Amulya Chandra Das, Agartala V. Income Tax Officer, Ward-2, Agartala

ITA 104/GTY/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2667 (ITAT-GUWAHATI)
• Duration Of Justice: 1 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 08-06-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUBHRAJYOTI BHATTACHARJEE CI
• Assessee Lawyers: AMITAVA BANIK
• Keywords: TDS; Set aside
• Section: 69B; 131

Judgement Text

1 I.T.A. NO.104/GAU/2020 ASSESSMENT YEAR: 2010-11 AMULYA CHANDRA DAS IN THE INCOME TAX APPELLATE TRIBUNAL GUWAHATI BENCH , VIRTUAL HEARING AT KOLKATA [BEFORE SHRI A. T. VARKEY, JUDICIAL MEMBER] I.T.A. NO.104/GAU/2020 ASSESSMENT YEAR: 2010-11 AMULYA CHANDRA DAS AMTALI, BISHALGHAR, AGARWALA [PAN:AFFPD6890P] VS. ITO, WARD-2, AGARTALA. APPELLANT RESPONDENT DATE OF HEARING 06.10.2021 DATE OF PRONOUNCEMENT 28.10.2021 FOR THE APPELLANT SHRI AMITAVA BANIK, AR FOR THE RESPONDENT SHRI SUBHRAJYOTI BHATTACHARJEE, ADDL. CIT, SR. DR ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL PREFERRED BY THE ASSESSE E AGAINST THE ORDER OF THE LD. CIT(A), SHILLONG DATED 26.06.2019 FOR A.Y 2010-11. 2. GROUND NO.1 IS GENERAL IN NATURE. SO THIS GROUND IS DISMISSED. 3. GROUND NO.2 IS AGAINST THE ACTION OF THE L D. CIT(A) CONFIRMING THE ADDITION OF RS.64,155/- AS UNDISCLOSED GROSS RECEIPT BY TAKING NOTE OF 26AS. 4. BRIEF FACTS OF THE CASE AS NOTED BY THE AO ARE AS UNDER: ON GOING THROUGH THE ACCOUNTS OF THE ASSESSEE IT I S SEEN THAT THE ASSESSEE HAS SHOWN GROSS RECEIPT OF RS.8,86,74,406/- BUT AS PER 26AS DETAILS BEING TDS DATABASE MAINTAINED BY THE DEPARTMENT IT COMES TO RS.8,87,38,561/-SO THERE IS A DIFFERENCE OF RS.64, 155/- WHICH WAS LEFT OUT AS PER ASSESSES ACCOUNT. SO TOTAL UNDISCLOSED I NCOME FROM GROSS RECEIPT COMES TO RS.64,155/-. HENCE I ADD BACK RS.64,155/-TO THE TOT AL INCOME OF THE ASSESSEE. 2 I.T.A. NO.104/GAU/2020 ASSESSMENT YEAR: 2010-11 AMULYA CHANDRA DAS 5. AGGRIEVED THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO WAS PLEASED TO CONFIRM THE SAME. AGGRIEVED THE ASSESSEE IS BEFORE US. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUS ED THE RECORDS. WE NOTE THAT THE AO HAS MADE ADDITION OF RS.64,155/- SINCE HE FOUND THE RE WAS MIS-MATCH IN THE INCOME AS SHOWN BY HIM AND AS PER THE 26AS DATABASE OF THE D EPARTMENT AS NOTED BY THE AO (SUPRA). ON APPEAL, THE LD. CIT(A) HAS CONFIRMED TH E ACTION ON THE GROUND THAT THE ASSESSEE HAS NOT BEEN ABLE TO FILE RECONCILIATION E VEN THOUGH THE RECEIPT IS ONLY FROM ONE SOURCE I.E, M/S AGARWAL MARKETING & SERVICES. IT IS NOTED THAT M/S AGARWAL MARKETING & SERVICES HAD ISSUED FORM NO.16A FROM WHICH IT IS SHOWN TO HAVE CREDITED RS.8,86,74,406/- WHICH WAS THE AMOUNT SHOWN BY THE ASSESSEE. HOWEVER, SINCE THERE WAS DIFFERENCE AS REFLECTED BY 26AS DATABASE, WHICH SHOWS GROSS RECEIPT AS RS.8,87,38,561/-, THE ASSESSING OFFICER MADE THE AD DITION OF RS.64,155/- AS TOTAL UNDISCLOSED INCOME FROM GROSS RECEIPT. THIS ACTION OF THE AO/LD. CIT(A) CANNOT BE COUNTENANCED. MERELY BECAUSE THERE WAS MISMATCH BET WEEN THE TDS STATEMENTS I.E FORM 16A & 26AS IT CANNOT BE THE GROUND FOR ADDITIO N. THAT CAN BE ONE OF THE REASON TO DOUBT TO START AN ENQUIRY AS TO WHAT WAS THE CORREC T GROSS RECEIPT. THE AO SHOULD THEN ENQUIRE FROM THE PAYER IN THIS CASE M/S AGARWAL MAR KETING & SERVICES ABOUT THE VERACITY OF THE CLAIM OF THE ASSESSEE AS TO THE REC EIPT AND AFTER COLLECTING THE INFORMATION FROM THE PAYER; AND IN CASE IF THE INFORMATION IS ADVERSE TO THE ASSESSEE, THEN AFTER PUTTING THE ASSESSEE ON NOTICE BY FURNISHING A COPY OF THE LETTER FROM PAYER, AND THERE AFTER GETTING THE EXPLANATION FROM THE ASSESSEE ON IT, THE AO CAN MAKE APPROPRIATE DECISION IN ACCORDANCE TO LAW. IN THIS CASE IT IS N OTED THAT THE ASSESSEE HAD RECEIVED ONLY RECEIPTS FROM M/S AGARWAL MARKETING & SERVICES, SO THE AO OUGHT TO HAVE VERIFIED THE FACT OF TOTAL RECEIPT GIVEN TO THE ASSESSEE FROM M/ S AGARWAL MARKETING & SERVICES IN THIS ASSESSMENT YEAR WHICH THE AO HAS NOT CARRIED O UT. HOWEVER, IT IS NOTED THAT THE ASSESSEE HAS FILED FORM 16A, LEDGER ACCOUNT, AND HA S NOT CLAIMED TDS CREDIT ON RS 3 I.T.A. NO.104/GAU/2020 ASSESSMENT YEAR: 2010-11 AMULYA CHANDRA DAS 64,155/- AND THE ASSESSEES BOOKS ARE AUDITED TO SU PPORT ITS CASE THAT THERE WAS NO EXTRA RECEIPT AS ALLEGED BY AO. HOWEVER, IT IS ALSO NOTED THAT EVEN BEFORE THE LD CIT(A) OR BEFORE ME, THE ASSESSEE DID NOT MADE ANY EFFORT TO RECONCILE THE DIFFERENCE/EXPLAINED BY BRINGING LETTER FROM M/S AGARWAL MARKETING & SERVIC ES TO CLARIFY THE CORRECT RECEIPT IT RECEIVED. THEREFORE, I AM INCLINED TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THIS ISSUE BACK TO THE AO WITH A DIRECTION TO ENQUIRE FR OM M/S AGARWAL MARKETING & SERVICES AND THEREAFTER TO ADJUDICATE THE ISSUE AFR ESH AS SUGGESTED (SUPRA) AND AFTER CONSIDERING THE WRITTEN SUBMISSIONS/DOCUMENTS/RECON CILIATION FILED BY THE ASSESSEE ON THIS ISSUE IN ACCORDANCE TO LAW. 7. GROUND NO.2(B) IS AGAINST THE ACTION O F THE LD. CIT(A) CONFIRMING THE ADDITION OF RS.23,57,718/- AS UNDISCLOSED INVESTMENT, THE A O HAS MADE THE ADDITION BY OBSERVING AS UNDER: ON GOING THROUGH THE LEDGER ACCOUNT MAINTAINED BY THE M/S AGARWAL MARKETING & SERVICES IT IS SEEN THAT AN AMOUNT OF RS.23,57,718/- WAS RECEIV ABLE BY THE ASSESSEE FROM M/S AGARWAL MARKETING & SERVICES UNDER WHICH HE HAD EXECUTED TH E CONTRACT WORK. CONSEQUENTLY, M/S AGARWAL MARKETING & SERVICES IS A DEBTOR TO THE ASS ESSEE FOR THE SAID AMOUNT & SURPRISINGLY THIS AMOUNT HAS GOT NO PLACE IN THE RIGHT SIDE OF T HE BALANCE SHEET OF THE ASSESSEE. ALSO IT IS VISIBLE FROM THE BANK STATEMENT PRODUCED AT THE HEA RING STAGE THAT THE ASSESSEE WAS IN RECEIPT OF MONEY FROM M/S AGARWAL MARKETING & SERVICES DURING THE FINANCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR, AND CLOSING BALANCE AS HAS BEEN SH OWN BY M/S AGARWAL MARKETING & SERVICES SHOULD ALSO BEEN IN BALANCE SHEET OF THE ASSESSEE. BUT THE ASSESSEES BALANCE SHEET DOES NOT CORROBORATE WITH THE ACCOUNT MAINTAINED IN RESPECT OF THE ASSESSEE BY M/S AGARWAL MARKETING & SERVICES. AS SUCH THE ASSESSEE HAS NOT FOLLOWED T HE DOUBLE ENTRY SYSTEM OF ACCOUNTING POLICY RESULTING A DETECTION OF UNDISCLOSED ASSET FOR AN A MOUNT OF RS.23,57,718/-. ON BEING ASKED AT THE TIME OF STATEMENT RECORDED U/S 131 THE ASSESSEE TOLD THAT THE SAID AMOUNT COULD NOT BE RECEIVED AS ON 31-03-2010. THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT ACCEPTABLE BECAUSE THE ASSESSEE IS MAINTAINING HIS BOOKS OF ACCOUNTS O N MERCANTILE SYSTEM. OMISSION TAKE PLACE IN THE BALANCE SHEET TO THE TUNE OF RS.23,57,718/- IS NOTHING BUT A FABRICATION OF KEEPING A SUBSTANTIAL AMOUNT OUT OF BOOKS MAINTAINED. AS SUCH THE ASSESSEE HAS CONCEALED INCOME TO THAT EXTENT DELIBERATELY. THEREFORE, I AM NOT INCLINED T O ACCEPT THE SUBMISSION MADE ON 05-03-2013 AND ADD RS.23,57,718/- BEING UNDISCLOSED INCOME AS PER SECTION 69B OF THE I.T. ACT. 8. AGGRIEVED THE ASSESSEE PREFERRED AN APPEAL BEFOR E THE LD. CIT(A) WHO WAS PLEASED TO CONFIRM THE SAME. AGGRIEVED THE ASSESSEE IS BEFORE ME. 4 I.T.A. NO.104/GAU/2020 ASSESSMENT YEAR: 2010-11 AMULYA CHANDRA DAS 9. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS. IT IS NOTED THAT THE AO ON PERUSAL OF THE BOOKS OF THE PAYER M/S AGARWAL MARKE TING & SERVICES HAS NOTED THAT RS.23,57,718/- IS PAYABLE TO THE ASSESSEE IN THIS ASSESSMENT YEAR. HOWEVER, ACCORDING TO THE ASSESSEE, HE HAS ALREADY DISCLOSED THE SUMS ACCRUED TO HIM [RS.23,57,718/- ]BECAUSE HE WAS FOLLOWING THE MERCANTILE SYSTEM OF ACCOUNTING. THIS FACTUAL ASPECT HAS NOT BEEN EXAMINED BY AO/LD CIT(A) AND THEREFORE NEE DS TO BE EXAMINED DE NOVO BY THE AO. BEFORE PARTING IT IS OBSERVED THAT JUST BEC AUSE THE SUNDRY DEBTOR HAS SHOWN IN THEIR LEDGER ACCOUNT CERTAIN AMOUNT AS PAYABLE TO T HE ASSESSEE, IT CANNOT BE THE GROUND TO TAX THE SAME AS INCOME OF ASSESSEE. IF THE ASSESSEE HAS INCLUDED THE RECEIPT OF RS.23,57,718/- WHEN IT GOT ACCRUED SINCE HE IS FOLL OWING THE MERCANTILE SYSTEM OF ACCOUNTING, THE SAME CANNOT BE ADDED AS UNDISCLOSED INVESTMENT OF THE ASSESSEE. SINCE THIS FACT NEEDS TO BE VERIFIED, IT IS SET ASIDE BAC K TO THE FILE OF THE AO FOR VERIFICATION AS TO WHETHER THE ASSESSEE HAS INCLUDED THIS AMOUNT (R S.23,57,718/-) AS INCOME ALSO IN ITS PROFIT AND LOSS A/C AND IF THE ASSESSEE HAS REFLECT ED THIS AMOUNT AS PART OF THE GROSS RECEIPT THEN NO ADDITION IS WARRANTED. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 28 TH OCTOBER, 2021. SD/- (A. T. VARKEY) JUDICIAL MEMBER DATED : 28.10.2021 RS 5 I.T.A. NO.104/GAU/2020 ASSESSMENT YEAR: 2010-11 AMULYA CHANDRA DAS COPY OF THE ORDER FORWARDED TO: 1. APPELLANT - AMULYA CHANDRA DAS 2 RESPONDENT - ITO, WARD-2, AGARTALA. 3. 4. 5. CIT(A)- CIT- DR, ITAT, GUWAHATI. // TRUE COPY// BY ORDER, SENIOR PRIVATE SECRETARY