DCIT, Circle - 49, Kolkata, Kolkata V. Shri Amit Kumar Dhara, North 24 Parganas

ITA 118/KOL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91961 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2015
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 18-01-2011
• Court: TRIBUNAL
• Department Lawyers: K L KANAK
• Assessee Lawyers: N O N E
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOLKATA [BEFORE SHRI P. K. BANSAL, AM & SHRI MAHAVIR SINGH, JM ] I.T.A NO. 1 18 /KOL/201 1 ASSESSMENT YEAR : 200 7 - 0 8 DEPUTY COMMISSIONER OF INCOME - TAX, VS. AMIT KUMAR DHARA CIRCLE - 49 , KOLKATA. (PAN:A FCPD7023H ) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 20 .0 5 .2015 DATE OF PRONOUNCEMENT: 22 . 0 5 . 2015 FOR THE APPELLANT: SHRI K . L. KANAK , JCIT , SR. DR FOR THE RESPONDENT: N O N E ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER PASSED BY CIT (A) - X XXI I , KOLKATA VIDE APPEAL NO. 189 /CIT(A) - X XXI I/ 09 - 1 0 /CIR - 49/KOL DATED 27 . 0 8 .201 0 . ASSESSMENT WAS FRAMED BY DCIT, CIRCLE - 49 , KOLKATA U/S. 14 3(3) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) FOR ASSESSMENT YEAR 200 7 - 0 8 VIDE HIS ORDER DATED 24 . 12 .20 0 9 . 2. T HE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGAINST THE ORDER OF CIT(A) D ELETING THE ADDITION OF CASH DEPOSIT IN PUNJAB & SIND BANK ASSESSED BY AO AS UNDISCLOSED U/S. 68 OF THE ACT AMOUNTING TO RS.17,56,500/ - . FOR THIS, REVENUE HAS RAISED FOLLOWING TWO GROUNDS: 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A), HAS ERRED IN DELETING THE ADDITION OF CASH DEPOSIT IN THE BANK OF PUNJAB & SIND BANK OF RS.17,56,500/ - U/S. 68 OF THE ACT. 2) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) HAS ERRED BY HOLDING HIS DECISION ON THE BASIS OF REPRESENTATION OF THE ASSESSEE THAT CASH D EPOSITED IN THE PUNJAB & SIND BANK WERE OUT OF PROCEEDS OF CASH SALES WITHOUT ANY AUTHENTIC EVIDENCE. 3. WE HAVE HEARD LD. SR. DR AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE AO WHILE FRAMING ASSESSMENT NOTICED FROM THE BANK STATEMENT I.E. BANK ACCOUNT MAINTAINED WITH STANDARD CHARTERED BANK THAT THERE IS A CASH DEPOSIT OF RS.51.16 LAKH. ACCORDING TO AO, THE ASSESSEE COULD SUBSTANTIATE ONLY A SUM OF RS.16.03 LAKH BUT THE BALANCE AMOUNT OF RS.35.13 LAKH COULD NOT BE EXPLAINED. THE AR OF THE ASSESSEE EXPLAINED BEFORE AO THAT THE BALANCE AMOUNT WAS DEPOSITED FROM CASH SALES 2 ITA NO .1 18 /K/201 1 SHRI AMIT KR. DHARA AY 200 7 - 0 8 AND IN SUP PORT HE PRODUCED SOME SAMPLE VOUCHERS. ACCORDING TO AO, AS THE ASSESSEE FAILED TO PRODUCE CASH BOOK TO SUBSTANTIATE THE BALANCE CASH DEPOSIT OF RS.35.13 LAKH IN THE STANDARD CHARTERED BANK ACCOUNT OF THE ASSESSEE, HE CONSIDERING THE SALE AT 50% ESTIMATED THE BALANCE 50% AMOUNT AS UNEXPLAINED WHICH COMES TO RS.17,56,500/ - , WHICH WAS ADDED AS UNDISCLOSED INCOME OF THE ASSESSEE U/S. 68 OF THE ACT. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A), WHO AFTER CONSIDERING THE CASH SALES OF THE ASSESSEE AND EST IMATION MADE BY THE AO DELETED THE ADDITION BY OBSERVING AS UNDER: I HAVE CAREFULLY PERUSED THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE A / R. IT IS OBSERVED THAT THE ASSESSEE HAD EXPLAINED BEFORE THE A.O. THAT THE SOURCES OF THE CASH DEPOSITED IN PUNJA B & SIND BANK WERE OUT OF PROCEEDS OF HIS CASH SALES. THE FACT OF THE CASH SALES HAS NOT BEEN CONTROVERTED BY THE A.O. IN THE ASSESSMENT ORDER. IN FACT HE HAS RATHER ACCEPTED THE ASSESSEE'S CLAIM OF CASH SALES AND ON THAT BASIS TREATED 50% OF THE CASH DEPO SITS I.E., A SUM OF RS.L7,56,500 / - TO BE GENUINE AND DULLY EXPLAINED. AS PER A.O.'S OWN NOTING IN THE ASSESSMENT ORDER, THE ADDITION OF 50% OF THE CASH DEPOSITS I.E., A SUM OF RS.17,56,500 / - WAS AD D ED ONLY ON ESTIMATE BASIS. IT IS BEYOND COMPREHENSION THAT HOW THE A.O. ESTIMATED 50% OF THE CASH DEPOSIT TO BE FROM UNDISCLOSED SOURCES. THE ASSESSEE IS MAINTAINING BOOKS OF ACCOUNT AND THE ACCOUNTS OF THE ASSESSEE ARE DULY AUDITED. THE A.O. HAS ACCEPTED CORRECTNESS OF BOOKS OF ACCOUNT IN AS MUCH AS HE HAS NOT R EJECTED BOOKS OF ACCOUNT. SINCE THE IMPUGNED ADDITION HAS BEEN MADE ONLY ON ESTIMATE BASIS AND THE BOOKS OF ACCOUNT HAVE BEEN ACCEPTED AS CORRECT BY THE A.O., I DO NOT FIND ANY JUSTIFICATION IN THE IMPUGNED ADDITION MADE BY THE A.O. FOR THE ABOVE REASONS T HE ADDITION OF RS.17,56,500 / - IS DELETED. 4. WE FIND THAT THE ASSESSEE HAS EXPLAINED DEPOSITS MADE IN STANDARD CHARTERED BANK, N. S. ROAD, BRANCH, CA NO. 33 1 - 0 - 512603 - 0 STANDING IN THE NAME OF PROPRIETARY CONCERN OF ASSESSEE M/S. A. D. EXPORTS. ACCORDING TO ASSESSEE, THE CASH DEPOSITED IN BANK WAS SUBJECTED TO VERIFICATION AND THAT WAS OUT OF ACCOUNTED SOURCE OF GENERATING SUCH CASH INFLOW. THE ASSESSEE CONTENDED THAT THE TOTAL CASH SALE TO THE TUNE OF RS.1,05,35,656/ - IS AVAILABLE AS PER THE AUDITED STAT EMENT OF ACCOUNT AS WELL AS REFLECTED IN THE VAT OUTPUT REGISTER. THE TOTAL GENERATION OF CASH AND CORRESPONDING DEPOSIT, AND THE PART THEREOF, IN THE BANK ACCOUNT I.E. STANDARD CHARTERED BANK TO THE EXTENT OF RS.51.16 LAKH IS FULLY EXPLAINED AND IS CORRO BORATED WITH REGULAR SOURCE OF INCOME. THE ASSESSEE HAS ALSO FILED DEPOSIT AND CORRESPONDING AMOUNT OF SALES PROVIDING AN ACCOUNTING FOR NECESSARY FUND AVAILABILITY AND ALSO FURNISHED AND EXPLAINED WITH REFERENCE TO THE CHRONOLOGICAL RECORD AND ENTRIES IN THE VAT OUTPUT REGISTER. WE FIND THAT THERE IS A SUFFICIENT CASH SALES TO THE EXTENT OF RS.1,05,35,656/ - AS AGAINST THE TOTAL CASH DEPOSIT IN THE CURRENT ACCOUNT AT RS.51.16 LAKH. EVEN OTHERWISE, THE AO AS 3 ITA NO .1 18 /K/201 1 SHRI AMIT KR. DHARA AY 200 7 - 0 8 ESTIMATED, WHICH HAS NO BASIS FOR SUSTAINING TH E ADDITION. WE FIND NO INFIRMITY IN THE ORDER OF CIT(A) AND HENCE, THE SAME IS CONFIRMED. THE APPEAL OF REVENUE IS DISMISSED. 5 . IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. 6 . ORDER IS PRONOUNCED IN THE OPEN COURT ON 22.05.2015 SD/ - SD/ - ( P. K. BANSAL ) (MAHAVIR SINGH) ACCOUNTANT MEMBER J UDICIAL MEMBER DATED : 22ND MAY , 201 5 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . A PPELLANT DCIT, CIRCLE - 49 , KOLKATA. 2 RESPONDENT SHRI AMIT KUMAR DHARA, AMLAPARA, 1 ST BYE LANE, BONGAON, DIST. 24 PGS(N), PIN 743 235 3 . THE CIT (A), KOLKATA 4. 5. THE CIT, KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .