Mr Ashoke Kumar Singhania, Hooghly V. CIT, -XX, KOLKATA, Kolkata

ITA 1407/KOL/2014

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6138 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 20-06-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MD USMAN
• Assessee Lawyers: SURAJIT SAMANTA
• Section: 263

Judgement Text

1 ITA NO.1407/KOL/2014 ASHOKE KUMAR SINGHANIA, AY: 2009-10 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA ( ) BEFORE . . , /AND , ) [BEFORE SHRI A. T. VARKEY, JM & SHRI WASEEM AHMED, AM] I.T.A. NO. 1407/KOL/2014 ASSESSMENT YEAR: 2009-10 ASHOKE KUMAR SINGHANIA (PAN: ALUPS9226P) VS. COMMISSIONER OF INCOME-TAX-XX, KOLKATA. APPELLANT RESPONDENT DATE OF HEARING 23.04.2018 DATE OF PRONOUNCEMENT 18.07.2018 FOR THE APPELLANT S/SHRI SURAJIT SAMANTA & TARAKNAT H JAISWAL, ADVOCATES FOR THE RESPONDENT MD. USMAN, CIT, DR ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE RE VISION ORDER OF LD. CIT-XX, KOLKATA DATED 25.03.2014 FOR AY 2009-10 PASSED U/S. 263 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT), WHICH WAS D ISMISSED BY THE TRIBUNAL VIDE ITS ORDER DATED 08.07.2016. 2. AGAINST THE ORDER OF THE TRIBUNAL DATED 08.07.20 16, THE ASSESSEE PREFERRED AN MA NO. 19/KOL/2017 WHICH WAS DECIDED BY THE TRIBUNAL V IDE ORDER DATED 22.11.2017 AS UNDER: 7. THE SECOND POINT WHICH WAS URGED BEFORE US THA T THE TRIBUNAL SUSTAINED THE ADDITION OF RS.14,11,763/- WHICH WAS THE UNEXPLAINED PORTION OF SUMS DEPOSITED IN TWO BANK ACCOUNTS OF THE ASSESSE. IN THE PROCEEDINGS BEFORE THE TRIBUNAL AT THE TIME OF HEARING OF THE APPEAL THE LD. COUNSEL FOR THE ASSESSE HAD FILED WRITTEN SUBMISSIO N AND IN THE SAID SUBMISSION IT WAS URGED THAT CASH DEPOSITS TO THE EXTENT OF RS.9,77,275/- W OULD BE EXPLAINED BY THE ADDITIONAL CAPITAL ACCOUNT OF THE ASSESSE IN THE BALANCE SHEET AND THE REMAINING SUM WOULD BE EXPLAINED BY THE WITHDRAWALS AND DEPOSITS IN THE BANK ACCOUNTS. IN T HE MISCELLANEOUS APPLICATION IT HAS BEEN SUBMITTED THAT THOUGH THIS PLEA WAS REFERRED TO IN THE ORDER OF THE TRIBUNAL IN PARAGRAPH-14 OF THE ORDER OF THE TRIBUNAL THE SAME WAS NOT DEALT WI TH ON MERITS. 8. ON THIS CONTENTION, WE FIND THAT THE ASSESSEES PLEA IN THIS REGARD IS SET OUT IN PARAGRAPH-14 OF THE ORDER OF THE TRIBUNAL. IT IS ALSO NOTICED TH AT IN THE PROCEEDINGS U/S 263 OF THE ACT SUCH A PLEA WAS NOT PUT FORTH BY THE ASSESSEE AND THEREFOR E THERE WAS NO OCCASION FOR THE CIT TO 2 ITA NO.1407/KOL/2014 ASHOKE KUMAR SINGHANIA, AY: 2009-10 EXAMINE THIS PLEA OF THE ASSESSEE. IN THESE CIRCUMS TANCES WE ARE OF THE VIEW THAT THE PLEA OF THE ASSESSEE EVEN THOUGH SUCH A PLEA WAS NOT TAKEN BEFORE THE CIT OUGHT TO HAVE BEEN EXAMINED BY THE TRIBUNAL AND FAILURE TO DO SO HAS R ESULTED IN AN ERROR APPARENT ON THE FACE OF THE RECORD. INTEREST OF JUSTICE WOULD BE SERVED BY RECALLING THE ORDER OF THE TRIBUNAL DATED 08.07.2016 TO THE LIMITED PURPOSE OF EXAMINATION OF THE AFORESAID CLAIM OF THE ASSESSEE. THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARING FOR THE LIMITED PURPOSE OF ADJUDICATION OF THE PLEA OF THE ASSESSEE AS SET OUT IN PARAGRAPH-14 OF THE ORDER OF THE TRIBUNAL IN USUAL COURSE AFTER NOTICE TO THE PARTIES. 3. SO THE ORDER OF THE TRIBUNAL IS RECALLED FOR ADJ UDICATING THE LIMITED PLEA OF THE ASSESSEE AS AFORESAID. 4. ON MERITS THE LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE LD. CIT HAS TREATED THE DIFFERENCE BETWEEN DEPOSIT IN THE BANK AND SALE AS INCOME OF THE ASSESSEE; ACCORDING TO LD. AR, THE LD. CIT ERRED IN IGNORING THE FACT THAT BO TH THE BANK ACCOUNTS WERE DULY CONSIDERED BY THE AUDITOR WHILE COMPUTING AUDIT U/S 44AB AND T HE BALANCE SHEET OF SAID AUDIT REPORT ALSO DULY REFLECTED THE CAPITAL INFUSED IN THE CAP ITAL ACCOUNT TO THE TUNE OF RS 9,77,275.25. ACCORDING TO LD. AR, THE LD. CIT ALSO ERRED IN OVER LOOKING THE FACT THAT THERE ARE CASH DEPOSIT AND CASH WITHDRAWAL FROM THESE TWO BANK ACC OUNTS WHICH DO NOT AFFECT THE SALES, PURCHASES AND PROFITABILITY STATEMENT OF THE ASSESS EE. IT WAS THEREFORE SUBMITTED THAT OUT OF RS 14, 11,763/- I.E. DIFFERENCE NOTICED BY THE LD. CIT OF RS 9,77,275.25 RELATES TO ADDITION IN CAPITAL AND REST ARE CASH DEPOSIT AND CASH WITHD RAWAL WHICH HAS ZERO AFFECT ON SALE OR PURCHASE OF THE ASSESSEE AND DREW OUR ATTENTION TO 2ND PARA OF THE ASSESSMENT ORDER WHICH READS AS UNDER. 'THE ASSESSEE DERIVED INCOME FROM BUSINESS, REMUNER ATION, COMMISSION OF LIC AND INCOME FROM OTHER SOURCES. THE ASSESSEE MAINTAINED BANK ACCOUNT WITH AXIS BANK, CHINSURAH BRANCH AND SBL MOGRA, HOOGHLY. BOOKS OF A CCOUNTS PRODUCED AND EXAMINED WITH REFERENCE TO THE DETAILS FILED. ' 5. FOR BUTTRESSING HIS CONTENTION, THE LD. AR DREW OUR ATTENTION TO PAGE 8 OF PAPER BOOK WHEREIN THE BALANCE SHEET OF ASSESSEE ENDING 31.03. 2009 IS PLACED. ON PERUSAL OF THE SAME, WE NOTE THAT IN THE CAPITAL ACCOUNT A SUM OF RS.9,7 7,275.25 AS FATHERS CONTRIBUTION IS REFLECTED. SO, ACCORDING TO ASSESSEE, THIS AMOUNT OF CAPITAL WAS INFUSED BY THE ASSESSEE FOR BUSINESS AND OUT OF RS.14.,11,763/- THIS SUM HAS TO BE REDUCED AND THE REST OF THE AMOUNT ARE ONLY CASH DEPOSIT AND WITHDRAWAL AND THE ASSESS EE GIVEN A CHANCE BEFORE AO WILL BE ABLE TO EXPLAIN. WE NOTE THAT THIS PLEA OF THE ASS ESSEE WAS NOT PUT FORTH BEFORE THE LD. CIT 3 ITA NO.1407/KOL/2014 ASHOKE KUMAR SINGHANIA, AY: 2009-10 SO HE ALSO DID NOT HAD AN OCCASION TO LOOK INTO THE MERITS OF THE CONTENTION. THOUGH ON PRINCIPLE WE UPHOLD THE ORDER OF LD. CIT, WE NOTE T HAT THE AO HAS GIVEN EFFECT TO THE ORDER OF LD. CIT. THEREFORE, SENDING THIS ISSUE BACK TO LD. CIT IS ALSO NOT PRACTICAL. SO FOR THE INTEREST OF JUSTICE AND FAIR PLAY, WE ARE INCLINED TO REMAND THIS ISSUE BACK TO AO FOR LIMITED PURPOSE AS SET OUT IN PARA 2 (SUPRA) FOR THE DE NOV O CONSIDERATION OF THE AO. THE AO IS DIRECTED TO ADJUDICATE THE PLEA OF THE ASSESSEE IN RESPECT OF RS.14,11,764/- WHICH THE LD. CIT CONCLUDED THAT THERE WAS UNDERSTATEMENT OF SALE S AND DIRECTED ADDITION AND THE CLAIM OF ASSESSEE ABOUT THE CAPITAL INFUSION OF RS.9,77 ,275 .25 AND IN RESPECT OF HIS CLAIM OF DEPOSIT AND WITHDRAW OF THE REST OF THE AMOUNT (RS.14,11,76 3-RS.9,77,275) IN RESPECT OF DIFFERENCE OF RS.14.11,763/- IN ACCORDANCE TO LAW AFTER GIVIN G OPPORTUNITY TO THE ASSESSEE SO, THIS GROUND OF ASSESSEES APPEAL IS ALLOWED FOR STATISTI CAL PURPOSES. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 18.07.20 18 SD/- SD/- (WASEEM AHMED) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : `18TH JULY, 2018 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SHRI ASHOKE KUMAR SINGHANIA, MOGRA, TRIBENI ROAD, P.O. MOGRA, DIST. HOOGHLY, PIN-712148. 2. 3. 4. RESPONDENT CIT-XX, KOLKATA. ITO, WARD-2(3), HOOGHLY. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, SR. PVT. SECRETARY