Dr.Maya Gantayat, Cuttack V. ACIT,Central Circle, Cutatck

ITSSA 3/CTK/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1106 (ITAT-CUTTACK)
• Duration Of Justice: 10 month(s) 18 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 05-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2016-2017
• Appeal Filed On: 17-01-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Search and seizure; Document seized; Corroborative evidences; Assessment record; Documents seized
• Section: 201; 73

Judgement Text

P A G E 1 | 8 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE SHRI CHANDRA MOHAN GARG , JUDICIAL MEMBER AND LAXMI PRASAD SAHU, ACCOUNTANT MEMBER IT (SS) A NO . 03/ CTK/201 9 ASSESSMENT YEAR : 201 6 - 17 DR MAYA GANTAYAT, CDA, BIDANASI, CUTTACK VS. ACIT, CENTRAL CIRCLE, CUTTACK PAN/GIR NO. ACNPG 1466 F (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI J.M.PATNAIK , AR REVENUE BY : SHRI S .M.KESHKAMAT , DR DATE OF HEARING : 19 / 11 / 201 9 DATE OF PRONOUNCEMENT : 05 / 1 2 / 201 9 O R D E R PER C.M.GARG,JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) - 2 , BHUBANESWAR DATED 10.10.2018 FOR THE ASSESSMENT YEAR 2016 - 17 . 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT THE CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.14,22,790/ - MADE U/S.69A OF THE ACT TREATING THE SAME AS UNEXPLAINED MONEY. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE RELEVANT MATERIALS PLACED ON THE RECORD OF THE TRIBUNAL AND ORDERS OF LOWER AUTHORITIES. IT(SS)A NO.03/CTK/2019 ASSESSMENT YEAR : 2016 - 17 P A G E 2 | 8 4. LD A.,R. OF THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER HAS MADE ADDITION OF RS.14,22,790/ - U/S.69A OF THE ACT, 1961 TREATING THE SEIZED CASH AS UNEXPLAINED MONEY OF THE ASSESSEE. LD COUNSEL FURTHER SUBMITTED THAT DURING THE SEA RCH OPERATION, THE DEPARTMENT SEIZED DOCUMENTS VIDE IDENTIFICATION NO.SJMG 01 TO SJM - 05 AND ALSO SEIZED RS.13,00,000/ - OUT OF THE SAID CASH FOUND RS.14,85,500/ - DURING THE SEARCH OPERATION HELD ON 3.9.2015. LD COUNSEL FURTHER ELABORATED HIS ARGUMENTS THA T MAJOR PORTION OF THE AMOUNT BELONGS TO CUTTACK HOSPITAL PVT LTD., AMOUNTING TO RS.13,82,000/ - AND BALANCE AMOUNT BELONGS TO THE ASSESSEE AND HER HUSBAND DR. SUBRAT KUMAR JENA. DRAWING OUR ATTENTION TO ANNEXURE - 3 OF PAGE 68 OF ASSESSEES PAPER BOOK, LD C OUNSEL SUBMITTED THAT DURING THE COURSE OF SEARCH & SEIZURE OPERATION, STATEMENT U/S.132(4) OF THE ACT OF THE ASSESSEE WAS RECORDED AND IN REPLY TO Q.NO. 2, DR. SUBRAT JENA, HUSBAND OF THE ASSESSEE EXPLAINING THE SOURCE OF CASH OF RS.14,85,500/ - FOUND AND SEIZED DURING THE SEARCH OPERATION, EXPLAINED THAT RS.12,83,000/ - IS THE CASH RECEIPT ON 1.9. 2015 AND 2.9.2015 OF ASWIN HOSPITAL AND BALANCE IS THE CASH AMOUNT BELONGING TO HER AND HIS HUSBAND. LD COUNSEL FURTHER SUBMITTED THAT THE CASH AMOUNT IN QUESTIO N WAS COLLECTION OF THE CASH AT THE CASH COUNTER ON 1.9.2015 AMOUNTING TO RS.7,25,050/ - AND ON 2.9.2015 AMOUNTING TO RS.6,58,301/ - OF IT(SS)A NO.03/CTK/2019 ASSESSMENT YEAR : 2016 - 17 P A G E 3 | 8 CUTTACK HOSPITAL PVT LTD.,, WHICH COMES TO RS.13,83,351/ - AND REMAINING AMOUNT OF RS.1,02,199/ - BELONGS TO THE ASSESSEE M RS MAYA GANTAYAT AND HER HUSBAND DR. SUBRAT KUMAR JENA OF RS.61,710/ - AND RS.39,489/ - , RESPECTIVELY. LD COUNSEL FURTHER EXPLAINED THAT THE ASSESSING OFFICER HAS ACCEPTED THE SAID AMOUNT OF CASH IN THE CASE OF THE ASSESSEE AND HER HUSBAND AND THE SAME CAN NOT BE DISPUTED FOR MAKING ADDITION U/S.68 OF THE ACT. LD COUNSEL VEHEMENTLY POINTED OUT THAT THE CIT(A) DID NOT ACCEPT THE CASH BELONGS TO CUTTACK HOSPITAL PVT LTD., AMOUNTING TO RS.13,83,351/ - AS NO EVIDENCE WAS FURTHER DURING THE ASSESSMENT PROCEEDINGS BEFORE THE AO REGARDING SUCH CLAIM AND THE CIT(A) DID NOT ACCEPT AND BELIEVE THE DOCUMENTS PRODUCED IN SUPPORT OF THE SAID CLAIM. LD COUNSEL EXPLAINED THAT THE COLLECTION OF CASH IN CUTTACK HOSPITAL PVT LTD., ON 1.9.2015 AND 2.9.2015 COULD NOT BE DEPOSIT ED IN AXIS BANK ACCOUNT DUE TO CLOSURE OF BANK ON ACCOUNT OF HOLIDAY AND STRIKE RESPECTIVELY AND THE CIT(A) WAS REQUESTED TO CALL FOR A REMAND REPORT IN THIS REGARD . LD COUNSEL STRENUOUSLY CONTENDED THAT FROM THE AUDITED REPORT PARA 1.13 (B) CLEARLY REVEA LS THAT THE AUDITOR OF THE COMPANY HAS STATED THAT THE COMPANY HAS FACED SEARCH AND SEIZURE OPERATION BY THE INCOME TAX DEPARTMENT U/S.132 AND THE INCOME TAX DEPARTMENT HAS SEIZED CASH AMOUNTING TO RS.13,00,000/ - WHICH IS REFLECTED UNDER IT(SS)A NO.03/CTK/2019 ASSESSMENT YEAR : 2016 - 17 P A G E 4 | 8 THE HEAD SHORT TE RM LOANS AND ADVANCES AND THE ASSESSMENT IS PENDING WITH THE INCOME TAX DEPARTMENT. LD COUNSEL SUBMITTED THAT IN THE CASH BOOK OF CUTTACK HOSPITAL PVT LTD., CASH COLLECTED/RECEIVED WAS SHOWN AT RS.7,25,000/ - ON 1.9.2015 AND ON VERY NEXT DATE I.E. 2.9.20 15, CASH COLLECTION WAS TO THE TUNE OF RS.5,58,301/ - , WHICH IS ALSO DULY ENTERED IN THE CASH BOOK AND THE ASSESSING OFFICER HAS ACCEPTED THIS FACT IN ITS TOTALITY. LD COUNSEL SUBMITTED THAT NO ADDITION IS CALLED FOR IN THIS REGARD U/S.68 OF THE ACT AND TH E APPEAL OF THE ASSESSEE BE ALLOWED. 5. REPLYING TO ABOVE, LD CIT DR POINTED OUT THAT REPLYING TO Q. NO.2, DR SUBRAT KUMAR JENA, HUSBAND OF THE ASSESSEE STATED THAT CASH RECEIPT OF RS.12,83,000/ - APPROX. OF 1 ST SEPTEMBER AND 2 ND SEPTEMBER, 2015 IS THE CAS H OF ASHWINI HOSPITAL AND THE BALANCE IS HIS PERSONAL CASH AND ALSO HIS SPOUSE. LD CIT DR SUBMITTED THAT THE EXPLANATION SUBMITTED BY THE ASSESSEE IS AN AFTER THOUGHT AND, THEREFORE, CANNOT BE ACCEPTED. REFERRING TO THE ORDER OF THE LD CIT(A), LD CIT DR SUBMITTED THAT THE CLAIM OF THE ASSESSEE THAT RS.13,83,301/ - BELONGS TO CUTTACK HOSPITAL PVT LTD., WAS RIGHTLY REJECTED BY THE CIT(A) AS THERE IS NO EVIDENCE REGARDING AVAILABILITY OF CASH RECORDED IN ITS CASH BOOK FURNISHED DURING THE SEARCH PROCEEDINGS AND NO REGULAR C ASH BOOK FORMING A PART OF AUDITED BOOKS OF ACCOUNT WAS ALSO FURNISHED DURING ANY IT(SS)A NO.03/CTK/2019 ASSESSMENT YEAR : 2016 - 17 P A G E 5 | 8 PROCEEDINGS IN THE PAST. LD CIT DR SUBMITTED THAT THE AUTHORITIES BELOW WERE RIGHT IN DISMISSING THE CONTENTION OF THE ASSESSEE IN THIS REGARD. 6. PLACING REJOINDER TO THE SUBMISSION OF LD CIT DR, LD COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO PAGES 73 - 75 OF ASSESSEES PAPER BOOK AND SUBMITTED THAT THE ASSESSEE REQUESTED THE CIT(A) TO CALL FOR A REMAND REPORT FROM THE ASSESSING OFFICER ON THE RELEVANT EVIDENCE FILED BEFO RE HIM BUT THE CIT(A) DID NOT PAY ANY ATTENTION TO SUCH REQUEST OF THE ASSESSEE. LD COUNSEL FURTHER SUBMITTED THAT A WRIT PETITION (C) NO.11204/2006 FILED BY THE ASSESSEE WAS DISPOSED BY HONBLE HIGH COURT OF ORISSA BASING ON THE COUNTER AFFIDAVIT OF THE INVESTIGATION WING OF THE INCOME TAX DEPARTMENT FOR REFUND OF THE CASH SEIZED BY THE DEPARTMENT DURING THE COURSE OF SEARCH AND SEIZURE OPERATION. THE FOLLOWING DOCUMENTS ARE THE PART OF THE ASSESSMENT RECORD AS WELL AS APPEAL RECORD: I) THE TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE DIRECTOR, I.T. BEFORE THE HONBLE HIGH COURT OF ORISSA, CUTTACK IN W.P.(C) NO.11204/2006. II) THE COPY OF THE ORDER OF THE HONBLE HIGH COURT OF ORISSA, CUTTACK DT.6.1.2017. III) THE COPY OF THE LETTER OF AXIS BANK IN SUPPORT OF BANK HOLIDAY ON DT.2.9.2015. IT(SS)A NO.03/CTK/2019 ASSESSMENT YEAR : 2016 - 17 P A G E 6 | 8 IV) THE COPY OF SEIZED DOCUMENT IN COURSE OF SEARCH OPERATION IDENTIFIED AS SJMG - 2 COVERING 2 PAGES DISCLOSING CASH COLLECTION ON 1.9.2015 OF RS.7,25,0 0 0/ - AND CASH ON 2.9.2015 OF RS.6,58,301/ - WHICH COULD NOT BE D EPOSITED DUE TO BANK HOLIDAY. V) THE SUPPORTED EXTRACT OF CASH SUMMARY OF RS.13,83,351/ - AS AGAINST TOTAL CASH FOUND OF RS.14,85,500/ - DURING SEARCH. VI) THE AUDITED STATEMENT OF ACCOUNT OF M/S. CUTTACK HOSPITAL PVT LTD., FOR A.Y.2016 - 17 DISCLOSING SAT PAR A 1.13(B) OBSERVATION MADE BY THE AUDITOR DESCRIBING THE COMPANY HAS FACED SEARCH & SEIZURE BY THE I.T.DEPARTMENT U/S.132 OF THE I.T.ACT. LD A.R. SUBMITTED THAT IN VIEW OF ABOVE CLEAR CUT SUPPORTING EVIDENCE THAT AMOUNTS OF COLLECTION BY CUTTACK HOSPITAL PVT LTD., ON 1.9.2015 AND 2.9.2015, THE ADDITION MADE BE DELETED. 7. ON CAREFUL CONSIDERATION OF THE RIVAL SUBMISSIONS AND THE MATERIALS PLACED BEFORE US, WE FIND THAT THERE WAS A SEARCH AND SEIZURE OPERATION IN THE RESIDENCE AND BUSINESS PREMISES OF THE A SSESSEE. THE ASSESSEE IS A DIRECTOR OF CUTTACK HOSPITAL PVT LTD., AND EARN INCOME FROM HER PROFESSION AS A DOCTOR. DURING THE SEARCH OPERATION, THE INCOME TAX DEPARTMENT HAD SEIZED CASH OF 14,85,500/ - . IT WAS THE CONTENTION OF THE ASSESSEE THE CASH OF R S.13,00,000/ - APPROX.. BELONGS TO CUTTACK HOSPITAL PVT LTD., WHICH REPRESENTS THE CASH COLLECTION ON 1.9.2015 OF RS.7,25,000/ - AND ON 2.9.2015 OF RS. 5 ,58,301/ - TOTALING TO RS.1 2 ,83,301/ - AND RS.1,02,199/ - BELONGS TO HER AND HER HUSBAND. REPLYING TO Q. NO.2, DR. JENA, HUSBAND OF THE ASSESSEE STATED THAT IT(SS)A NO.03/CTK/2019 ASSESSMENT YEAR : 2016 - 17 P A G E 7 | 8 RS.12,83,000/ - BELONGING TO CUTTACK HOSPITAL PVT LTD., AND COPY OF DAILY CASH BOOK/CASH COUNTER RECEIPT OF CHPL (APB PAGES 26 - 27) SHOWS CASH COLLECTION OF RS.7,25,000/ - ON 1.9.2015 AND RS. 5,58,301 ON 2.9.2015 TOTALING TO RS.12,83,301 AND THIS FACT ALSO GETS SUPPORT FROM THE SAID STATEMENT OF DR. S.K.JENA RECORDED U/S.132 OF THE ACT DURING SEARCH AND SEIZURE OPERATION. WE MAY ALSO POINT OUT THAT THE AUDITOR OF CHPL IN THE AUDIT REPORT IN P ARA 1.3(B) ALSO STATED THAT AMOUNT OF RS.13,00,000/ - HAS BEEN SEIZED BY THE I.T.DEPARTMENT. AS REPORTED BY AXIS BANK, WHEREIN, THE ASSESSEE USE TO DEPOSIT THE CASH COLLECTED IN THE CUTTACK HOSPITAL PVT LTD., DUE TO HOLIDAY AND STRIKE ON 1.9.2015 & 2.9.201 5, THE CASH WAS NOT DEPOSITED IN THE BANK AND KEPT WITH THE ASSESSEE AS PER SEIZED DOCUMENT MARKED AS S GM G - 2. HENCE, WE ARE SATISFIED WITH THE EXPLANATION OF THE ASSESSEE THAT THE AMOUNT OF COLLECTION OF RS.1 2 ,83,301/ - IS THE COLLECTION OF CASH BY THE C UTTACK HOSPITAL PVT LTD., COLLECTED ON 1 & 2.9.2015 WHICH CANNOT BE ADDED IN THE HANDS OF THE ASSESSEE. WE ALSO FIND THAT THE ASSESSEE HAD MOVED TO HONBLE HIGH COURT OF ORISSA TO REFUND THE SEIZED AMOUNT, WHICH HAS ALSO BEEN DISPOSED ON 6.1.2017. IT IS ALSO ADMITTED BY THE ASSESSEE THAT RS.62,710/ - BELONGS TO HER AND RS.39,489/ - BELONGS TO HER HUSBAND DR S.K.JENA TOTALING TO RS.1,02,199/ - AND THE SAID AMOUNT IS PART OF ASSESSMENT AND IT(SS)A NO.03/CTK/2019 ASSESSMENT YEAR : 2016 - 17 P A G E 8 | 8 THEREFORE, THE SAID AMOUNT CANNOT BE ADDED IN HER HANDS AS UNEXPLAINED CASH FOUND FROM THE ASSESSEE. THUS, THE ASSESSEE GETS RELIEF OF RS.12,83,301/ - + RS.39,489/ - = RS.13,22,790/ - AS THE AO HAS GRANTED CREDIT OF RS.62,710/ - BELONGING TO ASSESSEE WHILE MAKING THE ADDITION. RESULTANTLY, ADDITION OF RS.1,00,000 (RS.14,22,790/ - - RS.13,22,790/ - ) IS CONFIRMED. IN VIEW OF ABOVE, WE DIRECT THE AO TO RESTRICT THE ADDITION TO RS.1,00,000/ - ONLY. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. S D/ - SD/ - (LAXMI PRASAD SAHU) ( CHANDRA MOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER CUTTACK; DATED 05 / 1 2 /20 1 9 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER SR . PVT. S ECRETARY ITAT, CUTTACK 1. THE APPELLANT : DR MAYA GANTAYAT, CDA, BIDANASI, CUTTACK 2. THE RESPONDENT. ACIT, CENTRAL CIRCLE, CUTTACK 3. THE CIT(A) - 2 , BHUBANESWAR 4. PR.CIT - 2 , BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//