ACIT, CC-XXIV, Kolkata, Kolkata V. Bhagirath Prasad Patwari, Kolkata

ITSSA 51/KOL/2011

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7613 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 12 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 22-03-2012
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 11-03-2011
• Court: TRIBUNAL
• Department Lawyers: VIKASH SURANA
• Assessee Lawyers: A K PRAMANIK
• Section: 131

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH- B , KOLKATA [ . .. . , ,, , . .. .!' !'!' !'. .. . , , , , #$ ] [BEFORE SHRI N.VIJAYAKUMARAN , JUDICIAL MEMBER & SRI C.D.RAO , ACCOUNTANT MEMBER] % % % % / IT(SS)A NO. 51 (KOL) OF 2011 &' ()/ BLOCK PERIOD FROM 01.04.1996 TO 07.05.2002 A.C.I.T., CENTRAL CIRCLE-XXIV, KOLKATA BHAGIRATH PRASAD PATWARI, KOLKATA (PAN: AFHPP 8079 A) (,- / APPELLANT ) - - VERSUS - (01,-/ RESPONDENT ) ,- 2 3 #/ FOR THE APPELLANTS: / SHRI VIKASH SURANA 01,- 2 3 #/ FOR THE RESPONDENT: / SHRI A.K.PRAMANIK 4 2 '$ /DATE OF HEARING : 20.02.2012. 5( 2 '$ /DATE OF PRONOUNCEMENT : 22.03.2012. #6 / ORDER # # # # . .. .!' !'!' !'. .. . , , , , #$ PER C.D.RAO, AM THE ABOVE APPEAL FILED BY THE REVENUE IS AGAINST OR DER OF THE LD. C.I.T-CENTRAL- III, KOLKATA DATED 06.12.2010 RELATING TO BLOCK PER IOD FROM 01.04.1996 TO 07.05.2002. 2. THE RELEVANT FACTS OF THIS ISSUE ARE THAT IN THE ORIGINAL ASSESSMENT PASSED U/S 158BC/143/254 THE AO MADE AN ADDITION OF RS.1,04,55 ,160/-. OUT OF THIS ALL ADDITIONS MADE WERE ULTIMATELY DELETED BY THE ITAT EXCEPT ADD ITION OF RS.63,48,472/- WHICH WAS SET ASIDE BY THE ITAT TO THE FILE OF AO WITH TH E OBSERVATIONS THAT THE AO WAS NOT GIVEN OPPORTUNITY TO EXAMINE THE AFFIDAVITS FILED B EFORE HIM. WHILE DOING THE CONSEQUENTIAL ASSESSMENT ORDER U/S 158BC(C)/143/254 OF THE IT ACT THE AO RESTRICTED THE ADDITION TO RS.27,71,079/- BY OBSERVING AS UNDE R : COMMISSION U/S 131 DATED 21/12/06 WAS ALSO ISSUED TO L.T.O WARD (2) CHURU, UNDER WHOSE JURISDICTION MOST OF THE LOANEES FALL UNDER, TO VERIFY WHETHER THE LOANS WERE ACTUALLY TAKEN BY THE PERSONS MENTIONED IN THE SEIZ ED DIARY BP-5 AND ALSO THE AMOUNTS, DATE OF LOAN, RATE OF INTEREST CHARGED, RE PAYMENT DETAILS, INCOME EARNING 2 ACTIVITY OF THE LOANEES ETC. THE L.T.O. CHURU VIDE HIS LETTER DATED 26/12/06 REPORTED THAT HE HAS RECORDED THE STATEMENTS AND DEPOSITION OF THREE PERSONS, NAMELY, (1) MR. RADHYASHAM KALIKA, (2) MR. MADAN LAL JI GOUR & (3) MR. MURARI LAL TAMRAIT ON 26/12/06 WHO CONFIRMED THE LOANS TAKEN BY THEM FROM THE ASSESSEES FATHER, LATE KANHALYALAL PATWARI. BUT THE DEPOSITIONS OF THE OTH ER SIX PERSONS COULD NOT BE RECORDED BY THE L.T.O, CHURU AND HENCE WERE NOT SEN T TO THIS OFFICE. AS IT IS CLEAR FROM THE ABOVE DISCUSSION, ONLY FOUR OF THE AFFIDAVITS OF THE LOANEES SUBMITTED BY THE ASSESSEE COULD BE VERIFIED AND THE IR STATEMENTS RECORDED. THE ASSESSEE WAS GIVEN AMPLE TIME AND OPPORTUNITY TO PR ODUCE THE REMAINING 6 PERSONS DURING THE COURSE OF HEARINGS. BUT HE HAS FAILED TO DO SO. THE ASSESSEE COULD NOT EXPLAIN WHY AND AS TO HOW HE COULD PRODUCE ALL THE LOANEES WHO ARE FROM DIFFERENT VILLAGES IN RAJASTHAN BEFORE THE LD. CIT(A) ON 10/0 2/05 IN KOLKATA, BUT AT THE SAME TIME, COULD NOT DO THE SAME AND PRODUCE THE SAME PE RSONS BEFORE THE UNDERSIGNED AS DIRECTED U/S 131. THIS CLEARLY INDICATES THAT THE A SSESSEE IS UN-COOPERATIVE AND HE HAS FORGONE THE OPPORTUNITY GIVEN TO HIM BY BOTH THE IT AT AND THE A.O TO PRODUCE THE REMAINING PERSONS FOR CROSS EXAMINATION AND VERIFIC ATION. THEREFORE, THERE IS NO ALTERNATIVE BUT TO RE-CONFIRM THE EARLIER ADDITION MADE BY THE A.O ON 31/05/04 IN THE CASE OF THE REMAINING 6 PERSONS AS GIVEN BELOW. PAGE NOS. NAME OF THE ACCOUNT HOLDER PRINCIPAL WRITTEN (RS.) ACTUAL VALUE (RS.) RECEIPT OF INTEREST (RS.) TOTAL (RS.) 1. SHYAMALAL KUMAWAT 1,500/- 1,50,000/- 22,500/- 1, 72,500/- 3. CHIRU MUNILALA 1,000/- 1,00,000/- 10,720/- 1,10, 720/- 4. SHRIMAN SAWAN SINGH 10,000/- 10,00,000/- ---- 10,00,000/- 12. JODH RAJ JUARMAL 5,000/- 5,00,000/- ----- 5,00, 000/- 14 JALAN TRADERS 5,000/- 5,00,000/- ------ 5,00,000 /- 15 GODAVARI DEVI 4,87,859/- 4,87,859/- ------- 4,87 ,859/- 27,71,079/- 2.1. ON APPEAL THE LD. CIT(A) AFTER TAKING INTO CON SIDERATION OF THE VARIOUS SUBMISSIONS HAS DELETED THE SAME BY OBSERVING AS UN DER :- I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE APPELLANT AND ALL THE RELEVANT ORDERS AS WELL AS MATERIAL AVAILABLE ON RECORD. THE APPELLANT HAS FROM THE BEGINNING MAINTAINED THAT THE DIARY BELONGED TO HIS LATE FATH ER WHO HAD GIVEN SMALL LOANS AND ADVANCES TO SOME PEOPLE. IT IS ALSO MAINTAINED THAT AMOUNTS MENTIONED IN THE DIARY ARE THE ACTUAL AMOUNTS AND NOT SUPPRESSED BY TWO ZE ROES AS HAS BEEN SURMISED BY THE A.O. IN SUPPORT OF THE FACT THAT HAND WRITING IN TH E DIARY WAS OF LATE KANHAIALAL PATWARI INCOME TAX ACKNOWLEDGEMENT WAS PRODUCED WHI CH HAS NEVER BEEN DISPUTED BY THE A.O. AFFIDAVITS OF ALL THE TEN PERSONS HAVIN G TAKEN THESE LOANS HAVE BEEN FILED BEFORE THE A.O. THEY ALL HAVE STATED THAT THEY HAD TAKEN SMALL LOANS FROM LATE KANHAIALAL PATWARI. THE APPELLANT PRODUCED ONE PERS ON NAMELY SATYANARAYAN AGARWAL WHOSE DEPOSITION WAS RECORDED BY THE A.O. W HO ACCEPTED THAT HE HAD TAKEN A LOAN FROM APPELLANTS LATE FATHER. THE ITO WARD-(2) , CHUM, UNDER COMMISSION FROM THE A.O. COULD RECORD THE STATEMENTS OF THREE OTHER PEOPLE SHRI RADHAYSHAM KALIKA, MR. MADAN LAL JI GOUR AND SHRI MURARI LAL TAMRAIT W HO ALL CONFIRMED THE LOANS TAKEN BY THEM FROM THE ASSESSEES LATE FATHER. APPA RENTLY HE COULD NOT EXAMINE THE OTHER PERSONS DUE TO SHORTAGE OF TIME. IN ANY CASE AFTER CONSIDERING THE AFFIDAVITS AND STATEMENTS OF THESE FOUR PERSONS THE A.04 ACCEPTED THE GENUINENESS OF THE LOANS TAKEN 3 BY THEM. THIS ACCEPTANCE STRIKES A BIG BLOW TO THE BASIC PRESUMPTION OF THE A.O. THAT (1) THE DIARY BELONGS TO THE APPELLANT AND NOT HIS LATE FATHER AND (2) THE AMOUNTS WRITTEN IN THE DIARY SUPPRESSES TWO ZEROES. SINCE T HE DIARY IS WRITTEN IN THE SAME HAND AND HAS SIMILAR ENTRIES IT HAS TO BE INTERPRETED IN AN UNIFORM MANNER AND NOT IN A FRAGMENTED WAY. ONLY BECAUSE THE ASSESSEE FAILED TO PRODUCE SIX PEOPLE AND EVEN THE ITO, CHUM FAILED TO RECORD THEIR STATEMENTS WILL NO T CHANGE THE NATURE OF THE DIARY IN A PARTIAL WAY. THE INFERENCE THAT SOME OF THE ENTRI ES PERTAIN TO APPELLANTS FATHER WHERE ACTUAL AMOUNTS ARE WRITTEN AND SOME OTHER ENT RIES PERTAIN TO THE APPELLANT WHERE AMOUNTS WERE SUPPRESSED BY TWO ZEROES IS HIGH LY ILLOGICAL BORDERING AN ABSURDITY. 2.2. AGGRIEVED BY THIS NOW THE REVENUE IS IN APPEAL BEFORE US. 3. AT THE TIME OF HEARING THE LD. DR APPEARING ON B EHALF OF THE REVENUE HAS POINTED OUT THAT THE AO HAS MADE THE ADDITION OF RS .27,71,079/- SINCE THE ASSESSEE HAS NOT FOLLOWED THE DIRECTIONS OF THE ITAT IN PRODUCIN G THE SIX PERSONS. HE FURTHER RELIED ON THE SEIZED DIARY BP/5 WHICH WAS PLACED AT PAGES 21 TO 37 OF THE PAPER BOOK. THEREFORE HE REQUESTED TO UPHELD THE ACTION OF THE AO AND SET ASIDE THE ORDERS OF THE LD. CIT(A). 4. ON THE OTHER HAND, THE LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE HAS REITERATED THE SUBMISSIONS MADE BEFORE THE REVENUE AUTHORITIES WHICH ARE AS UNDER :- 1) THE ALLEGED LOANS / ADVANCES WERE GIVEN BY APPE LLANTS FATHER LATE KANHAIYALAL PAIWARI (WHO EXPIRED IN DECEMBER 1998), NO WHERE T HE APPELLANT SRI BHAGIRATH PRASAD PATWARI COMES IN PICTURE. 2) THE AFFIDAVITS OF ALL THE PARTIES WERE FILED IN THE EARLIER PROCEEDINGS. INFACT ON 10.02.2005, THE APPELLANT PRODUCED SRI RADHESHYAM K ALIKA AND SRI MURARILAL TAMRATT BEFORE LD CIT(A)-C-III FOR DEPOSITION WHICH SUBSTAN TIATED THE APPELLANTS CLAIM THAT:- A) LOAN WERE ADVANCED BY LATE KANHAIYALAL PATWARI B) THE FIGURES AS MENTIONED IN SEIZED DIARY WERE AC TUAL FIGURES NOT SUPPRESSED BY TWO ZEROS. 3) WHEN THE MATTER WAS SET-ASIDE OF LD ITAT TO THE FILE OF THE ASSESSING OFFICER, SUMMONS U/S.131 DT.10.10.2006 WAS ISSUED TO THE ASS ESSEE TO PRODUCE ALL THOSE PERSONS PRODUCED BY HIM BEFORE THE LD. CIT(A) ON 10 .02.2005. IT IS MATERIAL HERE TO NOTE THAT BEFORE LD. CIT(A)- CENTRAL-III APPELLANT COULD ONLY MANAGE TO PRODUCE SRI RADHESHYAM KALIKA & SRI MURAR ILAL TAMRATT WHOSE STATEMENT WERE RECORDED BY THEN CJT(A) AND AGAIN RECORDED BY ITO CHURU (RAJASTHAN). BESIDES BEFORE LD. ASSESSING OFFICER THE APPELLANT ON 09.11.2006 PRODUCED MR.SATYANARAYAN AGARWAL (MORE TRADING CO.) WHOSE ST ATEMENT AGAIN PROVED THAT: LOAN WAS GIVEN BY APPELLANTS FATHER AND NOT SUPPRE SSED BY TWO ZEROS. 4) IT IS AGAIN MATERIAL HERE TO NOTE THAT THE LD . ASSESSING OFFICER ISSUED COMMISSION U/S.131 DT. 21.12.2006 TO THE ITO WARD-2/CHURU (RAJ ASTHAN) UNDER WHOSE JURISDICTION MOST OF THE LOANEES FALL, THE ITO CHUR U RECORDED THE STATEMENTS OF THREE 4 PERSONS WHO CONFIRMED THE CONTENTION OF THE APPELLA NT, PROVING THE TRUTH OF THE AFFIDAVITS AS FILED IN EARLIER PROCEEDINGS. HOWEVER THE ITO CHURU COULD NT RECORD THE DEPOSITIONS OF THE OTHER 6 PERSONS, AND THUS BECAUS E OF INABILITY OF THE ITO CHURU, THE ADDITIONS WERE MADE IN APPELLANTS HAND. 5) IN THE ASST. ORDER; THE ASSESSING OFFICER AL LEGED AGAIN & AGAIN THE ASSESSEE COULD NOT EXPLAIN WHY AND AS TO HOW B E COULD PRODUCE ALL THE LOANEES WHO ARE FROM DIFFERENT VILLAGES IN RAJASTHAN BEFORE THE LD CIT(A) ON 10.02.2005 IN KOLKATA, BUT AT THE SAME TIME COULD NOT DO THE SAME AND PRODUCE THE SAME PERSONS BEFORE THE UNDERSIGNED AS DIRECTED U/S. 131 A CONTRADICTORY REMARK? IN THE REMAND REPORT THE LD. ASSESSING OFFICER HAD NOT CONTROVERTED APPELLANTS SUBMISSION W.R.T. : I)NON-SUPPRESSION OF TWO ZEROS - II) OWNERSHIP OF SEIZED DIARY, SINCE SAME BELONGED TO LATE KL.PATWARI THUS THIS IS PROVED BEYOND DOUBT THAT FIGURE MENTI ONED IN SEIZED DIARY WERE NEITHER SUPPRESSED BY TWO ZEROS, NOR IT HAD ANY LINK WHATSOEVER WITH APPELLAAT BHAGIRATH PR ASAD PATWARI ON PAGE 3 OF WRITTEN SUBMISSION PARA 6 BRIEF DESCRI PTION OF ALL THE 6 PARTIES GIVEN, WHERE UNDER YOUR HONOUR SHALL FIND THAT.:- TWO PARTIES JODHRAJ JUHARMAL & JALAN TRADERS THE RU KKAS WERE DATED 21.04.1983 & 07.04.187 WAY BEYOND BLOCK PERIOD SHRIMAN SAWAN SINGH WAS A RETIRED NATIONAL CADET CO RPS EMPLOYEE OF JODHPUR WITH RETIREMENT PAY OF APPROX 4000 P.M. GODAWARI DEVI IS THE WIFE OF LATE KANHAIYALAL PATWA RI THE APPELLANT DOESN T KNOW AS TO WHETHER THESE PER SONS ARE STILL ALIVE OR NOT. NOTHING HAS BEEN RECOVERED BY THE APPELLANT, IF ANY DUES ARE OUTSTANDING ON A/C. OF LOAN ADVANCED BY HIS LATE FATHER, AS SUCH NO QUESTI ON OF ANY BENEFICIARY ARISES IN THE INSTANT CASE. 4.1. IN SUPPORT OF THESE SUBMISSIONS HE REFERRED TO PAGE 48 WHERE THE ITAT HAS DIRECTED THE MATTER TO THE FILE OF AO, PAGE 52 WHIC H RELATES TO THE REQUISITION DATED 16.08.2006 BY THE AO AND PAGE 53 WHICH CONTAINS ASS ESSEES REPLY DATED 13.09.2006 AND PARA 7 OF THE LD. CIT(A) WHICH WAS PLACED AT PA GES 88-154 OF THE PAPER BOOK. BASED ON THESE DOCUMENTS HE CONTENDED THAT THE LD. CIT(A) IS JUSTIFIED IN THE FACTS AND CIRCUMSTANCES OF THE CASE IN DELETION OF ADDITION O F RS.27,71,079/-. THEREFORE HE REQUESTED TO UPHOLD THE SAME. 5. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF MATERIALS AVAILABLE ON RECORD, KEEPING IN VIEW OF THE FACT TH AT THE LD. DR COULD NOT CONTRADICT THE FINDINGS OF THE LD. CIT(A) WHICH, IN OUR OPINION, I S FAIR AND REASONABLE IN THE FACTS AND 5 CIRCUMSTANCES OF THE CASE. THEREFORE WE FIND NO INF IRMITY IN THE ORDER OF THE LD. CIT(A) TO BE INTERFERED WITH. WE CONFIRM THE SAME A ND DISMISS THE APPEAL OF THE REVENUE. 6. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMI SSED. ORDER PRONOUNCED IN THE COURT ON 22.03.2012. SD/- SD/- . .. . , , , , & & & & N.VIJAYAKUMARAN, JUDICIAL MEMBER . .. .!' !'!' !'. .. . , ,, , #$ #$ #$ #$ , C.D.RAO, ACCOUNTANT MEMBER. ( (( ('$ '$ '$ '$) )) ) DATE: 22.03.2012. #6 2 0&& 7#(8- COPY OF THE ORDER FORWARDED TO: 1. BHAGIRATH PRASAD PATWARI, 8/1, LOUDON STREET, KO LKATA-700017. 2. A.C.I.T.,CENTRAL CIRCLE-XXIV, KOLKATA 3. CIT- 4. CIT(A)-CENTRAL-III,KOLKATA. 5. DR, KOLKATA BENCHES, KOLKATA 1 0&/ TRUE COPY, #6/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES R.G.(.P.S.)