ITO, WD-1, Raiganj, Uttar Dinajpur V. Shri Nausad Alam, Kanki, Uttar Dinajpur, Uttar Dinajpur

ITA 1301/KOL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1618 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 03-07-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 09-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D Z CHOWNGTHU
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA [BEFORE HONBLE SHRI J. SUDHAKAR REDDY, AM & HONBLE SHRI S.S. VISWANETHRA RAVI, JM] I.T.A. NO. 1301/KOL/2014 ASSESSMENT YEAR: 2010-11 ITO WARD - 1.............................APPELLANT KARNAJORE, SBI BUILDING, 3 RD FLOOR KARNAJORE, RAJGANJ, UTTAR DINAJPUR - 733134 SHRI NAUSAD ALAM ...........................RESPONDENT PROP. ZEENAT ENTERPRISE KANKI, UTTAR DINAJPUR - 733209 [PAN NO. AHBPA3079M] APPEARANCES BY: SHRI D.Z. CHOWNGTHU, ADDL. CIT APPEARING ON BEHALF OF THE REVENUE. SHRI SUNIL SURANA, AR APPEARING ON BEHALF OF THE ASSESSEE. DATE OF CONCLUDING THE HEARING : AUGUST 21, 2017 DATE OF PRONOUNCING THE ORDER AUGUST 23, 2017 ORDER PER J. SUDHAKAR REDDY, AM THIS IS AN APPEAL FILED BY THE REVENUE DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), JALPAIGURI DATED 12.03.2014 FOR THE ASSESSMENT YEAR 2010-11 ON THE FOLLOWING GROUNDS. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT (A) JALPAIGURI HAS ERRED IN DELETING THE ADDITION OF RS. 47,36,759/- WHEN THE ASSESSEE HAD FAILED TO SUBMIT ANY REASONABLE EXPLANATION DURING THE ASSESSMENT PROCEEDINGS TO PROVE THAT THE BANK DEPOSITS WERE RECEIVED BY HIM ON BEHALF OF THE BROTHER, JAMSHED ALAM NOR COULD SUBMIT ANY VALID DOCUMENTARY EVIDENCE IN SUPPORT OF HIS CLAIM. FURTHERMORE THE LD. CIT (A) JALPAIGURI HAD ADMITTED ADDITIONAL EVIDENCE. 2 I.T.A. NO. 1301/KOL/2014 ASSESSMENT YEAR: 2010-11 SHRI NAUSAD ALAM RELIANCE IS PLACED ON THE RATIO OF JUDGMENT IN THE CASE OF P. MOHANKALA 291 ITR 278 (SC). 2. THE APPELLANT MAY PLEASE BE ALLOWED TO ADD OR ALTER THE GROUNDS OF APPEAL IF ANY 2. AFTER HEARING THE RIVAL CONTENTIONS, WE FIND THAT THE LD. CIT (A) HAS HELD THAT BUILDING MATERIAL WAS SUPPLIED BY THE ASSESSEES BROTHER MR. JAMSHED ALAM AND THAT THE TRANSPORTATION OF THE SAME IS DONE BY THE ASSESSEE TO ONE COMPANY M/S. PCL. THE TOTAL AMOUNT I.E. BOTH FOR THE GOODS AS WELL AS TRANSPORTATION WAS RECEIVED BY THE ASSESSEE FROM PCLAND THE CONSIDERATION FOR GOODS WERE PASSED ON TO HIS BROTHER. M/S. JAMSHED ALAM, THE BROTHER OF THE ASSESSEE HAD RECEIVED THE AMOUNT IN QUESTION FROM THE ASSESSEE AND REFLECTED THE SAME, IN HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2010-11. THE LEARNED FIRST APPELLATE AUTHORITY ON THESE FACTS HELD AS FOLLOWS: CONCLUSION: THE CONTENTIONS OF THE AO THAT THERE IS NO WRITTEN AGREEMENT FOR THE BUSINESS TRANSACTIONS AND THE AFFIDAVIT BY MR. JAMSHED ALAM IS AN AFTERTHOUGHT, ARE WITHOUT BASIS. THERE IS NO REQUIREMENT UNDER INCOME TAX ACT FOR A WRITTEN AGREEMENT FOR COLLECTION OF MONEY FROM SOMEONE ON SOMEBODYS BEHALF; MORE SO WHEN THE CONCERNED PERSONS ARE BROTHERS. CALLING THE AFFIDAVIT AS AN AFTERTHOUGHT IS ALSO WRONG BECAUSE THE AFFIDAVIT WAS GIVEN ONLY TO CONFIRM TO THE AO THAT THE ASSESSEE COLLECTED MONEY ON BEHALF OF HIS BROTHER. AN AFFIDAVIT CAN BE REJECTED ONLY IF IT IS FOUND OUT TO BE FALSE. THE AO SHOULD HAVE EXAMINED MR. JAMSHED ALAM AND VERIFIED THE FACTS FROM HIS RETURN OF INCOME FOR REJECTING THE AFFIDAVIT. THE MONEY COLLECTED BY ASSESSEE AND GIVEN TO THE SELLER OF THE GOODS HAS BEEN OFFERED FOR TAX BY THE SELLER MR. JAMSHED ALAM. ADDING THE AMOUNT IN ASSESSEES INCOME HAS LED TO THE DOUBLE TAXATION OF THE SAME INCOME. THE ORDER OF THE AO IS CANCELLED AND THE APPEAL OF THE ASSESSEE IS ALLOWED. 3. THE LEARNED DR COULD NOT CONTROVERT THESE FACTUAL FINDINGS OF THE LD. CIT (A). HENCE, WE UPHOLD THE ORDER OF THE LD. CIT (A) AND DISMISS THIS APPEAL OF THE REVENUE. 3 I.T.A. NO. 1301/KOL/2014 ASSESSMENT YEAR: 2010-11 SHRI NAUSAD ALAM 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON AUGUST 23 RD , 2017. SD/- SD/- (S.S. VISWANETHRA RAVI) (J. SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 23/08/2017 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. SHRI NAUSAD ALAM, PROP. OF ZEENAT ENTERPRISE, KANKI, UTTAR DINAJPUR - 733209 2. ITO, WARD 1, UTTAR DINAJPUR 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, SR. P.S. / H.O.O. ITAT, KOLKATA