ACIT, CC-1(1), KOLKATA, KOLKATA vs. M/S BABA LOKENATH FLOUR MILLS PVT. LTD., KOLKATA

IN THE INCOME TAX APPELLATE TRIBUNAL “B”, BENCH KOLKATA BEFORE SHRI N.V. VASUDEVAN, JM &DR. A.L.SAINI, AM आयकरअपीलसं./ITA No.1489/Kol/2015 (िनधा�रणवष� / Assessment Year: 2012-13) ACIT, Cen. Cir-1(1), Vs. M/s Baba Lokenath Flour Mills Kolkata Pvt. Ltd. Aayakar Bhawan Poorva, 110, 103, Park Street, Room Shanti Palli, 3rd Floor, Kolkata – No.5B, 5th Floor, Kolkata – 700 107. 700 016. �थायीलेखासं./जीआइआरसं./PAN/GIR No. :AADCB 3043 L (Appellant) .. (Respondent) Appellant by :Shri S. Dasgupta, Addl. CIT Respondent by :Shri Nirav Sheth, ACA सुनवाईकीतारीख/ Date of Hearing : 11/12/2017 घोषणाकीतारीख/Date of Pronouncement : 07/02/2018 आदेश / O R D E R Per Dr. Arjun Lal Saini, AM: The captioned appeal filed by the Revenue, pertaining to Assessment Year 2012-13, is directed against an order passed by the Commissioner of Income Tax (Appeals)-20, Kolkata, in Appeal No.701/CIT(A)-20/CC-1(1)/14- 15, dated 03.09.2015, which in turn arises out of an order passed by the Assessing Officer u/s.143(3) of the I.T. Act, 1961 (hereinafter referred to as the ‘Act’) dated 31.03.2014. 2. The grounds of appeal raised by the Revenue are as under: “1. That on the facts and circumstances of the case, the CIT(A) erred in allowing depreciation on disclosure made for the current year. The disclosure was made on income determined over and above the income disclose in the books of accounts. The allowance of

M/s Baba Lokenath Flour Mills Pvt. Ltd. ITA No.1489/Kol/2015 Assessment Year: 2012-13 depreciation resulted in total income to be reduced to a sum of Rs.4,04,082/- on a total disclosure of Rs.50,00,000/-. 2. The appellant craves leave to add, alter or modify and/or submit further or more ground(s) of appeal either before or at any time during the hearing of appeal.” 3.The brief facts apropos this issue are that a search and seizure operation was conducted under the provisions of section 132 of the Income Tax Act, on 17.01.2012 at various premises of Manoharlal Agarwal group at 103 park street, Kolkata-16. In connection with the said search of Manoharlal Agarwal group, a survey was conducted in the premises of the assessee, M/s Baba Lokenath Floor Mills (P) Ltd, on 17.01.2012. During the course of survey under section 133A of the Act, certain books of accounts with ID markedwere impounded. 3.1 The assessee`s case was selected for scrutiny U/s 143 (2) of the Act and assessing officer completed the assessment under section 143 (3) of the Act. During the assessment proceedings, the AO noted that the computation of income for the year submitted by the assessee, along with the return of income, therein an item “Income disclosed u/s 132(4) of the Act, of Rs.1,50,00,000/- had been added to the business income as deduced from the Profit & Loss Account. However, it wasobserved from the disclosure statement of Sri Rakesh Agarwal dated 07.03.2012 that he had disclosed a total sum of Rs.2,00,00,000/- in the hand of the assessee company for the current assessment year. The assessee was asked to explain the reason for the lower disclosure of income by Rs.50,00,000/- in the return vis a vis the disclosure statement. In response to that the assessee submitted before the AO that during the course of survey, certain documents pertaining to the company were impounded from our premises at Saha Chowk, NH-6, P.S.-Rakha Jungle, Kharagpur, Pin-721304. Based on various impounded documents, the assessee declared a sum of Rs.50,00,000/- as his income for the F.Y 2011- 12 upto the period of survey. Reference may be made to impounded Page | 2

M/s Baba Lokenath Flour Mills Pvt. Ltd. ITA No.1489/Kol/2015 Assessment Year: 2012-13 document, BLFM/K/3, page 27. The aforesaid income had been deployed in the working capital of the company. The assessee pointed out that he was not been able to instantly produce all the relevant documentation or paper work which might be required by the department. The assessee stated before the AO that in order to avoid unnecessary long drawn litigations with the department and to buy peace, he was offering an additional income of Rs.2,00,00,000/- for the F.Y 2011-12 (including Rs.50,00,000/- based on impounded documents. The assessee also stated that he did not have any undisclosed income but he offered Rs.1,50,00,000/- as income U/s 132(4) of the Act, to demonstrate the cooperative attitude with the Department and to avoid long drawn litigations with the department. The balance of Rs.50,00,000/- was offered as estimated income upto the date of search. However, while doing so it did not consider the impact of depreciation of Rs. 44,06,207/-. If the depreciation amount is ignored, the cash profit actually exceedsRs.69,00,000/-, which is more than the estimated profit of Rs.50,00,000/- as reported on the date of search. 3.2 The assessing officer, on analysis of the computation of the income of the assessee, found that assessee had shown the short reportingof income. The documents found and impounded from the computerized books of accounts of the assessee were forming part of the proper books of accounts and the assessee had disclosed income of Rs.50 lacs at the point of time without actually showing how the undisclosed income was earned. The impounded document BLFM/K/3, page 27, also do not reveal, in itself, that how this initial disclosure of Rs.50 lacs was earned. The Books of Accounts produced during the scrutiny proceedings also did not clarify this issue. Thus, AO observed that the disclosed amount of Rs.2,00,00,000/- was not based on the impounded documents. In fact, it was seen from the disclosure statement dated 07.03.2012 of Shri Rakesh Agarwal, the promoter director of the assessee, inthat statement, he had stated, "Please Note that various seized impounded documents are indicative of undisclosed transactions carried on by me and my involvement in various unrelated concerns and I Page | 3

M/s Baba Lokenath Flour Mills Pvt. Ltd. ITA No.1489/Kol/2015 Assessment Year: 2012-13 was not maintaining any books of accounts of undisclosed transactions and the seized/impounded documents do not reflect entire quantum of undisclosed earnings”. From the statement of Shri Rakesh Agarrval, it was clear that hehas earned income which were not entered clearly in any of the documents or books of accounts. Hehas therefore disclosedRs.2,00,00,000/- as the assessee company's undisclosed earnings from hisvarious business activities. He has also backed up/ confirmed his statement by, declaring Rs.1,50,00,000/-in the assessee company's hand in the return filed as per section 139 of the I T Act.Now the assessee wished to backtrack and reduce the income by Rs. 50,00,000/- on the issue of depreciation.Thus, AO held that, the undisclosed income of Rs.2 crores had no nexus with the declared income &depreciation in the books of accounts. This income was over & above the disclosed income derivedout of the books of accounts. Therefore, the assessee, at this stage cannot take shelter of this claimof depreciation against his earlier statement given as per section 132(4) of the I. T. Act at the time ofsearch & seizure operation. Therefore, the AO did not accept the clarificatory statement of the assessee and he considered it an afterthought on the part of the assessee to go back on his statement given voluntarily and then decrease its income by Rs.50,00,000/-. Therefore, AO added of Rs. 50,00,000/- in the total income of the assessee to arrive at true and fair declaration of income. 4. Aggrieved by the order of the AO, the assessee filed an appeal before the CIT(A), who has deleted the addition made by the AO. The CIT(A) observed that against the addition of Rs.50,00,000/- by the AO on the ground that the assessee had declared the amount of Rs.50 lakhs as estimated income upto the date of search. However, in the return of income the said amount has not been offered for taxation. The CIT(A) reiterated the facts in the assessee`s case that a search and seizure operation was conducted u/s 132 of the I.T. Act, 1961 at various premises of M/s Manoharlal Agarwal Group on 17.01.2012. In connection with this search, a survey u/s 133A was conducted in the premises of the assessee M/s Baba Page | 4

M/s Baba Lokenath Flour Mills Pvt. Ltd. ITA No.1489/Kol/2015 Assessment Year: 2012-13 Lokenath Flour Mills Pvt. Ltd on 17-01-2010. During this survey certain documents were impounded. On the basis of impounded documents, the assessee through its director disclosed Rs.1,50,00,000/- in the hands of thecompany as undisclosed income and further Rs.50,00,000/- as estimatedincome upto the date of search/survey (total Rs.2,00,00,000/-). In thereturn of income the assessee offered Rs.1.5 crore on the basis of impounded documents and against Rs.50 lakhs depreciation of Rs.44,06,207/- was claimed. The AO did not accept the claim of depreciation against Rs.50 lakhs declared as estimated income at the time of survey andaccordingly made an addition for the same. 4.1. During the appellate proceedings, the assessee submitted the explanation regarding disclosure made at the time of survey. The assessee has categorically submitted that the he has not retracted from theassessment and surrender of income made during survey. The assessee has further submitted that as disclosed at the time ofsurvey of Rs.1.5 crore as undisclosed income, had been offered for taxationwithout any adjustment. However, the amount Rs.50 lakhs, which was offered as anestimated income has actually been on the basis of estimate only. The assessee has brought on record that in fact the estimated income of Rs.50lakhs wasnot the actual income of the assessee rather the actual income was Rs.69,00,511/-. Thus, there was no reduction in the declared income ratherthere was an increase of more than Rs.19 lakhs over and above theestimated income declared on the basis of impounded documents at thetime of survey. The CIT(A) observed that the assessee through its director disclosed the amount of Rs.2 crore in twoparts. In part 1 Rs.1.5 crore was offered as undisclosed income and in part 2, Rs.50lakhs was offered as an estimated income of the director and the company upto the date of survey (based on the basis of impounded documents). The CIT(A) noted that the assessee company has offered Rs.1.5 crore, as it is,however the estimated income of Rs.50 lakhs has been enhanced by the assessee to Rs.69,00,511/-, therefore, nothing wrong on the part of the assessee, as Page | 5

M/s Baba Lokenath Flour Mills Pvt. Ltd. ITA No.1489/Kol/2015 Assessment Year: 2012-13 the assessee has shown an enhanced actual income against the disclosedestimated income. In any case depreciation has to be allowed as per theprovisions of the I T Act, 1961 in case the assessee is so entitled for it. Assessee's claim of the depreciation cannot be denied. As the assessee has declared more income as actual income in the return of income against theestimated income declared at the time of survey, Therefore, CIT(A) held that AO's action offurther addition of Rs.50 lakhs was not justified and he deleted the addition. 5. We have given a careful consideration to the rival submissions and perused the material available on record, we note that assessee has declared during the survey operation that his income was Rs.2 crore up to the date of survey. The amount of Rs.50 lakh was part of Rs.2 crore but belongs to the current year i.e up to the date of survey. The assessee has declared more income (at Rs.69,00,511/-), during the current year which includes Rs.50 lakh and claimed the depreciation. Moreover, this issue is squarely covered by the judgment of the Coordinate Bench of Kolkata ITAT, in ITA No.1488/Kol/2015 in the case of Jai Lokenath Floor, for A.Y.2012-13 wherein the Coordinate Bench noted on the identical issues that: “The assessee has not retracted from the assessment and surrender of income made by its director Mr Rakesh Kumar Agarwal. The AR has further submitted that as disclosed at the time of survey Rs.l.5 crore as undisclosed income has been offered for taxation without any adjustment. However Rs.50 lakhs which was offered as an estimated income, which has actually been on the basis of estimate only. The AR has brought on record that in fact the estimated income of Rs.50 lakhs was not the actual income of the assessee rather the actual income was Rs. 74,87,908/-. Thus, there was no reduction in the declared income rather there was an increase of more than Rs.24 lakhs over and above the estimated income declared on the basis of impounded documents at the time of survey. It was held that the assessee through its director disclosed the amount of Rs.2 crore in two parts. In part 1 Rs.1.5 crore was offered as undisclosed income andRs.50 lakhs was offered as an estimated income of the director and the company upto the date of survey (based on the basis of impounded documents). The assessee company has offered Rs.l.5 crore as it is. However, the estimated income of Rs.50 lakhs has been enhanced by the assessee to Rs. 74,87,908/-. Nothing wrong on the part of the assessee as the assessee Page | 6

M/s Baba Lokenath Flour Mills Pvt. Ltd. ITA No.1489/Kol/2015 Assessment Year: 2012-13 has shown an enhanced actual income against the disclosed estimated income. In any case depreciation has to be allowed as per the provisions of the I T Act, 1961 in case the assessee is so entitled for it. Asessee's claim of the depreciation cannot be denied. As the assessee has declared more income as actual income in the return of income against the estimated income declared at the time of survey. Therefore, AO's action of further addition of RS.50 lakhs was not justified.” 5.1 We note that a plain reading of the statement of disclosure made by the assessee at the time of search, demonstrates that, he has offered Rs.1.5 Crores as undisclosed income and Rs.50 Lakhs was offered only as estimated regular income up to the date of survey. The actual income earned was more than Rs.50 Lakhs, that is, it was Rs.69,00,511/-. Therefore, we note that nothing wrong on the part of the assessee, as the assessee, has shown an enhanced actual income against the disclosed estimated income. In any case depreciation has to be allowed as per the provisions of the I T Act, 1961 in case the assessee is so entitled for it. Assessee’s claim of the depreciation cannot be denied. As the assessee has declared more income, against the estimated income declared at the time of survey, therefore, AO's action of further addition of Rs.50 lakhs was not justified. That being so, we decline to interfere with the order of CIT(A) in deleting the aforesaid addition, hence the order of CIT(A) is hereby confirmed. 5.2 In the result, the appeal filed by the Revenue is dismissed. Order is pronounced in the open court on 07/02/2018. Sd/- Sd/- (N.V. VASUDEVAN) (DR. A.L.SAINI) �ाियक सद�/JUDICIAL MEMBER लेखा सद�/ACCOUNTANT MEMBER कोलकाता /Kolkata; िदनांक Dated 07/02/2018 (RS, SPS)

M/s Baba Lokenath Flour Mills Pvt. Ltd. ITA No.1489/Kol/2015 Assessment Year: 2012-13 आदेशकी�ितिलिपअ�ेिषत/Copy of the Order forwarded to : अपीलाथ�/ The Appellant –ACIT, Cen. Cir-1(1), Kolkata 1. ��थ�/ The Respondent- M/s Baba Lokenath Flour Mills Pvt. Ltd. 2. 3. आयकरआयु�(अपील) / The CIT(A), आयकरआयु�/ CIT 4. िवभागीय�ितिनिध, आयकरअपीलीयअिधकरण, कोलकाता/ 5. DR, ITAT, Kolkata गाड�फाईल / Guard file. 6. स�ािपत�ित