Smt. Protima Shaw, Patna V. ACIT, Patna

ITSSA 68/PAT/2013

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3299 (ITAT-PATNA)
• Duration Of Justice: 3 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 05-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 11-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GOVIND KUMAR AR SHRI R
• Assessee Lawyers: T VARKEY JUDIC IA L M EMBER
• Keywords: Block assessment
• Section: 6; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PA T N A BENCH , PATNA BEFORE SHRI ABY. T. VARKEY , JUDICIAL MEMBER AND SHRI WASEEM AHMED , ACCOUNTANT MEMBER IT (SS) A NO. 68 / PAT / 2013 BLOCK PERIOD: - 1991 - 92 TO 2000 - 01 AND FROM 01.04.2000 TO 01.09.2001 SMT. PROTIMA SHAW ( LEGAL HEIR OF LT. AMBUJ KUMAR SHAW ) DARIYAPUR GOLA, PTNA - 800 004 [ PAN NODNDPS 4812 P ] / V/S . ACIT, CENTRAL CIRCLE - 3, PATNA /APPELLANT .. /RESPONDENT / BY APPELLANT SHRI GOVIND KUMAR, AR / BY RESPONDENT SHRI R.R. SINHA, SR. S.C / DATE OF HEARING 0 5 - 04 - 2017 / DATE OF PRONOUNCEMENT 05 - 04 - 2017 /O R D E R PER BENCH : - THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - I , PATNA DATED 31 . 12 .201 2 . ASSESSMENT WAS FRAMED BY AC IT , CENTRAL CIRCLE , PATN A U/S 158BC OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 31. 03 .200 3 FOR THE BLOCK ASSESSMENT 1990 - 91 TO 1999 - 00 AND FROM 01.04.2000 TO 01.03.2001 . SHRI GOVIND KUMAR, LD. AUTHORIZED REPRESENTATIVE APPEARED ON BEHALF OF ASSESSEE AND SHRI R.R. SINHA, LD. SENIOR STANDING COUNSEL REPRESENTED ON BEHALF OF REVENUE. 2. FIRST ISS UE IS GENERAL IN NATURE AND DOES NOT CALL FOR ANY SEPARATE ADJUDICATION. 3. NEXT ISSUE RAISED BY ASSESSEE IN THIS APPEAL IS THAT LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF 88,988/ - AS UNEXPLAINED INCOME. IT (SS) A NO. 68/PAT/2013 B.P.91 - 92 TO 00 - 01 AND FROM 1/4/00 TO 1/3/01 SMT. PRETIMA SHAW VS. ACIT CC - 3 PATNA PAGE 2 4. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE ( DECEASED) IS AN INDIVIDUAL AND HAS FILED HIS INCOME UNDER BLOCK PERIOD DECLARING NIL INCOME. A SEARCH WAS CONDUCTED U/S 132 OF THE ACT ON 01.03.2001 AT THE RESIDENTIAL PREMISES OF ASSESSEE. THE ASSESSEE IN RESPONSE TO THE NOTICE ISSUED U/S. 158BC OF THE AC T FILED HIS RETURN OF INCOME AT NIL. THE ASSESSING OFFICER, DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOUND A CASH MEMO MARKED AS SV - 6 DATED 16.01.1996 ISSUED BY THE P.C. CHANDRA & SONS, KOLKATA FOR THE PURCHASE OF JEWELLERY WORTH OF 88,988/ - ONLY. T HE MEMO WAS ISSUED IN THE NAME OF RITA SHAW, SISTER OF ASSESSEE (DECEASED). THE ASSESSEE BEFORE AO CLAIMED THAT SAID JEWELLERY IS OWNED BY RITA SHAW AND SHE HAD PURCHASED THE SAME OUT OF HER OWN INCOME. HOWEVER, THE ASSESSEE FAILED TO FURNISH THE DOCUMENTARY EVIDENCE IN SUPPORT OF INCOME OF RITA SHAW. THEREFORE, THE AO DISREGARDED THE CLAIM OF ASSESSEE AND ADDED TO THE TOTAL INCOME OF ASSESSEE AS UNDISCLOSED INCOME. 5. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) WHO CONFIRMED THE ORDER OF AO WITH OUT ADDUCING ANY REASON THEREOF. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) ASSESSEE CAME IN SECOND APPEAL BEFORE US ON THE FOLLOWING GROUND S : - 2. FOR THAT THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.88,988/ - MADE ON THE BASIS OF A CASH MEMO IN RESPECT OF PURCHASE OF JEWELLERY BY RITA SHAW, RATHER SARAK, CHANDANNAGAR, HOOGHLY, FOUND & SEIZED NOT FORM THE POSSESSION OF LATE AMBUJ KUMAR SHAW BUT FROM RESIDENTIAL PREMISES, BEING THE ANCESTRAL HOUSE OF LATE AMBUJ KUMAR SHAW AND HIS FIVE BROT HERS, IN WHICH THEY RESIDED WITH THEIR FAMILIES. THE HOUSE WAS NOT EXCLUSIVELY BELONG TO LATE AMBUJ KUMAR SHAW, IN WHICH ONLY HE AND HIS FAMILY RESIDED. 3. FOR THAT RITA SHAW PURCHASED THE JEWELLERY OF RS.88,988/ - AS EVIDENT FROM THE CASH MEMO ITSELF AND E VEN THE JEWEELLERY APPEARING IN THE CASH MEMO WERE NOT FOUND DURING THE COURSE OF SEARCH. 4. FOR THAT ON THE BASIS OF THE CASH MEMO FOUND IN THE NAME OF RITA SHAW, PROCEEDINGS U/S. 158BC SHOULD HAVE BEEN INITIATED IN HER NAME, RATHER THAN TREATING THE SAME AS UNDISCLOSED INCOME OF THE APPELLANT MERELY ON PRESUMPTION. 6. BEFORE US LD. AR FOR THE ASSESSEE SUBMITTED THAT RITA SHAW, SISTER OF ASSESSEE(DECEASED) IS A TEACHER AND JEWELLERY WAS PURCHASED BY HER OUT OF HER OWN SOURCE OF INCOME. THEREFORE, IT WAS PRAYED TO THE BENCH FOR DELETING THE ADDITION AS MADE BY THE AUTHORITIES BELOW. IT (SS) A NO. 68/PAT/2013 B.P.91 - 92 TO 00 - 01 AND FROM 1/4/00 TO 1/3/01 SMT. PRETIMA SHAW VS. ACIT CC - 3 PATNA PAGE 3 ON THE OTHER HAND, LD. DR VEHEMENTLY RELIED ON THE ORDER OF AUTHORITIES BELOW. 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILAB LE ON RECORD. IN THE INSTANT CASE, THE ISSUE RELATES TO THE ADDITION MADE BY THE AO ON ACCOUNT OF UNDISCLOSED INCOME OF ASSESSEE. HOWEVER, ON EXAMINATION OF RECORDS AND ON PERUSAL OF ORDER OF AUTHORITIES BELOW, WE FIND THAT THE ASSESSEE HAS EXPLAINED THAT JEWELLERY WAS PURCHASED OUT OF THE INCOME EARNED BY MISS RITA SHAW. HOWEVER, AUTHORITIES BELOW HAS DISREGARDED THE PLEA OF ASSESSEE WITHOUT AD DUCING ANY REASON. IN OUR CONSIDERED VIEW, IT IS THE DUTY OF THE ASSESSING OFFICER TO GET THE CONFIRMATION FROM MI SS RITA SHAW TO ENSURE WHETHER IT BELONGED TO HER OR TO THE ASSESSEE. BESIDES THE ABOVE, IT WAS ALSO OBSERVED THAT THE CASH MEMO FOUND DURING THE COURSE OF SEARCH OPERATION WAS IN THE NAME OF MISS RITA SHAW WHICH STRONGLY INDICATES THAT IT IS OWNED BY HER. TO THIS POINT, LD. DR HAS NOT BROUGHT ANYTHING ON RECORD CONTRARY TO THE ARGUMENTS PLACED BY LD. AR OF THE ASSESSEE. I N THIS VIEW OF THE MATTER, WE HAVE NO HESITATION TO REVERSE THE ORDER OF LD. CIT(A) AND DIRECT THE AO TO DELETE THE SAME. HENCE, THIS GRO UND OF ASSESSEES APPEAL IS ALLOWED. 8. NEXT ISSUE RAISED BY ASSESSEE IN THIS APPEAL IS THAT LD. CIT(A) ERRED IN CONFIRMING THE ORDER OF AO BY SUSTAINING THE DISALLOWANCE OF 50,000/ - ON ACCOUNT OF UNEXPLAINED CASH FOUND AT THE TIME OF SEARCH OPERATION . A CASH OF 63,850/ - WAS FOUND FROM THE RESIDENCE OF THE ASSESSEE AT THE TIME OF SEARCH . ON QUESTION BY THE AO ABOUT THE SOURCE OF CASH, THE ASSESSEE SUBMITTED THAT A SUM OF 50,000/ - BELONGED TO M/S A.K. SHAW AND S.K. SHAW AND THE BALANCE BELONGED TO THE FAMILY MEMBERS. HOWEVER, THE AO DISREGARDED THE PLEA OF ASSESSEE BY OBSERVING THA T AT THE TIME OF SEARCH, SRI SAROJ KR. SHAW EXPLAINED THAT A SUM OF 48,000/ - WAS RECEIVED FROM SHRI SADANAND OF MARU FGANJ, PATNA CITY RELATING TO THE BUSINESS OF M/S A.K. SHA W AND SHRI S.K. SHAW AND THE SAME WAS NOT ENTERED IN THE BOOKS OF ACCOUNT. THEREFORE, THE AO TREATED A SUM OF 50,000/ - AS UNDISCLOSED INCOME OF ASSESSEE AND ADDED TO THE TOTAL INCOME OF ASSESSEE. 9. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A ). THE ASSESSEE BEFORE LD. CIT(A) SUBMITTED THAT CASH OF 50,000/ - BELONGED TO THE PARTNERSHIP FIRM OF M/S A.K. SHAW AND S.K. SHAW AND THE SAME WAS CONFIRMED BY ITS PARTNER. HOWEVER, LD. CIT(A) DISREGARDED THE SUBMISSIONS OF ASSESSEE AND CONFIRMED THE IT (SS) A NO. 68/PAT/2013 B.P.91 - 92 TO 00 - 01 AND FROM 1/4/00 TO 1/3/01 SMT. PRETIMA SHAW VS. ACIT CC - 3 PATNA PAGE 4 ORDE R OF AO BY OBSERVING THAT AFORESAID CASH AMOUNT OF 50,000/ - WAS NOT ENTERED IN THE BOOKS OF ACCOUNT. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) ASSESSEE IS SECOND APPEAL BEFORE US ON THE FOLLOWING GROUND: - 5. FOR THAT THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.50,000/ - OUT OF RS.63,850/ - FOUND DURING THE COURSE OF SEARCH NOT FROM THE POSSESSION OF LATE AMBUJ KUMAR SHAW BUT FROM THE POSSESSION OF HIS BROTHER, SRI SAROJ KUMAR SHAW WHO STATED ON STATEMENT ON OATH AT THE TIME OF SEARCH THAT THE MONEY BELONGED TO A PARTNERSHIP FIRM, M/S A.K. SHAW & S.K. SHAW. 10. BEFORE US LD. AR REITERATED THE SUBMISSIONS AS MADE BEFORE LD. CIT(A) AND REQUEST THE BENCH TO DECIDE THE ISSUE ON MERIT. ON THE OTHER HAND, LD. DR V EHEMENTLY RELIED ON THE ORD ER OF AUTHORITIES BELOW. 11. WE HAVE HEARD RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ISSUE IN THE INSTANT CASE RELATES TO THE CASH WHICH WAS FOUND FROM THE RESIDENT OF ASSESSEE AT THE TIME OF SEARCH PROCEEDINGS. THE EXPLANATION GIVEN BY THE ASSESSEE THAT THE AFORESAID CASH BELONGED TO FIRM AND THAT PLEA OF ASSESSEE WAS DISREGARDED BY LD. CIT(A) ON THE GROUND THAT CASH WAS NOT ENTERED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. NOW, THE ISSUE BEFORE US AR ISES FOR OUR ADJUDICATION SO AS TO WHETHER CASH FOUND AT THE TIME OF SEARCH WAS UNEXPLAINED INCOME OF ASSESSEE. IN THIS CONNECTION, WE FIND THAT ASSESSEE HAS EXPLAINED THAT THE AFORESAID CASH BELONGED TO FIRM AND SAID FIRM DULY ACCEPTED THE SAME. THE SAME STATEMENT WAS ALSO GIVEN AT THE TIME OF SEARCH PROCEEDINGS. IN THIS VIEW OF THE AFORESAID FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THE IMPUGNED CASH CANNOT BE TREATED AS INCOME IN THE HAND OF ASSESSEE. THEREFORE, WE ARE INCLINED TO SET ASIDE THE ORDER OF LD. CIT(A) AND DIRECT THE AO TO DELETE THE SAME. HENCE, THIS GROUND OF ASSESSEES APPEAL IS ALLOWED. 12. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED ORDER PRONOUNCED IN OPEN COURT ON 05 / 04 /201 7 SD/ - SD/ - ( ABY. T. VARKEY ) ( WASEEM AHMED ) JUDICIAL MEMBER ACCOUNTANT MEMBER *DKP , SR.P.S - 05 / 04 /201 7 PATNA IT (SS) A NO. 68/PAT/2013 B.P.91 - 92 TO 00 - 01 AND FROM 1/4/00 TO 1/3/01 SMT. PRETIMA SHAW VS. ACIT CC - 3 PATNA PAGE 5 COPY OF ORDER FORWARDED TO: - 1 . APPELLANT - SMT. PROTIMA SHAW (LEGAL HEIR OF LT. AMBUJ KUMR SHAW), 18/69 DARIYAPUR GOLA, PATNA - 800 004 2 . RESPONDENT - ACIT, CENTRAL CIRCLE - 3, PATNA 3 . CONCERNED CIT 4 . CIT (A) 5 . DR, ITAT, PATNA 6 . GUARD FILE. BY ORDER/ , SR.PS/PS, ITAT, PATNA