Shri Bashisht narayan choudhary, Ranchi V. DCIT CENT. CIRCLE-1, Ranchi

ITSSA 53/RAN/2016

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8288 (ITAT-RANCHI)
• Duration Of Justice: 3 year(s) 8 month(s) 17 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 03-03-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 16-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: INDRAJIT SINGH
• Section: 234B; 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL: RANCHI BENCH, RANCHI BEFORE SHRI S.S.GODARA, JM AND DR. A. L. SAINI, AM I.T.(SS) NO.30&53/RAN/2016 ASSESSMENT YEARS: 2004-05 & 2005-06 SRI BASHISHT NARAYAN CHOUDHARY NORTH MARKET ROAD, UPPER BAZAR, RANCHI-834001. VS. DCIT, CENTRAL CIRCLE-1, RANCHI PAN/GIR NO. : ABIPC2614B ( APPELL ANT ) .. (RESPONDENT) APPELLANT BY SHRI DEVESH PODDAR, ADVOCATE RESPONDENT BY SHRI INDRAJIT SINGH, CIT(DR) DATE OF HEARING 03.03.2020 DATE OF PRONOUNCEMENT 03.03.2020 O R D E R PER BENCH(ORAL): THIS ASSESSEES TWO APPEALS FOR ASSESSMENT YEARS 2004-05 & 2005-06 ARISE AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)- 3, PATNA DATED 19.04.2016 & 23.05.2016 INVOLVING PROCEEDINGS U/S 153A/144/254/143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT); RESPECTIVELY. HEARD SHRI DEVESH PODDAR, LEARNED COUNSEL REPRESENTING THE ASSESSEE AND SHRI INDRAJIT SINGH, LEARNED CIT-DR APPEARING AT THE REVENUES BEHEST. IT(SS) NO.30/RAN/2016 2. THE ASSESSEES FORMER FOUR SUBSTANTIVE GROUNDS SEEK TO DELETE ADDITION(S) OF AN AMOUNT OF RS.3,78,123/- AS INCOME FROM TRADING IN MAHUA SEEDS, AND UNDISCLOSED ADVANCES OF RS.RS.12,30,000/-; RESPECTIVELY. BOTH THESE ADDITIONS ARE STATED TO BE BASED ON INCRIMINATING EVIDENCE FOUND/SEIZED DURING THE COURSE OF SEARCH CARRIED OUT ON 29.12.2016. LEARNED COUNSELS ONLY CASE IS THAT THE ASSESSEES SUCH DISCLOSURE OF RS.25 LAKHS DULY TAKES CARE OF THESE ADDITION SUMS. LEARNED CIT-DR SUBMITS VERY FAIRLY THAT THE ISSUE AS TO WHETHER BOTH THESE ADDITIONS ARE COVERED BY THE DISCLOSURE SUM CAN ONLY TO BE VERIFIED BY THE ASSESSING OFFICER. HE PLACES VEHEMENT RELIANCE ON BOTH THE LOWER AUTHORITIES ACTION CONFIRMING THESE TWO ADDITIONS. I.T.(SS) NO.30&53/RAN/2016 SRI BASHISHT NARAYAN CHOUDHARY 2 HE FAILS TO DISPUTE THAT THE CASE RECORDS NOWHERE INDICATE AS TO WHETHER THE ASSESSEE HAS BEEN GRANTED TELESCOPIC BENEFIT OF THE DISCLOSURE SUM AMOUNTING TO RS.25 LAKHS OR NOT. WE THEREFORE DEEM IT APPROPRIATE IN ORDER TO AVOID DOUBLE ADDITION THAT LEARNED ASSESSING OFFICER NEEDS TO RE-EXAMINE THE ENTIRE FACTS QUA THIS LIMITED EXTENT IN CONSEQUENTIAL PROCEEDINGS. THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE ASSESSING OFFICER ON OR BEFORE 30.04.2020. NECESSARY COMPUTATION TO FOLLOW AS PER LAW. 3. COMING TO THE ASSESSEES 6 TH TO 8 TH SUBSTANTIVE GROUNDS, IT TRANSPIRES THAT ALL THESE ADDITIONS SUMS OF RS.93440/-, RS.2196/-, AND RS.1,90,700/- REPRESENT LOW WITHDRAWALS, INTEREST ACCRUED ON NSCS AND CLUBBING U/S 64(1A) OF THE DEPENDENT MINOR; RESPECTIVELY. WE FIND THAT IT IS AN INSTANCE OF AN UNABATED ASSESSMENT U/S 153A(1)(A) 2 ND PROVISO OF THE ACT SINCE TIME LIMIT FOR ISSUANCE SECTION 143(2) NOTICE WAS AVAILABLE ONLY UPTO 30 TH SEPTEMBER, 2015 FALLING WELL BEFORE THE DATE OF SEARCH. THAT BEING THE CASE, WE HOLD THAT ALL THESE IMPUGNED ADDITIONS COULD NOT HAVE BEEN EVER MADE IN ASSESSEES CASE SINCE NOT BASED ON ANY INCRIMINATING EVIDENCE FOUND OR SEIZED DURING THE COURSE OF SEARCH AS PER CIT VS. KABUL CHAWLA (2016) 380 ITR 573 (DEL). THE ASSESSEE SUCCEEDS IN HIS LATTER THREE SUBSTANTIVE GROUNDS THEREFORE. SECTION 234A AND 234B INTEREST COMPUTATION SHALL FOLLOW AS PER LAW. 4. THE ASSESSEES FORMER APPEAL IT(SS) NO.30/RAN/2016 IS PARTLY ALLOWED IN ABOVE TERMS. IT(SS) NO.53/RAN/2016 5. LEARNED COUNSEL STATES VERY FAIRLY THAT THE ASSESSEE CONFINES HIS CHALLENGE TO CORRECTNESS OF BOTH THE LOWER AUTHORITIES ACTION IN MAKING ADDITION OF RS.2,74,801/- (RS.62,74,808/- - RS.60,00,000) TO THE EXTENT THAT NEITHER CREDIT OF THIS OPENING BALANCE PERTAINS TO THE IMPUGNED ASSESSMENT ORDER HAS BEEN CONSIDERED IN THE LOWER PROCEEDINGS NOR THEY HAVE TREATED THE DISCLOSURE SUM OF RS.25 LAKHS AS SOURCE OF THE IMPUGNED UNDISCLOSED ADVANCES. HE THEREFORE SUBMITS THAT LARGER INTEREST OF JUSTICE WOULD BE MET IN CASE THE INSTANT LIS IS RESTORED TO THE ASSESSING OFFICER IN VIEW OF THE DIRECTIONS IN FORMER ASSESSMENT YEAR 2004-05(SUPRA). WE ADOPT JUDICIAL CONSISTENCY AND RESTORE THE INSTANT SOLE ISSUE AS WELL TO THE ASSESSING OFFICER FOR AFRESH ADJUDICATION AS PER LAW. THIS LATTER I.T.(SS) NO.30&53/RAN/2016 SRI BASHISHT NARAYAN CHOUDHARY 3 APPEAL IT(SS) NO.53/RAN/2016 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDERED ACCORDINGLY. 5. THE ASSESSEES FORMER APPEAL IT(SS) NO.30/RAN/2016 IS PARTLY ALLOWED AND LATTER CASE IT(SS0 NO.53/RAN/2016 IS ALLOWED FOR STATISTICAL PURPOSES. A COPY OF THIS COMMON ORDER IS PLACED IN THE RESPECTIVE CASE FILES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 03.03.2020. SD/- SD/- (A. L. SAINI) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:03.03.2020. RS 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 SR. P.S., ITAT, RANCHI (ON TOUR)