASSESSMENT YEAR 2003 - 04 AND 10 LAKHS IN THE ASSESSMENT YEAR 2004 - 05 HAVE BEEN RIGHTLY CONFIRMED. 11. FOR THE ASSESSMENT YEAR 2008 - 09 A SURVEY OPERATION RESULTED IN FINDING OF BANK ACCOUNT IN OTHER PERSONS NAME WHEN THE BANK AUTHORITIES WERE INTRODUCED BY THE ASSESSEE. THIS RESULTED IN BRINGING TO TAX THE AMOUNT IN THE HANDS OF THE ASSESSEE WHO DENIED OF HAVING NOTHING TO DO WITH THEM INSOFAR AS THE ASSESSEE COULD NOT ESTABLISH THE NEXUS OF FUNDS LYING WITH IT EXCEPT FILING BA LANCE SHEET INDICATING FUNDS AVAILABLE TO THE ASSESSEE WERE FOR THE BENAMI BANK ACCOUNT. HAVING DENIED EARLIER IT IS A CHANGE OF STANCE OF THE ASSESSEE AS AN AFTERTHOUGHT COULD NOT BE IDENTIFIED AS AMOUNTS DEPOSITED IN DIFFERENT PERSONS NAME. THEREFORE, T HE DEPARTMENT HAS BROUGHT TO TAX THE SAME AS RIGHTLY CONFIRMED BY THE LEARNED CIT(A) MAY KINDLY BE CONFIRMED. 12. WE HAVE HEARD THE RIVAL CONTENTIONS OF THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. CONSIDERING THE FACTS AND CIRCUMSTANCES OF TH E CASE, WE ARE INCLINED TO HOLD THAT THE AMOUNTS PURPORTED TO BE BROUGHT TOT AX IT(SS)A NOS.19 AND 20/CTK/2012 AND ITA NO.12/CTK/2012 8 BY THE ASSESSING OFFICER AS CONFIRMED BY THE LEARNED CIT(A) FOR THE AYS 2003 - 04 AND 2004 - 05 STOOD EXPLAINED BY THE ASSESSEE TO THE EXTENT THAT THE AMOUNTS GENERATED AND RENDERED TO TAX WAS THE AMOUNTS AVAILABLE ON THE BASIS OF DECLARATION OF INCOME UP TO THE ASSESSMENT YEAR 2006 - 07 WHEN THE SEA RCH TOOK PLACE IN AUGUST ,2005. HAVING SUFFICIENT FUNDS , IT WAS THE PREROGATIVE OF THE ASSESSING OFFICER TO BRING TO TAX THE AMOUN T HELD AS DEPOSITS IN THE BANK IN THE FORM OF RECURRING DEPOSITS WITH THE ACCRUING INTEREST THEREON ONLY REQUIRING EXPLANATION INSOFAR AS THE DEPARTMENT HAD ACCEPTED THE RETURNS WHEN THE ASSESSEE HAD ONLY REVISED CLAI MING OF INTEREST INCOME WHICH REMAINED UNTAXED. THE LEARNED COUNSEL FOR THE ASSESSEE THEREFORE RIGHTLY POINTED OUT THAT IT WAS NEVER THE CASE OF THE ASSESSEE APPELLANT NOT TO PAY TAX ON THESE UNDISCLOSED AMOUNTS EVEN BEFORE THE SEARCH TOOK PLACE. IT WAS ONLY THE ASSESSING AUTHORITIES NEGATING T HE CLAIM OF THE ASSESSEE THAT THE AMOUNT STOOD INVESTED WERE AFTER BEING TAX PAID. WE DO NOT FIND ANY MERIT IN THE CONTENTION OF THE LEARNED CIT(A) IN CONFIRMING THE SAME ON THE FINDING THAT THERE WAS NO SPECIFIC BASIS OF CALCULATION FOR SELF DISCLOSURE OF INCOME BY THE ASSESSEE INSOFAR AS THE ONUS WAS DISCHARGED BY THE ASSESSEE WHEN THE REQUIREMENT WAS IN COMPUTING THE INCOME REMAINING UNDISCLOSED UNDER THE PROVISIONS OF SECTION 153A. 13. THE AMOUNT REMAINING WITH THE ASSESSEE THEREFORE CRYSTALLIZED THE T AX PAID THE MOMENT THE ASSESSING AUTHORITIES IDENTIFIED THE ASSETS IN THE HANDS OF THE ASSESSEE BECOMES AN ISSUE FOR ACADEMIC DISCUSSION ONLY . THE ASSESSEE HAS BEEN CLAIMING WITHDRAWALS OF THE INCOME SO RENDERED TO TAX CANNOT BE TAXED AGAIN ON A FINDING OF SPECIFIC ASSETS WAS THE CONTENTION OF THE ASSESSEE APPELLANT FROM THE BEGINNING. IT WAS NOT THE CASE OF THE ASSESSING AUTHORITIES TO FIND DISPROPORTIONATE ASSETS AGAINST KNOWN SOURCE OF INCOME. THEREFORE, IT(SS)A NOS.19 AND 20/CTK/2012 AND ITA NO.12/CTK/2012 9 WE FIND THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE REASONABLE TO THE EXTENT THAT THE ASSESSEE RENDERED SEPARATE INCOMES FOR THE DIFFERENT AYS WHICH CULMINATED INTO BEING TAXED UP TO THE ASSESSMENT YEAR 2008 - 09 WHICH DID NOT REQUIRE ISSUE OF NOTICE U/S.153A. HAVING RENDERED INCOME TO TAX MORE T HAN 6 CRORES UP TO THE ASSESSMENT YEAR 2006 - 07 IT WAS NOBODYS CASE TO TAX INCOMES DEPOSITED IN THE BENAMI ACCOUNT WHEN THE ASSESSEE REFUSED TO ACCEPT THE CONTENTION THAT THE MONEY BELONGED TO HIM. NOW THE LEARNED COUNSEL FOR THE ASSESSEE BEFORE US HAS CA NDIDLY ACCEPTED THE FACT THAT THERE WAS NO BASIS FOR THE ASSESSEE TO DENY THE INCOME SO DEPOSITS IN THE BENAMI ACCOUNT INSOFAR AS THE MONEY BELONGED TO IT WAS RENDERED TAXABLE IN THE REGULAR RETURNS FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2007 - 08 AND 2008 - 09 WHEN THE ASSESSEE WAS HOLDING FUNDS O N WITHDRAWAL WHICH AS THE ASSESSEE DOES SNOTMAINTAIN REGULAR BOOKS OF ACCOUNT WAS DISCLOSED IN THE BALANCE SHEET AS AMOUNT HELD WITH HIM WITHOUT IDENTIFYING THE SAME AS DEPOSITED IN SOME - BODYS ELSE BANK ACCOUN T. WE DO NOT FIND ANY INFIRMITY IN THE SAID CONTENTION INSOFAR AS THE FACT FINDING BY THE AUTHORITIES FOR TAXING THE SUM OF 1.10 CRORES RATHER LEANS IN FAVOUR OF THE ASSESSEE WHO WAS TO ACCEPT THE FACT THAT THE SURVEY OPERATION LEAD TO A FINDING THAT THES E AMOUNTS BELONG TO THE ASSESSEE ONLY. IT WOULD BE UNJUSTIFIED IF THE AMOUNTS ARE NOT TAXED IN THE HANDS OF THE ACCOUNT HOLDER AS PER THE FINDINGS THEREFORE HAS BEEN RIGHTLY POINTED OUT BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT HAVING SUFFICIENT FUNDS A ND HAVING PAID TAX THEREON THE DEPARTMENT COULD NOT HAVE TAXED THE SAME IN THE HANDS OF THE ACCOUNT HOLDERS WHEN NO DEMAND HAS BEEN MADE THERE ON AND THE ASSESSEES CLAIM TO BE TAXED IN HIS HANDS ONLY . WE THEREFORE HOLD THAT HAVING PAID TAX U/S.132(4) THE U NDISCLOSED INVESTMENT U/S.69 CANNOT BE TAXED WHEN THE ASSESSING OFFICER AND THE LEARNED CIT(A) IT(SS)A NOS.19 AND 20/CTK/2012 AND ITA NO.12/CTK/2012 10 HAVE CONTRADICTED THEIR OWN FINDINGS THAT THE ASSESSEE WAS HAVING SUFFICIENT FUNDS TO MAKE THESE DEPOSITS BY IDENTIFYING THE AMOUNT AS BELONGING TO IT WHEN THE U LTIMATE WITHDRAWALS COULD NOT BE CONSIDERED AS EXPENDITURE. THERE WAS NO REQUIREMENT BY THE ASSESSEE TO ESTABLISH THE NEXUS. THE SAID SUM, THEREFORE, COULD NOT BE TAXED IN THE ASSESSMENT YEAR 2008 - 09 ALSO AND AS SUCH , THE SAID ADDITION IS HEREBY DIRECTED T O BE DELETED. 14. IN THE RESULT, ALL THESE THREE APPEALS FILED BY THE ASSESSEE FOR THE ASSESSMENT YEARS 2003 - 04, 2004 - 05 AND 2008 - 09 ARE ALLOWED. SD/ - SD/ - (K.S.S.PRASAD RAO) JUDICIAL MEMBER (K.K.GUPTA) ACCOUNTANT MEM BER DATE: 25.06.2012 H.K.PADHEE, SENIOR PRIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: BHABANI CHARAN RATH, B - 20, B.J.B.NAGAR, BHUBANESWAR 751 014 2. THE RESPONDENT: ASST.COMMISSINER OF INCOME - TAX, CIRCLE 1(2 ), AYAKAR BHAWAN, BHUBANESWAR. 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY.