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Income Tax Appellate Tribunal, “SMC-B” BENCH : BANGALORE
O R D E R
Per Shri A.K. Garodia, Accountant Member
This appeal is filed by the assessee and the same is directed against the order of ld. CIT(A), Mysore dated 28.09.2017 for Assessment Year 2012-13.
The grounds raised
by the assessee are as under. “1. The order of the learned CIT(A), Mysuru is opposed to law and facts of the case.
2. The learned CIT (A), Mysuru erred in upholding the impugned order passed by the learned Assessing Officer without appreciating the facts correctly.
3. The learned CIT (A), Mysuru out to have considered the fact that the appellant, throughout his deposition before the DDIT (Inv) maintained that the amount found in his bag does not belong to him and the same belongs to his wife, Smt.C.B.Rani, the proprietrix, M's Sri Baba Traders, Hassan.
4. The learned CIT(A), Mysuru failed to consider the fact that in spite of repeated Ribmissions of the appellant that the seized amount belongto his wife, the learned Assessing Officer, went on to assess the said amount in the hands of the assessee which is against the law and facts of the case.
5. The learned CIT (A), Mysuru ought to have appreciated the fact that the amount of Rs. 18,75,000/- seized from the appellant represented the sale proceeds of Lobia supplied by Smt.C.B.Rani, Proptx. of Sri Baba Traders, Hassan to M/s Rajat& Co., New Delhi and as such the learned CIT(A), Mysuru should have held that said amount was assessable in the hands of Smt.C.B.Rani, Proprietrix of Sri Baba Traders, Hassan.
The learned CIT(A), Mysuru failed to consider the fact that the appellant has stated on oath that the appellant is not assessed to tax and the amount seized represents the sale proceeds received by the appellant from Rajat & Co on behalf of his wife Smt. C.B. Rani Proprietrix of M.'s Sri Baba Traders, Hassan.
The learned CIT(A), Mysuru erred in coming to the conclusion that the seized amount belongs to the appellant without verifying the facts.
The learned CIT(A), Mysuru ought to have cross verified the statement of the appellant with the statement of Smt. C.B. Rani Proptx. of Sri Baba Traders, Hassan before wrongly amcluding that the amount belongs to the appellant.
The learned CIT(A), Mysuru failed to consider the fact that when the appellant discharges his primary burden to prove, the onus is on the Assessing Officer to show that the explanation offered by the appellant is not up to his satisfaction.
The learned CIT(A), Mysuru failed to consider the fact that the sworn statement obtained fromthe appellant was obtained by duress and pressure.
The learned CIT(A), Mysuru ought to have considered the fact that the learned Officer was pressuring the appellant to state on oath that the amount belongs to him and in view of repeated pressure from the learned Officer the appellant was forced to state on oath that the amount is undisclosed income of the appellant.
The learned CIT(A), Mysuru, erred in upholding the order of the Assessing Officer passed on the basis of sworn statement of the Appellant which was taken under pressure, against law, equity and justice and facts of the case.
The learned CIT(A), Mysuru ought to have considered the fact that the cash of Rs.18,75,000/- was seized on 25/07/2012 in the previous year 2012-13 relevant to assessment year 2013-14. As such, the seized amount should have been brought to tax for the assessment year 2013- 14, that too in the hands of Smt.C.B.Rani, wife of the assessee.
The learned CIT(A), Mysuru failed to consider the fact that where in any financial year, an assessee is found to be the owner of any money, the source of which has not been properly explained such money may be treated as the income of the assessee for such financial year. In view of this fact, the amount seized on 25/07/2012 is assessable only for the assessment year 2013-14 and not for assessment year 2012-13. 15. Without prejudice to the above, the learned CIT(A) failed to consider that the seized amount of Rs.18,75,000/- belongs to Smt.C.B.Rani instead of Sri H.B.Nataraj as the said amount of Rs.18,75,000/- was already suffered tax in the hands of Smt.C.B.Rani for the assessment year 2013-14 and again taxed in the hands of Sri H.B.Nataraj amounts to double taxation. 16. For these and such other grounds that may be urged at the time of hearing it is prayed that the order of the Learned Assessing Officer and learned CIT(A), Mysuru may be quashed in conformity with equity and justice.”
At the very outset, it was submitted by ld. AR of assessee that as per the assessment order, the search and seizure action has taken place u/s. 132 of IT Act on 25.07.2012 and in course of search, cash amounting to Rs. 18.75 Lakhs was seized from the possession of assessee who was travelling from New Delhi to Bangalore. He submitted that as per the impugned assessment order, only this amount was added by holding that this is undisclosed income of the assessee. He submitted that since the date of search is 25.07.2012, no addition can be made on account of such discovery of search in the present Assessment Year i.e. 2012-13 and even if any addition has to be made, the same may be made in Assessment Year 2013-14 but not in the present year. In reply, the ld. DR of revenue had nothing to say.
I have considered the facts of the present case and the submission of ld. AR of assessee. I find that it is clear from the assessment order that search was carried out on 25.07.2012 and therefore, if any undisclosed income is found in course of search, addition can be made in the relevant Assessment Year i.e. 2013-14 but the addition is made by the AO in the present case i.e. Assessment Year 2012-13 and therefore, the addition made in the present year cannot be sustained and I therefore, delete the same.
In the result, the appeal filed by the assessee is allowed.
Order pronounced in the open court on the date mentioned on the caption page.