Smt. Anita Biswas, Kolkata V. ACIT, Circle - 51(1), Kolkata, Kolkata

CO 54/KOL/2018

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 4076 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 23 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 10-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 18-05-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PINAKI MUKHERJEE CITSRDR
• Assessee Lawyers: S JHAJHARIA
• Keywords: Search and seizure
• Section: 143(3)

Judgement Text

, A , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI, M. BALAGANESH, ACCOUNTANT MEMBER ITA NO. 2285 / KOL / 20 16 & C.O.NO.54/KOL/2018 (A/O ITA NO.2285/KOL/2016) ASSESSMENT YEAR :2012-13 ACIT, CIRCLE-51(1), BLOCK DS-2 & 3, UTTARAPANA COMPLEX, 2 ND FLOOR, MANIKTALA CIVIC CENTRE,KOLKTA-54 V/S . SMT. ANITA BISWAS PROP. OF M/S NITAPOL INDUSTRIES, 11/36, CANAL PARK, NABAPALLY, NEW BARACKPORE, WEST BENGAL-700131 [ PAN NO.AEDPB 9570 M ] /APPELLANT .. / RESPONDENT/ / CO-OBJECTOR /BY ASSESSEE SHRI S.JHAJHARIA, FCA /BY REVENUE SHRI PINAKI MUKHERJEE, ADDL. CIT-SR-DR /DATE OF HEARING 01-10-2018 /DATE OF PRONOUNCEMENT 10-10-2018 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS REVENUES APPEAL AND ASSESSEES CROSS-OBJECTIO N FOR ASSESSMENT YEAR 2012-13 ARISE FROM COMMISSIONER OF INCOME TAX (APPE ALS)-15, KOLKATAS ORDER DATED 19.09.2016 PASSED IN CASE NO.04/CIT(A)- 15/15-16/DCIT, CIR- 51/KOL INVOLVING PROCEEDINGS U/S 143(3) OF THE INCO ME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILES PERUSED. 2. WE ADVERT TO RIVAL PLEADINGS FIRST OF ALL. THE R EVENUES SOLE SUBSTANTIVE GRIEVANCE RAISED IN INSTANT APPEAL SEEKS TO REVIVE THE ASSESSING OFFICERS ACTION ADDING THE ALLEGED UNACCOUNTED SALES OF 2,80,80,000/- IN THE COURSE OF ITA NO.2285/KOL/2016 & CO NO.54/KOL/2018 A.Y. 2012-13 ACIT CIR-51(1) KOL. VS. SMSTD. ANITA BISWAS PAGE 2 ASSESSMENT FRAMED ON 18.03.2015 RESTRICTED TO 57,32,418/- LOWER APPELLATE PROCEEDINGS. THE ASSESSEES CROSS OBJECTION SUPPORT S THE CIT(A)S ACTION GRANTING THE ABOVE RELIEF. HER FURTHER CASE IS THAT CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN ADDING THE ENTIRE UNACCOUNTED S ALES OF 57,32,418/- INSTEAD OF GROSS PROFIT ELEMENT ONLY. THE CIT(A)S DETAILED DISCUSSION QUA THE ABOVE SOLE ISSUES READS AS UNDER:- 3.4 GROUND OF APPEAL NO.6: IN THE ASSESSMENT ORDER IT IS MENTIONED THAT OFFICE OF THE DIRECTOR GENERAL OF CENTRAL EXCI SE INTELLIGENCE (DGCEI), KOLKATA, CONDUCTED SEARCH AND SEIZURE OPERATION ON 17.01.2014. BILLS AND OTHER DOCUMENTS IMPOUNDED BY DGCEI WERE CALLED U/S. 133(6). AS PER THESE SEIZED BILLS AND D OCUMENTS, TURNOVER OF THE ASSESSEE WAS RS.10,96,21,636/- BUT ASSESSEE HAD SHOWN ONLY RS.7,58,09,278/- IN THE RETURN OF INCOME. HENCE, TH E DIFFERENCE OF RS.3,38,18,418/- WAS ADDED TO THE TOTAL INCOME. IT IS MENTIONED THAT ALL THE EXPENSES AGAINST THE UNDISCLOSED SALES WERE ALR EADY CLAIMED IN THE RETURN OF INCOME. HENCE, ENTIRE AMOUNT OF UNDISCLOS ED SALES WAS ADDED TO THE INCOME. IN APPEAL PROCEEDINGS, ASSESSEE HAS SUBMITTED THAT THE AMOUNTS MENTIONED AT SL.NO.1 TO 8 OF THE TABLE AT P AGE 12 OF THE ASSESSMENT ORDER, ARE IN RESPECT OF SALES MADE TO T HE COMMISSIONARATE OF HEALTH, GOVERNMENT OF GUJARAT. TOTAL AMOUNT OF T HESE BILLS ARE RS.2,80,80,00/--. AT SL. NO.11 OF THE TABLE, FINAL CONSOLIDATED BILL WAS MADE IN RESPECT OF THE EIGHT TRANSACTIONS AT SL.NO. 1 TO 8 OF THE TABLE. IN SUPPORT APPELLANT HAS SUBMITTED COPIES OF BILLS AT SL.NO.1 TO 8 WHICH WAS ISSUED IN THE NAME OF JOINT DIRECTOR, NVBDCP, G ANDHINAGAR, GUJARAT. BILL AT SL. NO.11 IS ISSUED TO SUB-COMMITT EE, STATE HEALTH SOCIETY, GANDHINAGAR, GUJARAT. ASSESSEE HAS ALSO SU BMITTED COPY OF LETTER DATED 21.07.2014, ADDRESSED TO SUPERINTENDEN T, O/O DGCEI BY ADDITIONAL DIRECTOR (HEALTH), GANDHINAGAR. ADDITION AL DIRECTOR (HEALTH) GANDHINAGAR HAS ENCLOSED THE DETAILS OF YEAR-WISE P URCHASES FROM THE ASSESSEE. ADDITIONAL DIRECTOR (HEALTH) HAS ALSO ENC LOSED COPY OF CHEQUE OF RS.2,80,80,000/- ISSUED IN THE NAME OF TH E ASSESSEES PROPRITORY CONCERN BY CHAIRMAN/MEMBER-SECRETARY, NV BDCP-SUB- COMMITTEE, STATE HEALTH SOCIETY, GANDHINAGAR. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE A ND THE SUBMISSIONS OF THE ASSESSEE. PERUSAL OF THE LETTER ISSUED BY ADDIT IONAL DIRECTOR (HEALTH) SAYS THAT GOVERNMENT OF GUJARAT HAD PURCHASED 30,00 0 LTS. OF THE INSECTICIDES FROM THE ASSESSEE DURING THE YEAR. ON BILL AT SL. NO.11, TOTAL QUANTITY OF 30,000 LTD. IS MENTIONED. TOTAL QUANTIT Y IN BILL AT SL.NO.1 TO 8 IS ALSO 30,000 LTS. BESIDE ON BILLS AT SL. NO.1 TO 8 AND AT SL. NO.11, SAME BATCH DESCRIPTIONS HAVE BEEN GIVEN. ALL THESE EVIDENCES CLEARLY ESTABLISH THAT WHILE COMPUTING TURNOVER ON THE BASI S OF THE DOCUMENT RECEIVED FROM THE OFFICE OF DGCEI, AN AMOUNT OF RS. 2,80,80,000/-- HAS BEEN CONSIDERED TWICE. HENCE, THIS AMOUNT WOULD GET REDUCED FROM ITA NO.2285/KOL/2016 & CO NO.54/KOL/2018 A.Y. 2012-13 ACIT CIR-51(1) KOL. VS. SMSTD. ANITA BISWAS PAGE 3 RS.3,38,12,418/-. ADDITION OF RS.57,32,418/- ONLY I S CONFIRMED, ON ACCOUNT OF UNDISCLOSED SALES . 3. LEARNED DEPARTMENTAL REPRESENTATIVE TAKES US TO REVENUES SOLE GRIEVANCE FIRST. HE PLEADS THAT THE INSTANT LIS HAS EMANATED FROM DIRECTOR GENERAL CENTRAL EXCISE INTELLIGENCES SEARCH ACTION IN ASSESSEES MANUFACTURING ESTABLISHMENTS ON 17.01.2014 UNEARTHI NG ITS UNACCOUNTED SALES IN ORDER TO AVOID EXCISE DUTY. ALL THIS RESUL TED IN THE IMPUGNED ADDITION MADE IN THE COURSE OF ASSESSMENT. THE REVENUE VEHEM ENTLY CONTENDS THAT THE ASSESSEE HAS SHIFTED ITS STAND QUA THE IMPUGNED SALES BY TAKING DIFFERENT NAMES OF ITS CUSTOMERS PARTIES. ITS FURTHER CASE IS THAT THE CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN ACCEPTING ASSESSEES REC ONCILIATION OF BATCH-WISE CUSTOMERS WHICH ARE MUTUALLY CONTRADICTORY. WE FIND NO SUBSTANCE IN REVENUES INSTANT ARGUMENT. WE MAKE IT CLEAR THAT T HE IMPUGNED ADDITION OF 3,38,12,418/- MADE IN THE COURSE OF ASSESSMENT HAS BEEN DELETED TO THE EXTENT OF 2,80,80,000/- IN LOWER APPELLATE PROCEEDINGS. THE A SSESSEES PAPER BOOK FORMING PART OF RECORD CONTAINS ALL DETAILS OF RECONCILIATION OF SALES (PAGE 32 35), DUPLICATE BILLS (37 34) AS WELL AS ORIG INAL BILLS (PAGE 45 DULY MENTION BATCH-WISE PARTICULARS), ITS GUJARAT BASED CUSTOMER / GOVERNMENT AUTHORITYS CONFIRMATION FOLLOWED BY THE CORRESPON DING PAYMENTS SUFFICIENTLY RECONCILING ITS SALES OF 2,80,80,000/-. WE THEREFORE DECLINE REVENUES SOLE SUBSTANTIVE GRIEVANCE AS WELL AS ITS MAIN APPEAL IT A NO.2285/KOL/2016 IN THIS FACTS AND CIRCUMSTANCES. 4. WE NEXT COME TO ASSESSEES CROSS OBJECTION REGAR DING THE UNACCOUNTED SALES ADDITION OF 57,32,418/-. LEARNED COUNSEL IS FAIR ENOUGH IN NOT DISPUTING CORRECTNESS THEREOF IN PRINCIPLE. HIS ONLY CASE IS THAT IT IS THE PROFIT ELEMENT ONLY RATHER THAN THE ENTIRE SALES WHICH HAVE TO BE ADDED IN SUCH FACTS AND CIRCUMSTANCES. THE REVENUE FAILS TO DISPUTE THE FAC T THAT LOWER AUTHORITIES HAVE NOT GRANTED THE CORRESPONDING EXPENSES DEDUCTI ON QUA THE IMPUGNED SALES. WE THEREFORE DIRECT THE ASSESSING OFFICER TO ASSESS THE GROSS PROFIT ELEMENT ONLY AS IS THE RATE IN OTHER SIMILAR BUSINE SS RECEIPTS AS PER LAW AFTER ITA NO.2285/KOL/2016 & CO NO.54/KOL/2018 A.Y. 2012-13 ACIT CIR-51(1) KOL. VS. SMSTD. ANITA BISWAS PAGE 4 AFFORDING ADEQUATE OPPORTUNITY OF HEARING TO THE AS SESSEE. THIS CROSS OBJECTION NO.54/KOL/2018 IS PARTLY ACCEPTED IN ABOV E TERMS THEREFORE. 5. THE REVENUES APPEAL ITA NO.2285/KOL/2016 IS DIS MISSED WHEREAS ASSESSEES CROSS OBJECTION NO.54/KOL/2018 IS PARTLY ACCEPTED. ORDER PRONOUNCED IN THE OPEN COURT 10/ 10/2018 SD/- SD/- ( ) () ) (M.BALAGANESH) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP, SR.P.S *- 10 / 10 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-SMT. ANITA BISWAS, PROP. OF M/S NITAPOL I NDUSTRIES, 11/36 CANAL PARK,NABAPALLY, N EW BARRACKPORE, WEST BENGAL-700131 2. /REVENUE-ACIT, CIR-51(1), BLOCK DS-2 &3, UTTARAPAN COMPLEX, 2 ND FLOOR, MANIKTALA CIVIC C ENTRE, KOLKATA-54 3. 5 6 / CONCERNED CIT KOLKATA 4. 6- / CIT (A) KOLKATA 5. 9 ))5, 5, / DR, ITAT, KOLKATA 6. > / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO 5,