Sujeet Ranjan Sinha, Ranchi V. ACIT, Ranchi

ITSSA 28/RAN/2014

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2437 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 12-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 28-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEEPAK ROUSHAN SR S C
• Assessee Lawyers: S K PODDAR; S K MODI
• Keywords: Opportunity of being heard; Block assessment
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI BENCH, RANCHI BEFORE SHRI N.V.VASUDEVAN, JUDICIAL MEMBER AND SHRI M.BALAGANESH, ACCOUNTANT MEMBER IT (SS) A NO. 28 / RAN / 2014 BLOCK PERIOD FROM 1990-91 TO 1999- 00 AND 01.04.1999 TO 03.11.1999: SUJEET RANJAN SINHA S/O DR. N.R.P. SINHA, ASHOK NAGAR, RANCHI [ PAN NO.ADAPS 5652 H ] V/S . ACIT, CENTRAL CIRCLE-3, RANCHI /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI S.K. PODDAR, ADVOCATE & SHRI S.K. MODI, ADVOCATE /BY RESPONDENT SHRI DEEPAK ROUSHAN, SR-SC /DATE OF HEARING 08-09-2016 /DATE OF PRONOUNCEMENT 12-09-2016 / O R D E R PER N.V.VASUDEVAN, JUDICIAL MEMBER:- THIS IS AN APPEAL BY THE REVENUE/ASSESSEE AGAINST THE ORDER DATED 23.01.2014 OF COMMISSIONER OF INCOME TAX (APPEALS) RANCHI (JHARKHAND) RELATING TO BLOCK PERIOD FROM 01.04.1989 TO 04.11.1 999. 2. THE ONLY ISSUE THAT ARISES FOR CONSIDERATION IN THIS APPEAL IS AS TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN SUSTAINING THE ADDITION OF RS.4,55,421/- AS UNEXPLAINED CASH FOUND AT THE TIME OF SEARCH. IT(SS)A NO.28/RAN/2014 B.P.90-91 TO 99-00 & 01/04/99 TO 03/1/99 SUJEETE RANJAN SINHA VS. ACIT, CC-RAN. PAGE 2 3. THE FACTS AND CIRCUMSTANCES UNDER WHICH THE AFOR ESAID ADDITION WAS SUSTAINED BY THE LD. CIT(A) ARE T HAT A SEARCH U/S. 132 OF THE INCOME TAX ACT, 1961 (ACT) WAS CONDUCTED ON 03.11.1999 AT THE RESID ENTIAL PREMISES OF NALINI RANJAN PRASAD SINHA GROUP OF CASES AT RANCHI AS WEL L AS PATNA AND DELHI. DURING THE COURSE OF SEARCH AT THE RESIDENTIAL PREM ISES OF THE ASSESSEE AT PATNA, SEVERAL UNDISCLOSED BANK ACCOUNTS, OTHER ASS ETS AS WELL AS CASH AMOUNT OF RS.10,78,450/- WAS FOUND. IN RESPONSE TO NOTICE ISSUED U/S. 158BC OF THE ACT, THE ASSESSEE HAD FIELD HIS RETURN FOR T HE BLOCK PERIOD SHOWING UNDISCLOSED INCOME AT RS.9,89,546/- AND THE ASSESSM ENT U/S. 158BC/158BB OF THE ACT WAS COMPLETED ON UNDISCLOSED INCOME OF R S.30,66,941/-. THE ASSESSEE AGAINST THIS ASSESSMENT ORDER PREFERRED AP PEAL BEFORE THIS OFFICE. THE THEN CIT(A) VIDE ORDER APPEAL NO.108/RAN/S&S/20 02-03, DATED 04.08.2004 PARTLY ALLOWED THE APPEAL AND CONFIRMED THE ADDITION OF RS.10,78,450/- MADE BY THE LD. AO ON ACCOUNT OF UNE XPLAINED CASH. WHILE UPHOLDING THE ADDITION OF RS.10,78,450/-, THE LD. C IT(A) HAS HELD THAT THE ASSESSEE HAD FILED STATEMENT OF DEPOSITS AND WITHDR AWALS FROM BANK A/C WHEREIN IT WAS SEEN THAT DURING THE BLOCK PERIOD 19 89-90 TO 03.11.1999, HE HAD WITHDRAWN TOTAL AMOUNT OF RS.6,83,060/-, BUT IT COULD NOT BE PROVED THAT THE SAME REMAINED AS CASH IN HAND AND NOT BEEN INVE STED OR SPENT ELSWHERE. REGARDING A SUM OF RS.5,00,00/- WHICH WAS CLAIMED T O HAVE BEEN GIVEN BY SMT. NIRMAL SINHA, MOTHER OF ASSESSEE, THE LD. CIT( A) HELD THAT IT WAS TRUE THAT ASSESSEES MOTHER SOLD LAND, BUT THE ASSESSEE FAILED TO PROVE AS TO WHEN AND UNDER WHAT CIRCUMSTANCES HIS MOTHER GAVE HIM MO NEY OUT OF SALE OF LAND. BEING AGGRIEVED OF THE ORDER OF LD. CIT(A), THE ASS ESSEE FILED SECOND APPEAL BEFORE THE HONBLE INCOME TAX APPELLATE TRIBUNAL, P ATNA. THE HONBLE ITAT VIDE ITS ORDER IN IT(SS)A NO.21/PAT/2005 , DATED 21.06.2006 RESTORED BACK THE MATTER TO THE FILE OF ASSESSING OFFICER WITH FOLLOW ING DIRECTIONS APPEARING AT PAGE 6 AND 7 OF ITS ORDER:- FROM THE FAIR READING OF THE ABOVE WE FIND THAT IN THE RECEIPT SIDE THE ASSESSEE HAS SHOWN BANK DEPOSIT TAKEN AS CASH RS.7,24,946/-, HOWEVER THERE IS NO EVIDENCE ON RECO RD TO SHOW THE CORRESPONDING ENTRY FROM THE BANK FOR THE AFORE SAID PERIOD. IT IT(SS)A NO.28/RAN/2014 B.P.90-91 TO 99-00 & 01/04/99 TO 03/1/99 SUJEETE RANJAN SINHA VS. ACIT, CC-RAN. PAGE 3 IS ALSO NOT CLEAR AS TO HOW THE BANK DEPOSIT OF RS. 7,24,946/- HAS BEEN SHOWN AS CASH FOR THE PURPOSE OF CASH FLOW STA TEMENT. FURTHER, IN THE ABSENCE OF ANY REFERENCE OF CONFIRM ATION OF THE AMOUNT OF RS.5 LAKH CLAIMED TO HAVE GIVEN BY ASSESS EES MOTHER SMT. NIRMALA SINHA TO THE ASSESSEE EXCEPT SHOWING T HE SAME IN HER BALANCE SHEET AS ON 03.11.1999 APPEARING AT PAG E-55 OF ASSESSEES PAPER BOOK, WE ARE OF THE VIEW THAT IN T HE INTEREST OF JUSTICE THE MATTER SHOULD GO BACK TO THE FILE OF TH E AO AND ACCORDINGLY WE SET ASIDE THE ORDER OF THE LD CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE AO WHO SHALL DEC IDE THE SAME AFRESH IN THE LIGHT OF OUR OBSERVATION HEREINABOVE AND ACCORDING TO LAW AFTER PROVIDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND ACCORDINGLY THE GROUNDS TAKEN BY T HE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 4. IN VIEW OF THE ABOVE MENTIONED AFORESAID DIRECT ION OF HONBLE ITAT THE LD. AO AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARIN G TO ASSESSEE, COMPUTED UNEXPLAINED CASH AT RS.9,55,421/- IN PLACE OF RS.10 ,78,450/- ADDED IN THE ORIGINAL ORDER OF ASSESSMENT. THIS ADDITION WAS THE SUBJECT-MATTER OF APPEAL BEFORE THE CIT(A). 5. ON APPEAL BY THE ASSESSEE, THE LD.CIT(A) HELD TH AT THE AO WAS JUSTIFIED IN MAINTAINING THE ADDITION OF RS.4,55,42 1/- SINCE SOURCE OF THIS AMOUNT REMAINED UNEXPLAINED. 6. AGGRIEVED BY THE ORDER OF LD. CIT(A) SUSTAINING ADDITION OF RS.4.55,421/-, THE ASSESSEE HAS PREFERRED THE PRESE NT APPEAL BEFORE THE TRIBUNAL. 7. THERE IS A DELAY OF ABOUT 7 MONTHS IN FILING THE APPEAL BY THE ASSESSEE WHICH HAS BEEN EXPLAINED AS DUE TO THE ASSESSEE SEE KING TO PURSUE HIS REMEDIES BY WAY OF AN APPLICATION BEFORE THE CIT(A) U/S.154 OF THE INCOME TAX ACT, 1961(ACT) AGAINST THE IMPUGNED ORDER OF TH E CIT(A). THE APPLICATION U/S.154 OF THE ACT WAS FILED WELL WITHIN THE TIME F OR FILING APPEAL BEFORE TRIBUNAL. THE APPLICATION U/S.154 OF THE ACT HAS NO T BEEN DISPOSED OF BY THE IT(SS)A NO.28/RAN/2014 B.P.90-91 TO 99-00 & 01/04/99 TO 03/1/99 SUJEETE RANJAN SINHA VS. ACIT, CC-RAN. PAGE 4 LD. CIT(A) EVEN AS ON TODAY AS STATED BY THE LD COU NSEL FOR THE ASSESSEE ACROSS THE BAR. FINDING THAT THE CIT(A) WAS NOT PA SSING ANY ORDERS, THE PRESENT APPEAL WAS FILED BY THE ASSESSEE. THIS IS HOW THE DELAY IN FILING THE APPEAL HAS BEEN EXPLAINED. KEEPING IN MIND THE ABOV E FACTS WHICH ARE NOT DENIED, WE CONDONE THE DELAY IN FILING APPEAL BY TH E ASSESSEE, AS THE DELAY IN FILING THE APPEAL WAS OCCASIONED BY REASONABLE AND SUFFICIENT CAUSE. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS. AT THE TIME OF SEARCH CASH AMOUNTING TO RS.10,78,450 WAS FOUND. PURSUANT TO OR DERS OF THE REVENUE AUTHORITIES IN THE FIRST ROUND OF LITIGATION ONLY A SUM OF RS.9,55,421/- OUT OF THE CASH FOUND REMAINED TO BE EXPLAINED BY THE ASSESSEE . OUT OF THE AFORESAID CASH, A SUM OF RS.5 LACS WAS EXPLAINED AS CASH RECE IVED FROM MOTHER OF THE ASSESSEE AND THE SAME WAS ACCEPTED BY THE LD. CIT(A ). WITH REGARD TO THE REMAINING SUM OF RS.4,55,421/-, THE ASSESSEE EXPLAI NED THAT IN THE BLOCK ASSESSMENT, THE ASSESSEE HAD OFFERED UNDISCLOSED IN COME IN THE FORM OF DEPOSITS IN CERTAIN UNDISCLOSED BANK ACCOUNTS AND T HE SAME HAS BEEN TAXED AS UNDISCLOSED INCOME FOR THE BLOCK PERIOD. THERE WERE WITHDRAWALS FROM THIS BANK ACCOUNT OF CASH AND THIS WAS EXPLAINED AS THE SOURCE OF CASH OF RS.4,55,421/- FOUND IN THE COURSE OF SEARCH. THE R EVENUE AUTHORITIES REFUSED TO BELIEVE THE PLEA OF THE ASSESSEE ON THE GROUND T HAT THERE WERE WITHDRAWALS TOTALING RS.6,88,030/- BETWEEN THE PERIOD FROM AY 1 994-95 TO 1999-00. ACCORDING TO THE REVENUE AUTHORITIES, IT WAS IMPROB ABLE FOR A PERSON TO KEEP CASH WITHDRAWN FROM BANK ACCOUNT FOR SUCH A LONG PE RIOD TILL THE DATE OF SEARCH WHICH WAS CONDUCTED ON 3.11.1999. WE HAVE S EEN THE PATTERN OF WITHDRAWAL AND THE SAME IS GIVEN AS ANNEXURE TO THI S ORDER. FROM A PERUSAL OF THE SAME, IT IS SEEN THAT WITHDRAWAL FROM THE BA NK ACCOUNT FROM AY 1997-98 TO 1999-2000 ITSELF WAS SUFFICIENT TO COVER THE SUM OF RS.4,55,421/-. IN THE ABSENCE OF ANY EVIDENCE TO SHOW THAT THE CASH WITHD RAWN WAS SPENT ELSEWHERE OR OTHERWISE NOT AVAILABLE WITH THE ASSES SEE, CREDIT FOR CASH WITHDRAWN FROM BANK ACCOUNT CANNOT BE DENIED TO THE ASSESSEE. WE THEREFORE IT(SS)A NO.28/RAN/2014 B.P.90-91 TO 99-00 & 01/04/99 TO 03/1/99 SUJEETE RANJAN SINHA VS. ACIT, CC-RAN. PAGE 5 HOLD THAT THE ADDITION OF RS.4,55,421/- SUSTAINED B Y THE LD.CIT(A) DESERVES TO BE DELETED. ACCORDINGLY, THE APPEAL OF THE ASSESSE E IS ALLOWED. 8. IN THE RESULT, APPEAL BY THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT 12/ 09/2016 SD/- SD/- ( ) ('# ) (M.BALAGANESH) (N.V.VASUDEVAN) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) RANCHI, *DKP $- 12 / 09 /201 6 RANCHI / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-SUJEET RANJAN SINHA, S/O DR. N.R.P. SINH A, ASHOK NAGAR, RANCHI 2. /RESPONDENT-ACIT, CENTRAL CIRCLE-3, RANCHI 3. / 2 / CONCERNED CIT RANCHI 4. 2- / CIT (A) RANCHI 5. 5 ##/, /, / DR, ITAT, RANCHI 6. ; / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR.PS, I TAT, RANCHI