Smt. Purnima Ghosh, Kolkata V. ITO, Ward-40(4), Kolkata, Kolkata

ITA 16/KOL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1049 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 13-07-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 06-01-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACH ARJEEADDL
• Assessee Lawyers: MANISH TIWARI
• Section: 69

Judgement Text

ITA NO.16/KOL/2015-SMT. PURNIMA GHOSH A.Y.2006-07 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH D KOL KATA [BEFORE HONBLE SHRI J.SUDHAKAR REDDY, AM & SHRI A.T.VARKEY, JM ] ITA NO.16/KOL/2015 ASSESSMENT YEAR : 2006-07 SMT. PURNIMA GHOSH -VERSUS- I.T.O., WARD-40( 4), KOLKATA KOLKATA (PAN: AFEPG 1777 R) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI MANISH TIWARI, FCA FOR THE RESPONDENT: SHRI ARINDAM BHATTACHARJEE, ADD L. CIT DATE OF HEARING : 25.09.2017. DATE OF PRONOUNCEMENT : 10.11.2017. ORDER PER J.SUDHAKAR REDDY, AM: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX-(A)-XIX, KOLKATA RELATI NG TO A.Y. 2006-07. 2. THE ASSESSEE IS AN INDIVIDUAL AND HAS INCOME FROM BUSINESS, CAPITAL GAIN AND OTHER SOURCES. SHE FILED HER RETURN OF INCOME FOR A .Y.2006-07 ON 28.03.2007 DECLARING TOTAL INCOME OF RS.2,55,230/-. THE AO FO UND THAT THE ASSESSEE HAS DISCLOSED TWO BANK ACCOUNTS IN THE NAME OF M/S. BAPI ENTERPRI SES AND ANOTHER IN THE NAME OF M/S. GHOSH GUINEA HOUSE, WHICH IS THE PROPRIETORY C ONCERN OF THE ASSESSEE. NO PERSONAL BALANCE SHEET OR PROFIT AND LOSS ACCOUNT W ERE FURNISHED. THE DISCLOSED BANK ACCOUNTS WERE A) STANDARD CHARTERED BANK, SHYAMBAZAR BRANCH, CURR /A/C NO.334-05-0044-29. B) STATE BANK OF INDIA, SASHI BHUSAN DEY STREET, S. B.A/C NO.0229000081111 IN THE NAME OF SMT. PURNIMA GHOSH. IN THE CASE OF M/S. GHOSH GUINEA HOUSE NO BANK DETA ILS HAD BEEN FURNISHED. 3. THE AO IN THE MEANWHILE, OBTAINED CONFIRMATI ONS FROM MUTUAL FUND AUTHORITIES OF STANDARD CHARTERED BANK, STATE BANK OF INDIA, RE LIANCE MUTUAL FUND, HDFC AND ITA NO.16/KOL/2015-SMT. PURNIMA GHOSH A.Y.2006-07 2 FIDELITY INTERNATIONAL. ON EXAMINATION OF THESE CON FIRMATIONS, HE FOUND THAT THE ASSESSEE HAD INVESTED IN THE MUTUAL FUNDS THROUGH F OUR BANK ACCOUNTS, WHICH WERE NOT DISCLOSED IN THE BALANCE SHEET FOR A.Y. 2005-06 AND 2006-07. THE TOTAL INVESTMENTS WERE OF RS.1,49,08,073/-. THE AO ADDED AN AMOUNT OF RS.92,80,000/- BEING FRESH INVESTMENTS U/S 69 OF THE ACT AS UNEXPLAINED INVEST MENTS. 4. THE ASSESSEE CARRIED THE MATTER TO THE LD. C IT(A). BEFORE THE FIRST APPELLATE AUTHORITY THE ASSESSEE FILED HIS SUBMISSIONS ALONG WITH THE PAPER BOOK CONTAINING SUPPORTING DOCUMENTS. THE LD. CIT(A) CALLED FOR A R EMAND REPORT FROM THE AO. THE REMAND REPORT WAS SERVED ON THE ASSESSEE AND THE AS SESSEE FILED A REJOINDER. AFTER CONSIDERING ALL THESE MATERIALS, THE FIRST APPELLAT E AUTHORITY GRANTED PART RELIEF. FURTHER AGGRIEVED THE ASSESSEE IS BEFORE US ON THE FOLLOWIN G GROUNDS :- 1. (A) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE OBSERVATIONS OF LD. CIT(A) THAT CASH DEPOSITS IN A/C NO. 334-1-1421 1-7 WITH STANDARD CHARTERED BANK REMAINED UNEXPLAINED ARE PERVERSE AND OPPOSED TO ASSESSEE'S STATEMENT AVAILABLE AT PAGE 8 OF PAPER BOOK. (B) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, LD. CIT(A) IS WRONG AND UNJUSTIFIED IN HOLDING THAT CASH DEPOSIT OF RS. 49,000/- AND RS. 6,000/- ON 23.08.2005 AND 24.08.2005 RESPECTIVELY IN A/C NO. 3 34-1-014211-7 WITH STANDARD CHARTERED BANK AS UNEXPLAINED WITHOUT ADJU DICATING THE ASSESSEE'S STATEMENT THAT THESE WERE OUT OF WITHDRAWAL FROM TH E SAME BANK ON EARLIER OCCASION. 2. (A) THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE OBSERVATIONS OF LD. CIT(A) THAT THE ASSESSEE FAILED TO EXPLAIN THE CREDIT OF RS. 9,00,000/- IN A/C NO. 334-1- 014211-7 WITH STANDARD CHARTERED BANK AT THE APPELLATE STAGE ARE PERVERSE AND CONTRARY TO ASSESSEE'S STATEMENT AT PA GE 8 OF PAPER BOOK. (B) THAT ON THE FACTS AND ON THE CIRCUMSTANCES OF T HE CASE, LD. CIT(A) IS WRONG AND UNJUSTIFIED IN HOLDING CREDIT OF RS. 9,00,000/- ON 13.03.2006 IN A/C NO. 334- 1-014211 7 WITH STANDARD CHARTERED BANK AS UNEXPLAI NED CREDIT WITHOUT A SPEAKING ORDER ON ASSESSEE'S STATEMENT THAT IT REPR ESENTED CONTRA ENTRY. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, A DDUCE OR AMEND ANY GROUND OR GROUNDS ON OR BEFORE THE DATE OF HEARING OF THE APP EAL. 5. THE LD. COUNSEL FOR THE ASSESSEE MR. MANISH TIWARI,, SUBMITTED THAT AS FAR AS GROUND NO.1 IS CONCERNED THE AMOUNT OF RS.49,000/- AND RS.6,000/- WERE MADE OUT OF ITA NO.16/KOL/2015-SMT. PURNIMA GHOSH A.Y.2006-07 3 CASH WITHDRAWALS AND IT WAS THE CASE OF ROTATION OF CASH AND NO SEPARATE ADDITION IS CALLED FOR. HE FILED A PAPER BOOK CONTAINING COPIES OF BANK ACCOUNT OF STANDARD CHARTERED BANK WHICH SHOWS CASH WITHDRAWALS ON 20 TH APRIL OF RS.25,000/-, 27 TH APRIL OF RS.25,000/- AND 4 TH MAY OF RS.50,000/- AND ARGUED THAT THE CASH SO WIT HDRAWN WAS RE-DEPOSITED ON 23 RD AND 24 TH AUGUST. ON GROUND NO.2 THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED A PHOTOCOPY OF THE DEPOSIT SLIP AND ARGUED THAT THIS AMOUNT WAS TRANSFERRED FROM ONE BANK ACCOUNT OF THE ASSESSEE T O ANOTHER BANK ACCOUNT OF THE ASSESSEE AND UNDER THESE CIRCUMSTANCES NO ADDITION CAN BE MADE. HE SUBMITTED THAT THIS IS NOT A FRESH CREDIT AND THE MONEY ALREADY AV AILABLE IN ONE OF THE BANK ACCOUNTS OF THE ASSESSEE WAS TRANSFERRED TO ANOTHER BANK ACC OUNT OF THE ASSESSEE. 6. THE LD. DR, ON THE OTHER HAND, SUBMITTED TH AT THESE CLAIMS OF THE ASSESSEE NEED TO BE VERIFIED BY THE AO, AND PRAYED THAT THE ISSUE MAY BE SET ASIDE FOR VERIFICATION. 7. AFTER HEARING THE RIVAL CONTENTION WE ARE OF THE CONSIDERED OPINION THAT THESE ISSUES MAY BE SET ASIDE TO THE FILE OF THE AO FOR V ERIFICATION OF THESE CLAIMS AND FRESH ADJUDICATION DENOVO IN ACCORDANCE WITH LAW. THE AO SHALL CONFINE HIMSELF TO THESE GROUNDS. WHEREVER THERE IS A CASH WITHDRAWAL AND SU BSEQUENT DEPOSIT OF CASH IN THE BANK ACCOUNT, THE AO SHALL GIVE TELESCOPING BENEF IT TO THE ASSESSE. THE AO SHALL ALSO VERIFY THE CLAIM OF THE ASSESSEE THAT RS.9,00,000/- IN QUESTION IS NOTHING BUT A TRANSFER OF AN AMOUNT FROM ONE BANK ACCOUNT TO ANOTHER BANK ACCOUNT OF THE ASSESSEE. THUS BOTH THESE GROUNDS RAISED BY THE ASSESSEE ARE SET A SIDE TO THE FILE OF THE A.O. FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE COURT ON 10.11.2017. SD/- SD/- [A.T.VARKEY] [ J.SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 10.11.2017. [RG SR.PS] ITA NO.16/KOL/2015-SMT. PURNIMA GHOSH A.Y.2006-07 4 COPY OF THE ORDER FORWARDED TO: 1.SMT. PURNIMA GHOSH, 303, BAGMARI ROAD, KOLKATA-70 0054. 2. I.T.O., WARD-34(4), KOLKATA. 3. C.I.T.(A)- XIX, KOLKATA 4. C.I.T-XIV, KOLK ATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, SENIOR PRIVATE SECRETARY HEAD OF OFFICE/D.D.O, ITAT KOLKATA BENCHES