Nirmal Gupta, Kolkata V. I.T.O Wd - 43(3),kolkata, Kolkata

ITA 1582/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4887 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 03-05-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 28-05-2013
• Court: TRIBUNAL
• Department Lawyers: RAJAT KUMAR KUREEL
• Assessee Lawyers: RAJEN DHAR
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI M. BALAGANES H, AM] I.T.A NO.1582/KOL/2013 ASSESSMENT YEAR: 2009-10 NIRMAL GUPTA VS. INCOME-TAX OFFICER, WD-43(3) , KOLKATA (PAN:AJEPG4486H) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 03.05.2016 DATE OF PRONOUNCEMENT: 04.05.2016 FOR THE APPELLANT: SHRI RAJEN DHAR, ADVOCATE FOR THE RESPONDENT: SHRI RAJAT KUMAR KUREEL, JCI T, SR. DR ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XXX, KOLKATA VIDE APPEAL NO. 246/CIT(A)-XXX/WD-43(3)/2011-12 DATED 08.03.2013. A SSESSMENT WAS FRAMED BY ITO, WARD- 43(3), KOLKATA U/S. 143(3) OF THE INCOME TAX ACT, 1 961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2009-10 VIDE HIS ORDER DATED 20.12. 2011. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AG AINST THE ORDER OF CIT(A) IN RESTRICTING THE ADDITION AT RS.17 LACS AS AGAINST THE ADDITION MADE BY AO AT RS.34.29 LACS BEING UNEXPLAINED CASH DEPOSITS IN SAVINGS BANK ACCOUNT MAINTAINED WI TH STANDARD CHARTERED BANK. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE BEFORE US STATED THAT THE CIT(A) HAS GIVEN A FINDING OF FACT WHILE RETAINING THIS ADDITION OF RS.17 LACS IN PARA 3 OF HIS ORDER AND THE RELEVANT PORTION READS AS UNDER: IT IS SEEN FROM THE PERUSAL OF THE ASSESSMENT REC ORDS THAT THE APPELLANT HAS ALSO SUBMITTED VIDE HIS LETTER DATED 16.11.2011 THE SOURCE OF CASH DEPO SITS TO THE EXTENT OF RS.14,72,241/-, RS.2,56,759/- AS OPENING BALANCE OF CASH AS ON 01.04.2008 AND THE REMAINING AMOUNT OF RS.17,00,000/- AS OUT OF CASH WITHDRAWN FROM BANK. IT IS THEREFORE SEEN THA T SINCE THE RELEVANT TRANSACTIONS HAD INDEPENDENTLY BEEN CONFIRMED BY M/S. VACHI COMMODI TIES AND DERIVATIVES PVT. LTD. IN RESPECT OF THE COMMODITIES TRANSACTIONS UNDERTAKEN BY THE APPE LLANT DURING THE RELEVANT FINANCIAL YEAR AND ON THE SAME BROKERAGE INCOME HAS ALSO BEEN SHOWN TH E SOURCE OF DEPOSITS TO THIS EXTENT ARE CONSIDERED AS EXPLAINED I.E. OF RS.14,72,241/-. SI MILARLY THE OPENING CASH BALANCE OF RS.2,56,759/- ALSO CANNOT BE CONSIDERED FOR ADDITION IN THE CURRE NT YEAR EVEN IF THE SAME IS CONSIDERED AS UNEXPLAINED. HOWEVER WITH REGARD TO THE AMOUNT OF RS.17,00,000/- CLAIMED TO HAVE BEEN DEPOSITED OUT OF CASH WITHDRAWN FROM THE BANK ACCOUNT THE SAM E CANNOT BE CONSIDERED AS EXPLAINED SINCE THERE WAS NO JUSTIFICATION FOR SUCH CASH WITHDRAWAL S AND THERE IS NO LINKAGE BETWEEN THE SAME AND SUBSEQUENT REDEPOSITS. 2 ITA NO.1582/KOL/2013 NIRMAL GUPTA AY 2009-10 4. IN VIEW OF THE ABOVE, LD. COUNSEL FOR THE ASSESS EE STATED THAT ONCE THERE IS CASH WITHDRAWALS AND DEPOSITS THE SAME SHOULD BE TREATED AS EXPLAINED. LD. COUNSEL FOR THE ASSESSEE BEFORE US FILED A STATEMENT ANALYZING THE WITHDRAWA LS AND DEPOSITS MADE IN STANDARD CHARTERED BANK ACCOUNT. WHEN A QUERY WAS PUT TO LD. COUNSEL FOR THE ASSESSEE, HE STATED THAT THESE DETAILS WERE NOT FILED BEFORE THE LOWER AUTHORITIES . ON THIS, LD. SR. DR FAIRLY CONCEDED THAT THE MATTER CAN BE REMITTED BACK TO THE FILE OF THE AO F OR FRESH ADJUDICATION QUA THIS ADDITION OF DEPOSITS RETAINED BY CIT(A) AT RS. 17 LACS. IN TER MS OF THE ABOVE, WE SET ASIDE THIS ISSUE TO THE FILE OF THE AO LIMITING TO THE ADDITION OF RS.17 LA CS ONLY. THE ASSESSEE WILL FILE THE DETAILS REGARDING SOURCE OF DEPOSITS AND AO WILL CONSIDER T HE SAME AND ACCORDINGLY, DECIDE THE ISSUE. ORDERS OF THE LOWER AUTHORITIES ON THIS ISSUE ARE S ET ASIDE AND MATTER IS REMITTED BACK TO THE FILE OF AO. THIS APPEAL OF ASSESSEE IS ALLOWED FOR STAT ISTICAL PURPOSES. 5. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 04.05.201 6 SD/- SD/- (M. BALAGANESH) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 4 TH MAY, 2016 JD. (SR. P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SHRI NIRMAL GUPTA, 37, KALI KRISHNA TAG ORE STREET, KOLKATA-700 007. 2. RESPONDENT- ITO, WARD-43(3), KOLKATA. 3. CIT(A) , KOLKATA 4. CIT , KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .