Dr. Samiran Banerjee, Dhanbad V. ACIT, Dhanbad

ITSSA 9/RAN/2013

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0463 (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: 2005-2006
• 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
• Section: 153A

Judgement Text

1 IT(SS) A NO S .09 & 10 /RAN/2013 DR.SAMIRAN BANERJEE C/O M/S. CLINILAB, D BAD 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 S . 09 & 10 /RAN/201 3 A.Y 2004 - 05 & 05 - 06 DR. SAMIRAN BANERJEE, DHA NBAD VS. A.C.I.T, CENTRAL CIRCLE, DHANBAD PAN: A CG PB6887N ( 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 PRONOUNCEME NT: 27 - 11 - 2014 ORDER SHRI B.R. BASKARAN, ACCOUNTANT MEMBER : THE ASSESSEE HAS FILED THESE TWO APPEALS CHALLENGING THE COMMON ORDER DATED 19 - 03 - 2013 PASSED BY LD CIT(A), DHANBAD AND THEY RELATE TO THE ASSESSMENT YEARS 2004 - 05 AND 2005 - 06. 2. WE SHALL TAKE UP THE APPEAL FILED FOR AY 2004 - 05, WHEREIN FOLLOWING ISSUES ARE CONTESTED BEFORE US: - (A) ADDITION OF PREMIUM PAID ON ICICI PRUDENTIAL FUND AS UNDISCLOSED INVESTMENT. (B) ADDITION OF RD MADE WITH POST OFFICE AS UNDISCLOSED INVESTMENT. (C) ADDITION OF RS.1,75,000/ - , BEING THE CAPITAL INVESTMENT MADE IN THE PARTNERSHIP FIRM. 2 IT(SS) A NO S .09 & 10 /RAN/2013 DR.SAMIRAN BANERJEE C/O M/S. CLINILAB, D BAD 3. WE HEARD THE PARTIES 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 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 ABATE IN TERMS OF SEC. SEC. 153A OF THE ACT. 4. THE FIRST ADDITION PERTAINS TO THE INSURANCE PREMIU M OF RS.37,217/ - PAID ON ICICI PRUDENTIAL FUND. IT IS NOTICED THAT THE ASSESSEE HAS ACCEPTED DURING THE COURSE OF ASSESSMENT PROCEEDING THAT IT WAS AN UNACCOUNTED INVESTMENT AND ALSO AGREED TO OFFER THE SAME AS INCOME. THOUGH THE LD A.R CLAIMS THAT THE A BOVE SAID AMOUNT WAS PAID OUT OF THE INCOME OF THE ASSESSEE, YET NO MATERIAL WAS PLACED BEFORE US TO SUBSTANTIATE THE SAID CLAIM. FURTHER WE NOTICE THAT THE LD A.R IS MAKING THIS CONTENTION FOR THE FIRST TIME BEFORE US. HENCE, WE DO NOT FIND ANY REASON T O INTERFERE WITH THE DECISION OF LD CIT(A) ON THIS ISSUE. 5. THE NEXT ADDITION RELATES TO THE INVESTMENT MADE IN RECURRING DEPOSITS WITH POST OFFICE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE ADMITTED ABOUT THE EXISTENCE OF POST OFFIC E RECURRING DEPOSIT ACCOUNT. HE ALSO CLAIMED THAT THE SAME HAS GOT MATURED. BUT HE COULD NOT FURNISH FURTHER DETAILS. HENCE, THE AO ADDED THE CONTRIBUTION MADE DURING THE INSTANT YEAR AMOUNTING TO RS.54,000/ - AS THE INCOME OF THE ASSESSEE. THE LD CIT(A ) ALSO CONFIRMED THE SAME. BEFORE US, THE ASSESSEE COULD NOT FURNISH ANY MATERIAL TO SHOW THAT THE 3 IT(SS) A NO S .09 & 10 /RAN/2013 DR.SAMIRAN BANERJEE C/O M/S. CLINILAB, D BAD SAID DEPOSIT WAS PAID OUT OF HIS ACCOUNTED INCOME. HENCE, WE HAVE NO OTHER OPTION, BUT TO CONFIRM THE ORDER OF LD CIT(A) ON THIS ISSUE. 6. THE NEXT IS SUE 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 NOTI CE 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 DIAGNOSTIC & IMAGING CENTRE (P) LTD. THUS, IT IS PROVED THAT THE INFORMATION RELATING TO INVESTMENT IN PARTN ERSHIP 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 (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 CONTENTIONS 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 ASSESSING OFFICER NOT TO MAKE THE ADDITION OF RS.1,75,000/ - REFERRED ABOVE. 7. WE SHALL NOW TAKE UP T HE APPEAL FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2005 - 06. AT THE TIME OF HEARING, THE LD A.R MOVED PETITION REQUESTING THE BENCH TO ALLOW THE ASSESSEE TO WITHDRAW THE APPEAL. THE LD A.R HAS STATED THAT HE DID NOT WANT TO PROSECUTE THE APPEAL DUE TO SMALLNESS OF THE AMOUNT IN DISPUTE. THE LD D.R DID NOT OBJECT TO THE REQUEST MADE BY LD A.R. ACCORDINGLY, WE ALLOW THE ASSESSEE TO WITHDRAW THE APPEAL. 4 IT(SS) A NO S .09 & 10 /RAN/2013 DR.SAMIRAN BANERJEE C/O M/S. CLINILAB, D BAD 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE FOR AY 2004 - 05 IS PARTLY ALLOWED AND THE APPEAL RELATING TO AY 2005 - 06 IS DISMISSED AS WITHDRAWN. PRONOUNCED ACCORDINGLY ON 27 - 11 - 2014 SD/ - SD/ - [ H.L. KARWA ] [ B.R. BASKARA N ] PRESIDENT ACCOUNTANT MEMBER DT. 27 - 11 - 2014 PLACE : RANCHI PP, SR. PS COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT : DR. SAMIRAN BANERJEE , M/S. CLINILAB, C/O R.K. PATNIA (AR) C/O R.K. PATNIA & CO. 1 ST FL, RATHORE M ANSION, 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 5 IT(SS) A NO S .09 & 10 /RAN/2013 DR.SAMIRAN BANERJEE C/O M/S. CLINILAB, D BAD 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 T O 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 T HE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER ................................................................................................. 9. DATE OF DESPATCH OF THE ORDER .............................................................. 6 IT(SS) A NO S .09 & 10 /RAN/2013 DR.SAMIRAN BANERJEE C/O M/S. CLINILAB, D BAD