Dipiksha Murarka, Kolkata V. DCIT, CEN. CIR. -3(3), KOLKATA, Kolkata

ITSSA 81/KOL/2015

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4517 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 26-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 11-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K SRIHARI
• Assessee Lawyers: DILIP S DAMLE
• Keywords: Tangible material; Assessment record; Set aside
• Section: 271(1)(c); 143(3); 153A; 48

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI J.SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI S.S.GODARA, JUDICIAL MEMBER IT(SS)A NO.79-82/KOL/2015 ASSESSMENT YEARS: 2006-07 & 2007-08 PRAVEER MURARKA 1/C MANDEVILLE GARDENS, KOLKATA-700 019 [ PAN NO.AHEPM 7233 N ] DIPIKSHA MURARKA 1/C, MANDEVILLE GARDENS, KOLKATA-700 019 [ PAN NO.AHPPM 0884 N ] / V/S . DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3(3), AAYAKAR BHAWAN, PURVA, 110, SHANTI PALLI, KOLKATA- 700 107 /APPELLANT .. /RESPONDENT /BY ASSESSEE SHRI DILIP S. DAMLE, FCA ' /BY REVENUE SHRI P.K. SRIHARI, CIT-DR /DATE OF HEARING 28-11-2020 /DATE OF PRONOUNCEMENT 26-02-2020 /O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THESE FOUR TWO ASSESSEES APPEALS FOR ASSESSMENT Y EAR(S) 2006-07 & 2007-08 EACHARISE AGAINST THE COMMISSIONER OF INCOME TAX (A PPEALS)-21, KOLKATAS SEPARATE ORDER(S) DATED 07.04.2015 & 08.04.2015 PASSED IN CA SE NOS.925, 294, 206 & 927/CC- 3(3)/CIT(A)-21/14-15; RESPECTIVELY INVOLVING PROCEE DINGS U/S 153A R.W.S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. IT(SS)A NO.79-82/KOL/2015 ASSESSMENT YEARS 06-07 & 07-08 PRAVEEK MURARKA & PRAVEER MURARKA VS DCIT,CC -3(3), KOL. PAGE 2 HEARD SHRI D.S.DAMLE, LEARNED AUTHORIZED REPRESENTA TIVE FOR BOTH ASSESSEES AND SHRI P.K. SRIHARI, LEARNED CIT-DR APPEARING AT THE REVENUES BEHEST. CASE FILE(S) PERUSED. 2. IT TRANSPIRES DURING THE COURSE OF HEARING THAT THESE TWO ASSESSEES SEEK TO REVERSE BOTH THE LOWER AUTHORITIES ACTION ADDING T HEIR RESPECTIVE UNDISCLOSED DEPOSITS MADE IN HSBC BANK, GENEVA AMOUNTING TO 1,24,32,244/-, 2,65,42,318/-, 1,65,44,160/- & 3,52,54,079/-; (APPEAL-WISE).THEY HAVE ALSO RAISED ADDITIONAL GROUND CHALLENGING VALIDITY OF SEC. 153A PROCEEDING S FOR THE REASON THAT THE SAME DO NOT HAVE ANY NEXUS WITHOUT ALLEGED INCRIMINATING MA TERIAL FOUND OR SEIZED DURING THE COURSE OF SEARCH. LEARNED AUTHORIZED REPRESENTATIVE HAS THEREAFTER FILED A DETAILED WRITTEN NOTE THAT NOT ONLY THE IMPUGNED ASSESSMENT( S) DESERVE TO BE QUASHED ON THE FOREGOING LEGAL ASPECT BUT ALSO THE SAME ARE TIME B ARRED AS PER SEC.153 EXPLANATION-1 CLAUSE (VIII) OF THE ACT. THE REVENUE ON THE OTHER HAND SUBMITTED THAT THESE TWO ASSESSEES HAVE MADE IT CLEAR IN THE CASE RECORD(S) THAT THIS TRIBUNALS CO-ORDINATE BENCHS ORDER IN ITA NOS.533 & 534/KOL/2015 SHYAMA PRASAD MURARKA VS. DCIT, CENTRAL CIRCLE-3(3), KOLKATA DECIDED ON 15.02.2019 HAS RESTORED IDENTICAL ASSESSMENT(S) PERTAINING TO THE VERY CLIENT / PROFI LE CODE SCHEME OPENED WITH HSBC BANK, GENEVA, SWITZERLAND CONTAINING THE ALLEGED UN DISCLOSED DEPOSITS IN CASE OF THEIR FAMILY MEMBERS BACK TO THE ASSESSING OFFICER FOR AP PROPRIATE COMPUTATION OF THE ADDITION(S) AMOUNT FOLLOWS:- 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE A SSESSEE SUBMITTED BEFORE THE BENCH THAT AT ASSESSMENT STAGE, THE ASSESSEE HAS NOT BEEN PROVIDE D THE CERTIFIED COPY OF THE BANK ACCOUNT IN HSBC, GENEVA, SWITZERLAND. THE ASSESSING OFFICER US ED THE INFORMATION SHEETS FOR MAKING THE IMPUGNED ADDITIONS IN BOTH THE YEARS, THAT IS A.Y. 2006-07 AND 2007-08. THE ASSESSING OFFICER CLAIMED THAT THESE INFORMATION SHEETS WERE RECEIVED BY THE GOVERNMENT OF INDIA FROM A FOREIGN GOVERNMENT UNDER THE PROVISION OF EXCHANG E OF INFORMATION CLAUSES OF THE BILATERAL DOUBLE TAXATION AGREEMENT WITH THAT COUNTRY. THESE INFORMATION SHEETS RELATE TO ASSESSEE, DAUGHTER OF ASSESSEE, MS.YAMINI AGARWAL AND GRANDDA UGHTER MS.DIPIKSHA MURARKA AND CONTAIN THE INFORMATION LIKE NAME, RESIDENTIAL ADDR ESS, DATE OF BIRTH, ACCOUNT NO. WITH HSBC BANK AND MONEY DEPOSITED IN THESE ACCOUNTS IN DOLLA R CURRENCY. THE MAIN GRIEVANCE OF THE ASSESSEE IS THAT THESE INFORMATION SHEETS CANNOT BE A BASE TO MAKE HUGE ADDITION THEREFORE, HE CHALLENGED THESE INFORMATION SHEETS ON THE FOLLOWIN G COUNTS : A) ACCORDING TO THE ASSESSEE WHO IS AN INDIVIDUAL C ANNOT BE TERMED TO OWN THE UNDISCLOSED INCOME SINCE THE ASSESSING OFFICER DID NOT BRING ON RECORD ANY MATERIAL ON THE BASIS OF WHICH HE CAME TO A DEFINITE FINDING THAT AMOUNT WHICH WAS HELD IN ACCOUNT HAVING CLIENT PROFILE CODE NO. 5091157752 W HICH WAS IN THE NAME OF BILIPACK LTD. AND WONDERED AS TO HOW THE ASSESSING OFFICER D ETERMINED THE AMOUNT IN THE NAME OF ASSESSEE AS HIS OWN MONEY. SO ACCORDING TO THE ASSESSEE IT WAS INCUMBENT IT(SS)A NO.79-82/KOL/2015 ASSESSMENT YEARS 06-07 & 07-08 PRAVEEK MURARKA & PRAVEER MURARKA VS DCIT,CC -3(3), KOL. PAGE 3 UPON ASSESSING OFFICER TO FIRST ESTABLISH THE IDENT ITY OF THE BILIPACK LTD. AND THEREAFTER IT WAS OBLIGATORY ON HIS PART TO BRING O N RECORD RELEVANT AND TANGIBLE MATERIAL TO HOLD THAT THE MONEY IN THE NAME OF BILI PACK LTD. ACTUALLY BELONGED TO ASSESSEE. B) THE ASSESSEE CHALLENGES THE ASSERTION OF THE ASS ESSING OFFICER THAT THE INFORMATION HAS BEEN RECEIVED FROM THE SWISS GOVERNMENT AS PER THE DOUBLE TAXATION AVOIDANCE AGREEMENT. SO, THEREFORE THE AUTHENCITY OF THE INFO RMATION AND THE MATERIAL ON WHICH THE ASSESSING OFFICER HAS STARTED THE INVESTIGATION ITSELF ACCORDING TO THE ASSESSEE IS LEGALLY INVALID. (C). THESE INFORMATION SHEETS DO NOT CONTAIN THE NA ME AND SIGNATURE OF BANK MANAGER/AUTHORIZED PERSON OF HSBC BANK, THEREFORE T HESE ARE FABRICATED INFORMATION SHEETS TO HARASS THE ASSESSEE. (D). THESE INFORMATION SHEETS DO NOT CONTAIN THE S EAL OF THE HSBC BANK. (E).THESE INFORMATION SHEETS WERE PROVIDED TO THE A SSESSEE DURING THE ASSESSMENT PROCEEDINGS BUT THE ASSESSING OFFICER DID NOT CERTI FY THEM THAT THESE SHEETS WERE RECEIVED BY HIM FROM HSBC BANK SWITZERLAND THROUGH GOVERNMENT OF INDIA. (F).THESE INFORMATION SHEETS HANDED OVER TO THE ASS ESSEE BY THE AO WERE NOT IN ENGLISH BUT ANOTHER FOREIGN LANGUAGE, THEREFORE, AS SESSEE COULD NOT UNDERSTAND THE TRUE AND CORRECT MEANING OF VARIOUS TERMS, WORDSETC , HENCE COULD NOT DEFEND HIS CASE PROPERLY AT THE ASSESSMENT STAGE. THE ASSESSEE ALSO COULD NOT UNDERSTAND FROM THE FOREIGN LANGUAGE WHETHER HE IS OWNER OF ACCOUNT OR JUST ATTORNEY. (G). DURING THE ASSESSMENT PROCEEDINGS A REFERENCE WAS MADE BY THE AO TO THE SWISS AUTHORITIES THROUGH THE FOREIGN TAX AND TAX RESEARC H DIVISION OF THE CBDT REQUESTING FOR INFORMATION FROM HSBC, GENEVA SWITZERLAND. THE RESPONSE OF THE SWISS AUTHORITIES IS AWAITED. THEREFORE, LD COUNSEL SUBMI TTED BEFORE THE BENCH THAT ASSESSMENT OF INCOME, IF ANY, IN THE ASSESSEE`S CAS E SHOULD BE DONE BASED ON THE AUTHENTIC AND CERTIFIED BANK STATEMENT OF HSBC BANK , WHICH IS AWAITED FROM SWISS AUTHORITIES, HENCE MATTER SHOULD BE REMITTED BACK T O THE FILE OF THE ASSESSING OFFICER FOR MAKING FRESH ASSESSMENT (H).IT WILL BE EVIDENT THAT NOWHERE, ON ANY OF THE SIX PAGES, NAME OF HSBC PRIVATE BANK, GENEVA, APPEARS NOR SEAL OF THE BANK APPEARS THEREON. THERE IS ABSOLUTELY NO MATERIAL OR INFORMATION DISCERNIBLE FROM THE SAID I NFORMATION SHEETS, WHICH MAY ENABLE ANY MAN OF PRUDENCE TO CONCLUDE AND HOLD THA T THESE PAGES IN ANY MANNER ESTABLISH AND PROVE THAT INFORMATION CONTAINED THER EIN REPRESENTS DETAILS OF BANK ACCOUNT WITH ANY PARTICULAR BANK. NOWHERE IN ANY OF THE SIX PAGES REFERENCE IS MADE TO ANY PARTICULAR BANK OR FINANCIAL INSTITUTION AND THEREFORE BASED ON THESE INFORMATION SHEETS WHICH DID NOT BEAR SIGNATURE OR SEAL OF BANK THE HIGH PITCHED ASSESSMENT SHOULD NOT BE MADE. MOREOVER, THESE INFORMATION SHE ETS DO NOT CONTAIN SIGNATURE OF ANY GOVERNMENTAL AUTHORITY EITHER INDIAN OR FOREIGN . NO STATUTORY AUTHORITY CERTIFIED THE AUTHENTICITY OF THESE DOCUMENTS NOR SOURCE OF T HE INFORMATION WAS DISCLOSED TO THE ASSESSEE. (I) THE LD. COUNSEL POINTED OUT THAT PAGES 3 TO 6 O F THE INFORMATION SHEETS CONTAINED MONTH WISE VALUE OF ASSETS HELD IN THREE CLIENT PRO FILE, PERTAINING TO NOVEMBER, 2005 TO FEBRUARY, 2007. OUT OF MONTH WISE OR ROLLING BAL ANCES, THE LD. ASSESSING OFFICER SELECTED THE VALUE OF ASSETS FOR THE MONTH OF DECEM BER, 2005 TOTALING USD 21,14,501/- AND MADE ADDITION IN ASSESSMENT YEAR 20 06-07. THE ASSESSING OFFICER TOOK UP THE VALUE OF ROLLING BALANCES FOR THE MONTH OF MAY, 2006 AND DECEMBER, IT(SS)A NO.79-82/KOL/2015 ASSESSMENT YEARS 06-07 & 07-08 PRAVEEK MURARKA & PRAVEER MURARKA VS DCIT,CC -3(3), KOL. PAGE 4 2006 AGGREGATING TO USD 35,85,086/- AND MADE ADDITI ON IN A.Y. 2007-08 AS WELL. THE LD. COUNSEL THEREFORE SUBMITTED THAT THEN VALUE S OF SAME SET OF INVESTMENT FOR THE MONTH OF NOVEMBER, 2005 TO FEBRUARY, 2007 WERE STAT ED IN THE INFORMATION SHEETS, THEN THE ASSESSING OFFICER COULD NOT SELECTIVELY PI CK UP BALANCES FOR THREE MONTHS AND MAKE THE ADDITION AS UNDISCLOSED INCOME. THE LD . COUNSEL CLAIMED THAT THE ADDITION AMOUNTED TO DOUBLE TAXATION OF THE SAME AS SETS, WHICH WAS NOT PERMISSIBLE AND ADDITION IF ANY, SHOULD HAVE BEEN RESTRICTED IN THE RIGHT HANDS ONLY TO THE PEAK INVESTMENTS. 3. ON THE OTHER HAND, LD DR FOR THE REVENUE HAS FAI RLY AGREED WITH THE SUBMISSIONS OF THE LD. COUNSEL AND STATED BEFORE THE BENCH THAT THERE IS A DOUBLE ADDITION IN THE HANDS OF THE ASSESSEE WHICH NEEDS TO BE VERIFIED BY ASSESSING OF FICER AFRESH. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD, WE NOTE THAT THERE IS GROSS NEGLIGENCE OF THE PART OF THE OF ASS ESSING OFFICER WHICH IS GETTING REFLECTED IN THE CONCLUSION PARA OF THE ASSESSMENT ORDER, WHICH IS B EING REPRODUCED BELOW FOR READY REFERENCE : IT IS WORTHWHILE TO MENTION THAT DIPIKSHA MURARKA IS GRANDDAUGHTER, SMT. YAMINI AGARWAL IS DAUGHTER AND IN RESPECT OF BILIPACK LTD. , THE SEIZED DOCUMENT VIDE PAGE NO.- 48 OF SPM/8 WAS FOUND FROM HIS RESIDENCE WHICH SPEAKS ABOUT THE CERTIFICATE OF FOREIGN INWARD REMITTANCE ISSUED ON 09.01.2004. THU S, IT IS CRYSTAL CLEAR FROM THE SAID RECORDS/ DOCUMENTS THAT THE UNDISCLOSED AMOUNT WAS DEPOSITED IN TO UNDISCLOSED BANK ACCOUNT VIDE CODE PROFILE CLIENT NO. 509143745 3 & NOM (CODE BUP) MURARKA DIPIKSHA(5090183141) IN RESPECT OF ENTRY OF NAME OF DIPIKSHA MURARKA, VIDE CODE PROFILE CLIENT NO. 5091438123 & NOM (CODE BUP) AGAR WAL YAMINI (5090183310) IN RESPECT OF ENTRY OF NAME OF SMT. YA MINI AGARWAL AND VIDE CODE PROFILE CLIENT NO. 5091157752 & NOM STRUCTURE JURIS .(CODE BUP) BILIPACK LTD (5090224794) IN RESPECT OF ENTRY OF NAME OF BILIPAC K LTD WITH HSBC, GENEVA, SWITZERLAND. IN VIEW OF THE FACTS, SUBSTANTIVE ADDI TION IS BEING MADE IN THE HANDS OF SHYAMA PRASAD MURARKA. HENCE, SUM OF RS. 1,84,52,16 4/- (EQUIVALENT TO $ 3,97,419.00 @ RS. 46.4300 PER USD IN MAY 2006) & RS . 1,68,01,915/- ( EQUIVALENT TO $ 3,79,876.00 @RS. 44.2300 PER USD IN DEC 2006), RS. 1,36,34,587/- ( EQUIVALENT TO $ 2,93,659.00 @ RS. 46.1300 PER USD IN MAY 2006) & RS. 1,24,20,580/- ( EQUIVALENT TO $ 2,80,818.00 @ RS.44.2300 PER USD IN DEC 2006) AND RS. 8,69,83,726/- ( EQUIVALENT TO $ 18,73,438.00 @ RS. 46.4300 PER USD IN MAY 2006) &RS. 7,39,46,854/- ( EQUIVALENT TO $3,79,876.00 @ R S. 44.230 PER USD IN DEC 2006), TOTALING TO RS. 22,22,39,826/-( RS. 18452164 + RS.1 6801915 + RS. 13634587 + RS. 12420580 + RS. 86983726 + RS.73946854) IS TREATED A S UNDISCLOSED INCOME DEPOSITED INTO UNDISCLOSED BANK ACCOUNT WITH HSBC, GENEVA, SWITZERLAND AND ADDED TO THE TOTAL INCOME OF ASSESSEE FOR A.Y- 2007-08. P ENALTY PROCEEDING U/S 271(1)(C) IS INITIATED SEPARATELY. FROM THE PERUSAL OF THE ADDITION MADE BY ASSESSING OFFICER, WE NOTE THAT USD $3,79,876/- @ RS.44.230 WHICH COMES TO INR AT RS.1,68,01,915/- HA S BEEN ADDED TWICE ( SEE HIGHLIGHTED FIGURES NOTED ABOVE). NOT ONLY THAT WHILE COMPUTING THE CONVERSION ITSELF MISTAKE HAS CREPT IT WHICH TANTAMOUNT TO DOUBLE ADDITION WHICH CAN BE CL EARLY OBSERVED FROM THE ABOVE NOTED ITALICS PARA. AT ONE PLACE CONVERSION RATE IS MENTI ONED AT RS.1,68,01,915/- WHEREAS WHILE CALCULATING THE SAME FIGURE FOR CONVERSION USD AND SAME CONVERSION RATE, THE ADDITION WAS WORKED OUT AT RS.7,39,46,854/-($3,79,876/- @ RS.44. 230) WHICH IS WRONG. APART FROM THIS, THERE IS OVER ASSESSMENT IN RESPECT OF THE FOLLOWIN G ADDITION : RS. 1,36,34,587/- (EQUIVALENT TO $ 2,93,659.00 @ RS . 46.1300 PER USD IN MAY 2006) IT(SS)A NO.79-82/KOL/2015 ASSESSMENT YEARS 06-07 & 07-08 PRAVEEK MURARKA & PRAVEER MURARKA VS DCIT,CC -3(3), KOL. PAGE 5 THE CON VERSION AMOUNT OUGHT TO BE AT RS.1,35,46,48 9/-, INSTEAD OF RS. 1,36,34,587/-. THEREFORE, PRIMA FACIE ITSELF WE NOTE THAT IT IS NO T ONLY A CASE OF DOUBLE ADDITION BUT HIGH- PITCHED ASSESSMENT ALSO. WE NOTE THAT ANOTHER GRIEV ANCE OF THE ASSESSEE IS THAT ASSESSING OFFICER HAS TAXED MAXIMUM HOLDINGS NOTED FOR THE PERIOD (IN USD) AS WELL AS INDIVIDUAL MONTH WISE ENTRIES. APART FROM THIS, THE MAXIMUM H OLDINGS NOTED FOR THE PERIOD (IN USD) 18,73,438, WHICH BELONGS TO BILIPAK LTD. HAS ALSO B EEN ADDED IN THE HANDS OF ASSESSEE AS A PART OF SUBSTANTIVE ADDITION WITHOUT SPELLING OUT T HE REASON HOW THE AMOUNT REFLECTED IN BILIPACK LTD. HAS BEEN TAXED IN THE HANDS OF ASSESS EE. 5. NOW, WE TAKE CONCLUSION PARA OF THE ASSESSING OF FICER FOR THE ASSESSMENT YEAR 2006-07, WHICH READS AS UNDER : IT IS WORTHWHILE TO MENTION THAT DIPIKSHA MURARKA IS GRANDDAUGHTER, SMT YAMINI AGARWAL IS DAUGHTER AND IN RESPECT OF BILIPACK LTD. THE SEIZED DOCUMENT VIDE PAGE NO-48 OF SPM/8 WAS FOUND FROM HIS RESIDENCE WHICH SPEAKS ABOUT TH E CERTIFICATE OF FOREIGN INWARD REMITTANCE ISSUED ON 09.01.2004. THU S, IT IS CRYSTAL CLEAR FROM THE SAID RECORDS/DOCUMENTS THAT THE UNDISCLOSED AMOUNT WAS DEPOSITED INTO UNDISCLOSED BANK ACCOUNT VIDE CODE PROFILE CLIENT NO. 509143745 3 & NOM (CODE BUP) MURARKA DIPIKSHA (5090183141) IN RESPECT OF ENTRY O F NAME OF DIPIKSHA MURARKA, VIDE CODE PROFILE CLIENT NO. 5091438123 & NOM (CODE BUP) AGARWAL YAMINI (5090183310) IN RESPECT OF ENTRY OF NAME OF SMT. YAMINI AGARWAL AND VIDE CODE PROFILE CLIENT NO. 5091157752 & NOM STRUCTURE JURIS.(CODE BUP) BILLPACK LTD (5090224794) IN RESPECT OF ENTRY OF NAME OF BIL IPACK LTD WITH HSBC, GENEVA, SWITZERLAND. IN VIEW OF THE FACTS, SUBSTANTIVE ADDI TION IS BEING MADE IN THE HANDS OF SRI SHYAMA PRASAD MURARKA. HENCE, A SUM OF RS.1,65, 44,160/- (EQUIVALENT TO $ 3,67,077.00 @ RS. 45.0700 PER USD IN DEC 2005), A S UM OF RS.1,22,48,403/- (EQUIVALENT TO $ 2,71,764.00 @ RS. 45.0700 PER USD IN DEC 2005) AND A SUM OF RS.6,65,07,951/- (EQUIVALENT TO $ 14,75,659.00 @ RS . 45.0700 PER USD IN DEC 2005) TOTALING TO RS.9,53,00,514/-IS TREATED AS UNDISCLOS ED INCOME DEPOSITED INTO UNDISCLOSED BANK ACCOUNT WITH HSBC, GENEVA, SWITZER LAND AND ADDED TO THE TOTAL INCOME OF ASSESSEE FOR AY- 2006-07. PENALTY PROCEED ING U/S 271(1)(C) IS INITIATED SEPARATELY. WE NOTE THAT IN RESPECT OF BILIPACK LTD, CLIENT PRO FILE NO.5091157752, THE SUBSTANTIVE ADDITION MADE BY ASSESSING OFFICER IN RESPECT OF US D $ 14,75,659 IN ASSESSMENT YEAR 2006- 07, THE RELEVANT DETAIL IS GIVEN BELOW : RS.6,65,07,951/- (EQUIVALENT TO $ 14,75,659.00 @ RS . 45.0700 PER USD IN DEC 2005) IN ASSESSMENT YEAR 2007-08, THE ASSESSING OFFICER M ADE ADDITION IN RESPECT OF BILIPACK LTD, CLIENT PROFILE NO.5091157752, TAKING INTO ACCOUNT U SD $ 18,73,438 WHICH INCLUDES PREVIOUS YEARS` USD $ 14,75,659 FOR WHICH ADDITION HAD ALREA DY BEEN MADE BY AO IN ASSESSMENT YEAR 2006-07. THE ADDITION MADE BY AO FOR A.Y. 2007-08 I N RESPECT OF BILIPACK LTD IS GIVEN BELOW FOR READY REFERENCE : RS. 8,69,83,726/- ( EQUIVALENT TO $ 18,73,438.00 @ RS. 46.4300 PER USD IN MAY 2006) FROM THE PERUSAL OF THE ADDITION MADE BY ASSESSING OFFICER, WE NOTE THAT USD $14,75,659 BELONGS TO BILIPAK LTD. HAS BEEN ADDED IN THE ASSES SEES HAND, AS A PART OF SUBSTANTIVE ADDITION BUT WE NOTE THAT THE USD $ 18,73,438 INCLU DES USD $ 14,75,659, HENCE IT IS A DOUBLE ADDITION IN THE HANDS OF THE ASSESSEE. 6.ANOTHER GR IEVANCE OF THE ASSESSEE IS THAT THE ASSESSING OFFICER HAS NOT BROUGHT OUT AS TO THE NEXUS OF BILI PAK LTD, WITH THAT OF ASSESSEE AND WHAT IS THE MATERIAL ON WHICH THE AO INFERRED THAT THE MONEY HE LD IN THE ACCOUNT OF BILIPAK LTD, ACTUALLY IT(SS)A NO.79-82/KOL/2015 ASSESSMENT YEARS 06-07 & 07-08 PRAVEEK MURARKA & PRAVEER MURARKA VS DCIT,CC -3(3), KOL. PAGE 6 BELONGS TO THE ASSESSEE. THE LD COUNSEL SUBMITTED B EFORE US THAT COMPLETE ADDRESS OF BILIPAK LTD, WITH CLIENT PROFILE CODE OF 509115772 WAS AVAI LABLE IN THE DOCUMENTS AND IS IN THE ASSESSMENT RECORDS OF THE AO, HOWEVER AO HAD NOT SU MMONED DIRECTORS OF THIS COMPANY OR ENFORCED THE ATTENDANCE OF THE DIRECTORS OF THE SAI D COMPANY DURING THE ASSESSMENT PROCEEDINGS AND DID NOT PROVIDE OPPORTUNITY TO ASSE SSEE TO CROSS EXAMINE THEM. ACCORDING TO ASSESSEE HAD THE AO ENFORCED THE ATTENDANCE OF DIRE CTORS OF BILIPAK LTD, THE SUBSTANTIVE ADDITION WOULD NOT HAVE BEEN MADE IN THE HANDS OF T HE ASSESSEE, IN RESPECT OF AMOUNT REFLECTED IN THE NAME OF BILIPAK LTD . THIS CLEARLY SHOWS THAT THE AO HAS FAILED TO DIS CHARGE HIS OBLIGATION TO CONDUCT A PROPER INQUIRY TO TAKE THE MATTER TO LOGICAL CONCLUSION. 7. WE NOTE FROM PAGE 26 TO 29 OF PAPER BOOK WHICH C ONTAINS THE MONTH-WISE BALANCES OF ACCOUNT PROFILE OF BILIPAK LTD, 31792YA AND 31791DP FOR THE PERIOD BETWEEN NOVEMBER 2005 TO FEBRUARY, 2007. WE NOTE THAT THESE PAGES CONTAIN ED THE SAME INVESTMENTS IN BONDS AND LIQUID ASSETS HELD IN EACH OF THE THREE ACCOUNTS FO R THE AFORESAID PERIOD. FOR EXAMPLE, A PERUSAL OF PAGE NO.26 SHOWS THAT ACCOUNT PROFILE, B ILIPAK LTD- UDS $ 14,75,659.25, ACCOUNT PROFILE NO.31792YA- USD $2,71,764.26 AND ACCOUNT PR OFILE NO.31791DP- USD $3,67,077.76, ALL AGGREGATING TO USD $21,14,501. TH E INVESTMENTS IN BONDS AND LIQUID ASSETS CONTINUED IN SUBSEQUENT MONTHS ALSO. OUT OF CONTINU ING INVESTMENTS, THE ASSESSING OFFICER AGAIN SELECTED BALANCES IN THE MONTH OF MAY 2006 AN D DECEMBER 2006 IN ALL THE THREE ACCOUNTS AND ASSESS THE VALUE OF INVESTMENTS FOR TH ESE TWO MONTHS AS INCOME OF THE ASSESSEE FOR ASSESSMENT YEAR 2007-08. WE NOTE THAT THE INVES TMENTS WHICH WERE CONTINUING FROM MONTH TO MONTH (THAT IS, CARRY FORWARDING FROM PREVIOUS M ONTH TO NEXT MONTH), THERE WAS NO REASON FOR THE ASSESSING OFFICER TO ASSESS THE VALUE OF SA ME INVESTMENTS TWO TIMES/THREE TIMES WHICH NEEDED TO BE EXAMINED, AS IT WILL TANTAMOUNT TO DOU BLE TAXATION WHICH IS NOT PERMISSIBLE IN LAW. THUS, IT IS ABUNDANTLY CLEAR THAT THE ASSESSIN G OFFICER HAS NOT PROPERLY DISCHARGED HIS STATUTORY DUTY TO THE ASSESSEE, THE RIGHT INCOME, I N THE HANDS OF THE RIGHT PERSON AND IN RIGHT ASSESSMENT YEAR. RIGHT MEANS LEGALLY CORRECT AS PER LAW AND NOT THE WRONG HANDS ETC. WE ARE OF THE OPINION THAT ASSESSMENT SHOULD NOT RESULT IN DOUBLE TAXATION OF THE SAME INVESTMENT, IF ANY, AND IT NEED TO BE VERIFIED BY THE ASSESSING OF FICER FROM THE CORRECT SOURCE AND ASCERTAIN THE TRUE AND CORRECT FACTS KEEPING IN MIND THAT ONL Y IN THE RIGHT YEAR THE RIGHT INCOME IN THE RIGHT HANDS ONLY SHOULD BE TAXED. WE RELY ON THE JU DGMENT OF THE HONBLE SUPREME COURT IN ITO VS. CH. ATCHAIAH (1996) 218 ITR 239 (SC ). IN THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT RIGHT PERSON HAS NOT BEEN IDENTIFIED BY THE AS SESSING OFFICER. 8. BASED ON THE ABOVE DISCUSSION, WE ARE CONSTRAINED TO OBSERVE THAT THE AO HAS FAILED TO DISCHARGE HIS OBLIGATION TO CONDUCT A PROPER INQUIRY TO ASCERTAIN THE INCOME OF THE ASSESSEE AND THE TAX PAYABLE BY HIM TO THE UOI. THEREFORE, TAKING INTO ACCOUNT THE DICTUM OF THE HON`BLE SUPREME COURT IN THE CASE OF CH. ATCHAIAH (SUPRA), PROPER INQUIRY NE EDED TO BE CONDUCTED BY ASSESSING OFFICER TO ASCERTAIN THE INCOME OF THE ASSESSEE. THEREFORE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF AO FOR DE NOVO ASSESSMENT IN ACCORDANCE TO LAW AFTER GIVING OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE . 3. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL PLEADINGS. IT HAS COME ON RECORD THAT THE TRIBUNALS CO-ORDINATE BENCH HAS RE STORED THE SIMILAR ISSUE(S) BACK TO THE ASSESSING OFFICER REGARDING APPROPRIATE COMPUTA TION OF THE ALLEGED UNDISCLOSED DEPOSIT(S) MADE IN IDENTICAL HSBC BANKS ACCOUNTS C ONCERNED. WE THEREFORE ARE OF THE OPINION THAT THE INSTANT LIS MUST ALSO FOLLOW SUITS KEEPING IN MIND THE SIMILAR ITY OF THE FACTS AND CIRCUMSTANCES INVOLVED. WE ORDER ACCO RDINGLY. WE MAKE IT CLEAR THAT THE IT(SS)A NO.79-82/KOL/2015 ASSESSMENT YEARS 06-07 & 07-08 PRAVEEK MURARKA & PRAVEER MURARKA VS DCIT,CC -3(3), KOL. PAGE 7 ASSESSEE SHALL BE ENTITLED TO RAISE ALL FACTUAL / L EGAL PLEAS BEFORE THE ASSESSING OFFICER IN CONSEQUENTIAL PROCEEDINGS AS PER LAW. 4. THESE TWO ASSESSEES INSTANT FOUR APPEAL(S) ARE ALLOWED FOR STATISTICAL PURPOSES IN ABOVE TERMS. A COPY OF THE INSTANT COMMON ORDER BE PLACED IN THE RESPECTIVE CASE FILE(S) . ORDER PRONOUNCED IN OPEN COURT ON 26/02/2020 SD/- SD/- ( ') (* ') (J.SUDHAKAR REDDY) (S.S.GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER *DKP-SR.PS + - 26/02/2020 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-PRAVEER MURARKA / DIPIKSHA MURARKA1/C MA NDEVILLA GARDENS, KOLKATA-700 019 2. ' /REVENUE-DCIT,CC-3(3), KOLKATA, AAYAKAR BHAWAN, P URVA, 110, SHANTI PALLI, KOLKATA-107 3. . / / CONCERNED CIT 4. / - / CIT (A) 5. 0 **. , . /DR, ITAT, KOLKATA 6. 4 / GUARD FILE. BY ORD ER/ , /TRUE COPY/ .,