Sanjeev Kumar Khemka, Kolkata V. ACIT, Circle - 43, Kolkata , Kolkata

ITA 1423/KOL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4197 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 02-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PINAKI MUKHERJEE CIT D R RESP
• Assessee Lawyers: P K HIMMATSINGHKA

Judgement Text

I.T.A. NO 1423/KOL/2018 ASSESS MENT YEAR:2011-2012 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) I.T.A. NO. 1423/KOL/2018 ASSESSMENT YEAR: 2011-2012 SANJEEV KUMAR KHEMKA,.............................. .........................APPELLANT C/O. P.K. HIMMATSINGHKA, AA-4, SALT LAKE, KOLKATA-700 064 [PAN: AEZPK 6219 C] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,............ ..........RESPONDENT CIRCLE-43, KOLKATA, 3, GOVT. PLACE (WEST), KOLKATA-700 001 APPEARANCES BY: SHRI P.K. HIMMATSINGHKA, ADVOCATE, FOR THE APPELLAN T SHRI PINAKI MUKHERJEE, ADDL. CIT, D.R. , FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : OCTOBER 15, 2018 DATE OF PRONOUNCING THE ORDER : OCTOBER 31, 2018 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-17, KOLKATA DA TED 29.05.2018. 2. THE ISSUE INVOLVED IN GROUNDS NO. 1 & 2 RELATES TO THE ADDITION OF RS.4,00,000/- MADE BY THE ASSESSING OFFICER AND CON FIRMED BY THE LD. CIT(APPEALS) ON ACCOUNT OF CASH DEPOSITS FOUND TO B E MADE IN THE BANK ACCOUNT OF THE ASSESSEE WITH HDFC BANK BY TREATING THE SAME AS UNEXPLAINED. 3. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O N 31.03.2012 DECLARING TOTAL INCOME OF RS.13,14,962/-. DURING TH E COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS CALLED UPON BY THE AS SESSING OFFICER TO I.T.A. NO 1423/KOL/2018 ASSESS MENT YEAR:2011-2012 PAGE 2 OF 4 EXPLAIN THE CASH DEPOSITS OF RS.4,00,000/- FOUND TO BE MADE IN HIS BANK ACCOUNT WITH HDFC BANK, GOA. AS THE ASSESSEE FAILED TO OFFER ANY SATISFACTORY EXPLANATION IN THIS REGARD, THE ASSESS ING OFFICER TREATED THE CASH DEPOSITS FOUND TO BE MADE IN THE BANK ACCOUNT OF THE ASSESSEE IN THE HDFC BANK, GOA AS UNEXPLAINED AND MADE ADDITION TO THE TOTAL INCOME OF THE ASSESSEE. ON APPEAL, THE LD. CIT(APPEALS) CONFI RMED THE SAID ADDITION. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES ON THIS ISSUE AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, A CASH FLOW STATEMENT WAS PREPARED AND FURNISHED BY THE ASSESSEE BEFORE THE ASSESSING OFFI CER TO EXPLAIN THE SOURCE OF CASH DEPOSITS FOUND TO BE MADE IN HIS BAN K ACCOUNT WITH HDFC, GOA, BUT THE SAME WAS NOT CONSIDERED BY THE ASSESSI NG OFFICER. HE HAS CONTENDED THAT THIS ASPECT SPECIFICALLY BROUGHT TO THE NOTICE OF THE LD. CIT(APPEALS) WAS NOT APPRECIATED AND CONSIDERED BY THE LD. CIT(APPEALS). HE HAS URGED THAT THIS MATTER MAY, THEREFORE, BE SE NT BACK TO THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH AFTE R VERIFYING THE CASH FLOW STATEMENT OF THE ASSESSEE. SINCE THE LD. D.R. HAS NOT RAISED ANY OBJECTION IN THIS REGARD, I SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) ON THIS ISSUE AND RESTORE THE MATTER T O THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH AFTE R VERIFYING THE CASH FLOW STATEMENT STATED TO BE FURNISHED BY THE ASSESS EE. GROUNDS NO. 1 & 2 OF THE ASSESSEES APPEAL ARE ACCORDINGLY TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 5. THE ISSUE INVOLVED IN GROUND NO. 3 RELATES TO TH E ADDITION OF RS.2,98,225/- MADE BY THE ASSESSING OFFICER AND CON FIRMED BY THE LD. CIT(APPEALS) ON ACCOUNT OF CREDIT CARD EXPENSES INC URRED BY THE ASSESSEE BY TREATING THE SAME AS UNEXPLAINED. 6. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES ON THIS ISSUE AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, THE ADDITION OF RS.2.36 L AKHS WAS MADE BY THE I.T.A. NO 1423/KOL/2018 ASSESS MENT YEAR:2011-2012 PAGE 3 OF 4 ASSESSING OFFICER TO THE TOTAL INCOME OF THE ASSESS EE FOR A.Y. 2010-11 ON ACCOUNT OF PROFIT ESTIMATED AT 8% ON THE UNACCOUNTE D SALES OF THE ASSESSEE. HE HAS SUBMITTED THAT A SIMILAR ADDITION TO THE EXTENT OF RS.1.54 LAKHS HAS BEEN FINALLY MADE TO THE TOTAL INCOME OF THE ASSESSEE EVEN FOR THE YEAR UNDER CONSIDERATION. AS THIS ADDITION MADE TO THE TOTAL INCOME OF THE ASSESSEE HAS RESULTED IN CASH ACCRUAL TO THE AS SESSEE, THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT THE SAME MAY BE TREATED AS AVAILABLE WITH THE ASSESSEE FOR EXPLAINING THE CREDIT CARD EX PENSES IN QUESTION AND THE IMPUGNED ADDITION IS LIABLE TO BE DELETED BY GI VING THE BENEFIT OF TELESCOPING. SINCE THIS CONTENTION OF THE LD. COUNS EL FOR THE ASSESSEE IS DULY SUPPORTED BY THE DECISION OF THE HONBLE CALCU TTA HIGH COURT IN THE CASE OF BALARAM SAHA VS.- CIT (I.T.A. NO. 319 OF 2 003-ORDER DATED APRIL 19, 2011), I DELETE THE ADDITION MADE BY THE ASSESS ING OFFICER AND CONFIRMED BY THE LD. CIT(APPEALS) ON ACCOUNT OF UNE XPLAINED CREDIT CARD EXPENSES KEEPING IN VIEW THE INTANGIBLE ADDITION MA DE ON ACCOUNT OF ESTIMATED PROFIT FROM THE UNACCOUNTED SALES, WHICH RESULTED IN ACCRUAL OF CASH TO THAT EXTENT THEREBY GIVING THE BENEFIT OF T ELESCOPING, ESPECIALLY WHEN THERE IS NOTHING ON RECORD TO SHOW THAT THE AC CRUAL OF SUCH CASH WAS UTILIZED BY THE ASSESSEE SOMEWHERE ELSE. GROUND NO. 3 IS ACCORDINGLY ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON OCTOBER 31, 2 018. SD/- (P.M. JAGTAP) VICE-PRESIDENT (KZ) KOLKATA, THE 31 ST DAY OF OCTOBER, 2018 COPIES TO : (1) SHRI SANJEEV KUMAR KHEMKA, C/O. P.K. HIMMATSINGHKA, AA-4, SALT LAKE, KOLKATA-700 064 I.T.A. NO 1423/KOL/2018 ASSESS MENT YEAR:2011-2012 PAGE 4 OF 4 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-43, KOLKATA, 3, GOVT. PLACE (WEST), KOLKATA-700 001 (3) COMMISSIONER OF INCOME TAX (APPEALS)-17, KOLK ATA, (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.