M/s. Premier Auto Finance, Burdwan V. ITO, Ward - 56(1), Kolkata, Kolkata

ITA 1272/KOL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9362 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-02-2011
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 21-06-2010
• Court: TRIBUNAL
• Department Lawyers: ASHUTOSH RAJHANS
• Assessee Lawyers: S K KEJRIWAL

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH A, KOLKATA () BEFORE . .. . . .. . , , , , , SHRI D.K.TYAGI, JUDICIAL MEMBER. !' !' !' !' /AND . .. . . .. .! !! ! , # SHRI C.D.RAO, ACCOUNTANT MEMBER '$ '$ '$ '$ / ITA NOS . 1272 & 1273/KOL/2010 %&' !()/ ASSESSMENT YEAR : 2006-07 (+, / APPELLANT ) M/S.PREMIER AUTO FINANCE, KOLKATA (PAN: AADFP 6696 G) - !& - - VERSUS - . (.+,/ RESPONDENT ) I.T.O.,WARD-58(1), KOLKATA +, / 0 / FOR THE APPELLANT: SHRI S.K.KEJRIWAL .+, / 0 / FOR THE RESPONDENT: SHRI ASHUTOSH RAJHANS 1 / ORDER ( (( ( . .. . . .. .! !! !) )) ), , , , # PER SHRI C.D.RAO, AM THE ABOVE APPEALS ARE FILED BY THE ASSESSEE AGAIN ST THE ORDER DATED 26.03.2010 OF THE CIT(A)-XXXVI, KOLKATA PERTAINING TO A.YR. 2006-07 ONE ON ACCOUNT OF QUANTUM AND THE OTHER ON LEVY OF PENALTY U/S 271(1) OF THE IT ACT. 2. IN QUANTUM APPEAL THE ASSESSEE HAS CONTESTED ADDITION OF RS.3,30,000/- ON ACCOUNT OF SUNDRY DEBTORS. 3. THE BRIEF FACTS OF THIS ISSUE ARE THAT WHILE DO ING THE SCRUTINY ASSESSMENT THE AO ADDED AN AMOUNT OF RS.3,30,000/- BY OBSERVING AS U NDER : ON GOING THROUGH THE IMPOUNDED DOCUMENTS SENT WITH THE CASE RECORDS IT IS FOUND THAT THE DOCUMENTS AS HAS BEEN SENT ALONG WIT H SURVEY REPORT ARE NOT RELATED TO THE ASSESSMENT YEAR IN QUESTION. [THE DE TAILS OF BOOKS OF A/CS IMPOUNDED WITH DESCRIPTION IS REPRODUCED IN THE OFF ICE RECORD]. THEREFORE, THE 2 ASSESSEMT IS BEING COMPLETED ON THE PAPERS AND DOCU MENTS AVAILABLE ON RECORDS AND ALSO FURNISHED AT THE TIME OF ASSESSMENT PROCEE DINGS. AS PER PROFIT AND LOSS ACCOUNT FOR THE PERIOD FROM 01.04.2005 TO 31.03.2006 IT IS FOUND THAT INCOME DISCLOSED BY THE ASSESSEE IS NIL AND THE ASSESSEE HAS PAID ONLY BANK CHARGES TO THE TUNE OF RS.3,951/- AND THEREFORE THERE IS A LOSS OF RS.3,951/-. THAT LOSS HAS BEEN D IVIDED BY FOUR PARTNERS COMPANY. IT IS PROVED THAT THE FIRM HAS NO INCOME D URING THE RELEVANT PERIOD. ON THE OTHER HAND IN THE BALANCE SHEET NO INVESTMEN T HAS BEEN REFLECTED IN THE ASSET SIDE OF THE BALANCE SHEET. IN THE LIABILITY S IDE OF THE SAID BALANCE SHEET ALL THE PARTNERS HAVE WITHDRAWN 100% OF THEIR CAPITAL. HENCE, IT IS VERY MUCH CLEAR THAT NO BUSINESS ACTIVITIES WERE MADE DURING THE PR EVIOUS YEAR II.E. 2005-06 RELEVANT TO ASSESSMENT YEAR 2006-07. FOR DETAILS INVESTIGATION OF THE SURVEY REPORT THE ASSESSEE WAS ASKED TO SUBMIT THE BANK STATEMENT WITH COPY OF ACCOUNT, DET AILS OF CASH BOOK AND BANK BOOK ETC. THE ASSESSEE FILED THE SAME WHICH REVEALS THAT DURING THE PERIOD FORM 01.04.2005 TO 27.03.2006 THE ASSESSEE HAS DEPOSITED CASH RS.3,30,000/- ON DIFFERENT DATES IN THE DENA BANK OF ASANSOL VIDE A/ C. NO.CA/GEN/201165. IN THIS CONTEXT THE ASSESSEE WAS ASKED TO FILE EXPLANA TION HOW THE ABOVE DEPOSITS IN THE FIRMS BANK ACCOUNT AHS BEEN MADE AND THE SO URCES THEREOF PARTICULARLY WHEN THERE WAS NO BUSINESS ACTIVITIES DURING THE PE RIOD UNDER ASSESSMENT AND AS IN THE ASSET SIDE OF THE BALANCE SHEET THERE WAS NO ASSETS INCLUDING ANY BANK BALANCE. BUT THE ASSESSEE HAS FAILED TO EXPLAIN THE ABOVE QUERY, NOR HAS SUBSTANTIATED THE QUESTION RAISED BEFORE HIM BY PRO DUCING BOOKS OF ACCOUNTS AND PAPERS/DOCUMENTS ETC. I HAVE, THEREFORE, NO OTH ER ALTERNATIVE BUT TO TREAT THE BANK DEPOSIT OF RS.3,30,000/- AS INCOME OF THE ASSE SSEE DURING THE PERIOD NOT DISCLOSED AND ADDED THE SAME WITH THE TOTAL INCOME OF THE ASSESSEE US/ 69 OF THE INCOME TAX ACT, 1961. 3.1. ON APPEAL THE LD. CIT(A) HAS CONFIRMED THE SAM E BY OBSERVING THAT NO DETAILS LIKE NAMES AND ADDRESSES OF THE PERSONS FROM WHOM A N AMOUNT OF CASH WERE GIVEN. THEREFORE THE CORRECTNESS OF THIS APPEAL IS NOT PRO PER EVEN AT THE APPELLATE STAGE. 3.2. AGGRIEVED BY THIS THE ASSESSEE IS IN APPEAL B EFORE US. 4. AT THE TIME OF HEARING BEFORE US THE LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE BY REFERRING TO VARIOUS PAGES OF THE PAPER BOOK IN RESPECT OF DETAILS OF SUNDRY DEBTORS AS ON 31.3.2003, 31.03.2004 AND 31.03.2005 AND FURTHER BALANCE SHEETS AS ON THE RESPECTIVE DATES, CONTENDED THAT THE LD. CIT(A) HAS FAILED TO APPRECIATE THE DETAILS OF THE SUNDRY DEBTORS PLACED BEFORE HIM AND THE LD. A.O. THE LD. CIT(A) FAILED TO APPRECIATE THAT NO DOUBT CAN BE RAISED AGAINST THE SUNDRY DEBTORS BALANCE AS ON 3 31.3.2005/1.04.2005 AT RS.1,91,700/- IN AS MUCH AS THE SAME WAS ACCEPTED IN THE ASSESSMENT FOR THE ASSESSMENT YEAR 2005-06. HE FURT HER CONTENDED THAT THE AO HAS NOT GIVEN ANY OPPORTUNITY TO THE ASSESSEE OF BEING HEAR D BEFORE ADDING THE SAME. THEREFORE, HE REQUESTED TO DELETE THE ADDITION MADE BY THE AO AND FURTHER DELETE THE PENALTY LEVIED BY THE AO U/S 271(1)(C) OF THE ACT IN ITA NO.1273/KOL/2010. 5. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORD ERS OF THE REVENUE AUTHORITIES AND FURTHER CONTENDED THAT THOUGH THE BALANCE SHEET S ARE AVAILABLE IN THE REVENUE RECORDS THE DETAILS OF THE SUNDRY DEBTORS WHICH WER E POINTED OUT BY THE LD. COUNSEL PLACED IN THE PAPER BOOK REQUIRES VERIFICATION BY T HE REVENUE AUTHORITIES. IN THE ABSENCE OF THIS THE REVENUE AUTHORITIES ARE JUSTIFI ED IN MAKING ADDITION OF RS.3,30,000/- AND LEVY OF PENALTY ON THE SAID AMOUN T. 6. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CARE FUL CONSIDERATION OF THE MATERIALS AVAILABLE ON RECORD, KEEPING IN VIEW OF T HE FACT THAT NEITHER THE AO IN HIS ORDER NOR THE LD. CIT(A) IN THE APPEAL ORDER HAS ME NTIONED WHETHER THE DETAILS OF SUNDRY DEBTORS AS ON 31.3.2003, 31.3.2004 AND 31.3. 2005 AS CONTENDED BY THE LD. AR ARE FILED BY THE ASSESSEE. ON THE OTHER HAND, BOTH THE REVENUE AUTHORITIES HAVE CONTENDED THAT THE ASSESSEE HAS NOT FURNISHED THE R EQUIRED DETAILS. THEREFORE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDERS OF THE REVENUE AUTHORITIES ON THIS ISSUE AND DIRECT THE AO TO RE-DECIDE THE QUANTUM APPEAL PASSE D AFTER TAKING INTO CONSIDERATION THE DETAILS OF THE SUNDRY DEBTORS FILED BY THE ASSE SSEE AS ON 31.3.2003, 31.3.2004 AND 31.3.2005 AS PER LAW AFTER GIVING A REASONABLE OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE. AS REGARDING THE PENALTY APPEAL SINCE WE HAVE SET ASIDE THE APPEAL OF QUANTUM WE CONSIDER IT FIT TO SET ASIDE THE PENALTY ORDER OF THE AO ALSO TO RECONSIDER THE SAME, IF REQUIRED, AFTER DECIDING THE QUANTUM A PPEAL. 4 7. IN THE RESULT BOTH THE APPEALS ARE ALLOWED FOR S TATISTICAL PURPOSES. 2 1 3 4& 25 6 2 1 3 4& 25 6 2 1 3 4& 25 6 2 1 3 4& 25 6 ORDER PRONOUNCED IN THE COURT ON 04.02.2011. SD/- SD/- . .. . . .. . , , , , % % % % D.K.TYAGI, JUDICIAL MEMBER . .. . . .. .! !! !, ,, , # , C.D.RAO, ACCOUNTANT MEMBER. ( (( (# # # #) )) ) DATE: 04.02.2011. 1 / .%%7 87(9- COPY OF THE ORDER FORWARDED TO: 1. M/S.PREMIER AUTO FINANCE, C/O SHRI OM PRAKASH BAGAR IA, G.T.ROAD (EAST), P.O.ASANSOL, DIST. BURDWAN. 2 THE ITO, WARD-56(1), KOLKATA. 3. THE CIT, 4. THE CIT(A)-XXXVI, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA 7 .%/ TRUE COPY, 1&4/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES R.G.(.P.S.)