ACIT, CIR-3, SURI, BIRBHUM, Birbhum V. Suresh Kumar Agarwal, Birbhum

ITA 1053/KOL/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6456 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 16-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A BHATTACHARJEE
• Keywords: Business income; Opportunity of being heard; Principle of natural justice; Corroborative evidences; Reassessment proceedings
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B, BENCH KOLKATA BEFORE SHRI S.S. VISWANETHRA RAVI, JM & DR. A.L.SAINI, AM ITA NO.1053/KOL/2016 (A.Y: 2011-12) ACIT, CIRCLE - 3, SURI BIRBHUM AAYAKAR BHAWAN, SURI, BIRBHUM 731101. VS. SURESH KUMAR AGARWAL VIVEKANANDA SARANI, SAINTHIA, OLD KANDI ROAD, BIRBHUM 713234. ./ ./PAN/GIR NO. : ACGPA 3957 N ( /APPELLANT ) .. ( / RESPONDENT ) REVENUE BY : NONE APPELLANT BY : SHRI A. BHATTACHARJEE, ADDL. CIT / DATE OF HEARING : 26/04/2018 /DATE OF PRONOUNCEMENT: 27/04/2018 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE REVENUE, PERTAINING TO ASSESSMENT YEAR 2011-12, IS DIRECTED AGAINST AN ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS), BURDWAN IN APPEAL NO.2/CIT(A)/ASL/BWN/2014-15, DATED 29.02.2016, WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3)/147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT),DATED 11.11.2014. 2. THE GRIEVANCES RAISED BY THE REVENUE AS FOLLOWS: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.75,79,804/- MADE U/S 68 OF THE I.T. ACT, 1965 REPRESENTING DEPOSITS IN THE ASSESSEES UNDISCLOSED BANK A/C. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE LD. CIT(A) WAS NOT JUSTIFIED IN HOLDING THAT SUCH DEPOSITS REPRESENTED BUSINESS RECEIPTS OF THE ASSESSEE AND THAT HE HAD INCURRED EXPENDITURE AGAINST SUCH RECEIPTS, WHEREAS THE ASSESSEE FAILED TO PROVE THE NATURE OF SUCH RECEIPTS AND THE PURPORTED EXPENDITURE REMAINED UNSUBSTANTIATED WITH SUPPORTING EVIDENCE. SURESH KUMAR AGARWAL ITA NO.1053/KOL/2016 A.Y: 2011-12 2 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN LAW AS WELL AS ON FACTS IN DIRECTING THE ASSESSING OFFICER TO COMPUTE THE ADDITIONAL INCOME AFTER APPLYING THE NET PROFIT RATE ON THE IMPUGNED AMOUNT. 3. AT THE TIME OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE IN SPITE OF ISSUANCE OF NOTICE FOR HEARING ON THE ADDRESS GIVEN BY THE ASSESSEE ON FORM NO.36 (COLUMN NO.10). IN THIS CASE, THE HEARINGS WERE FIXED ON 29.11.17, 16.01.18, 21.02.18 & 26.04.18, BUT NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY ADJOURNMENT APPLICATION FILED BY THE ASSESSEE. THE LD. DR FOR THE REVENUE WAS PRESENT FOR THE RESPONDENT- REVENUE. IN THE ABSENCE OF ANY APPEARANCE BY THE ASSESSEE, THE APPEAL IS BEING DISPOSED OF EX PARTE, QUA THE APPELLANT, AFTER HEARING LD. DR FOR THE REVENUE ON MERITS IN TERMS OF RULE 24 OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963. 4. HOWEVER, FOR THE SAKE OF NATURAL JUSTICE, THE APPEAL WAS FIXED FOR HEARINGS ON 29.11.17, 16.01.18, 21.02.18 & 26.04.18. THE LAST OPPORTUNITY OF BEING HEARD WAS GIVEN ON 21.02.18 BUT NOBODY APPEARED AND NO SUBMISSION WAS FILED ON BEHALF OF THE ASSESSEE. 5. WE NOTE THAT IN ASSESSEES CASE UNDER CONSIDERATION, THE ASSESSEE WAS RUNNING TWO WHOLESALE BUSINESSES UNDER PROPRIETORSHIP BUSINESS UNDER TWO NAMES VIZ. M/S LAXMI COMMERCIAL COMPANY AND SURESH KR. AGARWAL FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, THE ASSESSING OFFICER HAD RECEIVED AIR INFORMATION REGARDING CASH DEPOSIT OF RS.75,79,804/- IN THE ASSESSEES SAVINGS BANK ACCOUNT NO.11608942124 IN THE STATE BANK OF INDIA, SAINTHIA BRANCH, BIRBHUM. THE REASSESSMENT PROCEEDINGS U/S 147 WERE DULY OPENED BY THE ASSESSING OFFICER FOR RECORDING THE REASONS AND ISSUED NOTICE U/S 148 OF THE ACT. THE SAID ACCOUNT NO.11608942124 HAD NOT BEEN DISCLOSED IN THE RETURN OF INCOME AND THEREFORE, THE RECEIPTS SHOWN IN THIS ACCOUNT HAD NOT BEEN BROUGHT TO TAX. THE BOOKS OF ACCOUNTS OF THE ASSESSEE HAD BEEN AUDITED. IN THE AUDITORS REPORT, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE DID NOT SURESH KUMAR AGARWAL ITA NO.1053/KOL/2016 A.Y: 2011-12 3 FILL UP CLEARLY THE NATURE OF BUSINESS. THE ASSESSING OFFICER ALSO FOUND THAT THE ASSESSEE HAD NOT DISCLOSED THE SAVINGS BANK ACCOUNT NO. 11608942124 AT THE TIME OF FILING HIS RETURN OF INCOME AS WELLS AS IN AUDIT REPORT. THEREFORE, THE ASSESSING OFFICER MADE ADDITION TO THE TUNE OF RS.75,79,804/-. 6. ON APPEAL BY THE ASSESSEE, THE LD. CIT(A) DIRECTED THE ASSESSING OFFICER TO ASSESS THE INCOME AFTER APPLYING NET PROFIT RATE OF ASSESSEE. 7. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE REVENUE IS IN APPEAL BEFORE US. 8. WE HAVE GONE THROUGH THE ASSESSMENT ORDER AND APPELLATE ORDER PASSED BY THE LD. CIT(A) AND WE FIND THAT LD. CIT(A) HAS RIGHTLY DIRECTED THE ASSESSING OFFICER TO TAX UNDISCLOSED AMOUNT OF RS.75,79,804/- AT THE NET PROFIT RATE OF THE ASSESSEES BUSINESS. WE DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY THE LD. CIT(A) AND, THEREFORE, WE CONFIRM THE ORDER PASSED BY THE LD. CIT(A). 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27/04/2018. SD/ - (S.S. VISWANETHRA RAVI) SD/ - (DR. A. L. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; DATED: 27/04/2018 RS, SPS SURESH KUMAR AGARWAL ITA NO.1053/KOL/2016 A.Y: 2011-12 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT- ACIT, CIRCLE-3, SURI BIRBHUM 2. / THE RESPONDENT.- SURESH KUMAR AGARWAL 3. ( ) / THE CIT(A), KOLKATA. 4. / CIT 5. , , / DR, ITAT, KOLKATA 6. [ / GUARD FILE. //TRUE COPY// BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/D.D.O, I.T.A.T, KOLKATA BENCHES, KOLKATA .