Debayan Ray, Malda V. ITO,Ward(1), Malda, Malda

ITA 1262/KOL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99825 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 31-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SARJIT KR DAS JCIT SRDR
• Assessee Lawyers: S M SURANA
• Keywords: Opportunity of being heard; Peak credit
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 1262 / KOL / 2012 ASSESSMENT YEAR :2008-09 DEBAYAN RAY 12/12, NETAJI SUBHAS ROAD, TARAKUTIR, P.S. ENGLISHBAZAR, P.O. & DIST. MALDA, PIN-732101 [ PAN NO.AIHPR 4187 Q ] V/S . INCOME TAX OFFICER WARD-1, MALDA RANGE, MALDA /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI S.M. SURANA, ADVOCATE /BY RESPONDENT SHRI SARJIT KR. DAS, JCIT, SR-DR /DATE OF HEARING 15-09-2015 /DATE OF PRONOUNCEMENT 28-09-2015 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF ORDE R OF COMMISSIONER OF INCOME TAX (APPEALS), JALPAIGURI IN APPEAL NO.15/ML D/CIT(A)/JAL/10-11 DATED 02.05.2012. ASSESSMENT WAS FRAMED BY ITO WARD -I, MALDA U/S 145(3)/143(3) OF THE INCOME TAX ACT, 1961 (HEREINAF TER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 22.10.2010 FOR ASSESSMENT YEAR 2008-09. ASSESSEE HAS RAISED SEVERAL GROUNDS OF HIS APPEAL THAT LD. CIT(A ) HAS ERRED IN CONFIRMING THE ORDER PASSED BY ASSESSING OFFICER U/S. 143(3) O F THE ACT. ITA NO.1262/KOL/2012 A.Y. 2008-09 DEBAYAN RAY V. ITO WD-1 MLD PAGE 2 2. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND HAS INCOME FROM THE BUSINESS. DURING THE ASSESSMENT PRO CEEDINGS, IT WAS OBSERVED THAT THE ASSESSEE DID NOT DISCLOSE CERTAIN FACTS IN HIS FINANCIAL STATEMENT SUCH AS 1. FIXED DEPOSIT OF RS. 1 LAC MAI NTAINED WITH ORIENTAL BANK OF COMMERCE 2. BANKING TRANSACTIONS OF HIS SAVING B ANK ACCOUNT WITH AXIS BANK BEARING NO. 389010100013299.THEREFORE THE AO W AS NOT SATISFIED WITH THE CORRECTNESS/ COMPLETENESS OF THE CASH BOOK/ACCO UNTS SUBMITTED BY THE ASSESSEE. HENCE THE AO REJECTED THE BOOKS OF ACCOUN TS OF THE ASSESSEE AND PROCEEDED TO FRAME THE ASSESSMENT ON THE BASIS OF A VAILABLE INFORMATION. THEREFORE THE AO COMPLETED THE ASSESSMENT AFTER MAK ING CERTAIN ADDITIONS/DISALLOWANCES AFTER GIVING DUE OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE. AGGRIEVED ASSESSEE PREFERRED AN APPEAL B EFORE LD.CIT(A) WHO HAS UPHELD THE ORDER OF THE AO AFTER GIVING SOME RE LIEF TO THE ASSESSEE. 3. NOW, AGGRIEVED ASSESSEE IS IN SECOND APPEAL BEF ORE US ON THE FOLLOWING GROUNDS OF APPEAL:- 1. FOR THAT THE ORDER OF THE LD. CIT(A) IS ARBITRA RY, ILLEGAL AND BAD IN LAW. 2. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THAT THE LD. C.I.T(A) ERRED IN CONFIRMING THE ADDITION OF RS.100 000/- BEING THE AMOUNT DEPOSITED IN THE TDR ACCOUNT. 3. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THAT THE LD. C.I.T(A) ERRED IN CONFIRMING THE ADDITION OF RS.3,1 0,057/- UNDER SEC. 9 OF THE I.T. ACT, 1961 IGNORING THE EXPLANATION OF THE ASSESSEE. 4. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THAT THE LD. C.I.T(A) ERRED IN CONFIRMING IN ADDING BACK RS.6,18 ,804/- AS GROSS PROFIT AND IN ANY CASE THE PROFIT DETERMINED ON SUCH SALE WAS HIGHLY EXCESSIVE. 5. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE C ASE PARTICULARLY WHEN THE PEAK CREDIT WAS BEING ADDED FURTHER ADDITION OF RS.6,18,804/- WAS NOT JUSTIFIED. 6. FOR THAT THE LD. C.I.T.(A) ERRED IN DIRECTING T HE AO TO TREAT THE BANK WITHDRAWALS AS DRAWING FOR THE ASSESSEE AND TREAT T HE SAME AS UNDISCLOSED WITHDRAWALS FOR WHICH EVEN THE ASSESSEE WAS NOT GIVEN ANY OPPORTUNITY OF BEING HEARD. ITA NO.1262/KOL/2012 A.Y. 2008-09 DEBAYAN RAY V. ITO WD-1 MLD PAGE 3 7. FOR THAT THE LD. C.I.T.(A) ERRED IN CONFIRMING T HE ADDITION OF RS.1150/- , RS.2324/-, RS.1838/- AND RS.4578/- DISALLOWED BY THE AO. SHRI S.M. SURANA, LD. AUTHORIZED REPRESENTATIVE APP EARING ON BEHALF OF ASSESSEE SHRI SANJIT KR. DAS,LD. DEPARTMENTAL REPRE SENTATIVE APPEARING ON BEHALF OF DEPARTMENT. 4. BEFORE US LD. AR SUBMITTED THAT THE ACTION OF AO FOR REJECTING THE BOOKS OF ACCOUNTS ON THE GROUNDS THAT THE TRANSACTIONS WI TH THE BANKS WERE NOT CORRECTLY SHOWN IN THE BOOKS OF ACCOUNT WAS NOT JUS TIFIED. THERE WERE VERY FEW TRANSACTIONS WHICH WERE NOT SHOWN BEING PERSONAL IN NATURE AND HAD NO NEXUS WITH THE BUSINESS. OTHERWISE ALL THE TRANSACT IONS WERE DULY SHOWN IN THE BOOKS OF THE ASSESSEE. THE ASSESSEE HAS ALSO SU BMITTED THAT THE BALANCE SHEET AND PROFIT AND LOSS ACCOUNT FOR THE ASSESSMEN T YEARS 2006-07, 2007-08 AND 2008-09( ONLY P & L) ALONG WITH THE COMPARISON CHART OF GROSS PROFIT AND NET PROFIT RATIO TO JUSTIFY THE ACTUAL PROFIT AND P ROOF THAT THE AO HAS MADE ASSESSMENT AT HIGHER INCOME ARBITRARILY. FINALLY LD . AR PRAYED TO RESTORE THE MATTER TO THE AO FOR FRESH ADJUDICATION AS PER THE LAW. 5. WE HAVE HEARD THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT WAS OBSERVED THAT THE ASSESSEE COULD NOT PROVIDE THE SATISFACTORILY REPLY TO THE AO. THEREFORE THE BOOKS OF ACCOUNTS WE RE REJECTED. HOWEVER THE TURNOVER SHOWN BY THE ASSESSEE IS JUST RS. 468721.0 0 ONLY. THE LAW MAKERS WANTED TO KEEP FREE THE SMALL ASSESSEE FROM THE MAI NTENANCE OF BOOKS OF ACCOUNTS, THEREFORE THE SECTIONS LIKE 44 AF WERE BR OUGHT UNDER THE ACT. SO WE ARE INCLINED TO GIVE ONE MORE OPPORTUNITY TO THE AS SESSEE BEING A SMALL BUSINESS MAN TO JUSTIFY HIS TRANSACTIONS TO WORK OU T THE ACTUAL INCOME OF THE ASSESSEE. 6. LD. DR CONCEDED THE REQUEST OF LD.AR AND HE HAS RAISED NO OBJECTION IF THE MATTER MAY BE RESTORED TO THE FILE OF AO. ON QU ERY FROM THE BENCH AND IN ITA NO.1262/KOL/2012 A.Y. 2008-09 DEBAYAN RAY V. ITO WD-1 MLD PAGE 4 THE INTEREST OF JUSTICE, WE ARE OF THE VIEW THAT TH E MATTER IS RESTORED TO THE FILE OF AO WITH A DIRECTION TO ADJUDICATE THIS ISSUE AFR ESH IN ACCORDANCE WITH LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEA RD TO ASSESSEE. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT 28/ 09/2015 SD/- SD/- (MAHAVIR SINGH) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP - 28/0 9 /2015 / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT-DEBAYAN RAY 12/12, NETAJI SUBHAS ROAD, TARAKUTIR, P.S.ENGLISHBAZAR, P.O.& DIST. MALDA, PIN-732101 2. / RESPONDENT-ITO, WARD-1, NETAJI COMMERCIAL MARKET , P.S. ENGLISHBAZAR P.O. & DIST. MAL DA PIN 732101 3. , / / CONCERNED CIT JALPAIGURI 4. /- / CIT (A) JALPAIGURI 5. 1 44,, ,, / DR, ITAT, KOLKATA 6. 8 / GUARD FILE. BY ORDER/ , /TRUE COPY/ / ,,