Smt. Kamla Kant Sharma, Bhopal V. THE ACIT 1(1), Bhopal

ITSSA 215/IND/2016

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9789 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 10 month(s) 5 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 27-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 26-11-2018
• Assessment Year: 2009-2010
• Appeal Filed On: 22-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Assessee Lawyers: M K SHARMA
• Keywords: Income from undisclosed sources; Salary income; Loose papers; Set aside
• Section: 153A; 132

Judgement Text

[IT(SS)A NO.215/IND/2016] [KAMLA KANT SHARMA, BHOPAL] , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER IT(SS)A NO.215/IND/2016 ASSESSMENT YEAR: KAMLA KANT SHARMA H.NO.20, CHITRAGUPT NAGAR KOTRA SULTANABAD BHOPAL / VS. ACIT - 1(1) BHOPAL ( APPELLANT ) ( REVENUE ) P.A. NO. AXUPS7815A APPELLANT BY SHRI M.K. SHARMA, A.R. RESPONDENT BY SMT. ASHIMA GUPTA, D.R. DATE OF HEARING: 05.08.2019 DATE OF PRONOUNCEMENT: 27.09.2019 / O R D E R PER KUL BHARAT, J.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER O F THE CIT(A), UJJAIN (CAMP AT BHOPAL) DATED 27.5.2016 FO R THE ASSESSMENT YEAR 2009-10. [IT(SS)A NO.215/IND/2016] [KAMLA KANT SHARMA, BHOPAL] 2 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS UNDER: THE ONLY EFFECTIVE GROUND IS AGAINST SUSTAINING ADDITION OF RS.46,84,403/- BY THE LD. CIT(A). 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND DERIVING INCOME FROM SALARY. A SEARCH [IT(SS)A NO.215/IND/2016] [KAMLA KANT SHARMA, BHOPAL] 3 ACTION WAS CARRIED OUT AT THE PREMISES OF THE ASSESSEE O N 23.7.2009 BY THE REVENUE. DURING THE SEARCH OPERATI ON, CERTAIN LOOSE PAPERS AND OTHER EVIDENCES WERE RECOVERE D. THEREAFTER, THE A.O. ISSUED A NOTICE U/S 153A OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT). IN PURSUANCE THERE OF A RETURN OF INCOME DECLARING TOTAL INCOME OF RS.2,50,800/- WAS FILED ON 10.8.2011. THE A.O. MADE THE ADDITION OF RS.46,84,403/- ON ACCOUNT OF INCO ME FROM UNDISCLOSED SOURCES. AGGRIEVED THE ASSESSEE APP EALED BEFORE THE LD. CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS AND MATERIAL AVAILABLE ON RECORD DISMISSED THE APPEAL. 4. AGGRIEVED AGAINST THIS, THE ASSESSEE IS IN APPEAL BEF ORE THIS TRIBUNAL. 5. LD. D.R. RELIED ON THE ORDERS OF THE AUTHORITIES BELOW AND SUPPORTED THE ORDER OF THE LD. CIT(A). [IT(SS)A NO.215/IND/2016] [KAMLA KANT SHARMA, BHOPAL] 4 6. LD. COUNSEL FOR THE REITERATED THE SUBMISSIONS AS MADE BEFORE THE LD. CIT(A). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ASSESSING OFFICER MADE ADDITION BY OBSERVING AS UNDER: DURING A.Y. 2009-10 AND OTHER YEARS AS WELL SMT. V ANDANA SHARMA, WIFE OF THE ASSESSEE WAS ACTIVELY LOOKING A FTER AFFAIRS OF AKSHAY SHAKTI SHIKSHA EVAM KALYAN SAMITI AS A SECRE TARY. USING HER INFLUENCE, HER HUSBAND, THE ASSESSEE SIPHONED O FF FUNDS OF THE SOCIETY FOR HIS PERSONAL USE. THIS ISSUE IS ELABOR ATELY DISCUSSED IN THE ASSESSMENT ORDER OF EVEN DATE IN CASE OF AKSHAY SHAKTI SHIKSH EVAM SAMAJ KALYAN SAMITI. AS DISCUSSED IN THE ORDE R OF AKSHAY SHAKTI SHIKSH EVAM SAMAJ KALYAN SAMITI, ASSESSEE HA S SIPHONED OFF A FUND OF RS.46,84,403 FROM THE SOCIETY DURING THE FINANCIAL YEAR 2008-09. DURING THE ASSESSMENT PROCEEDINGS VIDE SH OW CAUSE NOTICE DATED 23.11.2011, THE ASSESSEE WAS REQUESTED TO SHOW CAUSE AS TO WHY NO ADDITION BE MADE ON THIS COUNT. HOWEVER, NO SATISFACTORY EXPLANATION FOR THE SAME HAS BEEN FURN ISHED. THEREFORE, AN AMOUNT OF RS.46,84,403/- IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE FOR THE A.Y. 2009-10. PENALTY PROC EEDINGS U/S 271AAA ARE ALSO INITIATED FOR CONCEALING THE PARTIC ULARS OF THE INCOME. 8. THE LD. CIT(A) CONFIRMED THIS ADDITION BY OBSERVI NG AS UNDER: GROUND NOS.1,2,3&4:- THROUGH THIS GROUND OF APPEAL THE APPELLANT HAS CHALLENGED THE ADDITION OF RS.46,84,4 03/- ON ACCOUNT OF INCOME FROM UNDISCLOSED SOURCES. A SEARCH ACTIO N U/S 132 HAS [IT(SS)A NO.215/IND/2016] [KAMLA KANT SHARMA, BHOPAL] 5 BEEN CARRIED OUT AT THE RESIDENTIAL PREMISES OF THE APPELLANT ON 23.7.2009. SEARCH ACTION U/S 132 HAS BEEN CARRIED OUT SIMULTANEOUSLY AT SHRI AKSHAY SHAKTI SHIKSHA EVAM S AMAJ KALYAN SAMITI. DURING THE COUIRSE OF SEARCH AT SHRI AKSHA Y SHAKTI SHIKSHA EVAM SAMAJ KALYAN SAMITI LOOSE PAPERS REFERRED AS L PS-5 WAS FOUND. THESE LOOSE PAPERS MOSTLY PERTAINING TO THE VOUCHERS MENTIONS THE AMOUNT RS.46,84,403/- HAS BEEN RECEIVE D BY THE APPELLANT. THE APPELLANT HAS NOT DISCLOSED THE REC EIPT PERTAINING TO THESE PAPERS IN THE INCOME. THESE PAPERS MENTIONS THAT THE APPELLANT HAS RECEIVED RS.46,84,403/- FROM SHRI AKS HAY SHAKTI SHIKSHA EVAM SAMAJ KALYAN SAMITI. THEREFORE, THE A DDITION MADE BY THE A.O. AMOUNTING TO RS.46,84,403/- IS CONFIRMED. THE APPEAL ON THESE GROUNDS IS DISMISSED. 9. FROM THE ABOVE FINDINGS, IT IS CLEAR THAT BOTH THE AUTHORITIES BELOW HAVE BASED THEIR FINDING ON THE BASIS OF COMPLAINT OF EMBEZZLEMENT OF MONEY OUT OF ACCOUNTS OF SOCIETY NAMELY AKSHAY SHAKTI SHIKSHA EVAM SAMAJ KALYAN SAMITI. IT IS CONTENDED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE SOCIETY HAD SUBSEQUENTLY WITHDRAWN ITS COMPLAI NT AND ALSO STATED THERE OF THAT THERE WAS NO EMBEZZLEMENT BY THE ASSESSEE AS THE ACCOUNTS HAVE BEEN RECONCILED. CONSIDERING THE FACT THAT ADDITION WAS MADE ON THE BASIS OF CERTAIN PAYMENTS RECEIVED BY THE ASSESSEE FROM THE ACCOUNTS OF THE SOCIETY AND ALSO A COMPLAINT IN RESPECT OF EMBEZZLEMENT OF THE MONEY FROM THE ACCOUNTS OF SOCIE TY [IT(SS)A NO.215/IND/2016] [KAMLA KANT SHARMA, BHOPAL] 6 WAS ALSO MADE. IT IS NOW STATED THAT THE ACCOUNTS HAVE BEEN RECONCILED AND THE SOCIETY WITHDREW ITS COMPLAIN T. THESE FACTS FOUND TO BE VERIFIED AT THE END OF THE AS SESSING OFFICER. WE THEREFORE, SET ASIDE IMPUGNED ORDER AND RESTORE THE ISSUE TO THE FILE OF THE A.O. TO DECIDE AFRESH AF TER VERIFYING THE VERACITY OF CLAIM OF THE ASSESSEE THAT TH E ACCOUNTS OF THE SOCIETY WERE RECONCILED AND THERE WAS NO EMBEZZLEMENT BY THE ASSESSEE. THE AMOUNT SO MENTIONE D IN THE LOOSE PAPERS WAS UTILISED FOR THE PURPOSE OF T HE SOCIETY. THE GROUNDS IN THE APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES. 10. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 27. 09.2019. SD/ - (MANISH BORAD) SD/ - (KUL BHARAT) A CCOUNTANT MEMBER JUDICIALMEMBER INDORE; DATED : 27/09/2019 VG/SPS [IT(SS)A NO.215/IND/2016] [KAMLA KANT SHARMA, BHOPAL] 7 COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE