Smt Sarmistha Dutta, Jalpaiguri V. ITO, wd-1(4), Jalpaiguri, Jalpaiguri

ITA 1505/KOL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91926 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 18-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit

Judgement Text

I.T.A. NO . 1 505 / KOL ./20 1 2 ASSESSMENT YEAR: 200 9 - 20 10 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA BEFORE SHRI P.K. BANSAL , ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH , JUDICIAL MEMBER I.T.A. NO. 1 505 / KOL / 20 1 2 ASSESSMENT YEAR : 200 9 - 20 10 SMT. SARMISTHA DUTTA,............ ............. .. .. ................ ....... ... .. .APP ELL ANT VIDYASAGAR PALLI, FALAKATA, JALPAIGURI - 735 211 [PAN : A CRPD 4819 M ] - VS. - INCOME TAX OFFICER,....................... . ... ....... ... . ............... RESPONDENT WARD - 1 ( 4 ), JALPAIGURI APPEARANCES BY: N O N E , FOR THE ASSESSEE SHRI P.B. PRAMANIK , J CIT, SR. D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : MAY 11 , 2 01 5 DATE OF PRONOUNCING THE ORDER : MAY 14 , 201 5 O R D E R PER P.K. BANSAL : THIS A PPEAL HA S BEEN FILED BY THE ASSESSE E AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) , JALPAIGURI D ATED 18 . 0 6 .20 1 2 FOR THE ASSESSMENT YEAR 200 9 - 10. 2. THIS APPEAL HAS BEEN FILED BELATEDLY BY 50 DAYS. THE CONDONATION APPLICATION HAS DULY BEEN FILED. AFTER LOOKING INTO THE CONDONATION APPLICATION AND HEARING THE LD. D.R., WE FIND THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE TO FILE THE APPEAL WITHIN THE PERMITTED TIME. WE, THEREFORE, CONDONE THE DELAY AND THE APPEAL IS ADMITTED. 3 . THE ONLY ISSUE INVOLVED IN THIS APPEAL RELATES TO THE ADDITION OF RS.9,47,000/ - ADDED ON ACCOUNT OF UNEXPLAINED CREDIT. I.T.A. NO . 1 505 / KOL ./20 1 2 ASSESSMENT YEAR: 200 9 - 20 10 PAGE 2 OF 4 4. NONE APPEARED ON BEHALF OF THE ASSESSEE. WE, THEREFORE, DECIDED TO DISPOSE OF THE APPEAL AFTER HEARING THE LD. D.R. AFTER HEARING THE LD. D.R. AND GOING THROUGH THE ORDER OF THE TAX AUTHORITIES BELOW, WE NOTED THAT THE ASSESSING OFFICER FOUND FROM THE BALANCE - SHEET OF THE ASSESSEE THAT THE ASSESSEE DURING THE YEAR HAS GOT UNSECURED LOAN OF RS.9,47,000/ - FROM ONE MR. LUCAS DHAKAR, RESIDENT OF MEGHALAYA. WHEN QUESTIONED, THE ASSESS EE EXPLAINED TO THE ASSESSING OFFICER THAT A SUM OF RS.1,47,000/ - WAS RECEIVED THROUGH ACCOUNT PAYEE DRAFT AND RS.8,00,000/ - WAS RECEIVED THROUGH CASH TRANSFER WHICH WAS DEPOSITED BY THE ASSESSEE ON 25.08.2008 IN CASH, WHILE RS.1,47,000/ - HAS BEEN CREDITED ON 30.08.2008 AS TRANSFER IN THE SAID BANK ACCOUNT. THE ASSESSEE WAS ASKED TO PROVE THE IDENTITY, CREDITWORTHINESS OF THE LENDER AS WELL AS THE SOURCE OF INVESTMENT OF RS.8,00,000/ - BY THE ASSESSEE IN M/S. SADHAN CHANDRA DUTTA TEA CO. PVT. LTD. SUBSEQUEN TLY THE ASSESSEE FILED A LETTER DATED 02.11.2011 FROM MR. LUCAS DHAKAR CONFIRMING THAT HE WANTED TO INVEST RS.8,00,000/ - IN M/S. SADHAN CHANDRA DUTTA TEA CO. PVT. LTD. AS SUGGESTED BY HER HUSBAND, BUT DUE TO THE SHORTAGE OF TIME HE DEPOSITED THE MONEY IN T HE ACCOUNT OF ASSESSEE, AND COPY OF THE MEMORANDUM OF ASSOCIATION OF M/S. SADHAN CHANDRA DUTTA TEA CO. PVT. LTD. ALONG WITH THE UNAUDITED FINAL ACCOUNTS WERE ALSO FILED. THE ASSESSING OFFICER NOTED THAT THE COMPANY HAVING ITS REGISTERED OFFICE AT SUBHASPA LLI, FALAKATA, JALPAIGURI WAS FORMED WITH AN INITIAL CAPITAL OF 500 SHARES EACH BEING HELD BY ASSESSEE AS WELL AS HER HUSBAND. THE COMPANY WAS HAVING AN AUTHORIZED SHARE CAPITAL OF RS.10,00,000/ - OUT OF WHICH SHARES OF RS.5,00,000/ - WAS ISSUED AND PAID UP BY SHRI SADHAN CHANDRA DUTTA. THUS IT WAS EXPLAINED THAT THERE WAS NO SHARE ALLOTMENT IN THE NAME OF THE ASSESSEE NOR THE ASSESSEE HAS MADE ANY INVESTMENT IN M/S. SADHAN CHANDRA DUTTA TEA CO. PVT. LTD. THE ASSESSING OFFICER ASKED THE ASSESSEE TO PRODUCE SH RI LUCAS DHAKAR FROM WHOM THE ASSESSEE HAS TAKEN RS.9,47,000/ - BUT THE ASSESSEE HAS EXPRESSED HER INABILITY TO PRODUCE HIM. THE ASSESSEE ALSO COULD NOT EXPLAIN THE INVESTMENT MADE BY HER IN M/S. SADHAN CHANDRA DUTTA TEA CO. I.T.A. NO . 1 505 / KOL ./20 1 2 ASSESSMENT YEAR: 200 9 - 20 10 PAGE 3 OF 4 PVT. LTD. WHICH WAS NOT FIGURING IN THE BALANCE - SHEET OF THE COMPANY. SINCE THE ASSESSEE COULD NOT PRODUCE SHRI LUCAS DHAKAR EVEN THOUGH THE ASSESSEE PRODUCED ONLY A LETTER DATED 02.11.2011 . T HE ASSESSING OFFICER MADE THE ADDITION OF RS.9,47,000/ - AS UNEXPLAINED CASH CREDIT. WE NOTED THA T IN THIS CASE, THE ASSESSEE PRODUCED THE LETTER DATED 02.11.2011 ON 09.12.2011, EVEN THOUGH THE ASSESSEE HAS APPEARED BUT STATED BEFORE THE ASSESSING OFFICER THAT HE IS NOT ABLE TO CONTACT SHRI LUCAS DHAKAR. THE ASSESSING OFFICER WITHOUT GIVING ANY FURTHE R TIME JUST COMPLETED THE ASSESSMENT AFTER HEARING ON 09.12.2011 AND PASSED THE ORDER ON 23.12.2011 . M ERELY THE ASSESSEE COULD NOT PRODUCE SHRI LUCAS DHAKAR DOES NOT ITSELF PROVE THAT SHRI LUCAS DHAKAR IS NOT INEXISTENCE. IN OUR OPINION, PROPER OPPORTUNITY HAS NOT BEEN GIVEN TO THE ASSESSEE. 5. WE, THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY TO BOTH THE PARTIES SET ASIDE THE ASSESSMENT ORDER AND RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION THAT THE ASSESSING OFFICER SH ALL RE - EXAMINE THIS ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE AND EVEN ISSUING THE SUMMONS TO SHRI LUCAS DHAKAR SO THAT IT CAN BE PROVED WHETHER AT THE GIVEN ADDRESS THE SAID PERSON IS INEXISTENCE OR NOT BEFORE CONCLUDING THAT THE LOAN OF RS.9,47,000/ - GIVEN BY SHRI LUCAS DHAKAR IS UNPROVED CASH CREDIT IN ACCORDANCE WITH LAW. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT O N 14 TH MAY , 201 5 . SD/ - SD/ - MAHAVIR SINGH P.K. BANSAL ( JUDICIAL MEMBER) ( ACCOUNTANT MEMBER) KOLKATA, THE 14 TH D AY OF MAY , 201 5 COPIES TO : (1) SMT. SARMISTHA DUTTA, I.T.A. NO . 1 505 / KOL ./20 1 2 ASSESSMENT YEAR: 200 9 - 20 10 PAGE 4 OF 4 VIDYASAGAR PALLI, FALAKATA, JALPAIGURI - 73 5 211 (2) INCOME TAX OFFICER, WARD - 1(4), JALPAIGURI (3) COMMISSIONER OF INCOME - TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA B ENCHES, KOLKATA LAHA/SR. P.S .