Rajib Banerjee, Durgapur V. A.C.I.T Cir - 1,Durgapur, Durgapur

ITA 1228/KOL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4719 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 15-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 13-05-2013
• Court: TRIBUNAL
• Department Lawyers: AMITAVA BHATTACHARYA
• Assessee Lawyers: U DASGUPTA LD
• Section: 142(1)

Judgement Text

1 I.T.A NO. 1228/KOL/2013 RAJIB BANERJEE, DURGAPUR IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, K OLKATA BEFORE : SHRI P.M.JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A NO. 1228/KOL/2013 A.Y : 2009-10 RAJIB BANERJEE, DURGAPUR VS. A.C.I.T, CIR-1, DURGAPUR PAN: AIHPB3548H (APPELLANT) (RESPON DENT) FOR THE APPELLANT/ASSESSEE : SHRI U.DASGUPTA, LD.AR FOR THE RESPONDENT/DEPARTMENT: SHRI A MITAVA BHATTACHARYA, JCIT, SR.DR DATE OF HEARING: 15-06-2016 DATE OF PRONOUNCEMENT: 05-08-201 6 ORDER SHRI S.S. VISWANETHRA RAVI, JM THIS APPEAL OF THE ASSESSEE ARISES OUT OF THE ORDER OF THE CIT(A), DURGAPUR IN APPEAL NO. 226/CIT(A)/DGP/2011-12 DATED 06-09-2012 FOR THE ASSESSMENT YEAR 2009- 10 ON THE FOLLOWING GROUNDS OF APPEAL:- 1. FOR THAT THE ORDER OF THE LD.CIT(A) IS ARBITRAR Y, EXCESSIVE, HENCE BAD IN LAW. 2. FOR THAT ON THE FACTS OF THE CASE THE LD.CIT(A) WAS NOT LEGALLY JUSTIFIED IN SUSTAINING THE ADDITION OF RS.22,240/- ON A/C OF LEGAL CHARGES, U/S. 40(A)(IA) OF THE ACT, FOR NON DEDUCTI ON OF TDS WHEN THE AMOUNT PAID TO TWO DIFFERENT INDIVIDUALS ARE LESS T HAN THE STIPULATED LIMIT AND THE ADDITION MAY PLEASE BE DELETED. 3. FOR THAT ON THE FACTS OF THE CASE THE CIT(A) WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION OF RS.24,71,659/- ON A/C OF CASH DEPOSITS IN AXIS BANK A/C-7551, ON THE BASIS OF SURMISE AND PRE SUMPTIONS AND ASSUMPTIONS, INSTEAD OF RECORDED ENTRIES IN REGULAR CASH BOOK, 2 I.T.A NO. 1228/KOL/2013 RAJIB BANERJEE, DURGAPUR EXAMINED BY THE AO AND BY CIT(A) AND NO DEFECTS IN THE SAID BOOKS HAS BEEN FOUND. 4. FOR THAT ON THE FACTS OF THE CASE THE CASH DEPOS ITS INTO THE AXIS BANK A/C-7551, HAS FLOWN OUT OF REGULAR CASH B OOK, DULY EXAMINED BY AO AND CIT(A) AND THE ENTIRE DEPOSIT OF RS.24,71,659/-, STANDS EXPLAINED IN FULL, AND THE ADDITIONS MADE ON ASSUMPTION BASIS MAY PLEASE BE DELETED. 2. IT IS NOTICED THAT THE APPEAL FILED BY THE ASSES SEE IS TIME BARRED BY 150 DAYS. FOR WHICH THE ASSESSEE HAS FILED CONDONATION AND AFTER PERUSING THE DETAILS THEREIN AND HEARING BOTH THE PARTIES, WE CONDONE THE DELAY IN F ILING THE APPEAL. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND THE ASSESSEE IS ENGAGED IN SUPPLY OF MECHANICAL GOODS, MAINLY THE E LECTRICAL GOODS LIKE TRANSFORMER ETC. DURING THE ASSESSMENT YEAR UNDER CONSIDERATION THE ASSESSEE DERIVED HIS INCOME FROM BUSINESS, PROFESSION AND INCOME FROM OTHER SOURCES. HE FILED HIS RETURN OF INCOME FOR THE A.Y 2009-10 ON 31-03-2010 DECLARING A TOTAL INC OME OF RS.18,30,225/-. UNDER SCRUTINY NOTICES U/S. 143(2) AND 142(1) OF THE ACT ISSUED. IN RESPONSE TO SUCH NOTICES, THE LD.AR OF THE ASSESSEE APPEARED AND PRODUCED DET AILS IN CONNECTION WITH RETURN FILED BY THE ASSESSEE. DURING SUCH ASSESSMENT PROCEEDINGS , THE AO FOUND THAT THE ASSESSEE HAD DEBITED RS.22,240/- TO P & L A/C UNDER THE HEA D LEGAL CHARGES WITHOUT DEDUCTING OF TAX IN TERMS OF CHAPTER-XVIIB OF THE ACT. FOR N OT PRODUCING ANY DOCUMENTARY EVIDENCE IN SUPPORT OF SUCH CLAIM AND NOT DEDUCTING TAX AT SOURCE ON SUCH AMOUNT OF RS.22,240/-, THE AO ADDED SAID AMOUNT TO THE INCOME OF THE ASSESSEE. 4. AGGRIEVED BY SUCH ORDER OF THE AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). BEFORE HIM THE ASSESSEE CONTENDED THAT THE AMOUNTS INVOLVED THEREIN WERE PAID 3 I.T.A NO. 1228/KOL/2013 RAJIB BANERJEE, DURGAPUR TO TWO DIFFERENT PERSONS INDIVIDUALLY AND WERE LESS THAN RS. 20,000/-. THE CIT(A) OBSERVED THAT NO EXPLANATION IN THIS REGARD WAS ADV ANCED BEFORE THE AO. HE FURTHER FOUND THAT THE AO HAS ALSO MENTIONED THAT NO DOCUME NTARY EVIDENCE WAS PRODUCED IN SUPPORT OF SUCH CLAIM. THE CIT(A) DOUBTED THE FACT THAT IN RESPECT OF SUBMISSIONS OF THE ASSESSEE THAT THERE WERE TWO RECEIPTS WHEREAS I T WAS FOUND IN THE ASSESSMENT ORDER BEING ONE RECEIPT, THEREBY THE CIT(A) CONFIRMED THE ADDITION MADE BY THE AO ON THIS ISSUE. 5. AS AGGRIEVED BY SUCH ORDER OF THE CIT(A), NOW T HE ASSESSEE IS IN APPEAL BEFORE US BY RAISING THE GROUNDS OF APPEAL, WHICH HAVE BEE N MENTIONED HEREINABOVE. 6. AT THE TIME OF HEARING BEFORE US, THE LD. AR FOR THE ASSESSEE SUBMITTED THAT SECTION 194J UNDER WHICH THE IMPUGNED ADDITION WAS MADE IS NOT AT ALL APPLICABLE TO THE ASSESSEE BEING INDIVIDUAL AND HAVING TURNOVER BELOW RS. 40 LAKHS AS REQUIRED U/S. 44AB OF THE ACT. HE FURTHER ARGUED THAT IT IS NOT TAX AUDIT CASE. THE LD. AR SUBMITTED THAT THE 2 ND PROVISO TO SECTION 194J OF THE ACT IS APPLICABLE T O THIS CASE. 7. IN REPLY, THE LD.DR SUBMITS THAT THE PLEA OF SP ECIFIED MONETARY LIMIT AS CONTEMPLATED U/S. 44AB OF THE ACT IS NOT APPLICABLE TO THE ASSESSEE AT THIS STAGE AND SUCH PLEA OF THE ASSESSEE IS NOT PERMISSIBLE. THE LD. DR PRAYED BEFORE US THAT THE ISSUE MAY BE SENT BACK TO THE FILE OF THE AO FOR VERIFIC ATION OF THE SAME IN VIEW OF THE SUBMISSIONS MADE BY THE LD. AR OF THE ASSESSEE. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD INCLUDING THE PAPER BOOK FILED BEFORE US. WE FIND THAT THE LD. AR FOR THE 4 I.T.A NO. 1228/KOL/2013 RAJIB BANERJEE, DURGAPUR ASSESSEE HAS RIGHTLY POINTED OUT THAT 2 ND PROVISO TO SECTION 194 J OF THE ACT IS APPLICABLE FOR THE ASSESSEE BEING THE ASSESSEE HER EIN AN INDIVIDUAL. SECOND PROVISO OF S. 194J OF THE ACT CONTEMPLATES THAT IN RESPECT OF DEDUCTION OF TAX BY ANY PERSON RESPONSIBLE EXCEPT AN INDIVIDUAL AND HUF. A READIN G OF 2 ND PROVISO TO SECTION 194J REVEALS THAT SALES, GROSS RECEIPTS OR TURNOVER FROM THE BUSINESS OF AN INDIVIDUAL OR HUF EXCEEDING MONETARY LIMITS AS SPECIFIED UNDER CLAUSE (A) OR CLAUSE(B) OF SECTION 44AB OF THE ACT SHALL BE LIABLE TO DEDUCT INCOME-TAX UN DER THIS SECTION, WHEREAS THE CONTENTION OF THE LD. AR FOR THE ASSESSEE IS THAT S ECTION 194J IS NOT APPLICABLE FOR THE REASON THAT THE TURNOVER OF THE ASSESSEES BUSINES S WAS BELOW RS. 40 LAKHS. BEFORE US THE LD.DR SUBMITS THAT IT IS A NEW LEGAL POINT TA KEN BY THE ASSESSEE BEFORE THE TRIBUNAL FOR THE FIRST TIME. KEEPING IN VIEW OF THE SAME AND TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE REMIT THE MATTER TO THE FILE OF THE AO FOR VERIFICATION IN TERMS OF THE SUBMISSIONS MADE BY THE LD.AR OF THE ASSESSEE REGARDING THE NON APPLICABILITY OF PROVISIONS OF SECTION 194J OF THE ACT. GROUND NO. 2 RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 9. GROUND NOS.3 AND 4 RELATE TO CONFIRMATION OF ADDITION OF RS. 24,71,659/- ON ACCOUNT OF CASH DEPOSITS IN AXIS BANK A/C NO.7551 O F ASSESSEE. 10. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO EXAMINED THE CASH DEPOSITS AND FOUND THAT THERE ARE CERTAIN CASH DEPOSITS MADE BY THE ASSESSEE FROM THE 1 ST DAY OF THE FINANCIAL YEAR RELATING TO THE A.Y UNDER CONSI DERATION. THE AO FURTHER OBSERVED THAT THE ASSESSEE DID NOT MAKE ANY REFERENCE TO THE SAID CASH DEPOSITS AND INVESTMENT MADE IN M/S. BENGAL GREEN FIELD HOUSING DEVELOPMEN T CO.LTD. THE AO OBSERVED THAT THE ASSESSEE DID NOT PRODUCE ANY CASH BOOK AN D EXPLANATION. BUT, HOWEVER, THE 5 I.T.A NO. 1228/KOL/2013 RAJIB BANERJEE, DURGAPUR AO OBSERVED THAT THE ASSESSEE FILED AN UNSIGNED WR ITTEN EXPLANATION STATING THAT HE HAS MADE CASH SALE OF RS.85,07,210, HE DID NOT MAKE AN Y TRANSACTION IN THIS ACCOUNT. ACCORDINGLY, FOR NON PRODUCTION OF CASH BOOK AND P ROPER EXPLANATION, THE AO ADDED AN AMOUNT OF RS.24,71,659/- TREATING THE SAME AS UN DISCLOSED INCOME OF THE ASSESSEE TO THE INCOME OF THE ASSESSEE. 11. ON 1 ST APPEAL, BEFORE THE CIT(A) THE ASSESSEE CONTENDED T HAT THE ENTIRE CASH DEPOSITS WERE OUT OF SALE EFFECTED, WHICH HAS BEEN DEPOSITED BY HIM IN CASH IN THE SAID BANK ACCOUNT AND TO SHOW THE SAME COPY OF CASH BOOK WAS SUBMITTED BEFORE THE CIT(A). THE CIT(A) ON VERIFICATION OF THE SAME, FOU ND THAT THE ASSESSEE HAS PURCHASED LAND DURING THE YEAR UNDER CONSIDERATION. THE SAME IS REFLECTED IN THE SCHEDULE OF FIXED ASSETS AS ON 31/3/09. BUT OWING TO DIFFERENT EXPLAN ATIONS AS OFFERED BY THE ASSESSEE BEFORE THE AO AND THE CIT(A), THE CIT(A) DOUBTING T HE SAME CONFIRMED THAT ADDITION AS MADE BY THE AO. 12. AGGRIEVED BY SUCH ORDER OF THE CIT(A), NOW THE ASSESSEE IS IN APPEAL BEFORE US AND CONTENDED BEFORE US THAT THE CREDIT BALANCE O F RS. 14 LAKHS IS REFLECTED/AVAILABLE IN THE CASH BOOK AS WELL AS IN THE AXIS BANK ACCOUN T STATEMENT ON 2-6-08, WHICH IS AVAILABLE AT PAGE 39 OF THE ASSESSEES PAPER BOOK F ILED BEFORE US. 13. IN REPLY, THE LD.DR SUBMITS BEFORE US THAT THE DEPOSITS OF RS.14 LAKHS GENERALLY WOULD BE DEPOSITED IN THE ASSESSEES CURRENT BANK ACCOUNT, NOT IN SAVING BANK ACCOUNT. IN THIS REGARD, THE AO HAS CATEGORICALLY STATED THAT NO MATERIAL WAS PRODUCED IN THE ASSESSMENT PROCEEDINGS. HE FURTHER POINTED O UT THAT EXCEPT THIS DEPOSIT THERE WAS NO OTHER DEPOSIT IN THE SAID BANK ACCOUNT. 6 I.T.A NO. 1228/KOL/2013 RAJIB BANERJEE, DURGAPUR 14. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL INCLUDING THE PAPER BOOK AVAILABLE ON RECORD. WE FIND FROM THE AS SESSMENT ORDER THAT INSPITE OF GIVING OPPORTUNITIES BY THE AO, THE ASSESSEE COULD NOT OFFER ANY SATISFACTORY EXPLANATION IN RESPECT OF IMPUGNED DEPOSITS ON WHIC H BASIS THE AO MADE THE IMPUGNED ADDITION. IT IS ALSO NOTICED FROM THE ASS ESSMENT ORDER THAT THE ASSESSEE DID NOT PRODUCE CASH BOOK BEFORE THE AO. FROM THE OBSER VATION OF THE CIT(A) IN HIS APPELLATE ORDER, WE FIND THAT THE ASSESSEE PRODUCE D BEFORE HIM THE COPY OF CASH BOOK. ON VERIFICATION OF THE SAME, THE CIT(A) FOUND THAT THE ASSESSEE PURCHASED A LAND DURING THE YEAR UNDER CONSIDERATION AND THE SAME IS BEING REFLECTED IN THE SCHEDULE OF FIXED ASSETS AS ON 31/3/09. HOWEVER, THE CIT(A) DID NOT GRANT ANY RELIEF TO THE ASSESSEE AND DOUBTED THE EXPLANATION AS OFFERED BY THE ASSESSEE BEFORE HIM AS WELL AS BEFORE THE AO BEING DIFFERENT. TAKING INTO CONSIDE RATION THE SUBMISSIONS OF THE LD.AR OF THE ASSESSEE THAT ALL THE DEPOSITS FOUND TO BE MADE AVAILABLE IN THE CASH BOOK AS MAINTAINED BY THE ASSESSEE. TAKING INTO CONSIDERA TION THE SUBMISSIONS OF THE LD.DR THAT A NEW PLEA WAS TAKEN BY THE ASSESSEE BEFORE THE CIT(A) AS WELL AS BEFORE THE TRIBUNAL THAT REFLECTION OF DEPOSIT IN THE CASH B OOK AND BANK ACCOUNT. IN VIEW OF THE ABOVE, WE HOLD THAT THIS MATTER SHOULD GO BACK TO THE FILE OF THE AO FOR PROPER VERIFICATION OF CASH BOOK REGARDING AVAILABILITY OF SUCH DEPOSITS. THE ASSESSEE, SHALL BE AT LIBERTY, TO FILE NECESSARY EVIDENCES, IF ANY, I N SUPPORT OF HIS CLAIM. THE ASSESSEE SHALL NOT SEEK ANY ADJOURNMENT. ACCORDINGLY, THE AO IS DIRECTED TO PASS AN ORDER IN ACCORDANCE WITH LAW. GROUND NO.3 OF ASSESSEES APPE AL IS ALLOWED FOR STATISTICAL PURPOSE. 15. GROUND NO. 1 IS BEING GENERAL AND NEEDS NO ANSW ER AND IT IS DISMISSED. 7 I.T.A NO. 1228/KOL/2013 RAJIB BANERJEE, DURGAPUR 16. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH AUGUST, 2016. SD/- SD/- P.M.JAGTAP S.S.VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 05 /08 /2016 *PRADEP/SR.PS COPY OF ORDER FORWARDED TO: 1 APPELLANT/ASSESSEE: SHRI RAJIB BANERJEE 65 PERRY FE RRY ROAD, SEPCO TOWNSHIP, DURGAPUR 713205. 2 RESPONDENT/DEPARTMENT: THE ASSTT. COMMISSIONER OF I NCOME TAX CIRCLE-1, DURGAPUR 3 THE CIT(A), 4 5 CIT, 5. D.R. TRUE COPY, BY ORDER ASSTT. REGISTRAR , ITAT, KOLKATA