Smt Sharmilla Bose, Kolkata V. ITO, WD-41(1), KOLKATA, Kolkata

ITA 1049/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1854 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-04-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 30-11-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 16-05-2016
• Court: TRIBUNAL
• Department Lawyers: A K SINHA
• Assessee Lawyers: S DASGUPTA
• Keywords: Unexplained expenditure; Additional evidence
• Section: 69C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI S.S.VISWANETHRA RAVI, JM & DR. A.L.SAI NI, AM ./ ITA NO.1049/KOL/2016 ( / ASSESSMENT YEAR:2010-11) SMT. SHARMILLA BOSE, 49A, SHYAMBAZAR STREET, KOLKATA-700004 VS. ITO, WARD-41(1), 18, RABINDRA SARANI, PODDER COURT, 4 TH FLOOR, KOLKATA-700001 ./ ./PAN/GIR NO.: AAJPB 7004 J ( /APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : SHRI S. DASGUPTA, C.A REVENUE BY : SHRI A.K.SINHA, JCIT / DATE OF HEARING : 16/03/2017 /DATE OF PRONOUNCEMENT 12/04/2017 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAINI NG TO ASSESSMENT YEAR 2010-2011, IS DIRECTED AGAINST THE ORDER PASSED BY LD. COMMISSIONER OF INCOME TAX(APPEAL)-13, KOLKATA, DAT ED 02.02.2016, WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE LD. ASSESSING OFFICER U/S.143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT), DATED,07.01.2013. 2. BRIEF FACTS OF THE CASE QUA THE ASSESSEE ARE THA T THE ASSESSEE FILED HER RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION ON 31.03.2011 DISCLOSING TOTAL INCOME AT RS.5,13,050/- . THE RETURN OF INCOME WAS PROCESSED U/S.143(1) OF THE ACT. LATER ON, ASSE SSEES CASE WAS SELECTED FOR SCRUTINY U/S.143(3) OF THE ACT AND THE AO HAS COMPLETED THE ASSESSMENT BY MAKING THE ADDITION OF RS.86,935/- ON ACCOUNT OF NEGATIVE CASH BALANCE IN THE CASH BOOK AS ON 30.03.2010 AND THE SAME WAS ITA NO.1049/KOL/2016 SMT. SHARMILLA BOSE 2 CONSIDERED BY THE AO AS AN UNEXPLAINED EXPENDITURE U/S.69C OF THE INCOME TAX ACT, 1961 AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 3. NOT BEING SATISFIED WITH THE ORDER OF LD. AO, TH E ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A), WHO HAS CONFIRMED THE ORDER PASSED BY THE AO OBSERVING THE FOLLOWING :- 5. I HAVE GONE THROUGH THE CONTENTION OF THE ASSESS EE, THE ORDER PASSED BY THE AO AND THE SUBMISSIONS MADE BY THE AP PELLANT. THE DECISION OF THIS APPEAL IS GIVEN AS UNDER:- THE APPEAL IS FILLED BY THE APPELLANT AS AGAINST AD DITION OF NEGATIVE CASH BALANCE. ONLY ONE GROUND OF APPEAL HAS BEEN FI LLED. THE ADDITION RELATES TO THE ISSUE OF ADDITION ON ACCOUN T OF NEGATIVE BALANCE FOUND BY THE AO TO THE TUNE OF RS.86935/- I N THE CASH BOOK FOR THE MONTH OF FEB-2010 & MARCH 2010 AND AO ADDED UNDER SECTION 69(C) ON THE GROUND THAT THE SAME COULD NOT BE EXPLAINED BY THE APPELLANT AND DID NOT CONSIDER THE PLEA OF T HE APPELLANT THAT THE DIFFERENCE AROSE DUE TO WRONGLY MENTIONED DATE AGAINST CASH WHILE PREPARING THE CASH BALANCE. THE AO FURTHER OB SERVED THAT THE SUBMISSIONS MADE BY THE APPELLANT WERE NOR SUPPORTE D BY ANY EVIDENCE. AT THE APPELLATE STAGE THE APPELLANT HAS SUBMITTED HIS REVISED CASH BOOK. THE APPELLANT HAS RELIED OVER TH E COMPARATIVE STUDY OF THE GIVEN CASH BOOK AND EXTRACTED STATEMEN T OF THE CASH BOOK FOR THE MONTH OF FEB 2010 & MARCH 2010. THE APPELLANT'S SUBMISSION HAS BEEN PERUSED. THE RE LIANCE OF THE APPELLANT OVER SUMMARY OF CASH BOOK IS NOT R ELIABLE AS THE AO HAS WORKED OUT TOTAL CASH DEPOSIT AND WITHDRAWAL S IN THE ASSESSMENT ORDER DATE WISE. PERUSAL OF ENTRIES SHOW S THAT THERE IS NEGATIVE BALANCE AT VARIOUS PLACES. THE AO HAS FOUN D THAT ON PERUSAL BALANCE SHEET FILED BY THE APPELLANT FOR TH E F.Y 2009-10 THE FIGURE OF LOAN OF RS.68000/- DEBIT HAS BEEN SHO WN AT NIL. CONSIDERING THE FACTS & PLEA OF THE ASSESSEE THAT R ECEIPTS OF RS.68000/- HAS WRONGLY BEEN SHOWN IN FEB 2011 INSTE AD OF FEBRUARY 2010, THE AO HAS ACCEPTED THE SAME. AFTER GIVING EFFECT OF RS.68000/- RECEIVED DURING THE YEAR THE NEGATIVE CASH BALANCE RS.86935/- HAS BEEN WORKED OUT BY THE AO THERE WAS NEGATIVE CASH BALANCE WHICH WAS WORKED OU T AT TOTAL OF RS.1,54,935/- AND THE AO ALLOWED THE FACTUAL MISTAK E OF RS.68000 WHICH WAS WRONGLY SHOWN IN FEB 2011 INSTEAD OF FEB- 2010 AND ARRIVED AT FIGURE OF RS.86935/-. THE PLEA OF THE AP PELLANT ON ENTRY OF WRONG DATE IN THE CASH BOOKS IS NOT ACCEPTABLE AS T HE SAME IS NOT SUPPORTED BY ANY MATERIAL EVIDENCE SUCH AS DAY TO D AY SALE OR CASH WITHDRAWALS. THE MATCHING AT THE END OF THE YEAR HA S NO MEANING BECAUSE ITS NOT TALLYING DATE WISE. IT CAN BE STAT ED MERELY AN ITA NO.1049/KOL/2016 SMT. SHARMILLA BOSE 3 ADJUSTMENT ENTRY TO MATCH THE DATA. THE RELIANCE OF APPELLANT OVER SUMMARY CASH BOOK DOES NOT THROUGH THE REAL PICTURE OF THE DAILY TRANSACTION THEREFORE IN ABSENCE OF ANY EVIDENCE, W HICH CAN CONTROVERT NEGATIVE CASH BALANCE, I AGREE WITH THE ADDITION MADE BY THE AO ON NEGATIVE CASH BALANCE AND THE SAME IS UPH ELD. THE APPEAL OF THE APPELLANT IS DISMISSED. 4. AGGRIEVED FROM THE ORDER OF LD CIT(A), THE ASSES SEE IS IN APPEAL BEFORE US AND HAS TAKEN THE FOLLOWING GROUNDS OF AP PEAL: 1. FOR THAT THE CONFIRMATION OF THE ORDER OF THE A SSESSING OFFICER, ORDER AS TO THE ALLEGED ADDITION/DISALLOWANCE OF RS .86,935/- ON THE GROUND OF ALLEGED NEGATIVE BALANCE IN CASH BOOK FOR THE MONTHS OF FEBRUARY, 2010 AND MARCH, 2010 AS UNEXPLA INED EXPENDITURE UNDER SECTION 69C OF THE INCOME TAX ACT , 1961, IS CONTRARY TO THE ACCOUNTING PRINCIPLES, ARBITRARY IN NATURE, MISINTERPRETATION OF THE RECORDED TRANSACTIONS CHRO NOLOGICALLY ARRANGED AND WITHOUT ASSIGNING ANY REASONS INCLUDIN G THE EXPLANATIONS OF ACCOUNTING ENTRIES ACCORDING TO THE ACCOUNTING PRINCIPLES AND ALSO IGNORING THE CORRECT ARRANGEMEN T OF DATA ENTRY WITHOUT DISTURBING THE NARRATED FACTS AND FIG URES. THE FIRST APPELLATE AUTHORITY IGNORED THE COMPUTER ERROR DUE ITS HARD DISC PROBLEM. HENCE, IT IS BAD IN LAW, BEING NOT IN THE NATURE OF UNEXPLAINED EXPENDITURE, LIABLE TO BE ABROGRATED. 2. FOR THAT INITIATION OF PROCEEDINGS UNDER SECTIO N 271(1)(C) IS CONSEQUENTIAL IN NATURE AND LIABLE TO BE SET ASIDE UPON DISPOSAL OF SECOND APPEAL IN FAVOUR OF THE APPELLANT. THE APPELLANT CRAVES, LEAVES TO ADD AND/OR TO AMEND THE GROUND OR GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING. 5. LD. AR FOR THE ASSESSEE HAS STATED THAT THE ASSE SSEE HAS SUBMITTED CASH BOOK, BEFORE AO, CONTAINING THE NEGA TIVE CASH BALANCE, BECAUSE ASSESSEES COMPUTER WAS NOT WORKING PROPERL Y. THE LD. AR FURTHER SUBMITTED BEFORE US THAT THE COMPUTER OF TH E ASSESSEE CONTAINS ERROR IN THE HARDDISK, THEREFORE, THE NEGATIVE CASH BALANCE, AND PRINT OUT THEREOF, HAS BEEN SUBMITTED WRONGLY TO THE AO. NOW , THE LD. AR FOR THE ASSESSEE HAS SUBMITTED BEFORE US THE CORRECTED COPY OF THE CASH BOOK ITA NO.1049/KOL/2016 SMT. SHARMILLA BOSE 4 WHICH HAS NOT CONTAINED THE NEGATIVE CASH BALANCE. THE LD AR ALSO ACCEPTED THAT THE CORRECTED CASH BOOK, SUBMITTED B EFORE US, IS AN ADDITIONAL/ NEW EVIDENCE. 6. LD. DR FOR THE REVENUE HAS ALSO PRIMARILY RELIED ON THE FINDINGS OF THE AO WHICH WE HAVE ALREADY NOTED IN OUR EARLIER P ARA AND IS NOT BEING REPEATED FOR THE SAKE OF BREVITY. 7. HAVING HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD, WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES A FRESH EXAMINATION AT THE END OF THE AO, AS THE LD. AR FOR THE ASSESSEE HAS SUBMI TTED BEFORE US, AN ADDITIONAL EVIDENCE I.E. CORRECTED CASH BOOK, WHICH DOES NOT CONTAIN ANY NEGATIVE CASH BALANCE. THEREFORE, WE ARE OF THE VIE W THAT THIS ISSUE IS TO BE EXAMINED BY THE ASSESSING OFFICER. ACCORDINGLY, WE DIRECT THE AO TO EXAMINE THE CORRECTED CASH BOOK OF THE ASSESSEE AND COMPARE WITH THE WRONG CASH BOOK SUBMITTED BY THE ASSESSEE AND THEN ADJUDICATE THE ISSUE ACCORDINGLY. WE, THEREFORE, ALLOW THIS APPEA L FOR STATISTICAL PURPOSES. 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12/04 /2017. SD/ - (S.S.VISWANETHRA RAVI) SD/ - (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; ! DATED 12/04/2017 ' $%& /PRAKASH MISHRA , 0 . / SPS ITA NO.1049/KOL/2016 SMT. SHARMILLA BOSE 5 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( ASSTT. REGISTRAR) $ % , / ITAT, 1. / THE APPELLANT-SMT. SHARMILLA BOSE 2. / THE RESPONDENT.-ITO, WARD 41(1) KOLKATA 3. 1 ( ) / THE CIT(A), KOLKATA. 4. 1 / CIT 5. 23 4 0056 , 56 , / DR, ITAT, KOLKATA 6. 4 78 / GUARD FILE. 2 0 //TRUE COPY//