ALOK KUNDU,HOWRAH vs. I.T.O WD - 47(3),KOLKATA, KOLKATA

3.1. The brief facts of this issue is that the assessee is a trader of Iron and Steel Goods in Howrah area. The assessee is regularly maintaining books of accounts and the same have been duly subjected to audit by firm of chartered accountants. During the course of survey conducted at the business premises on 17.3.2010 and from the books impounded during the course of survey marked as AK-11, it was revealed that assessee has made an investment of Rs. 14,11,715/- for purchase of land from Howrah Improvement Trust. According to the Learned AO, this investment was not disclosed in the books of accounts of the assessee for the Asst Year 2006-07. Accordingly, the Learned AO issued notice u/s 148 of the Act . The assessee filed the return of income on 8.3.2011 in response to notice issued u/s 148 of the Act and sought for the reasons recorded for reopening the assessment. The reasons recorded were intimated to the assessee and the case was further refixed for hearing on 29.9.2011. On 9.11.2011, the assessee filed objections to the reasons recorded for reopening the case for the Asst Year 2006-07. The assessee explained before the Learned AO by filing objections to the reasons recorded for reopening the assessment by way of filing a cash flow statement and stated that the purchase of land was made out of surplus fund accumulated in earlier years as per cash flow statement. He also explained that the surplus fund was created out of sale proceeds of land made during the years 2000-01 & 2001-02 and partly out of cash withdrawals from savings bank account no. 8690 during the year 2004-05 and savings bank account no. 9548 maintained in the name of minor son during the year 2004-05. Hence it was submitted through the cash flow statement that the land was purchased out of earnings in earlier years and the same cannot be taxed during the year under review as the sources are properly explained. ,597 & 598/Kol/13-C-AM 2 Alok Kundu These facts are recorded at pages 1 & 2 of the order of the Learned AO . The Learned AO disagreed with the explanations of the assessee and proceeded to add the investment in land to the tune of Rs. 14,11,715/- treating it as unexplained income for the Asst Year 2006-07.

3.2. On first appeal, the Learned CITA apart from reiterating the aforesaid facts had stated that the assessee in his statement before the Learned AO on 17.3.2010 had informed that the entries recorded in the documents inventorised as AK -11 at pages 1 to 5 of this impounded documents had not been accounted for in his books of accounts and the assessee had agreed to offer the contents of this impounded documents as income for the Asst Year 2010-11 (which is not the year under appeal). The Learned CITA felt that the assessee had sufficient time to retract his statement given before the Learned AO on 17.3.2010 and 16.4.2010 but did not chose to do so. Later during the assessment proceedings, the assessee tried to explain the source for making investment in land by backing out from the earlier statement. Accordingly, the Learned CITA upheld the addition of the Learned AO. Aggrieved, the assessee is in appeal before us on the following ground:- “

1. For that in the facts and circumstances of the case, the ld.CIT(A) should have deleted the addition of Rs.14,11,715/- made on account of undisclosed investment in Land for Rs.14,11,715/- as the appellant has fully explained the source of such investment in Land before the authorities below.

2. For that as the source of investment in Land stand fully explained, the addition made on account of undisclosed investment in Land is liable to be deleted.”

3.3. The Learned AR argued that land was sold by the assessee in the earlier years and sale proceeds received in cash which was kept outside the books of accounts by the assessee and the subsequent withdrawals of cash from bank account of assessee and minor son of the assessee clearly explained the source for making investment in land. He also argued that this cash accumulation was utilized for making payment to ,597 & 598/Kol/13-C-AM 3 Alok Kundu Howrah Investment Trust. Hence both source as well as investment were kept outside the books and hence there is no unexplained investment that could be added in the hands of the assessee. He further argued that the Learned AO had passed an independent speaking order by disposing off the objections of the assessee for reasons recorded for reopening the assessment as has been held by the decision of the Hon’ble Apex Court in the case of GKN Drivshafts reported in 259 ITR 19 (SC), in the fag end of December 2011 just few days before the completion of assessment. Hence the assessee did not have sufficient opportunity to produce his evidences in support of his contentions. Hence he pleaded that the assessee be given one more opportunity by setting aside this issue to the file of the Learned AO to explain the cash flow statement before the Learned AO. In response to this, the Learned DR vehemently supported the orders of the lower authorities.

3.4. We have heard the rival submissions and perused the materials available on record. We find that this is a case of reassessment wherein the reasons recorded were duly communicated to the assessee by the Learned AO and the assessee had also duly filed his objections to the reasons recorded. But the Learned AO had disposed off the objections by way of an independent speaking order in the fag end of Dec 2011 just before the completion of assessment proceedings. It is also not clear that whether the said order is also served on the assessee. On specific query from the bench as to how in such circumstances, the assessee came to know that such an order was indeed passed by the Learned AO, the Learned AR replied that the details have been obtained under RTI by the assessee. We find that the decision of GKN Drive Shafts case in 259 ITR 19 (SC) clearly lays down principles of framing reassessment enumerating the duties of the assessee and the assessing officer clearly. It is expected that the Learned AO has to pass an independent speaking order disposing off the objectiosn for reasons recorded. Apart from this , he is expected to pass the assessment order. We find from the records of lower authorities that the assessee had deposed in the statement on 17.3.2010 and 16.4.2010 to treat the investment in land be treated as his undisclosed ,597 & 598/Kol/13-C-AM 4 Alok Kundu income. Based on this, the Learned CITA felt that the assessee had sufficient time to retract his statement given given during survey proceedings but did not chose to do so before the Learned AO during assessment proceedings or earlier. But we find that during the assessment proceedings, the assessee tried to explain the source for making investment in land by backing out from the earlier statement. We find that the very fact that the assessee had sought to file the cash flow statement explaining the sources for investment in land clearly proves that he had retracted his earlier statement. The said cash flow statement explains the sources of funds as well as deployment thereon in investment in land for the Asst Year 2006-07. We find that the said cash flow statement has not been properly appreciated by the lower authorities. Hence in the facts and circumstances of the case, we deem it fit and appropriate, in the interest of justice and fair play, to set aside this issue to the file of the Learned AO to decide this issue afresh after giving reasonable opportunity of being heard to the assessee. The assessee is also at liberty to file fresh evidences and supporting documents in support of his contentions and hereby directed to cooperate with the assessment proceedings for speedy disposal of the same. Accordingly, the grounds raised by the assessee are allowed for statistical purposes. / 2013 – Asst Year 2007-08

4.1. The brief facts of this issue is that during the course of survey conducted at the business premises on 17.3.2010 and from the document impounded during the course of survey marked as AK-12 containing the list of payments is written date wise , it was revealed that assessee has made an investment of Rs. 13,80,000/- for purchase of shop at No. 37, Strand Road, Kolkata. According to the Learned AO, this investment was ,597 & 598/Kol/13-C-AM 5 Alok Kundu not disclosed in the books of accounts of the assessee for the Asst Year 2007-08. Accordingly, the Learned AO issued notice u/s 148 of the Act . The assessee filed the return of income on 8.3.2011 in response to notice issued u/s 148 of the Act and sought for the reasons recorded for reopening the assessment. The reasons recorded were intimated to the assessee and the case was further refixed for hearing on 29.9.2011. On 9.11.2011, the assessee filed objections to the reasons recorded for reopening the case for the Asst Year 2006-07. The assessee explained before the Learned AO by filing objections to the said impounded document that the details recorded thereon were estimated expenses submitted incurred by the agent who proposed to assessee for out right purchase of property at No. 37, Strand Road, Kolkata – 700001 and since the cost of property was substantial, the assessee chose to be tenant in the said property. Since the property was not at all purchased by the assessee and no investments were made in shop purchase, there is no escapement of income during the year under review and hence pleaded for dropping of reassessment proceedings. The Learned AO however did not agree to this contention of the assessee in view of the fact that the assessee had given a statement on the date of survey that this property was purchased by him for Rs. 13,80,000/- and has been kept outside his books of accounts. In response to this, the assessee also filed objections by enclosing the rent bill proving the fact that he is a tenant in the subject mentioned property and also stated that the statement was recorded from him on the date of survey out of coercion and in any case, the statement recorded during survey cannot be taken as a conclusive piece of evidence. The Learned AO also found that the rent receipt submitted by the assessee contains the rent amount at Rs 500 per month which in his opinion is too low a figure as the property is situated in a prime locality and accordingly disbelieved the version of the assessee that he is only a tenant in the property. The assessee pleaded before the Learned AO that those notings in the impounded document AK -12 represents amounts incurred by the agent who proposed him to outright purchase of shop. However, the Learned AO found that the assessee never submitted the name and address of such agent and also felt that it is unbelievable ,597 & 598/Kol/13-C-AM 6 Alok Kundu that someone’s agent would pay such huge amount in cash. When this is the scenario, it is not known how the assessee had accepted that he has purchased the shop in his deposition. The Learned AO disagreed with the explanations of the assessee and proceeded to add the investment in shop to the tune of Rs. 13,80,000/- treating it as unexplained income for the Asst Year 2007-08.

4.2. On first appeal, the Learned CITA apart from reiterating the aforesaid facts had stated that the assessee in his statement before the Learned AO on 17.3.2010 had informed that the entries recorded in the documents inventorised as AK -12 had not been accounted for in his books of accounts. The Learned CITA disbelieved the version of the assessee that he is only a tenant in the said property as according to him the documents impounded during the survey are direct evidences against the assessee and held that the expenditures recorded therein ar the actual expenditure incurred for the shop. He held further that even if the assessee stays in the said property as a tenant, still the monies paid for the said shop is to be explained by the assessee with proper sources. Accordingly, the Learned CITA upheld the addition of the Learned AO. Aggrieved, the assessee is in appeal before us on the following ground:- “

1. For that in the facts and circumstances of the case, the ld.CIT(A) was not justified in confirming the addition of a sum of Rs.13,80,000/- made by the Assessing Officer for alleged purchase of shop, totally ignoring the appellant’s contention and Written Submission in this regard.

2. For that the Appellate Authority should have deleted the addition made on the account of alleged shop purchase, whereas the appellant did not purchase any shop during the year of assessment. “ 4.3. We have heard the rival submissions. We find that the objections for reasons recorded were disposed off by the Learned AO at the fag end of the assessment proceedings and the same were not served on the assessee. Therefore, this is a direct violation of various principles enumerated by the Hon’ble Apex Court in GKN ,597 & 598/Kol/13-C-AM 7 Alok Kundu Driveshafts case in 259 ITR 19 (SC). We also find that the Learned AO had not cross verified from the landlord of the subject mentioned property situated at No. 37, Strand Road, Kolkata to undertand the fact stated by the assessee that he is ony a tenant in the said property. We also find that the assessee had raised objection that the statement was recorded from him out of coercion that the shop was purchased by him for Rs. 13,80,000/-. We find that the entire addition has been made only based on the statement recorded from the assessee without corroborating with factual evidences. In the instant case, the impounded documents contain estimated expenses recorded regarding the shop proposed to be purchased and later on assessee had backed out from the said proposal. These facts could become undisputed only after verification from the landlord of the subjectmentioned property. It is also relevant whether the capital gains had been assessed in the hands of the seller in respect of the subject mentioned property. Though this is not relevant for disposal of this appeal before us, but these details would prove the facts before us beyond dispute. In view of the above, we deem it fit and appropriate, in the interest of justice and fairplay, to set aside this issue to the file of the Learned AO to decide this issue afresh after giving reasonable opportunity of being heard to the assessee. The assessee is also at liberty to file fresh evidences and supporting documents in support of his contentions and hereby directed to cooperate with the assessment proceedings for speedy disposal of the same. Accordingly, the grounds raised by the assessee are allowed for statistical purposes.

THIS ORDER IS PRONOUNCED IN OPEN COURT ON 27 / 11 /2015