ITO, Ward - 10(2), Kolkata , Kolkata V. Shri Ramautar Gupta, Kolkata

ITA 1640/KOL/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0640 (ITAT-KOLKATA)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-12-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 13-07-2017
• Court: TRIBUNAL

Judgement Text

ITA NO. 1640/KOL/2017 A.Y. 2009-2010 SHRI RAMAUTAR GUPTA 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI A.T. VARKEY, JUDICIAL MEMBER I.T.A. NO. 1640/KOL/2017 ASSESSMENT YEAR: 2009-2010 INCOME TAX OFFICER,................................ ..............................APPELLANT WARD-10(2), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, 3 RD FLOOR KOLKATA-700 069 -VS.- SHRI RAMAUTAR GUPTA,............................... .........................RESPONDENT 4, MYSORE ROAD, RASH BEHARI AVENUE, KOLKATA-700 026 [PAN: ADXPG 9713 A] APPEARANCES BY: SHRI CHRISTOPHER JEROME SINGH, JCIT, SR. D.R. , FOR THE APPELLANT SHRI DEV KUMAR KOTHARI, FCA., FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : DECEMBER 03, 2018 DATE OF PRONOUNCING THE ORDER : DECEMBER 03, 2018 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ):- THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST TH E ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-18, KOLKATA DA TED 24.04.2017 AND THE SOLITARY ISSUE INVOLVED THEREIN RELATES TO THE DELETION BY THE LD. CIT(APPEALS) OF THE ADDITION OF RS.3,27,37,158/- MA DE BY THE ASSESSING OFFICER ON ACCOUNT OF THE ALLEGED UNDISCLOSED SALES . 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O N 24.09.2009 DECLARING TOTAL INCOME OF RS.9,91,130/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED FROM THE RELEVANT DETAILS OF ITA NO. 1640/KOL/2017 A.Y. 2009-2010 SHRI RAMAUTAR GUPTA 2 SALES FURNISHED BY THE ASSESSEE THAT THE ACTUAL SAL ES OF THE ASSESSEE MADE DURING THE YEAR UNDER CONSIDERATION WERE TO THE TUN E OF RS.33,89,11,507/- AS AGAINST THE TOTAL SALES OF RS. 30,61,74,349/- DISCLOSED BY THE ASSESSEE IN THE PROFIT & LOSS ACCO UNT. SINCE THE ASSESEE COULD NOT OFFER ANY SATISFACTORY EXPLANATION IN RES PECT OF THIS DIFFERENCE OF RS.3,27,37,158/- IN THE SALES, THE ASSESSING OFF ICER TREATED THE SAME AS UNDISCLOSED SALES OF THE ASSESSEE AND MADE AN ADDIT ION OF RS.3,27,37,158/- TO THE TOTAL INCOME OF THE ASSESSE E IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 30.12.2011. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEF ORE THE LD. CIT(APPEALS) AND AFTER CONSIDERING THE SUBMISSIONS MADE BY THE ASSESSEE AS WELL AS THE MATERIAL AVAILABLE ON RECORD, THE LD . CIT(APPEALS) DELETED THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOU NT OF ALLEGED UNDISCLOSED SALES FOR THE FOLLOWING REASONS GIVEN I N HIS IMPUGNED ORDER:- I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AND THE SUBMISSIONS OF THE ASSESSEE. PERUSAL OF THE KOLKATA BRANCH STATEMENT SHOWS THAT FROM TRADING DEPOT, LOCAL SALE S OF RS.39,55,513/- HAS BEEN MADE. BESIDES INTER-STATE S ALES OF RS.71,27,387/- HAS ALSO BEEN MADE. TOTAL OF THESE F IGURES IS RS.1,10,82,900/-. THIS A.O. HAS CONSIDERED AS SUPPR ESSED SALES. BUT IN REALITY THIS IS DULY REFLECTED IN THE SALES FIGURE OF KOLKATA BRANCH. SIMILARLY, EXPORT SALES OF RS.1,10, 42,265/- HAS BEEN MADE FROM 'TRADING DEPOT' KOLKATA. THIS IS DUL Y REFLECTED IN THE STATEMENT OF SALES MADE FROM KOLKATA BRANCH. ASSESSEE HAS ALSO SUBMITTED DOCUMENTS FROM THE CUSTOMS OFFIC ERS OF NEPAL REGARDING EXPORTS MADE TO NEPAL. IN THE REMAND REPORT A.O. HAS MENTIONED THAT AS PER ANNEXURE 'A' - SALES FROM KOLKATA HAS BEEN MENTIONE D AT RS.5,23,34,401/- WHEREAS AS PER ANNEXURE-B, THIS FI GURE IS RS.5,74,27,057/-. I HAVE PERUSED BOTH THE ANNEXURES . TOTAL FIGURE OF TURNOVER AS PER EACH ANNEXURE IS RS.30,61 ,74,349/-. IN ANNEXURE A, THERE APPEARS TO BE TYPOGRAPHICAL ER ROR. FIGURE FOR SALES FROM KOLKATA SHOULD BE RS.5,74,27, 057/- ONLY. OTHERWISE FIGURE OF TOTAL TURNOVER WOULD NOT TALLY. AS PER SALES TAX RETURNS ALSO SALES FROM KOLKATA IS RS.5,7 4,27,057/- ONLY. IT APPEARS THAT IN ANNEXURE-A, SALES FIGURE O F KOLKATA BRANCH WAS WRONGLY MENTIONED. BUT EVEN WITH ERROR, FIGURE OF TOTAL TURNOVER WAS CORRECT. ITA NO. 1640/KOL/2017 A.Y. 2009-2010 SHRI RAMAUTAR GUPTA 3 IN THE ASSESSMENT ORDER AND REMAND REPORT (WHICH IS A REPETITION OF ISSUES DISCUSSED IN ASSESSMENT ORDER) , A.O. HAS DISCUSSED VARIOUS ISSUES AND ULTIMATELY ARRIVED AT SALES SUPPRESSION FIGURE OF RS.3,27,37,158/-. IN ARRIVING AT THIS DISCREPANCY, 3 ERRONEOUS FIGURES HAVE BEEN CONSIDER ED. I) TOTAL STATE (DEPOT) WISE SALES HAVE BEEN TAKEN A T RS.31,69,89,892/-, INSTEAD OF THE CORRECT FIGURE OFRS.30,61,74,349/-. II) RS.1,10,82,900/- HAS BEEN ADDED ON ACCOUNT OF SUPPRESSION OF SALES FROM TRADING DEPOT (KOLKATA). III) RS.1,10,42,265/- HAS BEEN ADDED ON ACCOUNT OF SUPPRESSION OF EXPORT FROM TRADING DEPOT KOLKATA). AS DISCUSSED ABOVE, ALL THESE THREE DISCREPANCIES A RE FOUND TO BE NON- EXISTENT. A.O. HAS ERRONEOUSLY CON SIDERED THESE AS DISCREPANCIES, WITHOUT PROPERLY VERIFYING THE BOOKS, SALES TAX RETURNS, EXPORT BILLS, CERTIFICATES OF CU STOMS DEPTT. OF NEPAL ETC. THERE IS NO DISCREPANCY IN THE TURNOV ER OF ASSESSEE. HENCE, ADDITION OF RS.3,27,37,158/ - IS D ELETED. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE REVENUE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LD. D.R. HAS CONTENDED THAT THE UNEXPLAINED DIFFERENCE IN SALES WAS ADDED BY THE AS SESSING OFFICER AS UNDISCLOSED SALES OF THE ASSESSEE, BUT THE SAID ADD ITION WAS DELETED BY THE LD. CIT(APPEALS) VIDE HIS IMPUGNED ORDER BY ACC EPTING THE EXPLANATION OF THE ASSESSEE AS REGARDS THE DIFFEREN CE IN SALES. HE HAS CONTENDED THAT ALTHOUGH THE REMAND REPORT WAS CALLE D FOR BY THE LD. CIT(APPEALS) FROM THE ASSESSING OFFICER, THE RECONC ILIATION STATEMENT PREPARED AND FURNISHED BY THE ASSESSEE FOR THE FIRS T TIME BEFORE THE LD. CIT(APPEALS) EXPLAINING THE DIFFERENCE IN SALES WAS NOT SPECIFICALLY PROVIDED TO THE ASSESSING OFFICER FOR HIS VERIFICAT ION. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, HAS INVITED OUR AT TENTION TO THE COPY OF THE SAID RECONCILIATION STATEMENT PLACED AT PAGE NO . 1 OF THE PAPER BOOK AND SUBMITTED THAT THE DIFFERENCE IN SALES WAS TREA TED AS EXPLAINED BY THE LD. CIT(APPEALS) AFTER DULY VERIFYING THE SAID RECO NCILIATION STATEMENT. HE ITA NO. 1640/KOL/2017 A.Y. 2009-2010 SHRI RAMAUTAR GUPTA 4 HAS SUBMITTED THAT THE ASSESSEE, HOWEVER, IS STILL OPEN FOR VERIFICATION OF THE SAID RECONCILIATION STATEMENT AND THE MATTER MA Y BE SENT BACK TO THE ASSESSING OFFICER FOR GIVING HIM AN OPPORTUNITY TO VERIFY THE SAME. KEEPING IN VIEW THESE SUBMISSIONS MADE BY THE LD. R EPRESENTATIVES OF BOTH THE SIDES, WE SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) ON THE ISSUE UNDER CONSIDERATION AND RESTORE THE MATTE R TO THE FILE OF THE ASSESSING OFFICER FOR THE LIMITED PURPOSE OF VERIFY ING THE RECONCILIATION STATEMENT PREPARED AND FURNISHED BY THE ASSESSEE IN ORDER TO EXPLAIN THE DIFFERENCE IN SALES FROM THE RELEVANT RECORD. NEEDL ESS TO OBSERVE THAT THE ASSESSING OFFICER SHALL PROVIDE PROPER AND SUFFICIE NT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE WHILE DECIDING THE ISSUE. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS TREA TED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 03, 2018. SD/- SD/- (A.T. VARKEY) (P.M. JAGTAP) JUDICIAL MEMBER VICE-PRESIDENT (KZ) KOLKATA, THE 3 RD DAY OF DECEMBER, 2018 COPIES TO : (1) INCOME TAX OFFICER,. WARD-10(2), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, 3 RD FLOOR KOLKATA-700 069 (2) SHRI RAMAUTAR GUPTA, 4, MYSORE ROAD, RASH BEHARI AVENUE, KOLKATA-700 026 (3) COMMISSIONER OF INCOME TAX (APPEALS)-18, KOLK ATA, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.