Gautam Sarkar, Kolkata V. ITO, WD-51(3), KOLKATA, Kolkata

ITA 1375/KOL/2014

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9071 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 17-06-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K L KANAK
• Assessee Lawyers: VIGYANESHWAR NATH DUTTA

Judgement Text

I.T.A. NO . 1 375 / KOL ./201 4 ASSESSMENT YEAR: 200 9 - 20 10 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA SMC BENCH, KOLKATA BEFORE SHRI GEORGE MATHAN , JUDICIAL MEMBER I.T.A. NO. 1 375 / KOL / 20 1 4 ASSESSMENT YEAR : 200 9 - 20 10 GOUTAM SARKAR,............................ ..... ....... .... ............. .. .APP ELL ANT K HARDAH MUNICIPAL MARKET, BLOCK - E, STALL - 1A, P.O. RAHARA, OLD CALCUTTA ROAD, KOLKATA - 700 118 [ PAN : A JMPS 1810 P ] - VS. - INCOME TAX OFFICER , ........................... ................... ... . RESPONDENT WARD - 51 ( 3 ), KOLKATA , UTTARAPAN COMPLEX, MANI KTALA CIVIC CENTRE, SCHEME - VII/M, KOLKATA - 700 054 APPEARANCES BY: S HRI VIGYANESHWAR NATH DUTTA , ADVOCATE, FOR THE ASSESSEE S HRI K.L. KANAK , J CIT, SR. D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : FEBRUARY 23 , 2 01 5 DATE OF PRONOUNCING THE O RDER : FEBRUARY 23 , 201 5 O R D E R PER GEORGE MATHAN : THIS IS AN APPEAL FILED BY THE ASSESSE E AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) - XXX I I , KOLKATA IN APPEAL NO. 1 81 / CIT(A) - XXX I I / 11 - 12/51(3)/KOL D ATED 28 . 0 8 .201 3 FOR THE ASSES SMENT YEAR 200 9 - 10 . 2. S HRI VIGYANESHWAR NATH DUTTA , ADVOCATE , REPRESENTED ON BEHALF OF THE ASSESSEE AND S HRI K.L. KANAK, JCIT, SR. D.R. REPRESENTED ON BEHALF OF THE REVENUE. I.T.A. NO . 1 375 / KOL ./201 4 ASSESSMENT YEAR: 200 9 - 20 10 PAGE 2 OF 4 3. IN THE ASSESSEE S APPEAL, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - ( 1) THE LD. CIT(A) IS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.1,55,556/ - BEING 10.79% (NET PROFIT RATE) ON ALLEGED SUPPRESSED SALES OF RS.14,41,670/ - . IN FACT THE AO AS WELL AS THE LD. CIT(APPEALS) HAVE FAILED TO APPRECIATE THAT THE SAME WAS NOT A TU RNOVER BUT WERE EXPENSES INCURRED FOR PURCHASE OF AIR & RAIL TICKETS ON BEHALF OF CUSTOMERS, WHICH WERE LATER REIMBURSED. (2) THAT THE LD. AO FAILED TO UNDERSTAND THE BUSINESS OF THE APPELLANT WHICH IS OF TRAVEL AGENT AND THUS ON MIS - COMPREHENSION OF FACT S, ERRED IN HOLDING THAT THE REIMBURSEMENTS OF COSTS OF TICKETS PURCHASED THROUGH CREDIT CARDS FROM TRAVEL PORTALS ARE HIS TURNOVER. THERE CANNOT BE ANY PROFIT ELEMENT ON THE SAME AS PROFIT IS WHAT CAN BE EARNED ON SERVICES CHARGES RECEIVED FROM CUSTOMERS ON BOOKING OF THOSE TICKETS. THUS THE ADDITION MADE ON THIS BASIS IS ERRONEOUS AND LIABLE TO BE QUASHED. (3) THAT THE LD. AO IS UNJUSTIFIED IN NOT ALLOWING DEDUCTION UNDER SECTION 80C, 80D AND 24(B) OF THE I.T. ACT, 1961. 4. AT THE TIME OF HEARING, IT WA S SUBMITTED BY THE LD. A.R. THAT IN RESPECT OF THE GROUNDS NO. 1 & 2, THE ISSUE WAS AGAINST THE ACTION OF THE LD. CIT(APPEALS) IN CONFIRMING THE NET PROFIT ESTIMATED AT 10.79% ON THE ALLEGED SUPPRESSION OF SALES TO AN EXTENT OF RS.14,41,670/ - . IT WAS THE S UBMISSION THAT THE ASSESSEE HAD SHOWN THE GROSS PROFIT OF MORE THAN RS.30,00,000/ - . IT WAS THE SUBMISSION THAT THE ASSESSING OFFICER ON THE BASIS OF THE AIR INFORMATION HAD HELD THE TURNOVER OF THE ASSESSEE TO BE NEARLY RS.45,00,000/ - . IT WAS THE SUBMISSIO N THAT THE DIFFERENCE OF RS.14,41,670/ - WAS, IN FACT, THE REIMBURSEMENT OF THE COST OF TICKETS BEING AIR - TICKET AND RAIL TICKETS PURCHASED ON BEHALF OF THE CUSTOMERS WHICH WERE LATER REIMBURSED. IT WAS, HOWEVER, THE SUBMISSION THAT HE HAD NO OBJECTION IF T HE RATE OF NET PROFIT WAS REDUCED. 5. IN REPLY, LD. SR. D.R. VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER AND LD. CIT(APPEALS). I.T.A. NO . 1 375 / KOL ./201 4 ASSESSMENT YEAR: 200 9 - 20 10 PAGE 3 OF 4 6. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERUSAL OF THE FACTS IN THE PRESENT CASE CLEARLY SHOWS THAT THE ASS ESSEE IS UNABLE TO PROVE THE ACTUAL TURNOVER. THE ASSESSEE IS ALSO UNABLE TO PROVE THAT THE DIFFERENCE OF RS.14,41,670/ - IS, IN FACT, REIMBURSEMENT. IN THESE CIRCUMSTANCES, THE ESTIMATION OF THE INCOME DONE BY THE ASSESSING OFFICER IS FOUND TO BE ON RIGHT FOOTING. HOWEVER, CONSIDERING THE FACTS OF THE CASE AND TAKING INTO CONSIDERATION THE FACT THAT THE ASSESSEE IS IN THE BUSINESS OF COMMISSION AGENT. THE NET PROFIT RATE ESTIMATED BY THE ASSESSING OFFICER AT 10.79% IS REDUCED TO 6%. IN THE RESULT, GROUNDS N O. 1 & 2 OF THE ASSESSEE S APPEAL IS PARTLY ALLOWED. 7. IN REGARD TO GROUND NO. 3, IT WAS SUBMITTED BY THE LD. A.R. THAT THE DEDUCTIONS ALLOWABLE UNDER SECTION 80C, 80D AND 24(B) HAD NOT BEEN ALLOWED TO THE ASSESSEE. THE ASSESSEE HAS PLACED EVIDENCES IN R ESPECT OF THE SAID CLAIM. IT WAS THE SUBMISSION THAT THESE WERE FRESH EVIDENCES. 8. IN REPLY, LD. SR. D.R. SUBMITTED THAT THE EVIDENCES BEING FRESH EVIDENCES, THE SAME WERE LIABLE TO BE RESTORED TO THE FILE OF THE ASSESSING OFFICER. 9 . I HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS FRESH EVIDENCES HAVE BEEN PRODUCED IN RESPECT OF THE CLAIM OF DEDUCTION UNDER SECTIONS 80C, 80D AND 24(B), THE SAME ARE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR RE - ADJUDICATION AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTU NITY TO SUBSTANTIATE HI S CASE. 10 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 2 3 RD FEBRUARY , 201 5 . SD/ - GEORGE MATHAN ( JUDICIAL MEMBER) KOLKATA, THE 2 3 RD D AY OF FEBRUARY , 201 5 I.T.A. NO . 1 375 / KOL ./201 4 ASSESSMENT YEAR: 200 9 - 20 10 PAGE 4 OF 4 COPIES TO : (1) GOUTAM SARKAR, KHARDAH MUNICIPAL MARKET, BLOCK - E, STALL - 1A, P.O. RAHARA, OLD CALCUTTA ROAD, KOLKATA - 700 118 (2) INCOME TAX OFFICER, WARD - 51(3), KOLKATA, UTTARAPAN COMPLEX, MANIKTALA CIVIC CENTRE, SCHEME - VII/M, KOLKATA - 700 054 (3) COMMISSIONER OF INCOME - TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S .