ACIT, Ranchi V. Smt. Bina Modi, Kolkata

ITSSA 26/RAN/2014

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 1203 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 11 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 02-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 22-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRRI DEEPAK ROUSHAN SR SC
• Keywords: Valuation report

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL: CIRCUIT BENCH : RANCHI [BEFORE HONBLE S/SHRI N. S. SAINI, AM AND GEORGE M ATHAN, JM] ITA NO.289/RAN/2014 ASSESSMENT YEAR: 2009-10 SMT. BINA MODI, C/O. SRI JITENDRA KAUSHIK, ADVOCATE, 19-D, MUKTARAM BABU STREET, KOLKATA 70007 PAN:AEOPM9608L VS THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, RANCHI, JHARKHAND (APPELLANT) (RESPONDENT) IT (SS) A NO.26/RAN/2014 ASSESSMENT YEAR: 2009-10 THE DY./ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, RANCHI, JHARKHAND VS SMT. BINA MODI, 11/1B, NEW ROAD, ALIPORE, KOLKATA 700 027 (WB) PAN:AEOPM9608L (CROSS OBJECTOR ) (RESPONDENT) ASSESSEE BY SHRI NIRMAL KAUSHIK, CA DEPARTMENT BY SHRRI DEEPAK ROUSHAN, SR. SC DATE OF HEARING: 02-11-2015 DATE OF PRONOUNCEMENT: 02-11-2015 O R D E R PER GEORGE MATHAN, JM: ITA NO.289/RAN/2014 IS AN APPEAL FILED BY THE ASSES SEE AND IT(SS)A NO.26/RAN/2014 IS AN APPEAL FILED BY THE RE VENUE AGAINST THE ORDER OF THE LEARNED CIT(A), RANCHI, (JHARKHAND) IN APPEAL ITA NO.289 & ITSSA 26/R/2014 (AY: 2009-10) 2 NO.351/RAN/S & S/10-11 DATED 28-07-2014, FOR THE AS SESSMENT YEAR 2009-2010. 2. SHRI NIRMAL KAUSHIK, CA REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI DEEPAK ROUSHAN, LEARNED SR. STANDING COUNS EL REPRESENTED ON BEHALF OF THE REVENUE. 3. IN THE ASSESSEES APPEAL IT WAS SUBMITTED BY THE LEARNED AR THAT THERE WAS A SEARCH & SEIZURE OPERATION CONDUCTED ON THE RESIDENTIAL AND BUSINESS PREMISES OF THE ASSESSEE ON 20-03-2009 . IT WAS A SUBMISSION THAT CASH OF RS.3,00,100/- HAD BEEN SEIZ ED FROM THE RESIDENCE OF THE ASSESSEE. IT WAS A SUBMISSION THAT THIS CASH WAS TREATED AS UNEXPLAINED INCOME OF THE ASSESSEE. IT W AS A SUBMISSION THAT IN THE COURSE OF ASSESSMENT AS ALSO BEFORE THE LEARNED CIT(A) IT WAS SUBMITTED THAT THE SEARCH WAS TAKEN PLACE ON 20 -03-2009. THE ASSESSEE HAD WITHDRAWN AMOUNT OF RS.3,05,000/- BETW EEN 16 TH MARCH TO 19 TH MARCH,2009 FROM VARIOUS BANK ACCOUNTS AS HAS BEEN EXTRACTED IN PARA 5.3 OF THE ORDER OF THE LEARNED CIT(A). IT WAS A SUBMISSION THAT THIS CASH HAD BEEN WITHDRAWN FOR THE PURPOSE OF MAK ING LABOUR PAYMENTS IN RESPECT OF M/S. MODERN CONSTRUCTION COM PANY IN WHICH THE ASSESSEE WAS ONE OF THE DIRECTORS. IT WAS A SUB MISSION THAT THE AO DID NOT ACCEPT THE CONTENTIONS OF THE ASSESSEE HOLD ING THAT THE CASH WAS FOUND AT THE ASSESSEES RESIDENCE AND NOT AT TH E ASSESSEES BUSINESS PREMISES. IT WAS A SUBMISSION THAT THE ASS ESSEES BUSINESS PREMISE WAS ON THE FIRST FLOOR OF THE BUILDING AND THE ASSESSEES RESIDENCE WAS ON THE SECOND FLOOR OF THE SAME BUILD ING WHERE THE SEARCH HAS BEEN CONDUCTED. IT WAS A SUBMISSION THAT THE CASH HAD NOT BEEN KEPT IN THE BUSINESS PREMISES FOR SECURITY REA SONS. IT WAS A SUBMISSION THAT THE LEARNED CIT(A) ACCEPTED THE CLA IM OF THE ASSESSEE IN RESPECT OF THE CASH WITHDRAWN ON 18 TH AND 19 TH MARCH,2009 BUT ITA NO.289 & ITSSA 26/R/2014 (AY: 2009-10) 3 WITHOUT GIVING ANY REASON DID NOT ACCEPT THE CASH W ITHDRAWN FROM THE BANK ON 16 TH AND 17 TH MARCH, 2009. IT WAS A SUBMISSION THAT THE ADDITION AS MADE BY THE AO AND PARTLY CONFIRMED BY THE LEARNED CIT(A) TO THE EXTENT OF RS.1,25,100/- MAY BE DELETE D. 4. IN REPLY, THE LEARNED DR VEHEMENTLY SUPPORTED TH E ORDER OF THE ORDER OF THE AO AND THE LEARNED CIT(A). IT WAS FURT HER SUBMISSION THAT THE ASSESSEE HAS NOT EXPLAINED THE SOURCE OF THE CA SH FOUND AT THE RESIDENCE OF THE ASSESSEE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. ADMITT EDLY, THE ASSESSEE HAD WITHDRAWN AN AMOUNT OF RS.3,05,000/- F ROM TWO BANK ACCOUNTS BETWEEN 16 TH TO 19 TH MARCH, 2009. THE SEARCH ALSO DID NOT REVEAL ANYTHING TO SHOW THAT THIS CASH WHICH HAVE B EEN WITHDRAWN HAVE BEEN USED FOR ANY OTHER PURPOSES. IT IS ALSO T O BE MENTIONED HERE THAT THE ACCEPTANCE BY THE LEARNED CIT(A) OF T HE WITHDRAWAL FROM BANK ON 18 TH AND 19 TH MARCH,2009 HAS NOT BEEN CHALLENGED BY THE REVENUE IN ITS APPEAL. A PERUSAL OF THE ORDER OF TH E LEARNED CIT(A) ALSO DOES NOT SHOW AS TO WHY HE IS NOT ACCEPTING THE CLA IM OF THE ASSESSEE IN RESPECT OF THE CASH WITHDRAWN FROM THE BANK ON 1 6 TH AND 17 TH MARCH,2009 AND ACCEPTING ONLY THE CASH WITHDRAWN FR OM THE BANK ON 18 TH AND 19 TH MARCH,2009 AS THE SOURCE FOR THE CASH FOUND IN THE COURSE OF SEARCH AS BEEN EXPLAINED. THERE IS NO DIS PUTE THAT THE CASH HAD BEEN WITHDRAWN FROM THE BANK BETWEEN 16 TH AND 19 TH MARCH, 2009. IT IS ALSO ADMITTED FACT THAT THE ASSESSEES BUSINESS PREMISES IS ON THE FIRST FLOOR AND THE ASSESSEE IS STAYING ON T HE SECOND FLOOR OF THE SAME BUILDING. THIS BEING SO, WE ARE OF THE VIEW TH AT IN THE ABSENCE OF ANY EVIDENCE HAVING BEEN FOUND DURING THE COURSE OF SEARCH TO SHOW THAT THE ASSESSEE HAS USED THIS FUNDS WITHDRAWN FRO M THE BANK BETWEEN 16 TH MARCH TO 19 TH MARCH, 2009 FOR ANY OTHER PURPOSES, IT ITA NO.289 & ITSSA 26/R/2014 (AY: 2009-10) 4 MUST BE ASSUMED THAT THE CASH WITHDRAWN FROM THE BA NK WAS AVAILABLE WITH THE ASSESSEE AND THE SAME WAS FOUND DURING THE SEARCH. IN THE CIRCUMSTANCES, THE ADDITION AS MADE BY THE A O AND REDUCED BY THE LEARNED CIT(A) STANDS DELETED IN ITS ENTIRETY. 6. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALL OWED. 7. IN REGARD TO THE REVENUES APPEAL IN IT (SS) A N O.26/RAN/2014 FOR THE ASSESSMENT YEAR 2009-10, IT WAS SUBMITTED B Y THE LEARNED STANDING COUNSEL THAT THE ASSESSEE HAD DISCLOSED VA RIOUS JEWELLERY UNDER THE VDIS SCHEME, 1997. IT WAS A SUBMISSION TH AT IN THE COURSE OF THE SEARCH THOUGH THE JEWELLERY HAVE BEEN FOUND OF THE SAME QUANTITY AS DISCLOSED IN THE VDIS SCHEME, 1997 STIL L, THE JEWELLERY WAS NOT THE SAME AS DISCLOSED UNDER THE VDIS SCHEME AND THE JEWELLERY WAS OF DIFFERENT DESIGN. IT WAS A SUBMISSION THAT C ONSEQUENTLY THE AO HAD MADE ADDITION IN RESPECT OF JEWELLERY FOUND AND SEIZED, AS THE JEWELLERY FOUND IN THE COURSE OF SEARCH DID NOT TAL LY WITH THE DESCRIPTION OF THE JEWELLERY GIVEN IN THE VALUATION REPORT FILED WITH THE VDIS SCHEME. IT WAS A SUBMISSION THAT ON APPEAL, TH E LEARNED CIT (A) HAD DELETED THE ADDITION. IT WAS A SUBMISSION THAT THE ORDER OF THE LEARNED CIT (A) WAS LIABLE TO BE REVERSED ON THIS I SSUE. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAV E ALSO PERUSED THE ORDERS OF THE LOWER AUTHORITIES. A PERUSAL OF T HE ORDER OF THE LEARNED CIT (A) CLEARLY SHOWS THAT THE LEARNED CIT (A) HAS TABULATED THE JEWELLERY DECLARED UNDER THE VDIS SCHEME, 1997 AND SEIZED AND HAS CATEGORICALLY COME TO THE CONCLUSION THAT THE P ARTICULARS OF GROSS WEIGHT IN RESPECT OF GOLD JEWELLERY AND ORNAMENTS A S PER THE VALUATION REPORT FOR VDIS SCHEME, 1997 OF THE ASSESSEE AND HI S FAMILY TALLIED WITH THE SEIZED JEWELLERY AND THERE WAS NO EXCESS Q UANTITY OF GOLD ITA NO.289 & ITSSA 26/R/2014 (AY: 2009-10) 5 JEWELLERY OR ORNAMENTS FOUND. THE LEARNED CIT(A) HA S ALSO TAKEN INTO CONSIDERATION THE FACT THAT THE JEWELLERY DISCLOSED UNDER VDIS SCHEME AS ALSO BEING THE JEWELLERY FOUND AND SEIZED IN THE COURSE OF SEARCH WAS DULY DISCLOSED IN THE HANDS ASSESSEE AND HER LA TE HUSBAND AND THE HUFS WEALTH TAX RETURN SINCE 1997. IT IS ONLY AFT ER THIS, THE LEARNED CIT (A) HAS DELETED THE ADDITION BY APPLYING THE GU IDELINES ISSUED BY THE CBDT. IN THE CIRCUMSTANCES, WE FIND NO ERROR IN THE ORDER OF THE LEARNED CIT (A) WHICH CALLS FOR INTERFERENCE. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED AND THE APPEAL OF THE REVENUE STANDS DISMISSED. THE ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE CLOSE OF HEARING ON 02-11-2015. SD/- SD/- (N.S. SAINI) ACCOUNTANT MEMBER (GEORGE MATHAN) JUDICIAL MEMBER DATE : 02-11-2015 LK DEKA/SR.PS COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) - 5. THE DR, ITAT, RANCHI 6. GUARD FILE BY ORDER ITA NO.289 & ITSSA 26/R/2014 (AY: 2009-10) 6 DATE INITIAL ORIGINAL DICTATION PAD & DRAFT S ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 02.11.15 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 02.11.15 SR.PS 3. DRAFT PROPOSED & PLACED B EFORE THE SECOND MEMBER 02.11.15 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 02.11.15 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 02.11.15 SR.PS 6. DATE OF PRONOUNCEMENT 02.11.15 SR.PS 7. FILE SENT TO THE BENCH CLERK ` 02.11.15 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER