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Income Tax Appellate Tribunal, “B” BENCH: KOLKATA
Before: Shri A. T. Varkey, JM & Dr. ArjunLalSaini, AM]
1 ITA No.606/Kol/2017 Satya Hari Samui, AY: 1998-99
आयकर अपीलीय अधीकरण, �यायपीठ –“B” कोलकाता, IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH: KOLKATA (सम�)�ी ऐ. टी. वक�,�यायीक सद�यएवंडॉ.अजु�नलालसैनी, लेखा सद�य) [Before Shri A. T. Varkey, JM and Dr. ArjunLalSaini, AM] ITA No. 606/Kol/2017 Assessment Year: 1998-99 SatyaHariSamui Vs. Income-tax Officer, Ward-46(4), (PAN: ALAPS2193R) Kolkata Appellant Respondent
Date of Hearing (Virtual) 24.08.2020 Date of Pronouncement 09.09.2020 For the Appellant Shri Soumitra Choudhury, Advocate For the Respondent Smt. Ranu Biswas, Addl. CIT
ORDER Shri A. T. Varkey, JM This is an appeal preferred by the assessee against the order of Ld. CIT(A)-14, Kolkata dated 30-12-2016 for the assessment year1998-99.
At the outset, the Ld. AR Shri Soumitra Choudhury brought to our notice that the AO has made an addition of Rs.50 lakhs and the other additions after reopening u/s. 147 read with 148 of the Income-tax Act, 1961 (hereinafter referred to as the "Act"). According to Ld. Counsel for the assessee, the reason for reopening was that assessee had filed a disclosure petition u/s. 65 of the Voluntary disclosure of income Scheme (VDIS), 1997 disclosing jewellery/cash of Rs.50 lacs. However, though the assessee filed the disclosure, petition the assessee has not deposited the tax on it. Therefore, as per the CAG report, the AO reopened the assessment. During the reassessment proceedings, when the assessee was confronted with the CAG report about the VDIS disclosure of Rs. 50 lacs, the assessee appeared before AO along with his Ld. AR and filed written submission dated 15.12,2005 as well as filed an affidavit in which it was contended that the books of account maintained by the assessee were kept in the office premises of Shri Samui located at 23, N. S. Road, Kolkata and the commercial building got destroyed following the collapse of the said
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building. Consequently, the details of commission, details of interest received by the assessee could not be furnished before the AO in the absence of the books of account. The AO noted from perusal of the affidavit at Sl. No.5, that the assessee had contended that he did not opt for any disclosure scheme and filed any disclosure petition under the VDIS 1997. Thereafter, according to AO, on 04.0l.2006 when he recorded the assessee's statement on oath he ( assessee) reiterated his stand that he did not opt/file any disclosure petition under VDIS scheme 1997 of Rs. 50 lacs. Thereafter, the AO notes that another deposition of the assessee was recorded on 06.03.2006 wherein the AO had obtained the photo copy of Form of VDIS purportedly submitted by assessee under sub-section (1) of section 65 of the Finance Act, 1997 disclosing cash of Rs. 50 lacs. According to AO, the assessee's statement was recorded on 06.03.2006 wherein he completely retracted his earlier statement and admitted for question no. 4 that he filed the VDIS Form in his signature and thereafter again answered for question no. 5 that "the signature affixed on the disclosure form is mine". Thereafter, the AO made, inter alia, certain addition as well as Rs. 50 lacs u/s. 69A of the Act. Aggrieved, the assessee preferred an appeal before the Ld. CIT(A) who noted that during the appellate proceedings the assessee had contended that AO applied pressure on him to extract the deposition from him to admit the signature as his on the relevant Forms of the VDIS, 1997 scheme. However, according to Ld. CIT(A), the assessee has not provided any evidence of this pressure of AO whether circumstantial or otherwise. Therefore, according to the Ld. CIT(A), the assessee is trying to wriggle out of the situation in which he finds himself by providing affidavits and then when confronted with evidence in the form of the relevant form of VDIS, the assessee has accepted that the signature as his own and, therefore, the Ld. CIT(A) concluded that the assessee has in fact filed/opted for the VDIS scheme and, therefore, he confirmed the addition. 3. Assailing the action of the Ld. CIT(A), the Ld. AR submitted that, the assessee is a salaried person who was getting a meager salary during that period i.e. A Y 1998-99 and that too from his late father in law, Shri Viswanath Sinha. According to him, before the AO the assessee has declared that he has not received any interest against the loan advanced during this period and has not made any investment in any shares. According to the Ld. AR, the assessee had filed the affidavit specifically denying the fact that the assessee has not opted/filled up for the VDIS scheme of 1997. However, according to Ld.AR, the AO
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coerced the assessee and has recorded that assessee has admitted to have signed on the VDIS scheme. According to the Ld. AR, before the Ld. CIT(A) the assessee's stand was the same. According to Ld. AR, when the assessee has contested at the first place itself that the assessee has not opted/filled up the Form for VDIS scheme 1997, then the AO ought to have called for hand writing expert/forensic testing to prove the signature as assessee's and should have compared the signature of the assessee and should have come to a conclusion as to whether the signature on the VDIS form is that of the assessee or not. According to him, whether the assessee filled up the Form of VDIS scheme and signed it, was a question of fact which has not been properly carried out by the AO/Ld. CIT(A). According to ld. AR the assessee is a mere salaried employee during that period of time and has not admitted the signature to be that of his own in the VDIS form and contested this fact. However, according to ld AR, the AO has obtained an admission by threat and recorded that assessee has signed the Form for VDIS, which action of AO is illegal. Therefore, the addition made is erroneous and since the veracity of the signature need to be verified as per law, the matter may be remitted back to the AO since during the assessment proceedings, the AO has not carried out proper adjudication and cited the decision of Hon'ble Supreme court [three Bench] decision in Tin Box Company Vs. CIT (2001) 249 ITR 216 (SC) wherein the Hon'ble Supreme Court held that if the assessee did not get proper opportunity before the AO, the matter should be restored back to the AO for fresh consideration since assessment should be framed by the AO.
Per contra, the Ld. DR Smt. Ranu Biswas, Addl. CIT vehemently opposed the plea of the assessee and contended that the assessee had opted for the VDIS scheme 1997 and since he did not bother to deposit the tax as required by the scheme, based on the CAG report, the assessment of the assessee was rightly reopened by the AO ; and though initially the assessee filed an affidavit denying filing of the form (VDIS 1997), however, when the AO obtained the copy of the VDIS form signed by the assessee and confronted the assessee, then he admitted that the signature on the form (VDIS, 1997) was that of his own and, therefore, the AO rightly made an addition of Rs.50 lacs and the other additions. According to the Ld. DR, the assessee is trying to wriggle out of the tax liability after filing the disclosure petition under VDIS 1997 for whatever reason and therefore, the AO made the addition and the Ld. CIT(A) rightly confirmed it and therefore, we should not interfere.
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We have heard rival submissions and carefully gone through the facts and circumstances of the case. The facts stated aforesaid are not repeated for the sake of brevity. It is noted that the addition of Rs. 50 lacs has been made after the AO received the CAG report that though the assessee had filed disclosure of Rs. 50 lacs under the VDIS Scheme, 1997 did not bother to deposit the tax as required by the scheme. Therefore, the assessment of the assessee was reopened for AY 1998-99. It is noted from a perusal of the assessment order that assessee initially had taken a stand that he did not file any disclosure petition disclosing Rs. 50 lacs under the VDIS scheme 1997. However, the AO has made the addition based on the admission of assessee where the statement of assessee was recorded on 06.03.2006. According to the AO, since the assessee has admitted to have signed the VDIS scheme, he made the addition of Rs 50 lacs and other additions. Before the Ld. CIT(A) neither the assessee stated that he opted/filed the VDIS Scheme Form nor admitted to have signed on the Form VDIS scheme for 1997. According to ld. CIT(A), the assessee was trying to wriggle out of the situation by making allegation that the AO has coerced him to admit the signature. We note that the AO has made the addition based on the fact that assessee has signed on the Form VDIS 1997 and based on his admission the AO has made the addition of Rs. 50 lacs. According to the assessee, he has filed an affidavit wherein he had denied filing the form VDIS, 1997 and according to him, he was threatened to admit that the signature was his own. We note that the assessee had filed an affidavit denying filing of the form in respect of the VDIS and reiterated the same stand before the Ld. CIT(A). However, the AO has made the addition for the reason that the assessee had admitted to have signed on the VDIS Form. We note that when it comes to proof of the signature which is alleged to have been signed on a document, section 67 of the Indian Evidence Act comes into play. Section 67 of the Indian Evidence Act reads as under:
"Proof of signature and handwriting of person alleged to have signed or written document produced. - If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting." 6. From a bare reading of the above section it is noted that when the proof of signature on a document is alleged to be signed, then the signature of that person must be proved to be his own signature. For that the AO could have carried out the exercise as per section 73 of the Indian Evidence Act which reads as under:
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"73. Comparison of signature, writing or seal with others admitted or proved - In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. " 7. From a bare reading of the same it would reveal that when the AO has to ascertain whether the signature on the Form of VDIS is that of the person ( in this case the assessee) by whom it purports to have been signed. In case if the person admits he can believe it or it may be compared with the one which is to be proved. For that the AO could have directed the assessee to sign in front of him for the purpose of enabling the AO to compare the signature. However, the Hon'ble Supreme Court in the case of State of Maharastra Vs. Sukhdeo Singh AIR 1992 SC 2100 has cautioned the Court/quasi judicial authority to be slow to compare disputed document with admitted document for comparison although section 73 empowers the Court (AO in this case) to compare disputed writings with the specimen/admitted documents shown to be genuine. According to Hon'ble Supreme Court prudence demands that Court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, when the quality of evidence in respect of specimen/admitted writings is not of high standard. In such circumstances, the AO can also take an opinion of expert u/s. 45 of the Indian Evidence Act when the question as to the identity of the handwriting /signature is a relevant fact. Since the entire addition is based on the admission by the assessee in respect of the signature given in the Form of VDIS and the assessee having categorically denied to opt for such a scheme [VDIS-1997] by filing an affidavit, the AO ought to have called for an opinion of an expert, if necessary before saddling with the addition. In this case the circumstantial facts regarding the back ground of assessee also should be considered to test the veracity of the assessee in filing disclosure petition. According to Ld. AR, the assessee is a mere salaried employee and drawing a very meagre salary income. In this circumstances, for the ends of justice, we set aside the order of the Ld. CIT(A) and restore the matter back to the file of the AO for fresh adjudication and if necessary, the AO may call for handwriting expert's opinion and thereafter he may verify the facts stated by the assessee that he was a mere salaried employee etc. and thereafter to
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take a decision on this issue in accordance to law. Needless to say, assessee be given sufficient opportunity of hearing. The appeal of assessee is allowed for statistical purposes.
In the result, the appeal of assessee is allowed for statistical purposes.
Order is pronounced in the open court on 09th Sept., 2020 Sd/- Sd/- ( Arjun Lal Saini) (Aby. T. Varkey) Accountant Member Judicial Member Dated :09th Sept., 2020 JD(Sr.P.S.) Copy of the order forwarded to: 1. Appellant –Shri Satya Hari Samui, Dharsa Govt. Colony, P.O. GIP Colony, Ramrajatala, Howrah-711104. . 2 Respondent –ITO, Ward-46(4), Kolkata. 3. CIT(A)-14, Kolkata (sent through e-mail) 4. CIT, Kolkata. 5. DR, ITAT, Kolkata. (sent through e-mail) By order, /True Copy, Assistant Registrar