Bikash Chandra Singha, Kolkata V. DCIT, Cir-49, Kolkata, Kolkata

ITA 104/KOL/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83109 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2014
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 17-01-2014
• Court: TRIBUNAL
• Assessee Lawyers: SM RAJASHREE DUTTA
• Section: 143(3)

Judgement Text

, A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE , /AND , ! ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI SHAMIM YAHYA, AM] ' / I.T.A NO.104/KOL/2014 #$ %&/ ASSESSMENT YEAR: 2007-08 BIKASH CHANDRA SINGHA VS. DEPUTY COMMISSIONER OF INCOME-TAX, (PAN: ATBPS8839H) CIRCLE-49, KOLKATA. (() /APPELLANT ) (*+()/ RESPONDENT ) DATE OF HEARING: 26.08.2014 DATE OF PRONOUNCEMENT: 05.09.2014 FOR THE APPELLANT: SM. RAJASHREE DUTTA, ADVOCATE FOR THE RESPONDENT: SHRI VIVEK VERMA, JCIT, SR. DR / ORDER PER SHRI MAHAVIR SINGH, JM : THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XXXII, KOLKATA IN APPEAL NO. 41/XXXII/12-13/KOL(ITA/486/KOL/2012), RELATED A. NO . 152/XXXII/09-10/CIR-49/KOL DATED 21.11.2013. ASSESSMENT WAS FRAMED BY DCIT, CIRCLE-4 9, KOLKATA U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FO R ASSESSMENT YEAR 2007-08 VIDE HIS ORDER DATED 31.12.2009. 2. THE FIRST ISSUE IN THIS APPEAL OF ASSESSEE IS AG AINST THE ORDER OF CIT(A) CONFIRMING THE ADDITION OF RS. 1 LAC PAID AGAINST PURCHASE OF PROP ERTY. 3. BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE THAT THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOTED THAT THE ASSESSEE HAD MADE A PAYM ENT OF RS.50,000/- ON 22.05.2006 AND ANOTHER PAYMENT OF RS.50,000/- ON 23.05.2006 FOR PU RCHASE OF FLAT IN CASH. ACCORDING TO AO, SINCE THERE WAS NO CASH WITHDRAWAL AS PER THE BANK STATEMENT, THE SOURCE COULD NOT BE VERIFIED AND HENCE, THE ADDITION OF RS. 1 LAC WAS MADE. AGG RIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A), WHO ALSO CONFIRMED THE ACTION OF AO. AGGRI EVED, NOW ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND FROM THE EXPLANATION SUBMITTED BEFORE THE C IT(A) AND THE ORDER OF CIT(A) REJECTING THE CLAIM OF ASSESSEE, WHICH READS AS UNDER: 2 ITA NO.104/K/2014 BIKASH CHANDRA SINGHA, AY 2007-08 A) THE HDFC BANK AMOUNT IS THE ACCOUNT OF THE ASSESSEE S BUSINESS CONCERN M/S. SINGHA PLUMBING & SANITATION WORK AND THE ASSESSEE CLAIMS TO HAVE LOST ALL ITS RECORDS IN A FIRE ON 23.08.2009 AT HIS TEMPORARY OFFICE AT VEDIC VILLAGE. IF ALL THE RECORDS WERE DESTROYED RELATING TO HIS FIRM AND THAT WAS ALSO TH E REASON FOR TOTAL NON-COMPLIANCE REGARDING BUSINESS ACTIVITIES BEFORE THE AO, THEN T HERE IS NO PROOF OF EVIDENCE WITH THE ASSESSEE TO CLAIM THAT THE CASH WITHDRAWALS FROM TH E BUSINESS WAS ULTIMATELY USED TO MAKE PAYMENT OF RS. 50,000/- IN CASH TO THE PROMOTE R. IN FACT, THIS BELATED CLAIM IS ONLY AN AFTERTHOUGHT AND GOES CONTRARY TO THE ASSESSEES WRITTEN SUBMISSION MADE DURING THE ASSESSMENT STAGE. THE APPARENTLY INCORRECT CLAIM OF THE ASSESSEE IS ALSO NOT APPRECIATED. (B) AS REGARDS THE SECOND PAYMENT, THE ASSESSEE HAD FIRST CLAIMED IT ON SELF CHEQUE, THEN A BEARER CHEQUE MADE OUT TO ASHISH SARKAR AND IN AP PELLATE PROCEEDINGS, IT IS AGAIN DECLARED TO BE A SELF CHEQUE. HOWEVER THE BANK STAT EMENT HAS A NARRATION AS UNDER: 23/05/06 TO CASH: S.SARKAR 0713104 RS. 50,000/- THUS, THE SOURCE OF CASH OF RS. 50,000/- PAID TO TH E PROMOTER CANNOT BE THIS CHEQUE NO. 713104 ALSO, AS IT WAS PAID TO ONE S. SARKAR. THE A SSESSEE HAS NOT BEEN ABLE TO PRODUCE THIS PERSON ALSO WHO INCIDENTALLY HAS ENCASHED OTHE R CHEQUES ALSO FROM THE SAME BANK ACEOUNT E.G. ON 17/01/2006. ADMITTEDLY, THE ASSESSEE HAS WITHDRAWN CASH OF RS.5 0,000/- FROM HDFC BANK ACCOUNT OF ASSESSEES PROPRIETARY CONCERN M/S. SINGHA PLUMBING & SANITATION WORK AND ALSO PAYMENT OF RS.50,000/- BY SELF CHEQUE NO. 713104 DATED 23.05.2 006 DRAWN ON UCO BANK, DAKSHINPARA BRANCH. THE CIT(A) HAS NEGATED THE CLAIM THAT THIS IS AFTER THOUGHT AND GOES CONTRARY TO THE ASSESSEES CLAIM MADE AT THE ASSESSMENT STAGE. SEC ONDLY, CIT(A) REJECTED THE CLAIM OF ASSESSEE IN RESPECT TO ANOTHER RS.50,000/- DRAWN BY SELF CHE QUE OF UCO BANK ONLY ON THE PREMISE THAT THE ASSESSEE HAS GIVEN THE NAME OF ASHISH SARKAR WH EREAS THE AMOUNT WAS WITHDRAWN BY S. SARKAR. THIS MAY BE A TECHNICAL ERROR AND NOTHING E LSE ACTUALLY THE AMOUNT IS WITHDRAWN. THERE MAY BE AN INCONSISTENCY IN THE WRITING OF THE ASSES SEE BUT ACTUALLY SOURCE OF THE ENTRIES OF RS.50,000/- ON TWO OCCASIONS IS EXPLAINED. ONCE SOU RCE IS EXPLAINED, WE ARE OF THE VIEW THAT ADDITION CANNOT BE SUSTAINED. ACCORDINGLY, WE DELET E THE ADDITION AND THIS ISSUE OF ASSESSEES APPEAL IS ALLOWED. 5. THE SECOND ISSUE IN THIS APPEAL OF ASSESSEE IS A GAINST THE ORDER OF CIT(A) CONFIRMING THE DISALLOWANCE OF LABOUR EXPENSES CLAIM BY THE AS SESSEE AT RS.43,82,782/- AND RESTRICTING THE ALLOWANCE AT 50% AT RS.21,91,374/- AND CONFIRMING T HE DISALLOWANCE AS MADE BY AO AT RS.21,91,374/-. 6. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. AT THE OUTSET, IT IS SEEN THAT THE ASSESSEE HAS DEC LARED GROSS RECEIPTS FROM CONTRACT WORK AT RS.82,64,170/- AND DECLARED NET PROFIT AT RS.6,82,8 85/-. THIS IS A CASE OF APPLICATION OF NET PROFIT RATE WHERE ASSESSEE HAS DECLARED MORE THAN 8 % FROM A CIVIL CONTRACT WORK. ONCE THIS IS 3 ITA NO.104/K/2014 BIKASH CHANDRA SINGHA, AY 2007-08 THE CASE, THE ASSESSEE HAS DECLARED NET PROFIT @ 8% , NO FURTHER DISALLOWANCE IN THE ABSENCE OF SPECIFIC VOUCHERS OF LABOUR CHARGES COULD BE MADE. HENCE, AFTER CONSIDERING THE SUBMISSIONS AND ARGUMENTS OF BOTH SIDES, WE ARE OF THE VIEW THA T ADDITION CANNOT BE SUSTAINED. WE DELETE THE ADDITION AND ALLOW THIS ISSUE OF ASSESSEES APP EAL. 7. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. 8. ORDER IS PRONOUNCED IN THE OPEN COURT ON 05.09.2 014. SD/- SD/- , ! , (SHAMIM YAHYA ) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 5 TH SEPTEMBER, 2014 ,- #./ 0 JD.(SR.P.S.) 1 *2 3 2%4- COPY OF THE ORDER FORWARDED TO: 1 . () / APPELLANT SHRI BIKASH CHANDRA SINGHA, BA-4/3, AKA SH APARTMENT, DESHBANDHUNAGAR, SCHOOL PARA, KOLKATA-70 0 059 2 *+() / RESPONDENT DCIT, CIRCLE-49, KOLKATA. 3 . # ( )/ THE CIT(A), KOLKATA 4. 5. # / CIT KOLKATA 2:; *# / DR, KOLKATA BENCHES, KOLKATA +2 */ TRUE COPY, #