9911796707
TMI Blog2012 (9) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003-04 and Rs. 4,05,160 in the Assessment Year 2004-05. Search and seizure operation was carried out in the premises of the Assessee on 9th August 2005. After search the assessee surrendered the total income of Rs. 1,11,00,000 on 5th September 2005 out of which Rs. 15,00,000 and Rs. 30,000 reIated the Asst. Year 2003-04 and 2004-05 respectively. In consequent to the search operation notice u/s 153A was issued to the assessee on March 2006. In response to the said notice the assessee furnished his Return of Income on 29th May 2006 u/s 153A(a) by way of including the surrendered income declared in his letter and the total income amounting to Rs. 29,60,050 in Assessment Year 2003-04 and Rs. 34,05,160 in the Assessment Year 2004-05. Later on he discovered some omission of income in the Return of Income filed and revised his Returns of Income u/s 153A(a) on 6th of December 2007 by declaring an income of 29,46,710 in the Assessment Year 2003-04 and Rs. 37,70,160 in the Assessment Year 2004-05. During the course of search assessment proceedings the particulars requisitioned by the Assessing Officer were supplied and all explanations needed were submitted by the assessee. However, the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s nothing but double taxation. However, on the issue of Rs. 77,730 being the interest was taxed by the assessing authorities only on the basis of additional income shown in the revised return therefore cannot be held as income not disclosed may kindly be considered on the facts and circumstances as have been considered by the authorities below. 7. For the Assessment Year 2004-05, addition of Rs. 10 lakhs has been confirmed in the similar fashion being deposit in the recurring deposit when the sources of deposit has been identified by the assessing authorities totaling Rs. 36 lakhs up to the Assessment Year 2003-04. The assessee had disclosed u/s/.132(4) an additional amount of Rs. 30 lakhs when the amount available as per the balance sheet placed on record with the assessing authorities indicated that the surplus fund generated was the income rendered to tax have been utilized for the purpose of deposit of Rs. 10 lakhs in the recurring deposit account. The learned CIT(A) however chose to repeat his confirming the addition as in Assessment Year 2003-04 on the ground that there was no specific basis by the assessee to surrender income which has been identified as deposits in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of the assessee up to the Assessment Year 2007-08 and parking of the same in the account of some other person in the early part of the Assessment Year 2008-09 was not considered on its merits as the additions made by the Assessing Officer were confirmed u/s.68 of the I.T.Act. The learned Counsel argued that addition u/s.68 could only be made not when the credits in the books of account are not explained to the satisfaction of the Assessing Officer and not because the assessee's undisclosed income has been held in benami accounts. He argued that the statement of affairs up to the Assessment Year 2008-09 filed with the Department clearly indicate that the assessee had sufficient funds amounting to more than Rs. 1 Crore as on 31st March,2007 therefore cannot be taxed u/s.143(3) for the Assessment Year 2008-09 as not belonging to the assessee for negating the claim earlier was not adhered to by the Department therefore clinches the issue in favour of the assessee as of now insofar as no controverting material has been found by the authorities to hold that the amount is to be taxed in the name of benami holder only. For this proposition, he has submitted the balance sheets of the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing nothing to do with them insofar as the assessee could not establish the nexus of funds lying with it except filing balance sheet indicating funds available to the assessee were for the benami bank account. Having denied earlier it is a change of stance of the assessee as an afterthought could not be identified as amounts deposited in different person's name. Therefore, the Department has brought to tax the same as rightly confirmed by the learned CIT(A) may kindly be confirmed. 12. We have heard the rival contentions of the parties and perused the material available on record. Considering the facts and circumstances of the case, we are inclined to hold that the amounts purported to be brought tot ax by the Assessing Officer as confirmed by the learned CIT(A) for the AYs 2003-04 and 2004-05 stood explained by the assessee to the extent that the amounts generated and rendered to tax was the amounts available on the basis of declaration of income up to the Assessment Year 2006-07 when the search took place in August,2005. Having sufficient funds, it was the prerogative of the Assessing Officer to bring to tax the amount held as deposits in the bank in the form of recurring deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eet as amount held with him without identifying the same as deposited in some-body's else bank account. We do not find any infirmity in the said contention insofar as the fact finding by the authorities for taxing the sum of Rs. 1.10 Crores rather leans in favour of the assessee who was to accept the fact that the survey operation lead to a finding that these amounts belong to the assessee only. It would be unjustified if the amounts are not taxed in the hands of the account holder as per the findings therefore has been rightly pointed out by the learned Counsel for the assessee that having sufficient funds and having paid tax thereon the Department could not have taxed the same in the hands of the account holders when no demand has been made thereon and the assessee's claim to be taxed in his hands only. We therefore hold that having paid tax u/s.132(4) the undisclosed investment u/s.69 cannot be taxed when the Assessing Officer and the learned CIT(A) have contradicted their own findings that the assessee was having sufficient funds to make these deposits by identifying the amount as belonging to it when the ultimate withdrawals could not be considered as expenditure. There was no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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