Ashirbad Behera, Cuttack V. ACIT, Cuttack

ITSSA 29/CTK/2009

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0373 (ITAT-CUTTACK)
• Duration Of Justice: 5 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 15-10-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 13-10-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 10-02-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K AJAY KUMAR
• Assessee Lawyers: D DAS
• Keywords: Unexplained investment
• Section: 32

Judgement Text

I.T. (S . S) A. NO S . 29 - 32 / CTK ./20 09 ASSESSMENT YEAR S : 200 3 - 20 0 4 TO 2006 - 2007 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE SHRI S .V. MEHROTRA (ACCOUNTANT MEMBER) , AND SHRI GEORGE MATHAN (JUDICIAL MEMBER) I.T. (S.S.) A. NO S . 29, 30, 31 & 32 / CTK / 20 09 ASSESSMENT YEAR S : 2003 - 04, 2004 - 05, 2005 - 06 & 200 6 - 0 7 ASHIRBAD BEHERA, ......................................... .. .APP ELL ANT MANSINGHPATNA, CUTTACK, ORISSA [PAN : A DWPB 7993 E ] - VS. - ASSISTANT COMMISSIONER OF INCOME TAX , .... . RESPONDENT CIRCLE - 2(1), ARUNODATA NAGAR, CUTTACK APPEARANCES BY: SHRI D. DAS , A .R. , FOR THE ASSESSEE SHRI K. AJAY KUMAR , CIT, D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : OCTOBER 13 , 2 01 4 DATE OF PRONOUNCING THE ORDER : OCTOBER 15 , 201 4 O R D E R PER GEORGE MATHAN : TH E S E ARE APPEAL S FILED BY THE ASSESSE E AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) , CUTTACK ODISHA IN APPEAL NO S . 219 TO 225 /0 7 - 0 8 DATED 24 . 11 .20 08 FOR THE ASSESSMENT YEAR S 2003 - 04 TO 200 6 - 0 7 RESPECTIVELY . 2. AS THE ISSUES IN ALL THE FOUR APPEALS ARE IDENTICAL, THE S AME ARE DISPOSED OF BY THIS COMMON ORDER. 3 . SHRI D. DAS, ADVOCATE , REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI K. AJAY KUMAR , CIT ( D.R. ) , REPRESENTED ON BEHALF OF THE REVENUE . I.T. (S . S) A. NO S . 29 - 32 / CTK ./20 09 ASSESSMENT YEAR S : 200 3 - 20 0 4 TO 2006 - 2007 PAGE 2 OF 5 4 . AT THE TIME OF HEARING, I T WAS SUBMITTED BY THE LD. A.R. ON BEHALF OF T HE ASSESSEE THAT WRITTEN SUBMISSIONS ARE FILED AND THAT THE ASSESSEE IS NOT PRESSING GROUNDS NO. 1 & 4 IN ALL THE APPEALS, WHICH RELATE TO THE JURISDICTION ISSUE AS ALSO THE ADDITIONAL GROUND FILED ON 2 ND FEBRUARY, 2010 FOR ALL THE FOUR APPEALS. CONSEQUENT LY GROUNDS NO. 1 & 4 OF ALL THE FOUR APPEALS AS ALSO THE ADDITIONAL GROUND FILED ON 2 ND FEBRUARY, 2010 IN ALL THE FOUR APPEALS STAND DISMISSED AS NOT PRESSED. 5. IN RESPECT OF GROUND NO. 2 IN ALL THE FOUR APPEALS WHICH RELATES TO THE ADDITION REPRESENTIN G THE UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT AS MADE BY THE ASSESSING OFFICER AND AS CONFIRMED BY THE LD. CIT(APPEALS). IT WAS THE SUBMISSION THAT FOR THE ASSESSMENT YEAR 2003 - 04, THE CASH DEPOSIT WAS RS.7,500/ - ; FOR 2004 - 05 RS.5,35,362/ - ; FOR 2005 - 06 RS.9,33,780/ - AND FOR 2006 - 07 RS,2,10,000/ - . IT WAS THE SUBMISSION THAT THE SAID AMOUNTS HAD BEEN TREATED AS UNEXPLAINED CASH DEPOSITS IN THE BANK ACCOUNTS OF THE ASSESSEE. IT WAS THE SUBMISSION THAT THE ASSESSEE HAD RECEIVED ADVANCES DURING THE CO URSE OF BUSINESS OF THE TRANSPORT COMMISSION AS WELL AS THE SALE OF THE SHOP ROOMS WHICH WERE DEPOSITED IN HIS BANK ACCOUNTS. IT WAS THE SUBMISSION THAT THESE COMMISSIONS AS ALSO THE SALES CONSIDERATION WERE RECEIVED IN CASH AS ALSO IN CHEQUE. IT WAS THE S UBMISSION THAT THE CASH RECEIVED HAD BEEN DEPOSITED IN THE BANK ACCOUNTS AND CONSEQUENTLY NO ADDITION WAS CALLED FOR. IT WAS FAIRLY AGREED BY THE LD. A.R. THAT THE DEPOSITS COULD NOT BE SPECIFICALLY IDENTIFIED AS CASH HAD BEEN DEPOSITED AS AND WHEN IT WAS RECEIVED BY HIM. IT WAS THE SUBMISSION THAT THE ASSESSING OFFICER HAD DRAWN THE CONCLUSION THAT THE ASSESSEE WAS UNABLE TO EXPLAIN THE SOURCES OF THE CASH DEPOSITS AND HAD MADE THE ADDITION WHICH HAD ALSO BEEN CONFIRMED BY THE LD. CIT(APPEALS). IT WAS THE SUBMISSION THAT THE INCOME FROM THE SALE OF THE SHOP ROOMS HAD BEEN OFFERED BY THE ASSESSEE AS HIS INCOME AS ALSO THE BUSINESS OF TRANSPORT COMMISSION. IT WAS THE SUBMISSION THAT THE ADDITIONS MAY BE TELESCOPED. I.T. (S . S) A. NO S . 29 - 32 / CTK ./20 09 ASSESSMENT YEAR S : 200 3 - 20 0 4 TO 2006 - 2007 PAGE 3 OF 5 6 . IN REPLY, LD. D.R. SUBMITTED THAT T HE AS SESSEE WAS UNABLE TO PROVE THE OPENING CASH BALANCE AS ON 31.03.2002 FOR ANY ADJUSTMENT AVAILABLE FOR THE ASSESSMENT YEAR 2003 - 04. IT WAS THE FURTHER SUBMISSION THAT THE ASSESSEE WAS UNABLE TO PROVE THE SOURCE OF THE DEPOSITS SPECIFICALLY NOR HE WAS ABLE T O LINK THE DEPOSITS TO THE TRANSPORT COMMISSION BUSINESS OR SALES OF THE SHOP ROOMS. IT WAS THE SUBMISSION THAT THE ISSUE WAS LIABLE TO BE CONFIRMED FOR ALL THE ASSESSMENT YEARS. 7 . WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A DMITTEDLY THE ASSESSEE IS UNAB LE TO CONFIRM THE SOURCE OF THE DEPOSITS AS HAS BEEN ADMITTED. THE ASSESSEE HA S BEEN UNABLE TO PROVE THE LINKING OF THE TRANSPORT COMMISSION AS ALSO THE SALE CONSIDERATION OF THE SHOPS WITH THE CASH DEPOSITS IN THE BANK ACCOUNTS. ADMITTEDLY THE ASSESSEE H AS OFFERED THE TRANSPORT COMMISSION AS ALSO THE PROFIT ON THE SALE OF THE SHOP ROOMS AS HIS INCOME. A PERUSAL OF THE BANK ACCOUNTS OF THE ASSESSEE ALSO SHOWS THAT THE ASSESSEE HAS BEEN WITHDRAWING CASH FROM HIS BANK ACCOUNTS. IN THESE CIRCUMSTANCES, CONSID ERING THE FACT THAT THERE IS A REGULAR WITHDRAWAL AND DEPOSIT IN THE BANK ACCOUNTS OF THE ASSESSEE, WE ARE OF THE VIEW THAT THE ASSESSEE CAN BE GRANTED THE BENEFIT OF TELESCOPING OF THE ADDITIONS. IN THESE CIRCUMSTANCES, THE INITIAL ADDITION FOR THE ASSESS MENT YEAR 2003 - 04 OF RS.7,500/ - WOULD STAND CONFIRMED, FOR THE ASSESSMENT YEAR 2004 - 05, THIS 7,500/ - WHICH IS CONFIRMED FOR THE ASSESSMENT YEAR 2003 - 04, WOULD BE AVAILABLE FOR TELESCOPING IN THE ADDITION OF RS.5,35,362/ - . CONSEQUENTLY THE ADDITION OF RS.5, 35,362/ - WOULD STAND REDUCED TO RS.5,27,862/ - (RS.5,35,362/ - MINUS RS.7,500/ - ). SIMILARLY THIS AMOUNT OF RS.5,35,362/ - WOULD BE AVAILABLE FOR TELESCOPING IN THE ADDITION FOR THE ASSESSMENT YEAR 2005 - 06. CONSEQUENTLY THE FIGURE OF RS.9,33,780/ - WOULD GET RE DUCED TO RS.3,98,000/ - [RS.9,33,780/ - MINUS RS.5,35,782/ - ] . FOR THE ASSESSMENT YEAR 2006 - 07, AS THE ADDITION IS ONLY RS.2,10,000/ - AND THE ASSESSEE HAS ALREADY BEEN TAXED ON THE TOTAL AMOUNT OF RS.9,33,780/ - FOR THE EARLIER THREE YEARS, THIS AMOUNT OF RS. 2,10,000/ - WOULD GET TELESCOPING TO THE SAID AMOUNT OF RS.9,33,780/ - . I.T. (S . S) A. NO S . 29 - 32 / CTK ./20 09 ASSESSMENT YEAR S : 200 3 - 20 0 4 TO 2006 - 2007 PAGE 4 OF 5 CONSEQUENTLY THERE WOULD BE NO ADDITION FOR THE ASSESSMENT YEAR 2006 - 07 ON THIS COUNT. IN THESE CIRCUMSTANCES, GROUND NO. 2 OF THE ASSESSEES APPEALS FOR THE ASSESSMENT YEARS 2003 - 04, 20 04 - 05 AND 2005 - 06 STANDS PARTLY ALLOWED AND FOR THE ASSESSMENT YEAR 2006 - 07 ALLOWED IN FULL. 8. IN RESPECT OF GROUND NO. 3 OF THE ASSESSEES APPEALS, IT WAS THE SUBMISSION THAT THE ISSUE WAS AGAINST THE ADDITION REPRESENTING THE UNDISCLOSED INVESTMENT IN THE SHOPPING COMPLEX AT KHANDAGIRI, BHUBANESWAR. IT WAS THE SUBMISSION THAT THE DVO HAD VALUED THE COST OF CONSTRUCTION FOR THE SHOPPING COMPLEX AT RS.59,84,750/ - AND THE ASSESSEE HAD SHOWN THE INVESTMENT AT RS.56,55,000/ - . IT WAS THE SUBMISSION THAT THE L D. CIT(APPEALS) HAD GIVEN RELIEF ON ACCOUNT OF SELF - SUPERVISION CHARGES AT 12.5% AND CONSEQUENTLY NO ADDITION REMAINED ON THIS COUNT. IT WAS HOWEVER THE SUBMISSION THAT FOR THE ASSESSMENT YEAR 2005 - 06, THE DVO HAD ESTIMATED THE COST OF CONSTRUCTION AT RS.2 5,65,739/ - BUT THE ASSESSING OFFICER BY MISTAKE HAD ADOPTED THE FIGURE AT RS.41,43,288/ - . IT WAS THE SUBMISSION THAT THIS ERROR IN THE COST OF CONSTRUCTION TAKEN BY THE ASSESSING OFFICER MAY BE RECTIFIED. ON A SPECIFIC QUERY BY THE BENCH THAT THIS WAS RECT IFIABLE MISTAKE AND SHOULD BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR VERIFICATION AND RECTIFICATION . LD. A.R. HAD NO OBJECTION. 9. LD. SR. D.R. SUBMITTED THAT HE HAD NO OBJECTION IF THIS ISSUE WAS RESTORED TO THE FILE OF THE ASSESSING OFFICER F OR VERIFICATION. 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS IT IS NOTICED THAT THE VALUATION AS ADOPTED BY THE DVO HAS BEEN USED BY THE ASSESSING OFFICER FOR THE PURPOSE OF ESTIMATING THE UNEXPLAINED INVESTMENT BY THE ASSESSEE IN THE SHOPPING COMPLE X AND AS IT IS NOTICED THAT FOR THE ASSESSMENT YEAR 2005 - 06, DVOS ARRIVED FIGURE IS ONLY RS.25,65,739/ - BUT AS TAKEN BY THE ASSESSING OFFICER IS AT RS.41,43,288/ - , THIS ISSUE IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR VERIFICATION AND NECESSARY RECTIFICATION. THE I.T. (S . S) A. NO S . 29 - 32 / CTK ./20 09 ASSESSMENT YEAR S : 200 3 - 20 0 4 TO 2006 - 2007 PAGE 5 OF 5 ASSESSING OFFICER SHALL VERIFY FROM THE DVOS REPORT AS TO THE FIGURE ADOPTED BY THE DVO IN RESPECT OF THE PROPORTIONATE YEARLY COST OF CONSTRUCTION FOR THE ASSESSMENT YEAR 2005 - 06. IF THE FIGURE AS ARRIVED AT BY THE LD. DVO IS RS.25,65, 739/ - , THEN THE COST OF INVESTMENT SHALL BE ADOPTED AT THAT FIGURE OF RS.25,65,739/ - AND FROM THIS FIGURE THE RELIEF AS GRANTED BY THE LD. CIT(APPEALS) IS TO BE GRANTED. 11. IN THE RESULT, GROUND NO. 3 OF THE ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 200 5 - 06 STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. FOR THE ASSESSMENT YEARS 2003 - 04, 2004 - 05 AND 2006 - 07 AS NO SERIOUS SUBMISSIONS HAD BEEN MADE BY THE LD. A.R. ON THE SAID GROUND, THE SAME STANDS DISMISSED. 12. IN THE RESULT, THE APPEALS OF THE ASSESS EE FOR THE ASSESSMENT YEARS 2003 - 04 IS DISMISSED AND 2004 - 05 AND 2006 - 07 ARE PARTLY ALLOWED . F OR ASSESSMENT YEAR 2005 - 06 , THE APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH OCTOBER , 2014. SD/ - SD/ - S .V. MEHROTRA GEORGE MATHAN ( ACCOUNTANT MEMBER) ( JUDICIAL MEMBER) KOLKATA, THE 15 TH D AY OF OCTO BER , 201 4 COPIES TO : (1) THE ASSESSEE (2) THE DEPARTMENT (3) COMMISSIONER OF INCOME - TAX (APPEA LS) (4) COMMISSIONER OF INCOME TAX ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH, CU TTACK LAHA/SR. P.S.