Ashoke Kumar Nandi, Hooghly V. ITO, Ward 23(4), Kolkata, Hooghly

ITA 1036/KOL/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2969 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 04-07-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 12-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROBIN CHOUDHUR Y
• Assessee Lawyers: SHIPRA SEN
• Keywords: Unexplained cash credit; Depreciation; Source of fund; Deemed to accrue or arise in india; Difference of opinion; Unabsorbed depreciation; Change of opinion
• Section: 143(3); 234B; 69B; 201; 147; 68; 148

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 1036 / KOL / 2017 ASSESSMENT YEAR :2011-12 ASHOKE KUMAR NANDI LINK ROAD, P.O. & P.S. ARAMBAG, DIST. HOOGHLY, PIN-712601 [ PAN NO.ABRPN 1439 J ] V/S . INCOME TAX OFFICER WARD-23(4), G.T. ROAD, CHINSURAH, HOOGHLY-712601 /APPELLANT .. / RESPONDENT /BY APPELLANT MS. SHIPRA SEN, AR /BY RESPONDENT SHRI ROBIN CHOUDHURY, CIT-DR /DATE OF HEARING 25-07-2019 /DATE OF PRONOUNCEMENT 21-08-2019 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2011-12 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-6 KOLKATAS OR DER DATED 21.02.2017 PASSED IN CASE NO.82/CIT(A)-6/KOL/15-16, INVOLVING PROCEEDINGS U/S 147 R.W.S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE A CT. 2. THE ASSESSEE PLEADS THE FOLLOWING SUBSTANTIVE GR OUNDS IN THE INSTANT APPEAL:- 1. FOR THAT ON THE FACTS OF THE CASE, THE ORDER PAS SED BY THE LD. C.I.T.(A) IS COMPLETELY ARBITRARY, UNJUSTIFIED D AND ILLEGAL. 2. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I.T .(A) WAS WRONG IN NOT CONSIDERING THE FACTS THAT IN REOPENING THE ASSESSMENT U/S. 148 (R. W.S. 147) WHICH IS MERE CHANGE OF OPINION AND AGAINST REQUIREMENT OF LAW, AS SUCH HIS FINDINGS IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 3. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I.T .(A) WAS WRONG IN DITTOING THE ORDER OF THE AO THAT HE WAS COMPUTED THE RETURN INCOME AT RS.5,9,918/- IN PLACE OF RS.NIL SHOWING IN RETURN AGAINST NOTICE U/S. 148 OF THE IT ACT WHICH IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. ITA NO.1036/KOL/2017 A.Y. 201 1-12 ASHOKE KR. NANDI V. ITOWD-23(4) , HOOGHLY PAGE 2 4. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I.T .(A) WAS WRONG IN SUSTAINING THE ADDITION AMOUNTING TO RS.109,99,958/- ON CASH DEPO SITS IN BANK UNDER AS UNDISCLOSED SOURCES WHICH IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 5. FOR THAT ON THE FACTS OF THE CASE, THE ASSESSEE DISCLOSED HIS INCOME BEFORE DETECTION OF THE AO BY A REVISED COMPUTATION AND RE TURN FILED AGAINST NOTICE U/S. 148 OF THE IT ACT, BUT HE HAS PASSED THE ORDER U/S. 147 /143(3) WITHOUT CONSIDERING THE DISCLOSED INCOME WHICH IS CONFIRMED BY THE LEARNED C.I.T.(A), AS SUCH HIS ACTION IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 6. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I.T .(A) WAS WRONG IN NOT CONSIDERING THE FACTS THAT SEC. 71 OF THE IT ACT DEAL WITH INTER HE AD ADJUSTMENT OF LOSS AND THE ASSESSEE CLAIMED SET OFF HIS LOSS FROM SHARE TRANSA CTIONS IN HIS RETURN, BUT THE LD. CIT(A) S ORDER, AS SUCH HIS FINDING IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 7. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT(A) OUGHT TO HAVE CONSIDERED THAT THE ASSESSEE HAD DISCHARGED IT S ONUS BY FURNISHING ALL THE RELEVANT DOCUMENTS IN CONNECTION WITH LOSS IN SHARE TRANSACTION IN AXIS BANK AND SOURCE OF FUND AND ALSO PROVED THE IDENTITY AND CRE DITWORTHINESS AND GENUINENESS OF TRANSACTION AMOUNT, THEREFORE, HE SHOULD HAVE ALLOW ED RS.143,38,904/-IN PLACE OF 33,38,946/- WHICH IS COMPLETELY ARBITRARY, UNJUSTIF IED AND ILLEGAL. 8. FOR THAT ON THE FACTS OF THE CASE, THE AO WAS NO T FOLLOWING THE CBDT GUIDELINES IN COMPUTER AIDED SCRUTINY SELECTION ( CASS ) CASE WHICH IS CONFIRMED BY THE LD. CIT(A), AS SUCH HIS FINDING IS COMPLETELY ARBITRARY , UNJUSTIFIED AND ILLEGAL. 9. FOR THAT THE INTEREST U//S 234B CHARGED MECHANIC ALLY IS WRONG & ILLEGAL. 3. LEARNED COUNSEL REPRESENTING ASSESSEE SUBMITS DU RING THE COURSE OF HEARING THAT SHE CONFIRMS THE TAXPAYERS GRIEVANCE ONLY TO THE SET OFF OF THE BROUGHT FORWARD LOSS / UNABSORBED DEPRECIATION AGAI NST THE UNEXPLAINED CASH CREDITS DEEMED INCOME ADDITION MADE BY THE ASSESSIN G OFFICER AMOUNTING TO 149,38,822/-. SHE QUOTES SEC. 70, 71 & 72 WHILST SE EKING THE IMPUGNED SET OFF BENEFIT. 4. THE REVENUES CASE ON THE OTHER HAND IS THAT THE ASSESSEE IS NOT ENTITLED THE IMPUGNED SET OFF AS THE BANK CASH DEPO SIT(S) (SUPRA) ADDED U/S 68 OF THE ACT ARE NOT ENTITLED TO BE SET OFF AGAINST T HE LOSS INCURRED ON SHARE TRANSACTIONS CARRIED THROUGH ONE M/S VCK SHARE & ST OCK BROKING SERVICES LTD.. OUR ATTENTION IS INVITED THE CIT(A)S DETAILE D DISCUSSION AT PAGE 10 PARA-5 IN THE CIT(A)S ORDER TO THIS EFFECT HOLDING THAT T HE PURPOSE OF THE RE-OPENING / RE-ASSESSMENT IN TAX PROCEEDINGS BRING TO TAX AN ES CAPED INCOME FOR REVENUES BENEFIT AND IT IS NOT OPEN FOR THE ASSESS EE TO SEEKING REVIEW OF A CONCLUDED ITEM DOES NOT FORM PART SEC. 148 R.W.S. 1 47 PROCEEDINGS. 5. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS AGAINST AND IN SUPPORT OF BOTH THE PARTIES. WE FIND THAT HO N'BLE GUJARAT HIGH COURTS DECISION IN CIT VS. SHILPA DYEING & PRINTING MILLS (P) LTD. (2013) 219 TAXMAN ITA NO.1036/KOL/2017 A.Y. 201 1-12 ASHOKE KR. NANDI V. ITOWD-23(4) , HOOGHLY PAGE 3 279 (GUJ) ADMITTEDLY HOLDS THAT ANY INCOME INCLUDIN G ONE IN THE NATURE OF A DEEMED INCOME U/S 69B OF THE ACT FALLS U/S 14 OF TH E ACT WHICH IS ENTITLED FOR SET OFF PROVISION U/S 71 OF THE ACT. THEIR LORDSHIP CONCLUDED IN OTHER WORDS THAT ALL INCOMES UNDER VARIOUS HEAD(S) PRESCRIBED SEC. 1 4 OF THE ACT ARE ELIGIBLE TO BE SET OFF UNDER THE CORRESPONDING COMPUTATION MECH ANISM. THE REVENUES CASE THAT SUCH COMPUTATION BENEFIT IS NOT ALLOWED T O BE RAISED IN RE- ASSESSMENT PROCEEDINGS; IN OUR CONSIDERED OPINION, DOES NOT DESERVES ACCEPTANCE SINCE THE PURPOSE OF AN ASSESSMENT OR RE -ASSESSMENT IS TO TAX THE RIGHT INCOME OF A TAXPAYER ONLY. WE THEREFORE D IRECT THE ASSESSING OFFICER TO FINALIZE NECESSARY CONSEQUENTIAL COMPUTATION IN ABOVE TERMS AS PER LAW AFTER NECESSARY FACTUAL VERIFICATION SO FAR AS ASSE SSEES DEEMED INCOME OF CASH DEPOSITS AGAINST THE SET OFF CLAIM FROM SHAE T RANSACTIONS IS CONCERNED. NO OTHER ARGUMENT HAS BEEN RAISED BEFORE US. 6. THIS ASSESSEES APPEAL IS ALLOWED FOR STATISTICA L PURPOSES IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT 2 1/08/2019 SD/- SD/- ( %) (' %) ( A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP (- 21 / 08 /201 9 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ASHOKE KR. NANDI LINK ROAD, P.O.&P.S. AR AMBAG, DIST. HOOGHLY PIN.712601 2. /RESPONDENT-ITO WARD-23(4), G.T. ROAD, CHINSURAH, H OOGHLY-712101 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA 5. 7 ''3, 3, / DR, ITAT, KOLKATA 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ 3,