Vivek Agarwal, Kolkata V. The ITO, Wd-51(4), Kolkata

ITA 1494/KOL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99998 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-11-2015
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 22-08-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 16-10-2012
• Court: TRIBUNAL
• Department Lawyers: ANIL KR
• Assessee Lawyers: VARSHA JALAN
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI WASEEM AHMED , AM] I.T.A NO.1493/KOL/2012 ASSESSMENT YEAR: 2008-09 RAMESH KUMAR AGARWAL (HUF) VS. INCOME-TAX OFFICER , WD-51(4), KOL (PAN: AAFHR8666G) ( APPELLANT ) ( RESPONDENT ) & I.T.A NO.1494/KOL/2012 ASSESSMENT YEAR: 2008-09 VIVEK AGARWAL VS. INCOME-TAX OFFICER, WD-51(4) , KOL. (PAN: ACUPA0245R) (APPELLANT) (RESPONDENT) DATE OF HEARING: 02.11.2015 DATE OF PRONOUNCEMENT: 05.11.2015 FOR THE APPELLANT: MISS VARSHA JALAN, ADVOCATE FOR THE RESPONDENT: SHRI ANIL KR. PANDE, JCIT, SR . DR ORDER PER SHRI MAHAVIR SINGH, JM: BOTH THESE APPEALS BY ASSESSEE ARE ARISING OUT OF S EPARATE ORDERS OF CIT(A)- XXXII, KOLKATA IN APPEAL NOS.70 & 69/XXXII/10-11/51 (4)/KOL DATED 12.07.2012 RESPECTIVELY. ASSESSMENTS WERE FRAMED BY ITO, WARD -51(4), KOLKATA U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT) FOR ASSESSMENT YEAR 2008-09 VIDE HIS SEPARATE ORDERS, BUT BOTH DATED 19.11.2010 . 2. THE ONLY ISSUE IN THESE TWO APPEALS OF ASSESSEE IS AGAINST THE ORDER OF CIT(A) CONFIRMING THE ACTION OF AO IN MAKING THE ADDITION OF CASH DEPOSIT IN BANK ACCOUNT AMOUNTING TO RS.12,03,000/- IN THE CASE OF SHRI RAM ESH KR. AGARWAL (HUF) IN ITA NO. 1493/KOL/2012 AND RS.10,38,000/- IN THE CASE OF VIV EK AGARWAL IN ITA NO.1494/KOL/2012, BOTH FOR AY 2008-09. FOR THIS, A SSESSEE HAS RAISED IDENTICALLY WORDED GROUNDS IN BOTH THE APPEALS AND SINCE FACTS ARE EXACTLY IDENTICAL, WE WILL TAKE THE FACTS FROM ITA NO. 1493/KOL/2012 I.E. THE CASE OF R AMESH KUMAR AGARWAL(HUF) AND DECIDE THE ISSUE. 2 ITA NOS.1493 & 1494/K/2012 RAMESH KR. AGARWAL(HUF) & VIVEK AGARWAL AY 2008-09 3. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS EN GAGED IN SMALL BUSINESS OF TRADING OF POTATOES AND ALSO RENTAL INCOME FROM FLAT. BOTH TH E CASES OF THE ASSESSEE ARE SELECTED UNDER CASS FOR THE REASON THAT THERE IS A DEPOSIT I N THE BANK ACCOUNT. IN THIS CASE, THE ASSESSEE HAS MADE BANK DEPOSITS ON DIFFERENT DATES AMOUNTING TO RS.12.03 LACS. THE AO REQUIRED THE ASSESSEE TO EXPLAIN THE SOURCE OF THE CASH DEPOSIT. THE ASSESSEE STATED THAT HE HAS PURCHASED 4189 BAGS OF POTATOES VALUING AT R S.10,47,250/- WHICH WAS STORED IN A COLD STORAGE BY THE NAME OF MAA BHAIRABI HIMGHAR PV T. LTD. IN THE ACCOUNTING YEAR 2006-07 RELEVANT TO AY 2007-08 AND THIS WAS DISCLOS ED IN THE BALANCE SHEET FOR THE YEAR ENDED 31.03.2007 IN THE CURRENT ASSET AS ADVANCE FO R POTATOES. THESE POTATOES WERE SOLD IN THE ACCOUNTING YEAR 2007-08 RELEVANT TO THIS AY 2008-09 TO DIFFERENT PARTIES FROM WHOM THE AMOUNTS WERE RECEIVED IN CASH AND DEPOSITE D IN ORIENTAL BANK OF COMMERCE AMOUNTING TO RS.12,03,000/-. BUT THE AO HAS NOT BE LIEVED HIS EXPLANATION AND HE ADDED THE CASH DEPOSIT OF RS.12.03 LACS IN THE ORIENTAL B ANK OF COMMERCE AS UNEXPLAINED MONEY. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A), WHO ALSO CONFIRMED THE ACTION OF AO EXACTLY ON IDENTICAL FACTS. AGGRIEVED , ASSESSEE IS IN SECOND APPEAL BEFORE TRIBUNAL. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. BEFORE US, LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO PAGE 1 OF ASSESSEES PAPER BOOK WHEREIN COPY OF P&L ACCOUNT FOR THE YEAR ENDED 31.03.2007 IS ENCLOSED WHEREIN PROFIT RECEIVED FROM POTATO ACCOUNT IS DISC LOSED AT RS.2,37,400/- AND ON THE VERY SAME PAGE OF BALANCE SHEET AS ON 31.03.2007 IS ENCL OSED WHEREBY ADVANCE UNDER THE HEAD POTATOES FOR 4189 BAGS IS DISCLOSED AT RS.10,4 7,250/-, WHICH WAS SOLD IN THE NEXT YEAR AND BOOK PROFIT FROM SALE OF POTATOES IN THE P &L ACCOUNT FOR THE YEAR ENDED 31.03.2008 I.E. RELEVANT TO AY 2008-09. THE ASSESS EE HAS FILED COMPLETE TRADING ACCOUNT OF POTATO SALE AND DISCLOSED THE SALE PROCEEDS ON V ARIOUS DATES I.E. ON 03.04.2007 AT RS.1000/-, ON 09.07.2007 AT RS.1.50 LACS, ON 04.07. 2007 AT RS.3.50 LACS, ON 20.07.2007 AT RS.2.50 LACS, ON 26.07.2007 AT RS.1.50 LACS AND ON 31.07.2007 AT RS.3.03 LACS THEREBY TO TOTAL AGGREGATE FOR THIS IS RS.12.04 LACS. THE S ALE WAS DISCLOSED BEFORE THE AO AND BEFORE CIT(A) ALSO. ACCORDING TO LD. COUNSEL, THIS SALE PROCEED IS ONLY DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE AND WHICH IS CO-RELATE D FROM THE BANK ACCOUNT AS IS CLEARLY EVIDENT FROM THE ENTRIES. WE HAVE SEEN THE COPY OF BANK PASS BOOK OF ORIENTAL BANK OF 3 ITA NOS.1493 & 1494/K/2012 RAMESH KR. AGARWAL(HUF) & VIVEK AGARWAL AY 2008-09 COMMERCE AND NOTICED FROM THE PASS BOOK THAT THE CA SH DEPOSITS ARE EXACTLY MATCHING WITH THE DATES OF SALE OF POTATOES AND ACCORDINGLY, THERE IS NO DOUBT IN THE SAME. WE FIND THAT THE ASSESSEE IS ABLE TO EXPLAIN THE CASH DEPOSIT WHICH IS THE BASIS OF ADDITION. IN VIEW OF THE ABOVE EXPLANATION AND FACTS NARRATED BY LD. COUNSEL, WE ARE OF THE VIEW THAT THE CIT(A) AND AO BOTH HAVE WRONGLY MADE THE ADDITI ON AND WE DELETE THE SAME. THIS APPEAL OF ASSESSEE IS ALLOWED. 5. SIMILAR ARE THE FACTS IN THE CASE OF VIVEK AGARW AL IN ITA NO. 1494/KOL/2012 WHERE THE SALE PROCEEDS OF POTATOES AND DEPOSIT IN THE BANK ACCOUNT IS AMOUNTING TO RS.10,38,000/-. AS THE FACTS ARE EXACTLY IDENTICAL , WE, FOLLOWING THE ABOVE DECISION ALLOW THIS APPEAL OF ASSESSEE ALSO. 6. IN THE RESULT, THE BOTH THE APPEALS OF ASSESSEE ARE ALLOWED. 7. ORDER IS PRONOUNCED IN THE OPEN COURT ON 05.11.2 015 SD/- SD/- (WASEEM AHMED) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 5 TH NOVEMBER, 2015 JD. SR. P.S COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT RAMESH KUMAR AGARWAL (HUF) & SHRI VIVEK AGARWAL, CJ-199, SALT LAKE CITY, SECTOR-II, KOLKATA-700091. 2 RESPONDENT ITO, WD-51(4), KOLKATA. 3 . THE CIT(A), KOLKATA 4. 5. CIT KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .