ITO, Ward - 2(1), Midnapore, Midnapore V. Shri Mrityunjoy Das, Paschim Medinipur

ITA 1599/KOL/2010

• Counselvise Citation: 159923514 RSA 2010
• Duration Of Justice: 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2011
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 11-08-2010
• Court: TRIBUNAL
• Department Lawyers: K K TRIPATHI
• Assessee Lawyers: V N PUROHIT
• Section: 133(6)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH B, KOLKATA () BEFORE . .. . . .. . , , , , , SHRI B.R.MITTAL, JUDICIAL MEMBER. /AND . .. .!' !'!' !'. .. . , #$ SHRI C.D.RAO, ACCOUNTANT MEMBER % % % % / ITA NO . 1599/KOL/2010 &' ()/ ASSESSMENT YEAR : 2005-06 (+, / APPELLANT ) I.T.O., WARD-2(1), MIDNAPORE - & - - VERSUS - . (./+,/ RESPONDENT ) SRI MRITYUNJOY DAS (PAN: ADEPD 5140 R) +, 0 1 #/ FOR THE APPELLANT: SHRI K.K.TRIPATHI, SR.DR ./+, 0 1 #/ FOR THE RESPONDENT: SHRI V.N.PUROHIT #2 / ORDER ( (( ( . .. .!' !'!' !'. .. . ) )) ), , , , #$ PER SHRI C.D.RAO, AM THIS APPEAL IS FILED BY THE REVENUE AGAINST THE OR DER DATED 26.04.2010 OF THE CIT(A)-XXXVI, KOLKATA PERTAINING TO A.YR. 2005-06. 2. IN THIS APPEAL THE REVENUE HAS DISPUTED THE ISS UE OF DELETING ADDITION OF RS.10,80,700/- MADE BY THE AO AS UNEXPLAINED CASH D EPOSIT IN SB A/C IN AXIS BANK LTD. 3. THE BRIEF FACTS OF THE CASE ARE THAT WHILE DOIN G THE SCRUTINY ASSESSMENT THE AO HAS MADE ADDITION OF RS.10,80,700/- BY OBSERVING TH AT :- A/C STATEMENT FOR THE PERIOD 1/4/04 TO 31/3/05 IN RESPECT OF S.B. A/C NO. 190010100000639 IN THE NAME OF MRITYUNJAY DAS AND H IS WIFE, SMT. SUJATA DAS WAS RECEIVED FROM AXIS BANK LTD., KHARAGPUR U/S 133(6) OF I..T.ACT61/ ON SCRUTINY OF ABOVE S.B.A/C. IT WAS REVEALED THAT THE ASSESSERE MADE CASH DEPOSIT FOR RS.10,80,700/- DURING THE FINANCIAL YEA R 2004-05. IN COURSE OF ASSESSMENT PROCEEDINGS THE A/R OF THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF ABOVE ASH DEPOSIT ON DIFFERE NT DATES. 2 A SHOW CAUSE NOTICE DATED 31/7/08 WAS ISSUED AND SE RVED ON THE ASSESSEE. IN REPLY THE ASSESSEE FILED A WRITTEN SUBMISSION ON 7/8/08 IN WHICH HE HAS STATED THAT HE COLLECTED CASH OF RS.10,80,700/- FROM HIS VARIOUS CUSTOMERS ON VARIOUS DATES AND DEPOSITED THE SAME ON VARIOUS DATES IN HIS SAID SB A/C. THE SUBMISSION OF THE ASSESSEE CANNOT BE ACCEPTED B ECAUSE CASH DEPOSIT IN ASSESSEES BANK A/C CANNOT BE TREATED AS CASH DEPOS IT OF OTHER PERSONS/CUSTOMERS. THE ASSESSEE DID NOT MAINTAIN BOOKS OF ACCOUNT OF L IC AND POSTAL AGENCY BUSINESS. HENCE, THE SOURCE OF ABOVE CASH DEPOSIT IS TREATED AS UNEXPLAINED CASH DEPOSIT AND IS TREATED AS INCOME OF THE ASSESSEE FO R ASSESSMENT YEAR 2005-06. 3.1. ON APPEAL THE LD. CIT(A) HAS DELETED THE SAME BY OBSERVING THAT : I HAVE CAREFULLY CONSIDERED THE ABOVE. I FIND, FR OM THE LETTER FROM THE AXIS BANK LTD., THAT THE DEPOSITS MADE IN THE APPELLANT S ACCOUNTS WERE USED FOR MAKING INVESTMENTS IN UTI MUTUAL FUNDS AS DETAILED BELOW :- SL.NO. NAME AMOUNT 1. AMIT KUMAR MANDAL 35,000/- 2. TAPATI BISWAS 30,000/- 3. VENKATESWAR RAO 10,000/- 4. MRIGANKA BHATTACHARJEE 20,000/- 5. K.ANANT RAO 20,000/- 6. DOLA BISWAS 36,000/- 7. P.SRINIVAS RAO 41,700/- 8. JAYANTA BHATTACHARJEE 20,000/- 9. SUKRITI BHATTACHARJEE 20,000/- 10. RABINDRANATH BANERJEE 40,000/- 11. DURGA BANERJEE 24,500/- 12. SAMIR DHAR 9,500/- 13. P.SAIKUMAR 10,000/- 14. PRAVAKAR BASU 45,000/- 15. DEBABRATA MAJUMDER 35,000/- 16. SMRITI REKHA DEY 45,000/- 17. NIKHIL KR DAS 40,000/- 18. AMITAPRABHA MAJUMDAR 40,000/- 19. MOUSUMI BASU 25,000/- 20. MAHALAYA KIRTANIA 9,500/- 21. B.SHANKAR RAO 70,000/- 22. PADMABATI BERA 35,000/- 23. ARCHANA ROY 75,000/- DEBONAY ROY ASRU KR.ROY 24. P.RAGHAVAN 15,000/- 3 25. NAJMA BEGUM 1,15,000/- 26. SABITA GAIN 12,000/- 27. AMITAPRAVA MAJUMDER/ 50,000/- DOLLI NANDI 28. JYOTIMOY JOARDAR 60,000/- 29. RABINDRANATH MALAKAR 40,000/- 30. DOLA BISWAS 27,500/- 31. NILIMA BOSE 20,000/- 32. CHITRA BOSE 5,000/- TOTAL 10,80,700/- CONSIDERING THE ABOVE FACTS, IT IS CLEAR THAT THE A PPELLANT, BEING AN AGENT FOR UTI MUTUAL FUND AND OTHERS, COLLECTED SMALL AMO UNTS FROM HIS CLIENTS AND DEPOSITED THE SAME IN HIS SAVINGS BANK ACCOUNT WITH AXIS BANK ACCOUNT, WHICH IN TURN WAS INVESTED IN MUTUAL FUNDS IN THE N AMES OF HIS CLIENTS. CONSIDERING THE ABOVE FACTS AND ALSO TAKING INTO AC COUNT, THE CONFIRMATION FROM THE BANK, I AM OF THE VIEW THAT THERE IS NO JUSTIFI CATION FOR THE ABOVE ADDITION. ACCORDINGLY, THE ASSESSING OFFICER IS DIRECTED TO D ELETE RS.10,80,700/-. 3.2. AGGRIEVED BY THIS THE REVENUE IS IN APPEAL BEF ORE US. 4. AT THE TIME OF HEARING THE LD. DR APPEARING ON B EHALF OF THE REVENUE HAS SUBMITTED THAT THE LD. CIT(A) SIMPLY BASED ON THE S UBMISSIONS MADE BY THE ASSESSEE AND THE DOCUMENTS FILED BEFORE HIM HAS DELETED THE ADDITION WITHOUT CALLED FOR THE REMAND REPORT. THEREFORE, HE REQUESTED TO SET ASIDE THE ORDERS OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE AO FOR FRESH ADJUDICATION. 5. ON THE OTHER HAND, THE LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE BY REFERRING TO THE COPIES OF THE WRITTEN SUBMISSION F ILED BEFORE THE LD. CIT(A) AND OTHER DOCUMENTS ENCLOSED IN PAGES 2 TO 10 OF THE PAPER BO OK CONTENDED THAT THE ACTION OF THE LD. CIT(A) IS JUSTIFIED IN THE FACTS AND CIRCUM STANCES OF THE CASE. THEREFORE, HE REQUESTED TO UPHOLD THE SAME. 6. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF MATERIALS AVAILABLE ON RECORD, IT IS OBSERVED THAT THE DOCUME NTS PLACED IN THE PAPER BOOK ARE ALL SUBSEQUENT TO THE ORDER PASSED BY THE AO I.E. AFTER 3.10.2008. IT IS FURTHER OBSERVED THAT THE AO HAS CATEGORICALLY MENTIONED THAT IN THE COURSE OF ASSESSMENT PROCEEDINGS 4 THE LD. AR OF THE ASSESSEE COULD NOT EXPLAIN THE SO URCE OF CASH DEPOSITS ON DIFFERENT DATES. IN VIEW OF THIS WE ARE OF THE CONSIDERED VIE W THAT BEFORE GIVING THE RELIEF TO THE ASSESSEE THE LD. CIT(A) SHOULD HAVE OBTAINED THE RE MAND REPORT FROM THE AO. SINCE IN THIS CASE THE REMAND REPORT HAS NOT BEEN CALLED FOR BY THE LD. CIT(A) BEFORE PASSING THE ORDER WE CONSIDER IT FIT TO RESTORE THE MATTER TO THE FILE OF THE LD. CIT(A) AND REMIT BACK THE ISSUE TO THE FILE OF THE AO TO D ECIDE THE SAME AFRESH AFTER TAKING INTO CONSIDERATION THE DOCUMENTS FILED BEFORE THE L D. CIT(A) AS WELL AS BEFORE THE TRIBUNAL AFTER GIVING A REASONABLE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. 7. IN THE RESULT THE APPEAL OF THE REVENUE IS ALLO WED IN PART FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 19.04.2011. SD/- SD/- . .. . . .. . , , , , B.R.MITTAL, JUDICIAL MEMBER . .. .!' !'!' !'. .. . , ,, , #$ #$ #$ #$ , C.D.RAO, ACCOUNTANT MEMBER. ( (( ('$ '$ '$ '$) )) ) DATE: 19.04.2011. ORDER PRONOUNCED IN THE COURT ON 19.04.2011. SD/- SD/- AM JM (CDR) (MS) #2 0 .3 4#3(5- COPY OF THE ORDER FORWARDED TO: 1. SHRI MRITYUNJOY DAS, H/NO.65, WARD-7, BHAWANIPUR, NEAR SANGEET VIDYALAYA, P.O. KHARAGPUR, DIST. MIDNAPORE (W), 721 301. 2 THE I.T.O., WARD-2(1), MIDNAPORE 3. THE CIT, 4. THE CIT(A)-XXXVI, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA /3 ./ TRUE COPY, #2&:/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES R.G.(.P.S.) 5