Sri Sudipta Ghosh Vs DCIT (ITAT Kolkata)
The assessee had investments to the tune of Rs. 5,77,736/-. He explained these investments by submitting that the same were from salary savings. The ld. Assessing Officer found that the withdrawals from the assessee’s bank account is only Rs. 5,20,000/-. The difference of investment was added as unexplained investments. The assessee explains that part of the salary was always received in cash and it was only Rs. 1,38,505/-, which was received by way of cheque. It was also submitted that an investment of Rs. 3,35,000/- was given from the Bank Account maintained by the wife of the assessee but such bank account was not considered by the Assessing Officer. The assessee stated that he deposited the salary of Rs. 1,38,505/- in the joint account of the wife and had drawn Rs.3,35,000/- for making investments. Regarding the balance, it was explained that it was lying in the debit of the balance sheet of the wife. The assessee produced cash flow statement to explain the sources of deposit. It was also stated that the bank accounts of Abhishek Ghosh and A. Naug, the mother of Smt. Kajal Ghosh were declared in her returns.
The ld. D/R, could not controvert the arguments of the assessee that the amount to the extent of Rs.3,25,000/-, was gathered by way of drawings in the joint bank account and the balance amount of Rs.2,20,000/-, was made out of the salary received in cash.
Keeping in view the overall facts of the case and the capacity of the assessee, I am of the considered opinion that no addition is called for under the facts and circumstances of the case. When a person receives salary in cash, his claim that the investments were made from such salary, cannot be brushed aside.
FULL TEXT OF THE ITAT JUDGMENT
All these appeals are filed by the assessee directed against separate but identical orders of the ld. Commissioner of Income Tax (Appeals)-16, Kolkata, (hereinafter the ‘ld. CIT (A)’), passed u/s 250 of the Income Tax Act, 1961 (the ‘Act’), dt. 04/02/2016.
2. As the issues arising in all these appeals are common, for the sake of convenience, they are heard together and disposed off by way of this common order.
3. The assessee was the Chairman of Ordnance Factory. A search was conducted at his residence by the Central Bureau of Investigation (CBI) on 18/05/2009, and certain information, documents etc. disclosing investments were found. This information along with the list of seized articles and documents were sent to the Income Tax Department.
3.1. The wife of the assessee, Smt. Kajal Ghosh, is a Doctor in medicine and is an employee of the Government of West Bengal. She is an assessee having her own independent sources of income. The assets found were KVP’s, some of which stood in the name of Dr. Smt. Kajal Ghosh, the wife of the assessee. One of the KVPs stood in the name of the father-in-law of the assessee, Shri P K Naug, who was drawing pension and some other KVPs were in the joint names of Sri Sudipto Ghosh, the assessee and Smt. Kajal Ghosh. Assets were also found in the name of the mother-in-law of the assessee, Smt. A. Naug, wife of Shri P K Naug, as well as in the name of his major son, Shri Abhishek Ghosh and Shri Anirban Ghosh, who was then a minor. The Assessing Officer in his order passed u/s 143(3) of the Act, records that the assessee admitted that certain assets belonged to him and that the other assets do not belong to hm. Asset wise information were furnished to the Assessing Officer. Smt. Kajal Ghosh stated on oath that the assets which stood in her name belonged to her and was acquired from her own sources of income. It was submitted that she was in service under the Government of West Bengal, for the past several years and the investments were made from her savings. She submitted explanations in support of her contentions.
3.1.1. In the case of investment in the name of Shri P K Naug (father-in-law of the assessee), it was stated that the CBI, vide its order dt. 02/05/2011, which is placed at page 242 of the paper book, accepted that he had an independent source of income and the asset belonged to Shri P K Naug.
3.1.2. The assets in the name of Smt. A Naug, wife of Shri P K Naug, was said to have been acquired by her in 1984 and that she has an independent source of income and was not a subject matter of the CBI charge sheet. Her investments were also rooted through the account of Smt. Kajal Ghosh as Smt. Naug, was not having a Bank Account. The interest income from the joint accounts were assessed in the hands of Smt. Kajal Ghosh.
3.1.3. In the case of investment by the major son of the assessee Shri Abhishek Ghosh, it was submitted that these were taxed in the hands of Smt. Kajal Ghosh. In the case of the minor son, it was claimed that Shri Anirban Ghosh, had a definite source of income. The Assessing Officer added all the investments in the assets as unexplained investments in the hands of the assessee in all the assessment orders before us. He held that the assessee has made benami investments in the name of Smt. Kajal Ghosh, Smt. Abha Naug, Shri P K Naug, Shri Abhishek Ghosh & Shri Anirban Ghosh.
3.2. On appeal, the ld. CIT(A), confirmed the same, though the assessee has pleaded that the incomes relatable to all these investment were explained by Smt. Kajal Ghosh and assessed to tax in her income tax assessment. The investments held by other persons in their names were also treated as investments of the assessee.
3.3. Aggrieved, the assessee is in appeal before us.
4. The ld. Counsel for the assessee, Shri S. M. Surana, submitted that the Assessing Officer has made an allegation that benami investments were made by the assessee in the names of Shri P K Naug, Smt. A Naug, Smt. Kajal Ghosh, Shri Abhishek Ghosh and Shri Anirban Ghosh. He submitted that it is well settled that the burden of proof lies on the person who alleges benami and that this burden of proof has not been discharged by the Assessing Officer. He relied on the following case-law:-
