I. T. O, Ward - 27(4), Kolkata V. Sri Subhranil Bhattacharjee, Kolkata

ITA 1417/KOL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99863 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 04-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PINAKI MUKHERJEE
• Keywords: Unexplained cash credit; Salary income; Additional evidence
• Section: 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI N.V.VASUDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 1417 / KOL / 2012 ASSESSMENT YEAR :2005-06 ITO WARD-27(4), BAMBOOVILLA, KOLKATA-700 014 V/S . SRI SUBHRANIL BHATTACHARJEE, DE-423, SECTOR-I, SALT LAKE, KOLKATA 700 064 [ PAN NO.AGZPB 0669 D ] /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI PINAKI MUKHERJEE, JCIT, SR- DR /BY RESPONDENT SHRI RIP DAS, AR /DATE OF HEARING 09-09-2015 /DATE OF PRONOUNCEMENT 0710-2015 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE REVENUE IS ARISING OUT OF ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-XIV, KOLKATA IN APPEAL NO.528/ CIT(A)-XIV/KOL/07-08 DATED 20.07.2012. ASSESSMENT WAS FRAMED BY ITO WARD -27(4), KOLKATA U/S 144 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERR ED TO AS THE ACT) VIDE HIS ORDER DATED 31.12.2007 FOR ASSESSMENT YEAR 2005-06. 2. THE FIRST ISSUE RAISED BY REVENUE IN THIS APPEAL IS THAT THE CIT(A) HAS DELETED THE ADDITION MADE BY THE AO ON ACCOUNT OF C ASH DEPOSIT IN THE BANK AND TREATING THE SAME AS UNEXPLAINED CASH CREDIT UN DER SECTION 68 OF THE ACT. ITA NO.1417/KOL/2012 A.Y. 2005-06 ITO WD-27(4) KOL V. SRI SUBHRANILBHATTACHARJEE PAGE 2 3. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND HAS EARNED INCOME FROM SALARY AND OTHER SOURCES. DURING THE YEAR THE ASSESSEE HAS MADE AN INVESTMENT IN THE SHARES FOR A VALUE OF RS. 3,71,700/-. THE AO CALLS UPON THE ASSESSEE TO EXPLAIN THE SOURCE OF FU ND UTILIZED FOR THE INVESTMENT. THE ASSESSEE EXPLAINED THAT A SUM OF RS . 2,20,500/- WAS BORROWED AS PERSONAL LOAN FROM THE STATE BANK OF IN DIA AND RS. 152000/- WAS LAKHS WAS RECEIVED FROM SMT. SRIPARNA PAL. HOWEVER THE ASSESSEE FAILED TO PRODUCE THE NECESSARY EVIDENTIARY DOCUMENTS THAT TH E SUM OF RS. 152000/- LAKH WAS RECEIVED FROM MRS. SRIPARNA PAL. HENCE THE AO HAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. THE AO ALSO NOTICED T HAT THERE ARE VARIOUS INCOMING ENTRIES IN THE BANK WHICH ARE IN THE FORM OF CASH AND OTHER BANK RECEIPTS. CASH RECEIPT ENTRIES REFLECTING IN THE BA NK STATEMENT ARE OF RS. 3,21,699/- AND BANK ENTRIES REFLECTING IN BANK STAT EMENT ARE OF RS. 6.57,729/- ON QUESTION BY THE AO TO THE ASSESSEE ABOUT THE SUP PORTING EVIDENCE OF THE MONEY DEPOSITED IN THE BANK, THE ASSESSEE DID NOT A TTEND THE HEARING AT ALL. HENCE, THERE WAS NO ALTERNATE AVAILABLE TO THE AO B UT TO PASS THE ORDER TO THE BEST OF HIS JUDGMENT. HENCE THE AO ADDED A SUM OF R S.9,79,428/- (152000+321699+657729) TO THE TOTAL INCOME OF THE A SSESSEE AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) WHO HAS DELETED ADDITIONS MADE BY THE AO BY OBSERVING THE FOLLOWING : THE ASSESSEE IS AN EMPLOYEE OF IBM COMPANY AND KEE PS TRAVELLING TO THE COUNTRIES OUT OF INDIA VERY FREQUENTLY. THE ASS ESSEE COULD NOT ATTEND THE HEARING DURING THE ASSESSMENT STAGE AS H E WAS IN USA. HOWEVER, AS REGARDS LOAN FROM SMT. SRIPARNA PAL, TH E AR HAS DEMONSTRATED BEFORE THE CIT(A) THAT THE TRANSACTION WAS ONLY THROUGH THE BANKING CHANNEL ONLY AND ALSO FURNISHED THE NEC ESSARY SUPPORTING DOCUMENTS FOR THE CONFIRMATIONS. THEREFORE THE CIT( A) HAS DELETED THE ADDITION MADE BY THE AO. AS REGARDS THE DEPOSIT OF CASH AND OTHER BANK RECEI PTS IN THE SAVING BANK ACCOUNT, THE LD. AR HAS SUBMITTED THAT THE DEP OSIT IN THE BANK HAS BEEN MADE OUT OF SALARY RECEIVED FROM EMPLOYER M/S TATA CONSULTANCY SERVICES LIMITED, REIMBURSEMENT OF EXPENSES BY THE EMPLOYER, LOAN FROM STATE BANK OF INDIA, LOAN FROM SMT. SRIPARNA PAL, C ASH DEPOSIT INTO BANK OUT OF CASH IN HAND AND SALE PROCEEDS OF SHARES. TH E LD. AR HAS ALSO ITA NO.1417/KOL/2012 A.Y. 2005-06 ITO WD-27(4) KOL V. SRI SUBHRANILBHATTACHARJEE PAGE 3 SUBMITTED DAY TO DAY BANK SUMMERY FOR THE FINANCIAL YEAR 2004-05 AND CASH SUMMERY FOR THE FINANCIAL YEAR 2003-04 AND 200 4-05. A STATEMENT SHOWING DETAILS OF PURCHASE AND SALE OF SHARES MADE ONLINE THROUGH DEMAT ACCOUNT WITH ICICI BANK AND CONTRACT NOTES TH ERETO. THE LD. AR ALSO OFFERED SHORT TERM CAPITAL GAIN OF RS. 37744.7 6 AND INTEREST INCOME OF RS. 2,408/- . HENCE THE CIT(A) HAS DELETED ALL T HE ADDITION MADE BY THE AO EXCEPT THE CAPITAL GAIN INCOME AND INTEREST INCOME. AGGRIEVED REVENUE IS AN APPEAL BEFORE THE TRIBUNAL AND HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE LD. CIT(A) HAS ERRED IN ADMITTING ADDITIONAL EVIDENCE U/R 46A OF THE IT RULE. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE LD. CIT(A) HAS ERRED IN DELETING ADDITION OF RS.3,21,699/- BY CONS IDERING CASH FLOW STATEMENTS FOR FY 2003-04 AND 2004-05 WHEN THE SAID CASH FLOW STATEMENTS ARE INCORRECT AND THEREFORE, NOT RELIABL E. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE LD. CIT(A) HAS ERRED IN DELETING ADDITION OF RS.6,57,729/- BEING U NEXPLAINED DEPOSIT IN THE BANK ACCOUNT OTHER THAN CASH. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.1,52,000/- BEING UNEXPLAINED LOAN DEPOSIT IN THE BANK ACCOUNT. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE LD. CIT(A) HAS ERRED IN DIRECTING THE AO TO ADD RS.37,744/- AS CAPITAL GAIN BEING PROFIT FROM TRANSACTIONS OF SHARES WHEN ASSESSEE HE LD THE SHARES AS CLOSING STOCK AT THE END OF THE PREVIOUS YEAR AND T HUS, PROFIT IS ASSESSABLE U/S. 28. MR. RIP DAS, LD. AUTHORIZED REPRESENTATIVE APPEARIN G ON BEHALF OF ASSESSEE AND MR. PINAKI MUKHERJEE, LD. DEPARTMENTAL REPRESEN TATIVE ON BEHALF OF REVENUE. 4. AT THE TIME OF HEARING LD. DR HAS SUPPORTED THE ORDER OF THE AO WHEREAS LD. AR HAS SUPPORTED THE ORDER OF THE LD. C IT(A). 5. WE HAVE HEARD THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE HAS FILED A PAPER BOOK RUNNING FROM PAGE NO. 1 TO 49. ITA NO.1417/KOL/2012 A.Y. 2005-06 ITO WD-27(4) KOL V. SRI SUBHRANILBHATTACHARJEE PAGE 4 THE AO HAS PASSED THE ORDER U/S 144 OF THE ACT TO T HE BEST OF HIS JUDGMENT. AT THE TIME OF FRAMING THE ASSESSMENT, THE ASSESSEE CO ULD NOT ATTEND THE HEARING AS HE WAS OUTSIDE INDIA. THEREFORE HE COULD NOT DEF END HIS CASE AT THE TIME OF ASSESSMENT. THE AO ISSUED SEVERAL NOTICES TO THE AS SESSEE FOR THE WANT OF CERTAIN INFORMATION/CLARIFICATION FROM THE ASSESSEE REGARDING THE ASSESSMENT. BUT THE AO COULD NOT HAVE THE CLARIFICATION FROM TH E ASSESSEE. HENCE THERE WAS NO OPTION TO THE AO BUT TO PASS THE EX-PARTE OR DER UNDER SECTION 144 OF THE ACT. HOWEVER, DURING THE APPELLATE STAGE, THE A SSESSEE HAS SUBMITTED THE REQUISITE DETAILS JUSTIFY HIS ALL INCOMING ENTRIES IN THE BANK AND THE LOAN TAKEN FROM SMT. SRIPARNA PAL. THE ASSESSEE HAS ALSO OFFER ED THE TAX ON INCOME FROM SALE /PURCHASE OF SHARES UNDER THE HEAD CAPITA L GAIN AND INTEREST INCOME. THEREFORE WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A),HENCE, WE DISMISS THE APPEAL OF THE REVENUE. 6. IN THE RESULT, APPEAL FILED BY REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT 07/1 0/2015 SD/- SD/- (N.V.VASUDEVAN) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 07 /10/2015 / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT-ITO WARD-27(4), BAMBOOVILLA, KOLKATA-7 00 014 2. / RESPONDENT-SRI SUBHRANIL BHATTACHARJEE, DE-423, SECTOR-I, SALT LAKE, KOL-64 3. * +,- - . / CONCERNED CIT KOLKATA 4.- - .- / CIT (A) KOLKATA 5.01233+,,- +, , / DR, ITAT, KOLKATA 6.26789 / GUARD FILE. BY ORDER/ -, /TRUE COPY/ / - +, ,