ACIT, Calicut V. Sri Korambi Ali Moulavi, Malappuram

ITSSA 2/COCH/2009

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7692 (ITAT-COCHIN)
• Duration Of Justice: 2 year(s) 11 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 17-02-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 14-02-2012
• Assessment Year: misc
• Appeal Filed On: 16-03-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIJAYAPRABHA
• Keywords: Block assessment

Judgement Text

1 IT(SS)A NO.02 /COCH/2009 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKARA N(AM) I.T(SS)A NO. 02/COCH/2009 (BLOCK PERIOD 1991-92 TO 2001-02) ASSIST.COMMISSIONER OF INCOME-TAX, CENT.CIR.2 VS S HRI KORAMBI ALI MOULAVI CALICUT KORAMBI HOUSE, PARAL MANALAYA ANAMANGAD, MALAPPURAM PAN : APSPK7531D (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. VIJAYAPRABHA RESPONDENT BY : NONE DATE OF HEARING : 14-02-2012 DATE OF PRONOUNCEMENT : 17-02-2012 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(A)-I, KOCHI DATED 15-12-2008 AND PERTAINS TO BLOCK PERIOD 1991-92 TO 2001-02. 2. THE FIRST ISSUE ARISES FOR CONSIDERATION IS DELE TION OF ADDITION MADE BY THE ASSESSING OFFICER TO THE EXTENT OF RS.15,60,000. T HE OTHER ISSUE IS WITH REGARD TO THE DIRECTION OF THE COMMISSIONER OF INCOME-TAX(A) T O CALCULATE THE SALE PROCEEDS OF GOLD BISCUITS ON THE BASIS OF THE EXPLA NATION OF THE ASSESSEE. 2 IT(SS)A NO.02 /COCH/2009 3. EVEN THOUGH SHRI P RAGHUNATHAN, THE LD.COUNSEL F OR THE ASSESSEE FILED VAKALATNAMA ON BEHALF OF THE ASSESSEE IN THIS APPEAL , HE WAS NOT PRESENT WHEN THE APPEAL WAS TAKEN UP FOR HEARING ON 17-01-2012. TH EREFORE, THIS TRIBUNAL DIRECTED THE REGISTRY TO SERVE THE NOTICE THROUGH T HE DEPARTMENTAL REPRESENTATIVE. THE DEPARTMENTAL REPRESENTATIVE SE RVED THE NOTICE THROUGH THE ASSESSING OFFICER. THE DEPARTMENTAL REPRESENTATIVE HAS PRODUCED THE ACKNOWLEDGEMENT AS PROOF OF SERVICE OF NOTICE ON THE ASSESSEE. STILL, WHEN THE APPEAL WAS TAKEN UP FOR HEARING NO ONE APPEARED FOR THE ASSESSEE. THEREFORE, WE HEARD LD.DR AND PROCEEDED TO DISPOSE OF THE APPE AL ON MERIT. 4. SMT. VIJAYAPRABHA, THE LD.DR SUBMITTED THAT CASH OF RS.15,60,000 WAS SEIZED BY THE POLICE FROM THE SECRET CHAMBERS OF JE EP IN WHICH THE ASSESSEE WAS TRAVELLING. ON REQUISITION U/S 132A, THE CASH WAS SEIZED BY THE DEPARTMENT AND PROCEEDINGS WERE INITIATED U/S 158BC OF THE ACT. T HE ASSESSING OFFICER MADE ADDITION AFTER CONSIDERING EXPLANATION THAT THE AMO UNT WAS WITHDRAWN FROM THE BANK. REFERRING TO THE ASSESSMENT ORDER, THE LD.DR SUBMITTED THAT THE ASSESSING OFFICER, AFTER CONSIDERING THE EXPLANATION FOUND TH AT THE CURRENCY NOTES FOUND IN THE JEEP WAS NOT THE SAME AS THAT WAS WITHDRAWN FRO M THE BANK. MOREOVER, THE AMOUNT WAS SAID TO BE WITHDRAWN FROM CANARA BANK ON 31-1-2001. THE ASSESSEE HAS PURCHASED LANDED PROPERTY ON 02-02-2001. THEREFO RE, THE ASSESSEE WOULD NOT HAVE KEPT THE MONEY IN HIS HANDS. THEREFORE, AC CORDING TO THE LD.DR, IT IS OBVIOUS THAT THE MONEY SEIZED FROM THE JEEP WAS NOT THE SAME MONEY AS SAID TO BE WITHDRAWN FROM THE BANK. THEREFORE, ACCORDING T O THE LD.DR, THE COMMISSIONER OF INCOME-TAX(A) HAS COMMITTED AN ERROR IN DELETING THE ADDITION. REFERRING TO THE SALE PROCEEDINGS OF THE GOLD, THE LD.DR SUBMITTED THAT THE ASSESSING OFFICER ESTIMATED THE PROFIT AT 12% AND M ADE ADDITION OF RS.5,03,677. THE COMMISSIONER OF INCOME-TAX(A), HOWEVER, DIRECTED THE ASSESSING OFFICER TO 3 IT(SS)A NO.02 /COCH/2009 ACCEPT THE CONTENTION OF THE ASSESSEE WHICH WAS NOT SUBSTANTIATED WITH ANY MATERIAL EVIDENCE. THEREFORE, ACCORDING TO THE LD. DR, THE ORDER OF COMMISSIONER OF INCOME-TAX(A) IS NOT SUSTAINABLE. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD.DR AND HAVE ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE COMMISSIONER OF INCOME-TAX(A) DELETED THE ADDITION OF RS.15,60,000 ON THE GROUND THAT HE CONS IDERED THE VERY SAME ADDITION IN THE REGULAR ASSESSMENT AND THUS DELETED THE SAME. THEREFORE, ACCORDING TO THE COMMISSIONER OF INCOME-TAX(A), THE SAME ADDITION CANNOT BE SUSTAINED IN THE BLOCK ASSESSMENT. REFERRING TO TH E ADDITION OF RS. 5,03,677 THE COMMISSIONER OF INCOME-TAX(A) FOUND THAT ESTIMATION OF PROFIT AT 12% WAS ON THE HIGHER SIDE AND THE ASSESSEE NEEDS TO PAY IMPORT D UTY FOR BRINGING THE GOLD IN INDIA; THEREFORE, THE CIT(A) DELETED THE ADDITION. ADMITTEDLY, THE SEIZURE WAS MADE ON 03-03-2001. THE REGULAR ASSESSMENT ORDER PAS SED BY THE ASSESSING OFFICER AND THE ORDER SAID TO BE PASSED BY THE COMM ISSIONER OF INCOME-TAX(A) AGAINST THE REGULAR ASSESSMENT ARE NOT AVAILABLE ON THE FILE OF THIS TRIBUNAL. THEREFORE, IT IS NOT KNOWN HOW THE ASSESSING OFFICER MADE ADDITION OF RS.15,60,000 AND THE REASONS FOR DELETION OF ADDITI ON BY THE COMMISSIONER OF INCOME-TAX(A). THEREFORE, THIS TRIBUNAL IS UNABLE T O APPRECIATE THE REASONS RECORDED BY THE COMMISSIONER OF INCOME-TAX(A) FOR DE LETION OF ADDITION OF RS.15,60,000 MADE IN THE BLOCK ASSESSMENT. IT IS AL SO NOT KNOWN WHEN THE ADDITION WAS MADE IN THE REGULAR ASSESSMENT AND WHY THE VERY SAME ADDITION WAS MADE IN THE BLOCK ASSESSMENT. THE FACT REMAINS IS THAT THE SEIZURE WAS MADE ON 3-3-2001. THEREFORE, UNLESS THERE IS NO ENTR Y IN THE BOOKS OF ACCOUNT OR THE ASSESSING OFFICER DOUBTED THAT THIS AMOUNT WOUL D NOT HAVE BEEN DISCLOSED IN THE REGULAR RETURNS OF INCOME, THEN THE COURSE AVAI LABLE TO THE ASSESSING OFFICER IS ONLY TO ASSESS AMOUNT AS THE UNDISCLOSED INCOME FOR THE BLOCK PERIOD. HOWEVER, 4 IT(SS)A NO.02 /COCH/2009 THE MATTER NEEDS TO BE VERIFIED AFTER VERIFYING THE REASONS FOR WHICH THE ADDITION WAS MADE IN THE REGULAR ASSESSMENT. IN THE ABSENCE OF MATERIAL ON THE FILE OF THIS TRIBUNAL, THE ORDERS OF THE LOWER AUTHORITIES ARE S ET ASIDE AND THE ISSUE OF ADDITION OF RS.15,60,000 IS REMITTED BACK TO THE FIL E OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE ISSUE AFRESH IN THE LIGHT OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX(A) IN THE REGULAR ASSESSMENT DELETING THE ADDITION OF THE VERY SAME AMOUNT OF RS.15,60,000 AN D THEREAFTER DECIDE THE ISSUE ACCORDING TO LAW AFTER GIVING REASONABLE OPPO RTUNITY OF HEARING TO THE ASSESSEE. 6. NOW COMING TO DELETION OF ADDITION OF RS.5,06,37 7 BY ESTIMATING THE PROFIT @12% ON SALE OF GOLD, THE COMMISSIONER OF INCOME-TAX (A) SIMPLY DELETED THE ADDITION ON THE BASIS THAT THE ASSESSEE MIGHT HAVE PAID THE IMPORT DUTY. ALL THE FACTS HAVE TO BE VERIFIED BY THE ASSESSING OFFICER AS TO WHETHER THE ASSESSEE HAS PAID THE IMPORT DUTY OR NOT. IN THE ABSENCE OF ANY VERIFICATION, WE ARE UNABLE TO UPHOLD THE ORDER OF THE LOWER AUTHORITY. ACCORDING LY, THE ORDER OF THE LOWER AUTHORITY IS SET ASIDE. THE ISSUE IS RESTORED TO T HE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL VERIFY THE CLAIM OF THE ASSESSEE WITH REGARD TO PAYMENT OF IMPORT DUTY AND SHALL DECIDE THE ISSUE AFRESH AS PER LAW AFTER PROVIDING OPPORTUNITY OF HEARING TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED, FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 17 TH DAY OF FEBRUARY, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 17 TH FEBRUARY, 2012 PK/- 5 IT(SS)A NO.02 /COCH/2009 COPY TO: 1. ASSIST.COMMISSIONER OF INCOME-TAX, CENT.CIR.2, CAL ICUT 2. SHRI KORAMBI ALI MOULAVI, KORAMBI HOUSE, PARAL MANALA YA, ANAMANGAD, MALAPPURAM 3. THE COMMISSIONER OF INCOME-TAX(A)-I, KOCHI 4. THE C.I.T., CENTRAL, KOCHI 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH