ITO,Ward-30(4), Kolkata, Kolkata V. Smt. Tista Gupta, Kolkata

ITA 1203/KOL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91899 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2015
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 16-08-2012
• Court: TRIBUNAL
• Department Lawyers: SANJAY SR DR
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOLKATA [BEFORE HON BLE SHRI MAHAVIR SINGH, JM & HON BLE SHRI B.P.JAIN, AM ] I.T.A NO.1203/KOL/2012 ASSESSMENT YEAR: 2008 - 09 I.T.O., WARD - 30(4) VS. SMT. TISTA GUPTA KOLKATA KOLKATA (APPELLA NT) ( RESPONDENT) (PAN: AISPG 5097 M) FOR THE APPELLANT : SHRI SANJAY, SR.DR, ADDL.C.I.T. FOR THE RESPONDENT : SHRI SOMNATH GHOSH, ADVOCATE DATE OF HEARING : 06.04. 2015. DATE OF PRONOUNCEMENT: 20.04.2015 ORDER PER SHRI B.P.JAIN , AM : THIS APP EAL OF THE REVENUE ARISES OUT OF THE ORDER OF LD. CIT(A) - XIV, KOLKATA DATED 03.05.2012 AND PERTAIN S TO ASSESSMENT YEAR 2008 - 09. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTA NCES LD.CIT(A ) - XIV, KOLKATA WAS RIGHT IN LAW AS WELL AS ON FACTS IN DELETING THE ADDITION OF RS.45,85,102/ - MADE BY THE A.O. UNDER THE HEAD OF UNEXPLAINED INCOME ON ACCOUNT OF CASH DEPOSIT MADE BY THE ASSESSEE IN HER TWO BANK ACCOUNTS WHICH WERE NOT DISCLOSED IN THE AUDITE D BALANCE SHEET FOR THE F.Y.2007 - 08. 2. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY, INCLUDE OR DELETE ANY OF THE GROUNDS OF APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE AO ADDED CASH DEPOSIT OF RS.23,51,827/ - IN IDBI BANK AND CASH DE POSIT OF RS.22,22,325/ - IN AXIS BANK TOTALING TO RS.45,85,102/ - AS UNEXPLAINED INCOME. THE FACTS STATED IN BRIEF ARE THAT THE ASSESSEE DEALS IN VARIOUS TELECOM PRODUCTS, LIKE MOBILE SETS, SIM CARDS, RECHARGE COUPONS FOR PCOS AND FOR MOBILE USERS ETC. ASSES SEE ALSO USED TO BUY TELECOM PRODUCTS FROM VARIOUS OTHER PARTIES ALSO. THE A.O. NOTICED THAT THE RE WERE CASH DEPOSITS OF RS.22.3 3 LACS AND RS.23.51 LACS IN THE BANK ACCOUNTS OF THE ASSESSEE IN AXIS BANK AND IDBI BANKS RESPECTIVELY. THE ASSESSEE EXPLAINED B EFORE THE A.O. THAT THE CASH DEPOSITS IN THESE BACK ACCOUNTS WERE OUT OF SALE PROCEEDS OF BUSINESS OF HER PROPRIETARY CONCERN NAMELY SAI ASSOCIATES WHICH HAD A TURN OVER OF RS.3.34 CRORE. HOWEVER THE A.O. DID ITA NO. 1203/KOL/2012 SMT.TISTA GUPTA A.YR. 2008 - 09 2 NOT ACCEPT THE EXPLANATION OF THE ASSESSEE ON T HE GROUND THAT THESE BANK ACCOUNTS WERE IN THE PERSONAL NAME OF THE ASSESSEE AND THEY DID NOT APPEAR IN AUDITED BALANCE SHEET OF THE PROPRIETARY CONCERN, INSTEAD THESE BANK ACCOUNTS APPEARED IN THE PERSONAL BALANCE SHEET OF THE ASSESSEE. 4. BEFORE THE LD. CIT(A) THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THE EXPLANATION AND THE LD.CIT(A) IN TURN SENT THE SAME TO THE AO FOR REPORT, WHO SUBMITTED THE SAME. THE LD. CIT(A) AFTER CONSIDERING THE ARGUMENTS MADE BY THE LD. COUNSEL FOR THE ASSESSEE, THE EXPLANATION OF THE ASSESSEE AND THE REMAND REPORT OF THE AO DELETED THE ADDITION VIDE PARA 4 OF HIS ORDER. 5. THE LD. DR , SHRI . SANJAY, SR.DR, ADDL.C.I.T. ARGUED , AT THE OUTSET , THAT BOOKS OF ACCOUNT OF SAI ASSOCIATES, THE BUSINESS CONCERN ARE AUDITED WHICH DOES N OT INCLUDE TWO BANK ACCOUNTS I.E. AXIS BANK AND IDBI BANK. THEREFORE NOT INCLUDING SUCH BANK ACCOUNTS IN THE BUSINESS CONCERN SAI ASSOCIATES CLEARLY INDICATES THAT THESE TWO BANK ACCOUNTS ARE UNEXPLAINED AND THE AO HAS RIGHTLY MADE THE ADDITIONS AND THEREF ORE PR AYED TO REVERSE THE ORDER OF LD. CIT(A). 6. THE LD. COUNSEL FOR THE ASSESSEE SHRI SOMNATH GHOSH, ADVOCATE, ON THE OTHER HAND, REPEATED THE ARGUMENTS MADE BEFORE THE LD. CIT(A) AND ARGUED THAT SAI ASSOCIAT ES IS A PROPRIETORSHIP CONCERN OF TISTA GUPTA AND THERE IS NO BAR IN MAINTAINING THE SAVINGS BANK ACCOUNTS IN PERSONAL NAME AND DEPOSIT THE BUSINESS RECEIPT IN THE SAID ACCOUNTS MAINTAINED IN ASSESSEE S PERSONAL NAME. THE DEPOSITS ARE OUT OF THE SALE PROCEEDS OF THE BUSINESS AND ALL THE WITHDRAWALS HAD BEEN USED FOR PURCHASING THE GOODS WHICH HAS BEEN DEMONSTRATED BEFORE THE LD. CIT(A). ALL THE INFORMATION WERE FILED ALONG WITH THE EXPLANATION BEFORE THE LD. CIT(A), WHO IN TURN SENT THE SAME BEFORE AO FOR THE REPORT. AO WITHOUT GIVING ANY OPPORTUNIT Y TO THE ASSESSEE REPEATED WHAT HAS BEEN SAID IN THE ASSESSMENT ORDER. AO IN THE REMAND HAS IGNORED ALL THE EXPLANATIONS GIVEN WITHOUT COMMENTING THERE UPON. ASSESSEE HAS SUBMITTED RECONCILIATION STATEMENT ALSO OF THE RECEIPTS AND PAYMENTS IN THESE BANK AC COUNTS OF SAI ASSOCIATES MAINTAINED IN THE PROPRIETORSHIP CONCERN OF TISTA GUPTA AS ITA NO. 1203/KOL/2012 SMT.TISTA GUPTA A.YR. 2008 - 09 3 WELL AS THE BANK ACCOUNTS MAINTAINED IN THE PERSONAL NAME OF THE ASSESSEE WHICH IS AVAILABLE IN PAGE 8 AND 9 OF THE LD. CIT(A) S APPEAL ORDER. IT HAS BEEN CLEARLY DEMONSTRA TED THAT THERE ARE CASH S ALES OUT OF TOTAL SALES MADE IN THE BUSINESS OF SAI ASSOCIATES OUT OF WHICH RS.23.44 LAKHS WERE DEPOSITED IN IDBI BANK AND RS.22.33 LAKHS WERE DEPOSITED IN AXIS BANK. AO IN THE REMAND REPORT HAS NOT DISPUTED THE UTILIZATION OF THE MONEY D EPOSITED IN THE PERSONAL BANK ACCOUNT AND FURTHER AO IN THE REMAND REPORT HAS ALSO NOT DISPUTED THE SALES WHICH CONCLUSIVELY PROVE THAT THE DEPOSITS MADE HAD BEEN UTILIZED FOR THE PURPOSE OF BUSINESS AND IN THE ABSENCE OF ANY MATERIAL ON RECORD THE SAID DE POSITS HAS BEEN EXPLAINED AS ARGUED HEREIN BEFORE AS CASH SALES OF THE BUSINESS OF SAI ASSOCIATES, THE PROPRIETORSHIP CONCERN OF THE ASSESSEE. ACCORDINGLY THE LD. COUNSEL FOR ASSESSEE HAS PRAYED TO CONFIRM THE ORDER OF LD. CIT(A) AND DISMISS THE APPEAL OF REVENUE. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND CAREFULLY PERUSED THE MATERIAL AVAILABLE ON RECORD. UNDISPUTEDLY THE FACTS OF THE PRESENT CASE ARE THAT ASSESSEE HAD NOT SUBMITTED THE EXPLANATION WITH REGARD TO THE DEPOSITS IN AXIS BANK AND IDBI BANK. BUT AT THE SAME TIME THE ASSESSEE SUBMITTED THE EXPLANATION OF THE DEPOSITS IN THE SAID BANKS BEFORE LD. CIT(A), WHO HAS SENT THE SAME FOR REPORT TO AO BUT AO WITHOUT GIVING ANY OPPORTUNITY TO ASSESSEE TO EXPLAIN AND WITHOU T CONSIDERING THE EXPLANATION REPEATED WHAT HAS BEEN HELD IN THE ASSESSMENT ORDER. 7.1. HOWEVER , ON MERIT THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THE RECONCILIATION STATEMENT OF THE RECEIPTS AND PAYMENTS OF ALL THE BANKS WHETHER IN THE NAME OF SAI ASSOCIATES, THE PROPRIETORSHIP CONCERN OF THE ASSESSEE OR IN THE PERSONAL NAME OF THE ASSESSEE WHICH IS AVAILABLE AT PAGE 8 AND 9 OF THE LD. CIT(A) S APPEAL ORDER WHICH CLEARLY EXPLAINS THAT CASH DEPOSITS IN AXIS BANK AND IDBI BANK IS FROM THE SALES MADE BY SAI ASSOCIATES, PROPRIETORSHIP CONCERN AND THE CHEQUES ISSUED FROM THE SAID ACCOUNTS I.E. AX IS BANK AND IDBI BANK ARE AGAINST THE PURCHASES MADE IS ALSO NOT DISPUTED. THERE IS NO DISPUTE AS REGARDS THE SALES MADE WHICH HAS BEEN ACCEPTED. ONCE THERE IS NO DISPUTE TO THE SALES MADE, PURCHASES MADE, OPENING CASH IN HAND, CLOSING CASH IN HAND AND ASS ESSEE HAVING DEMONSTRATED THE CASH AVAILABILITY OUT OF THE ITA NO. 1203/KOL/2012 SMT.TISTA GUPTA A.YR. 2008 - 09 4 SALES MADE WHICH HAS BEEN DECLARED IN THE REGULAR BOOKS OF ACCOUNT IN SAI ASSOCIATES. TO CLARIFY MORE THE TOTAL SALES DECLARED BY THE ASSESSEE WERE RS.3,34,59,974.51 OUT OF WHICH CASH SALES WERE RS .3,07,28.341.07. IT IS THESE CASH SALES WHICH ARE PART OF THE RECONCILIATION STATEMENT AVAILABLE AT PAGE 8 AND 9 OF THE LD. CIT(A) S APPEAL ORDER. THE ASSESSEE HAS ALSO SUBMITTED THE CONFIRMA TION FROM TATA TELESERVICES LTD , DRIVE INDIA ENTERPRISES AND M/S. ARBEE TRADERS TO WHOM THE CHEQUES HAD BEEN GIVEN OUT OF THESE SAID BANK ACCOUNTS I.E. AXIS BANK AND IDBI BANK FOR THE PURCHASE OF GOODS FOR THE PURPOSE OF BUSINESS TO SAI ASSOCIATES. UNDER SUCH CIRCUMSTANCES AND FACTS OF THE CASE WE ARE OF THE VIEW THAT A SSESSEE HAS SUBMITTED PROPER EXPLANATION WHICH HAS NOT BEEN TAKEN BY AO IN THE RIGHT PERSPECTIVE IN THE REMAND REPORT AND HAS RIGHTLY BEEN CONSIDERED BY THE LD. CIT(A). ACCORDINGLY WE FIND NO INFIRMITY IN THE ORDER OF LD. CIT(A), WHO HAS RIGHTLY DELETED TH E ADDITION MADE BY THE AO. THIS GROUND OF APPEAL RAISED BY THE REVENUE IS DISMISSED. 8. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMISSED. ORDE R PRONOUNCED IN THE COURT ON 2 0.04.2015. SD/ - SD/ - [ MAHAVIR SINGH ] [ B.P.JAIN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 20.04.2015. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . SMT. TISTA GUPTA, 23/32, GARIAHAT ROAD, KOLKATA - 700029. 2 I.T.O., WARD - 30 (4), KOLKATA 3 . CIT(A) - XIV , KOLKATA 4. CIT - KOLKATA. 5. CIT - DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES ITA NO. 1203/KOL/2012 SMT.TISTA GUPTA A.YR. 2008 - 09 5