ITO, WD-24(4), KOLKATA, Hooghly V. Arambagh Foreign Liquor Off Shop, Hooghly

ITA 1388/KOL/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4518 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2016
• Appeal Filed By: Department
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 13-11-2015
• Court: TRIBUNAL
• Department Lawyers: AMITABH BHATTACHARYA
• Keywords: Tax effect
• Section: 40A(3); 133(6)

Judgement Text

I.T.A. NO. 1388/KOL./2015 ASSESSMENT YEAR: 2009-2010 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NO. 1388 /KOL/ 2015 ASSESSMENT YEAR: 2009-2010 INCOME TAX OFFICER,................................ ............................APPELLANT WARD-24(4), KOLKATA, OFFICE OF THE ITO, AAYAKAR BHAWAN, 3 RD FLOOR, KHADINAMORE, HOOGHLY-712 101 -VS.- ARAMBAGH FOREIGN LIQUOR OFF SHOP,.................. .............RESPONDENT NATUN BAZAR, ARAMBAGH, HOOGHLY-712 601 [PAN: AABAA 1579 J] APPEARANCES BY: SHRI AMITABH BHATTACHARYA, JCIT, D.R., FOR THE DEPARTMENT SHRI SOMNATH GHOSH, ADVOCATE, FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : JULY 27, 2016 DATE OF PRONOUNCING THE ORDER : JULY 27, 2016 O R D E R THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-6, KOLKATA DAT ED 15.09.2015 FOR THE ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUND S:- (1) WHETHER THE LD CIT( A) ERRED IN RELYING UPON TH E FRESH EVIDENCES PRODUCED BEFORE HIM BY THE ASSESSEE REGAR DING PAYMENT MADE BELOW RS.20,000/- IN ONE DAY EITHER TH ROUGH NON ACCOUNT PAYEE DRAFT OR BY CASH AGAINST PURCHASE INS PIRE OF THE ASSESSEE'S CATEGORICAL SUBMISSION AT THE TIME OF AS SESSMENT PROCEEDINGS THAT WE HAVE BEEN COMPELLED TO TAKE SU CH TYPE OF BANKING FACILITY OF PAYMENT IN SUM EXCEEDING RS.20, 000/- IN SUCH CIRCUMSTANCES AS WE DO NOT HAVE NO BANK ACCOUNT IN THE NAME OF OUR CONCERN IN THE RELEVANT TIME. THE PARTIES WOULD STOP BUSINESS TRANSACTION WITH US IF WE DID NOT MAKE PAY MENT TO THE PARTIES THROUGH DRAFT IN STATE OF PART PAYMENT EXCE EDING RS.20,000/- AT THAT TIME AND THEN OUR BUSINESS WOUL D HAVE BEEN STOPPED.' I.T.A. NO. 1388/KOL./2015 ASSESSMENT YEAR: 2009-2010 PAGE 2 OF 3 (2) WHETHER THE CLT(A) ERRED IN ACCEPTING THE FRESH EVIDENCES IN THE FORM OF ORIGINAL PURCHASE BILLS AND VOUCHERS FR OM THE ASSESSEE TRIED TO ESTABLISH PAYMENT MADE BELOW RS.2 0,000/- IN ONE DAY RESULTING NON-VIOLATION OF SEC.40A(3) OF TH E ACT. THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE CIT(A) PRODUCED NOTHING CONCLUSIVE AND THE AUTHENTI CITY OF WHOLE OF THE TRANSACTION IS UNCHECKED, UNTESTED, UN VERIFIED AND CONTEMPLATED U/S 40A(3) OF THE ACT STANDS FULLY SAT ISFIED IN ABSENCE OF GIVING ANY OPPORTUNITY TO AO FOR EXAMINI NG THE FRESH EVIDENCES THUS VIOLATING THE PROVISION OF RULE 46A OF INCOME TAX RULE 1962. (3) WHETHER THE CIT(A) ERRED IN ACCEPTING THE FRESH EVIDENCES IN THE FORM OF ORIGINAL PURCHASE BILLS AND VOUCHERS FR OM THE ASSESSEE ESTABLISHING PAYMENT MADE BELOW RS.20,000/ - IN ONE DAY THROUGH NON ACCOUNT PAYEE DRAFT OR BY CASH AGAI NST PURCHASE IN SPITE OF DOCUMENTARY EVIDENCES AND CONF IRMATION RECEIVED FROM THE TWO PURCHASERS U/S 133(6) REVEALS THAT PAYMENT MADE BY ASSESSEE EXCEEDING RS.20,000/- THRO UGH NON ACCOUNT PAYEE SIXTEEN DRAFTS OF EACH RS.49,000/- TO TALLING RS.7,84,000/- PURCHASED BY CASH FROM THE BANK AS TH E ASSESSEE HAD NO BANK ACCOUNT FOR THE PURPOSE OF ITS BUSINESS AND THE ASSESSEE HAD NO SATISFACTORY EXPLANATION TO OFFER W HEN CONFRONTED BY AO. (4) WHETHER THE CIT(A) ERRED IN ACCEPTING THE FRESH EVIDENCES IN THE FORM OF ORIGINAL PURCHASE BILLS AND VOUCHERS FR OM THE ASSESSEE ESTABLISHING PAYMENT MADE BELOW RS.20,000/ - BY CASH IN ONE DAY AGAINST PURCHASE, IN SPITE OF DOCUMENTAR Y EVIDENCES AND CONFIRMATION RECEIVED FROM THE TWO PURCHASERS U /S 133(6) REVEALS THAT PAYMENT MADE BY ASSESSEE EXCEEDING RS. 20,000/- BY CASH IN A DAY TOTALLING RS.10,56,000/- DURING THE R ELEVANT PERIOD AND THE ASSESSEE HAD NO SATISFACTORY EXPLANATION TO OFFER WHEN CONFRONTED BY AO. (5) WHETHER THE CIT(A) ERRED IN RESTRICTING, PROFIT @ OF 2.7 PERCENT OF THE NET PROFIT RATIO, ON UNDISCLOSED PUR CHASE FROM TWO PARTIES TOTALLING RS.2,47,207/- ON THE BASIS OF DOC UMENTARY EVIDENCES AND CONFIRMATION RECEIVED FROM THE TWO SE LLERS WITHOUT ANY FINDINGS THAT THE PURCHASE HAS MADE BY ASSESSEE OUT OF THE TOTAL INCOME CHARGEABLE TO TAX OR IT HAS BEE N MADE OUT OF ANY UNDISCLOSED INCOME AND WITHOUT APPRECIATING THE PROVISION OF SECTION 69/69C IN RESPECT OF UNDISCLOSED PURCHAS E. 2 AS POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSE E AT THE OUTSET, THE TAX EFFECT INVOLVED IN THIS APPEAL OF THE REVENUE I S LESS THAN THE REVISED MONETARY LIMIT RECENTLY FIXED BY THE CBDT VIDE CIRC ULAR NO. 21/2015 DATED 10 TH DECEMBER, 2015 AT RS.10,00,000/- FOR FILING THE AP PEAL BY THE I.T.A. NO. 1388/KOL./2015 ASSESSMENT YEAR: 2009-2010 PAGE 3 OF 3 REVENUE BEFORE THE TRIBUNAL AND THIS POSITION CLEAR LY EVIDENT FROM THE GROUNDS RAISED BY THE REVENUE IN THIS APPEAL IS NOT DISPUTED EVEN BY THE LD. D.R. IN CIRCULAR NO. 21/2015 (SUPRA) RECENTLY I SSUED BY THE CBDT, THE MONETARY LIMIT FOR FILING THE APPEAL BY THE REVENUE BEFORE THE TRIBUNAL HAS BEEN INCREASED TO RS.10,00,000/- AND AS CLARIFI ED IN THE SAID CIRCULAR, THE SAID MONETARY LIMIT IS APPLICABLE RETROSPECTIVE LY EVEN TO THE APPEALS PENDING BEFORE THE TRIBUNAL. THE CBDT HAS ALSO INST RUCTED THAT SUCH PENDING APPEALS BELOW THIS SPECIFIED TAX LIMIT OF R S.10,00,000/- MAY BE WITHDRAWN/ NOT PRESSED. KEEPING IN VIEW THE INSTRUC TION GIVEN BY THE CBDT VIDE CIRCULAR NO. 21/2015 DATED 10.12.2015, WH ICH IS SQUARELY APPLICABLE IN THE PRESENT CASE, THE APPEAL FILED BY THE REVENUE IN THIS CASE IS TREATED AS WITHDRAWN/NOT PRESSED AND DISMIS SED ACCORDINGLY. 3. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON JULY 27, 2016 . SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 27 TH DAY OF JULY, 2016 COPIES TO : (1) INCOME TAX OFFICER, WARD-24(4), KOLKATA, OFFICE OF THE ITO, AAYAKAR BHAWAN, 3 RD FLOOR, KHADINAMORE, HOOGHLY-712 101 (2) ARAMBAGH FOREIGN LIQUOR OFF SHOP, NATUN BAZAR, ARAMBAGH, HOOGHLY-712 601 (3) COMMISSIONER OF INCOME TAX (APPEALS)-6, KOLKA TA; (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.