Smt Binita Bubna, Kolkata V. ITO, WD-34(1), KOLKATA, Kolkata

ITA 138/KOL/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7974 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 01-02-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR CIT DR REVEN
• Assessee Lawyers: A N KESARI
• Keywords: Unexplained cash credit; Transactions in derivatives
• Section: 143(3); 133(6); 68; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA C BENCH, KOLKATA (BEFORE SRI S.S. GODARA, JUDICIAL MEMBER & DR. A.L. SAINI, ACCOUNTANT MEMBER) ITA NO. 1400/KOL/2017 ASSESSMENT YEAR: 2010-11 & ITA NO. 138/KOL/2016 ASSESSMENT YEAR: 2011-12 BINITA BUBNA.........................................................APPELLANT 125, N.S. ROAD 3 RD FLOOR KOLKATA 700 001 [PAN : AHMPB 8566 F] VS. INCOME TAX OFFICER, WARD-34(1), KOLKATA..........................................................RESPONDENT APPEARANCES BY: SHRI A.N. KESARI, CA, APPEARED ON BEHALF OF THE ASSESSEE . SHRI SAURABH KUMAR, ADDL. CIT D/R. APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JANUARY 17 TH , 2019 DATE OF PRONOUNCING THE ORDER : APRIL 16 TH , 2019 ORDER PER S.S. GODARA, JM :- BOTH THESE ASSESSEES APPEAL FOR ASSESSMENT YEARS 2010-11 & 2011-2 ARISE AGAINST THE SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 10, KOLKATA PASSED IN CASE NOS. 52/CIT(A)-10/34/(1)/2016-17/KOL & 46/CIT(A)-10/WD-34(1)/14- 15/KOL, CONFIRMING THE ASSESSING OFFICERS ACTION MAKING ADDITIONS ON ACCOUNT OF UNEXPLAINED CASH CREDITS, IN PROCEEDINGS U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. HEARD BOTH PARTIES. CASE FILES PERUSED. 3. THE ASSESSEES ONLY ARGUMENT RAISED DURING THE COURSE OF HEARING CHALLENGES CORRECTNESS OF BOTH THE LOWER AUTHORITIES ACTION HOLDING HER DEPOSITS AMOUNTING TO RS.31,25,595/- AND RS.49,80,000/- TO BE UNEXPLAINED CASH CREDITS IN THE TWO IMPUGNED ASSESSMENT YEARS. OUR ATTENTION IS INVITED TO ASSESSEES ADDITIONAL GROUNDS OF APPEAL AS WELL SEEKING TO DELETE BOTH THE IMPUGNED ADDITION IN PRINCIPLE. IT TRANSPIRES DURING THE COURSE OF HEARING THAT THE CIT(A) HAS FOLLOWED HIS DETAILED DISCUSSION IN LATTER 2 ITA NO. 1400/KOL/2017 ASSESSMENT YEAR: 2010-11 & ITA NO. 138/KOL/2016 ASSESSMENT YEAR: 2011-12 BINITA BUBNA ASSESSMENT YEAR 2011-12 MUTATIS MUTANDIS IN EARLIER ASSESSMENT YEAR 2010-11 WHILST CONFIRMING THE IMPUGNED ASSESSMENT ORDER. THE CIT(A)S FINDINGS UNDER CHALLENGE READS AS UNDER:- 3 ITA NO. 1400/KOL/2017 ASSESSMENT YEAR: 2010-11 & ITA NO. 138/KOL/2016 ASSESSMENT YEAR: 2011-12 BINITA BUBNA 4 ITA NO. 1400/KOL/2017 ASSESSMENT YEAR: 2010-11 & ITA NO. 138/KOL/2016 ASSESSMENT YEAR: 2011-12 BINITA BUBNA 5 ITA NO. 1400/KOL/2017 ASSESSMENT YEAR: 2010-11 & ITA NO. 138/KOL/2016 ASSESSMENT YEAR: 2011-12 BINITA BUBNA 6 ITA NO. 1400/KOL/2017 ASSESSMENT YEAR: 2010-11 & ITA NO. 138/KOL/2016 ASSESSMENT YEAR: 2011-12 BINITA BUBNA 7 ITA NO. 1400/KOL/2017 ASSESSMENT YEAR: 2010-11 & ITA NO. 138/KOL/2016 ASSESSMENT YEAR: 2011-12 BINITA BUBNA 8 ITA NO. 1400/KOL/2017 ASSESSMENT YEAR: 2010-11 & ITA NO. 138/KOL/2016 ASSESSMENT YEAR: 2011-12 BINITA BUBNA 9 ITA NO. 1400/KOL/2017 ASSESSMENT YEAR: 2010-11 & ITA NO. 138/KOL/2016 ASSESSMENT YEAR: 2011-12 BINITA BUBNA 10 ITA NO. 1400/KOL/2017 ASSESSMENT YEAR: 2010-11 & ITA NO. 138/KOL/2016 ASSESSMENT YEAR: 2011-12 BINITA BUBNA 11 ITA NO. 1400/KOL/2017 ASSESSMENT YEAR: 2010-11 & ITA NO. 138/KOL/2016 ASSESSMENT YEAR: 2011-12 BINITA BUBNA 12 ITA NO. 1400/KOL/2017 ASSESSMENT YEAR: 2010-11 & ITA NO. 138/KOL/2016 ASSESSMENT YEAR: 2011-12 BINITA BUBNA 13 ITA NO. 1400/KOL/2017 ASSESSMENT YEAR: 2010-11 & ITA NO. 138/KOL/2016 ASSESSMENT YEAR: 2011-12 BINITA BUBNA 14 ITA NO. 1400/KOL/2017 ASSESSMENT YEAR: 2010-11 & ITA NO. 138/KOL/2016 ASSESSMENT YEAR: 2011-12 BINITA BUBNA 4. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE RIVAL CONTENTIONS. THERE IS HARDLY ANY DISPUTE ABOUT THE ASSESSEE HAVING MADE THE IMPUGNED DEPOSITS IN HER BANK ACCOUNT IN THE TWO ASSESSMENT YEARS. LD. COUNSEL FOR THE ASSESSEE INVITES OUR ATTENTION TO THE ASSESSEES DETAILED PAPER BOOK COMPRISING OF INCOME TAX FILING ACKNOWLEDGEMENT, REVISED COMPUTATION, BALANCE SHEET AS WELL AS P&L ACCOUNT FOR THE TWO ASSESSMENT YEARS, COPY OF CONTRACT NOTES, BANK STATEMENTS, CASH RETENTION STATEMENTS, COPY OF ORIGINAL ASSESSMENT ORDER, THE ASSESSING OFFICERS NOTICE U/S 133(6), COPY OF SECTION 263 ORDER WITH RECORD, ASSESSING OFFICERS SHOWCAUSE NOTICE AS WELL AS THE EXCHANGES REPORT DT. 27/01/2016 AND HER LEDGER ACCOUNT WITH BROKER RELATING TO COMMODITY PROFIT/LOSS FOLLOWED BY COMPLIANCE LETTER SUBMITTED BY THE BROKER IN RESPONSE TO SECTION 133(6) NOTICE. THE ASSESSEES CASE IS ACCORDINGLY THAT ALL THE SAID EVIDENCE SUFFICIENTLY PROVES HER TO HAVE DERIVED INCOME FROM COMMODITY EXCHANGE TRANSACTIONS ONLY. SHE VEHEMENTLY CONTENDS THEREFORE THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AS WELL AS IN FACTS IN TREATING THE IMPUGNED CASH DEPOSITS TO BE UNEXPLAINED U/S 68 OF THE ACT. 15 ITA NO. 1400/KOL/2017 ASSESSMENT YEAR: 2010-11 & ITA NO. 138/KOL/2016 ASSESSMENT YEAR: 2011-12 BINITA BUBNA THE REVENUE STRONGLY SUPPORTS BOTH THE LOWER AUTHORITIES ACTION MAKING THE IMPUGNED ADDITION. 5. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE RIVAL CONTENTIONS. 6. IT TRANSPIRES FROM A PERUSAL OF THE CASE FILES THAT THE ASSESSEE HAS FAILED TO PROVE FROM THE STOCK EXCHANGE RECORD THAT SHE HAD DERIVED ANY INCOME IN COMMODITY TRANSACTIONS. THE RELEVANT STOCK EXCHANGE M/S. NMCE FILED ITS RESPONSE DT. 27/01/2016 BEFORE THE DEPARTMENT MAKING IT CLEAR THAT THE ASSESSEES PAN NO. NOWHERE FORMS PART OF ITS DATABASE WITH ANY OF ITS MEMBERS. THIS CLINCHING FINDING HAS GONE UNREBUTTED BEFORE US DURING THE COURSE OF HEARING. THE ASSESSEE HAS TRIED HER LEVEL BEST TO RELY UPON THE BROKERS LEDGER (SUPRA) OTHER DOCUMENTS ON RECORD IN SUPPORT OF HER ARGUMENTS. WE FIND NO FORCE IN ALL THESE AVERMENTS SINCE THE COMMODITY EXCHANGE IN ISSUE HAS FAILED TO SUPPORT HER CASE BY WAY OF ALL RELEVANT DETAILS. HONBLE APEX COURTS LANDMARK DECISIONS IN SUMITA DAYAL VS. CIT IN CIVIL APPEAL NO. 1344-45 OF 1977 AND CIT VS. DURGA PRASAD MORE 81 ITR 540, SETTLE THE LAW THAT ANY EVIDENCE FILED DURING THE COURSE OF PROCEEDINGS UNDER THE ACT HAVE TO BE APPRECIATED IN THE LIGHT OF HUMAN PROBABILITIES BY REMOVING ALL BLINKERS. WE DRAW SUPPORT THEREFROM TO CONCLUDE THAT BOTH THE LOWER AUTHORITIES HAVE RIGHTLY ASSESSED THE IMPUGNED CASH DEPOSITS TO BE UNEXPLAINED IN THE TWO ASSESSMENT YEARS IN PRINCIPLE. 7. NEXT COMES THE ASSESSEES LATTER ARGUMENT THAT BOTH THE LOWER AUTHORITIES HAVE ADDED THE ENTIRE CREDIT SIDE OF HER DEPOSITS IN THESE TWO ASSESSMENT YEARS. SHE SEEKS TO PLACE RELIANCE ON HER BANK STATEMENT TO THIS EFFECT FORMING PART OF THE CASE RECORDS IN THE TWO ASSESSMENT YEARS. THE REVENUE IS FAIR ENOUGH IN CONTENDING THAT THIS LATTER ISSUE REQUIRES A DETAILED EXAMINATION OF ASSESSEES BANK STATEMENTS COMPRISING OF BOTH CREDIT AS WELL AS DEBIT SIDE. WE THEREFORE DEEM IT PROPER IN LARGER INTEREST OF JUSTICE THAT THE ASSESSING OFFICER NEEDS TO REDO THE ENTIRE EXERCISE OF ARRIVING AT THE PEAK FIGURE ALONG WITH THE CREDIT SIDE OF CLOSING AS WELL AS OPENING BALANCE IN THE TWO ASSESSMENT YEARS. WE THEREFORE REMIT THIS COMPUTATION ISSUE BACK TO THE ASSESSING OFFICER TO BE DECIDED IN VIEW OF THE ASSESSEES CORRESPONDING BANK STATEMENTS AS PER LAW. ORDERED ACCORDINGLY. 16 ITA NO. 1400/KOL/2017 ASSESSMENT YEAR: 2010-11 & ITA NO. 138/KOL/2016 ASSESSMENT YEAR: 2011-12 BINITA BUBNA 8. THESE TWO ASSESSEES APPEAL ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES IN ABOVE TERMS. KOLKATA, THE 16 TH DAY OF APRIL, 2019. SD/- SD/- [A.L. SAINI] [S.S. GODARA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 16.04.2019 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. BINITA BUBNA 125, N.S. ROAD 3 RD FLOOR KOLKATA 700 001 2. INCOME TAX OFFICER, WARD-34(1), KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES