DCIT, Sambalpur v. Baijnath Agrawal, Sambalpur

ITA 322/CTK/2010 | 2004-2005
Pronouncement Date: 09-11-2011

Appeal Details

RSA Number 32222114 RSA 2010
Assessee PAN ACEOA5099B
Bench Cuttack
Appeal Number ITA 322/CTK/2010
Duration Of Justice 1 year(s) 2 month(s) 7 day(s)
Appellant DCIT, Sambalpur
Respondent Baijnath Agrawal, Sambalpur
Appeal Type Income Tax Appeal
Pronouncement Date 09-11-2011
Appeal Filed By Department
Bench Allotted DB
Tribunal Order Date 09-11-2011
Date Of Final Hearing 19-10-2011
Next Hearing Date 19-10-2011
Assessment Year 2004-2005
Appeal Filed On 02-09-2010
Judgment Text
IN THE INC O ME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE : SHRI K.K.GUPTA AM AND SHRI K.S.S.PRASAD RAO JM ITA NO. 322/CTK/2010 (ASSESSMENT YEAR 2004 - 05) DE PUTY COMMISSIONER OF INCOME - TAX CIRCLE 1(1) SAMBALPUR. VERSUS SRI BAIJNATH AGRA WAL PROP. M/S.PAWANKUMAR KRISHNA SAMBALPUR. PAN: ACEOA 5099 B (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI B.PANDA AR FOR THE RESPONDENT SMT. PARAMITA TRIPATHY DR DATE OF HEARING : 19.10.2011 DATE OF PRONOUNCEMENT : 09.11.2011 ORDE R SHRI K.K.GUPTA ACCOUNTANT MEMBER : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DT.4.6.2010 OF THE COMMISSIONER OF INCOME - TAX (APPEALS) FOR THE ASSESSMENT YEAR 2004 - 05 RAISING THE FOLLOWING ISSUE: IN THE FACT & CIRCUMSTANCES OF THE CASE L D. CIT(A) IS NOT JUSTIFIED TO DELETE THE ADDITION OF 12 72 751 WHEN THE ASSESSEE WAS FAILED TO EXPLAIN THE SOURCE OF CASH FOUND DURING THE COURSE OF SEARCH AND SEIZURE OPERATION . 2. THE BRIEF FACTS ARE THAT THE ASSESSEE IS CARRYING ON THE BUSINESS OF GRINDING ATTA & BESAN AND ALSO TRADING IN WHEAT ATTA MAIDA SUJI ETC. RETURN FOR THE ASSESSMENT YEAR UNDER CONSIDERATION WAS FILED ON 31.3.2005 SHOWING TOTAL INCOME OF 2 18 116. ON 4.7.2003 A SURVEY OPERATION U/S.133A WAS CONDUCTED AT THE BUSINESS PREMISES OF THE ASSESSEE. DURING THE COURSE OF SEARCH OPE RATION CASH OF 12 75 510 WAS FOUND IN THE RESIDENTIAL PREMISES OF SHRI BAIJNATH AGARWAL( ASSESSEE) AND HIS SONS AT PANKAPARA KHETERAJ P UR SAMBALPUR OUT OF WHICH 12 00 000 WAS SEIZED. DURING THE ASSESSMENT PROCEEDINGS THE SAID CASH FOUND WAS EXPLAINE D TO BE BELONGING TO DIFFERENT PERSONS OF THE FAMILY OF THE ASSESSEE BUT THIS WAS NOT ACCEPTED BY THE ASSESSING OFFICER AND HELD THE CASH FOUND AND SEIZED BELONGS TO THE ASSESSEE AND ACCORDINGLY ADDED THE SAME TO THE TOTAL INCOME U/S.69 A OF THE 2 I.T.ACT 196 1 . AGGRIEVED THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A) AND THE LEARNED CIT(A) DELETED THE SAID ADDITION HOLDING THAT THE SAID AMOUNT OF CASH BELONGED TO OTHER FAMILY MEMBERS AND NOT THE FAMILY OF SHRI BAIJNATH AGRAWAL (ASSESSEE). AGAINST THIS ORDER OF THE LEARNED CIT(A) THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW. THE DEPARTMENT THEMSELVES ARE NOT ABLE TO ESTABLISH THE FACT THAT THE SAID AMOUNT COULD BE T AXED AS UNEXPLAINED MONEY U/S.69A OF THE ACT IN THE HANDS OF THE ASSESSEE SHRI BAIJANATH AGRAWAL. WE HAVE SEEN THE SEARCH WARRANT PANCHANAMA AND ALSO VERIFIED THE FAMILY MEMBERS WHO WERE SEARCHED HAVE ACKNOWLEDGED THAT THE MONEY BELONGED TO THEM AS MADE K NOWN TO THE I.T. AUTHORITIES AS INCOME TAXED IN THEIR HANDS THEREFORE WAS TO BE IDENTIFIED AS CASH AVAILABLE WITH THEM IT HAVING RENDERED INCOME. SHRI BAIJANATH AGRAWAL THEREFORE AT NO POINT OF TIME COULD BE BURDENED WITH THE INCOME OF THE FAMILY MEMBERS W HEN THEY HAVE INDIVIDUALLY PAID TAX AND IT WAS NOT A CRIME FOR THE HEAD OF THE FAMILY TO HOLD CASH IF ANY ON BEHALF OF ITS FAMILY MEMBERS HAVING PAID TAXES ON THOSE INCOMES BY THE FAMILY MEMBERS. IT IS A MATTER OF RESPECT THAT THE FAMILY MEMBERS TO HONOUR SUCH EARNINGS OF INCOME BY THE HEAD OF THE FAMILY WHEN THE FACTS AVAILABLE THAT THE AUTHORITIES BELOW CLEARLY INDICATE THAT IT WAS THEIR INCOME AND THE CASH HOLDING WAS CORRESPONDING TO THE INCOMES RENDERED TO TAX BY THEM THEREFORE CANNOT BE CONSOLIDATED I N ONE INDIVIDUAL SHRI BAIJANATH AGRAWAL WHO WAS NOT SEARCHED IN THE FIRST PLACE. THE INCOMES OF THE INDIVIDUAL FAMILY MEMBERS HAVING BEEN RENDERED INCOME CORRESPONDING TO THE CASH AVAILABLE WITH THEM THEREFORE COULD NOT BE TAXED AGAIN IN THEHANDS OF SHRI B AIJANATH AGRAWAL. WE DO NOT FIND MERIT IN THE CONTENTION OF THE LEARNED DR WHO AGREED TO THE PROPOSITION THAT THE ISSUE BE RESTORED TO THE 3 FILE OF THE ASSESSING OFFICER TO OBTAIN INFORMATION FROM THE AOS OF FAMILY MEMBERS WHEN THE L EARNED CIT(A) IN HIS DE TAILED ELABORATE ORDER HAS NOTED THAT THE AMOUNT OF 12 72 571 HAS BEEN CUMULATIVELY RENDERED TO TAX BY THE INDIVIDUAL MEMBERS TO HOLD SUCH AMOUNT IN CASH ON THE DATE OF SEARCH . NEEDLESS TO SAY THAT OPPORTUNITY BE GRANTED TO THE ASSESSEE BEFORE US TO ASSIST THE ASSESSING OFFICER IN FORMULATING THE SUM TOT AL OF THE CASH HELD IN THE INDIVIDUAL FAMILY MEMBERS WHICH THEY HAVE DECLARED AS INCOMES PRIOR TO THE DATE OF SEARCH TO JUSTIFY SUCH HOLDINGS. WE ARE IN THE AGREEMENT WITH THE FINDINGS OF THE LEARNED CIT(A) AND THE QUESTION HE HAS RAISED THEREFORE ARE ONLY TO BE VERIFIED BY THE ASSESSING OFFICER IN THE LIGHT OF THE SUBMISSION OF THE LEARNED COUNSEL OF THE ASSESSEE BEFORE US. THE ASSESSING OFFICER HAS TO MAKE EFFORTS TO UNDERSTAND THE CONTENTION OF THE LEARNED CIT(A) AND THE LEARNED COUNSEL OF THE ASSESSEE I N ITS PROPER PERCEPTIVE AS MERE REFUSAL IS SUFFICIENT. 4. IN THE RESULT THE APPEAL OF THE DEPARTMENT IS ALLOWED FOR STATISTICAL PURPOSES AND THE MATTER IS RESTORED TO THE FILE OF THE A.O. FOR THE PURPOSE AS INDICATED IN THE FOREGOING PARAGRAPH. S D/ - S D/ - ( K.S .S.PRASAD RAO) JUDICIAL MEMBER (K.K.GUPTA) ACCOUNTANT MEMBER DATE: 9 TH NOVEMBER 2011 H.K.PADHEE SENIOR PRIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: DEPUTY C OMMISSIONER OF INCOME - TAX CIRCLE 1(1) SAMBALPUR. 2. THE RESPONDENT: SRI BAIJNATH AGRAWAL PROP. M/S.PAWANKUMAR KRISHNA SAMBALPUR. 3. THE CIT 4. THE CIT(A) 5. THE DR CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY.