Sri Mihir Banerjee, Dhanbad V. ACIT, Dhanbad

ITSSA 7/RAN/2013

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0464 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 5 month(s) 12 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 27-11-2014
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 14-06-2013
• Court: TRIBUNAL
• Department Lawyers: DEEPAK ROSHAN SENIOR S CLD
• Assessee Lawyers: S K PODDAR; M K CHOUDHARY S LD
• Keywords: Unexplained investment; Search and seizure; Salary income
• Section: 153A

Judgement Text

1 IT(SS) A NO.07/RAN/2013 SRI MIHIR BANERJEE INCOME TAX APPELLATE TRIBUNAL, CIRCUIT BENCH, RANCHI BEFORE HON'BLE SHRI H.L. KARWA, PRESIDENT , AND HON'BLE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER IT (SS) A NO. 07 /RAN/201 3 A.Y 2004 - 05 SRI MIHIR BANERJEE VS. A.C.I.T, CENT RAL CIRCLE, DHANBAD PAN: A CGPB6886P ( APPELLANT ) ( RESPONDENT ) FOR THE APPELLANT : S/ SHRI S.K PODDAR & M.K.CHOUDHARY, ADVOCATES, LD.AR FOR THE RESPONDENT : SHRI DEEPAK ROSHAN, SENIOR S.C, LD.DR DATE OF HEARING : 27 - 11 - 2014 DATE OF PRONOUNCEMENT: 27 - 11 - 2014 ORDER SHRI B.R. BASKARAN, ACCOUNTANT MEMBER : THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 19 - 03 - 2013 PASSED BY LD CIT(A), JHARKHAND AND IT RELATES TO THE ASSESSMENT YEAR 2004 - 05. THE ASSESSEE IS CH ALLENGING FOLLOWING ADDITIONS IN HIS REVISED GROUNDS OF APPEAL. ( A ) ADDITION OF RS.25,000/ - RELATING TO UNEXPLAINED INVESTMENT IN BAJAJ ALLIANCE. ( B ) ADDITION OF RS.1,75,000/ - RELATING TO INVESTMENT MADE IN M/S SANTAWANA NURSING HOME. 2. WE HEARD THE RIVAL C ONTENTIONS AND PERUSED THE RECORD. THE ASSESEE WAS SUBJECTED TO SEARCH AND SEIZURE OPERATION ON 17.10.2008. CONSEQUENTLY THE PRESENT ASSESSMENT WAS COMPLETED U/S 153A OF THE ACT. THOUGH THE LD A.R SUBMITTED THAT THE ASSESSEE HAD FILED ORIGINAL RETURN OF INCOME PRIOR TO THE DATE OF SEARCH AND THE TIME LIMIT FOR ISSUING NOTICE U/S 143(2) HAD EXPIRED, YET NO EVIDENCE WAS PRODUCE TO SUPPORT THE SAME. HOWEVER, THE LD D.R ALSO COULD NOT 2 IT(SS) A NO.07/RAN/2013 SRI MIHIR BANERJEE CONTRADICT THE SAID SUBMISSIONS AND HENCE WE ACCEPTED THE STATEMENT MADE BY LD COUNSEL FOR THE ASSESSEE AT BAR. ACCORDINGLY, WE PROCEED TO DISPOSE OF THE ISSUES URGED BEFORE US. ON THE BASIS OF STATEMENT MADE BY LD A.R, THE PRESENT ASSESSMENT FALLS UNDER THE CATEGORY OF COMPLETED ASSESSMENT AND HENCE THE SAME WOULD NOT ABAT E IN TERMS OF SEC. SEC. 153A OF THE ACT. 3. THE FIRST ISSUE RELATES TO THE ADDITION OF RS.25,000/ - RELATING TO INVESTMENT MADE IN BAJAJ ALLIANCE. THOUGH THE LD A.R CONTENDED THAT NO MATERIAL RELATING TO THE ABOVE SAID INVESTMENT WAS FOUND AT THE TIM E OF SEARCH, HOWEVER, WE N OTICE FROM THE ASSESSMENT ORDER THAT THE DEPARTMENT UNEARTHED THE DETAILS OF POLICY NUMBERS OF BAJAJ ALLIANZ AND THE SAME HAS BEEN INVENTORISED UNDER ANNEXURE II OF PANCHANAMA. WE FURTHER NOTICE THAT THE ASSESSEE HAS ACCEPTED TH E SAME AS UNACCOUNTED INVESTMENT AND AGREED TO OFFER THE SAME FOR TAXATION. THOUGH THE LD A.R CONTENDED THAT THE ASSESSEE HAD PAID THE ABOVE SAID AMOUNT OUT OF HIS SALARY INCOME, WE NOTICE THAT THE SAID CONTENTION WAS NOT TAKEN BEFORE THE TAX AUTHORITIES. WE NOTICE THAT THE LD CIT(A) HAS GIVEN A FINDING THAT THE DRAWINGS OF THE ASSESSEE WAS SHOWN AT A LOWER AMOUNT OF RS.36,000/ - ONLY AND HENCE THE ABOVE SAID AMOUNT OF RS.25,000/ - COULD NOT HAVE BEEN OUT OF THE DRAWINGS AMOUNT. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY INFIRMITY IN THE DECISION OF LD CIT(A) IN CONFIRMING THIS ADDITION. 4. THE NEXT ISSUE RELATES TO THE ADDITION OF RS.1,75,000/ - RELATING TO CAPITAL INVESTMENT MADE IN A PARTNERSHIP FIRM. THE AO HAS NOT MADE THIS ADDITION AND THE LD CIT(A ) HAS MADE THIS ADDITION BY GIVING ENHANCEMENT NOTICE. THE ASSESSEE FILED A COPY OF ENHANCEMENT NOTICE BEFORE US. A PERUSAL OF THE SAME SHOWS THAT THE LD CIT(A) CAME TO KNOW OF THE INVESTMENT AT THE TIME OF APPEAL PROCEEDINGS OF M/S BSM CLINILAB DIAGNOST IC & IMAGING CENTRE (P) LTD. THUS, IT IS PROVED THAT THE INFORMATION RELATING TO INVESTMENT IN PARTNERSHIP FIRM WAS NOT FOUND DURING THE COURSE OF SEARCH. THE LD COUNSEL PLACED RELIANCE ON THE DECISION OF THE SPECIAL BENCH IN THE CCASE OF ALCARGO GLOBAL LOGISTICS LTD VS. DCIT 3 IT(SS) A NO.07/RAN/2013 SRI MIHIR BANERJEE (2012)(137 ITD 287) TO CONTEND THAT THE ASSESSING OFFICER COULD MAKE ADDITION IN THE CASE OF COMPLETED ASSESSMENTS ONLY ON THE BASIS OF INCRIMINATING MATERIALS FOUND DURING THE COURSE OF SEARCH OPERATION. WE AGREE WITH THE SAID CONT ENTIONS OF THE ASSESSEE. ACCORDINGLY, WE HOLD THAT THE LD CIT(A) WAS NOT JUSTIFIED IN ENHANCING THE ASSESSMENT ON THE BASIS OF MATERIAL UNRELATED TO THE SEARCH OPERATION. ACCORDINGLY WE SET ASIDE THE ORDER OF LD CIT(A) ON THIS ISSUE AND DIRECT THE ASSES SING OFFICER NOT TO MAKE THE ADDITION OF RS.1,75,000/ - REFERRED ABOVE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. PRONOUNCED ACCORDINGLY ON 27 - 11 - 2014 SD/ - SD/ - [ H.L. KARWA ] [ B.R. BASKARAN ] PRESIDENT ACCOUNTANT MEMBER DT. 27 - 11 - 2014 PLACE : RANCHI PP, SR. PS COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT : SHRI MI HIR BANERJEE, M/S. CLINILAB, C/O R.K. PATNIA (AR) C/O R.K. PATNIA & CO. 1 ST FL, RATHORE MANSION, BANK MORE, D BAD 2 THE RESPONDENT: THE ACIT, CC, D BAD 3..THE CIT, 4.THE CIT(A), 5.DR, ITAT CIRCUIT BENCH, RANCHI 6. GUARD FILE. TRUE COPY, BY ORDER, ASSTT. REGISTRAR 4 IT(SS) A NO.07/RAN/2013 SRI MIHIR BANERJEE 1. DATE OF DICTATION .............27 - 11 - 2014.. ON MEMBER S LAPTOP ..................... 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ........................OTHER MEMBER .... 28 ... - 11 - 2014. ....................... 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. ..................... 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT..................................27 - 11 - 2014................ ................................... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S ................ 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK ....................................... 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . ........................................ 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER ................................................................................................. 9. DATE OF DESPATCH OF THE O RDER ..............................................................