Shri Kailash Prasad Jain, Kolkata V. ACIT,CC-XX,Kolkata,

MA 80/KOL/2012

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2367 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 2 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-09-2014
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 11-07-2012
• Court: TRIBUNAL
• Keywords: Document seized; Peak credit; Block assessment; Documents seized

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE , /AND , ! ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI SHAMIM YAHYA, AM] '' # '' # '' # '' # $ $ $ $ /M. A. NO. 80/KOL/2012 ( !% & !% & !% & !% & %' %' %' %' ) $ $ $ $ / I.T(SS).A NO.15/KOL/2008 !( !(!( !( #) *+ #) *+ #) *+ #) *+/ // / BLOCK PERIOD: 1990-91 TO 2001-02 SHRI KAILASH PRASAD JAIN VS. ASSISTANT COMMISSI ONER OF INCOME-TAX, (PAN:ACVPJ2349C) CENTRAL CIRCLE-XX, KOLKATA. ( /APPLICANT ) (-./0/ RESPONDENT ) DATE OF HEARING: 19.09.2014 DATE OF PRONOUNCEMENT: 19.09.2014 1 2 /FOR THE APPLICANT: SHRI S. M. SURANA, ADVOCATE -./0 1 2 /FOR THE RESPONDENT: SHRI DAVID Z.CHAWNGTHU, ACIT, SR. DR / ORDER PER MAHAVIR SINGH, JM/ , : BY WAY OF THIS MISCELLANEOUS APPLICATION, ASSESSEE HAS REQUESTED TO CLARIFY THAT THE DELETION OF ADDITION IS NOT RESTRICTED TO RS.250,32 ,73,000/- BUT THE DELETION WAS TO THE EXTENT OF RS.254,32,93,100/-. THE RELEVANT PORTION OF THE PE TITION READS AS UNDER: HOWEVER, THE LD. AO HAS CONSIDERED THAT ONLY RS. 2 50,32,73,000/- HAVE BEEN DELETED AS WOULD APPEAR FROM THE COPY OF THE ORDER PASSED U/S. 254 REFERRED TO EARLIER. IT IS HUMBLY PRAYED TO THE HONBLE TRIBUNAL TO KIND LY PASS APPROPRIATE ORDERS/DIRECTIONS WITH REGARD TO THE DELETION OF THE ADDITION OF RS.2 ,54,32,93,100/- AND SUCH OTHER AND FURTHER ORDERS MAY BE PASSED IN THIS RESPECT AS MAY BE CONSIDERED FIT AND PROPER BY THE HONBLE ITAT IN THE CIRCUMSTANCES OF THE CASE. IT IS FURTHER SUBMITTED THAT THE AUDITED ACCOUNTS W ERE SUBMITTED BEFORE THE A.O WHICH IS FOUND RECORDED IN PARA 16 AT PAGE 15 OF THE ORDER O F THE ITAT, BUT AT THE SAME TIME IN PARA 18 THE HONBLE ITAT MENTIONED WE HAVE ALSO G ONE THROUGH THE AUDIT REPORT OF THE CHARTERED ACCOUNTANT BUT NOTICED THAT NOWHERE IN TH IS AUDIT REPORT THE AUDITOR HAS MENTIONED ANY THING ABOUT THE SEIZED DOCUMENTS KP-1 9. SINCE AUDIT REPORT DID NOT MENTION KP-19, THE AUDIT REPORT CANNOT BE CLAIMED T HAT IT HAS INCLUDED THE TRANSACTION RELATING TO KP-19 AND PARTICULARLY THE TRANSACTIONS RELATING TO THE AMOUNT OF RS. 25022.73. YOUR HONOURS ATTENTION IS INVITED TO THE FINDINGS OF THE HONBLE ITAT IN PARA 6, P-15 IN LAST SIX LINES WHICH IS AS UNDER: 2 MA NO. 80/K/2012 SHRI KAILASH PRASAD JAIN BLOCK PERIOD 1990-91 TO 2001-02 WE FURTHER FIND THAT THE BLOCK ASSESSMENT WAS COMP LETED ON THE BASIS OF CHARTERED ACCOUNTANTS REPORT WHO PREPARED THESE AC COUNTS AND AUDITED THE SAME FOR THE BLOCK PERIOD ON THE BASIS OF SEIZED DOCUMEN TS INCLUDING PT-6 AND KP-19 THEREFORE IT IS CLEAR THAT PT-6 AND KP-19 WAS BEFOR E THE AO. THIS ALSO EVIDENT FROM LAST PAGE OF THE PAPER BOOK WHICH IS THE COPY OF THE AUD IT REPORT WHEREIN AT THE AUDITOR HAS MENTIONED THAT HE DID EXAMINE THE SAID KP-19. THERE FORE APPROPRIATE RECTIFICATION MAY BE MADE N PARA 18 OF THE HONBLE ORDER OF THE TRIBUNA L AS MAY BE CONSIDERED FIT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. LD. COUNSEL FOR THE ASSESSEE STATED THAT THE AO HAS MISUNDERSTOOD AND NOT GIVEN EFFECT TO THE ORDER OF THE TRIBUNAL WHILE RETAINING THE AD DITION AT RS.4,20,00,100/-. WE FIND FROM THE TRIBUNALS ORDER PARA 29, WHEREIN THIS FIGURE OF RS .254,32,93,100/- IS THE REAL DELETION AS FOUND FROM THE SEIZED DOCUMENT KP/19 AND FINALLY DELETED THE ENTIRE ADDITION. THE RELEVANT PARA 29 READS AS UNDER:- 29. WE FIND FROM THE ABOVE CORRESPONDENCE BETWEEN THE AO AND CIT, C-III THAT THE ISSUE REGARDING KP-19 WAS DISCUSSED AND IT SEEMS THAT THE AO BEFORE DISCUSSION WAS OF THE VIEW THAT IT IS VERY DIFFICULT TO ASCERTAIN THIS FI GURE OF RS.2,54,32,93,100/- FROM THE SEIZED MATERIAL KP-19 AND TAX IMPLICATION OF SUCH AMOUNT. THE AO WAS OF THE VIEW THAT ONLY PEAK CREDIT IS REQUIRED TO BE CONSIDERED BUT THE SA ME IS TOO DIFFICULT TO ASCERTAIN AS EACH PAGE OF THE DIARY KP-19 STATED TO BE THE LEDGER OF A PARTICULAR PERSON AND IN VIEW OF THIS HE WAS OF THE OPINION THAT UNDER NO CIRCUMSTANCES T HE CASH SO GIVEN CAN BE CONSIDERED FOR THE PURPOSE OF DETERMINING UNDISCLOSED INCOME OF TH E ASSESSEE. IT MEANS THAT THE ADDL. CIT AND CIT, C-III MIGHT HAVE IMPRESSED UPON THE AO TO MAKE THIS ADDITION BECAUSE THERE IS ORDER SHEET ENTRY DATED 19.01.2006 WHICH SPEAKS OF DIRECTIONS. BUT, IT IS NOT CLEAR FROM THE ORDER SHEET ENTRY OR IT WILL NOT BE SUFFICIENT TO DEAL WITH THE ISSUE, WHETHER CIT OR ADDL. CIT INTERFERED IN FRAMING ASSESSMENT OR NOT. WE AR E OF THE VIEW THAT THE AO IS WITHIN THE LIMITS ASSIGNED TO HIM UNDER THE ACT A TRIBUNAL OF EXCLUSIVE JURISDICTION FOR THE PURPOSE OF ASSESSMENT OF INCOME TAX. HE HAS UNDER THE ACT TO DECIDE WHETHER A PARTICULAR RECEIPT IS INCOME, AND IS NOT PREDICATED THAT HE MUST MAKES SO ME PERSON OR BODY OTHER THAN THE ASSESSEE WHO MAY BE CONCERNED WITH THE ASSESSMENT A S A PARTY TO THE PROCEEDINGS BEFORE HE DECIDES THE QUESTION. HENCE, WE ARE OF THE VIEW THAT THIS CANNOT BE CONSIDERED AS INTERFERENCE BY CIT OR ADDL. CIT IN FRAMING OF ASSE SSMENT. AND FINALLY RECORDED THE FINDINGS IN PARA 33 AS UND ER: 33. WE ARE OF THE VIEW THAT THIS ENTRY MADE BY ASSE SSEE AND ESPECIALLY WHEN THEY GO AGAINST THE AVERMENT OF ASSESSEE, ARE AN EXTREMELY IMPORTANT PIECE OF EVIDENCE BUT IT CANNOT BE SAID THAT THESE ARE CONCLUSIVE. THE ASSE SSEE BEFORE US HAS DEMONSTRATED THAT KP-19 IS ONLY INDEX FOR THE LOAN/INVESTMENTS ENTRIE S RECORDED IN PT-6. ALL ENTRIES OF PT-6 ARE INCORPORATED IN SUMMARY MANNER IN KP-19 AND ALL ENTRIES WERE CROSS VERIFIED BY THE AO FROM PT-6 TO KP-19 AND FOUND RECORDED ALL IN PT- 6 AND THEN TAKEN TO KP-19, WHICH IS ONLY AN INDEX. IN SUCH SITUATION AND ABOVE DISCUSS IONS ON MERITS, WE ARE OF THE VIEW THAT THIS IS A STRAY ENTRY NOT CORROBORATED BY ANY EVIDE NCE BECAUSE IT IS NOT CORRESPONDINGLY RECORDED IN ANY OTHER SEIZED MATERIAL. HENCE, WE R EVERSE THE FINDINGS OF CIT(A) AND THE AO AND THIS ISSUE ON MERITS IS ALLOWED IN FAVOUR OF THE ASSESSEE. 3 MA NO. 80/K/2012 SHRI KAILASH PRASAD JAIN BLOCK PERIOD 1990-91 TO 2001-02 FROM THE ABOVE TWO PARAS, IT IS CLEAR THAT THE DELE TION IS NOT RESTRICTED TO RS.250,32,73,000/-, BUT IT IS RS.254,32,93,100/-. HOWEVER, THERE IS NO MIS TAKE IN THE ORDER OF THE TRIBUNAL BUT FOR CLARITY OF THE ORDER, THIS IS CLARIFIED. 3. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. 4. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- , ! , (SHAMIM YAHYA) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( 3! 3! 3! 3!) )) ) DATED : 19 TH SEPTEMBER, 2014 45 #6% 7 JD.(SR.P.S.) 1 -' 8 '*9- COPY OF THE ORDER FORWARDED TO: 1 . /APPLICANT SHRI KAILASH PRASAD JAIN, 46A, RAFI A HMED KIDWAI ROAD, KOLKATA-700 016. 2 -./0 / RESPONDENT ACIT, CENTRAL CIRCLE-XX, KOLKATA. 3 . # ( )/ THE CIT(A) , KOLKATA 4. # CIT, KOLKATA 5 . @A -# / DR, KOLKATA BENCHES, KOLKATA .' -/ TRUE COPY, #B/ BY ORDER, % /ASSTT. REGISTRAR .