ITO, Ward - 56(1), Kolkata, Kolkata V. Shri Sujit Kumar Mishra, Kolkata

ITA 1676/KOL/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4969 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 11 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 08-12-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P K CHAKRABORTY
• Keywords: Additional evidence

Judgement Text

I.T.A. NO.: 1676/KOL./2011 ASSESSMENT YEAR : 2008-09 PAGE 1 TO 4 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA CORAM : SHRI ABRAHAM P. GEORGE (ACCOUNTANT MEMBER) AND SHRI GEROGE MATHAN (JUDICIAL MEMBER) I.T.A. NO.: 1676/KOL./ 2011 ASSESSMENT YEAR : 2008-2009 INCOME TAX OFFICER, ............................. .........APPELLANT WARD-56(1), KOLKATA, 2 ND FLOOR, 3, GOVT. PLACE WEST, KOLKATA-700 001 -VS.- SHRI SUJIT KUMAR MISHRA,........................... .....................RESPONDENT B-50/H/5, ZAKARIA STREET, GROUND FLOOR, KOLKATA-700 073 PAN : AKUPM 8350 R] APPEARANCES BY: SHRI P. K. CHAKRABORTY, JCIT, SR. D.R., FOR THE DEP ARTMENT SHRI SUBASH AGARWAL, ADVOCATE, FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : NOVEMBER 26, 2013 DATE OF PRONOUNCING THE ORDER : NOVEMBER 28, 2013 O R D E R PER ABRAHAM P. GEORGE : 1. THIS APPEAL FILED BY THE REVENUE IS AGAINST AN O RDER DATED 28 TH SEPTEMBER, 2011 OF COMMISSIONER OF INCOME TAX (APPE ALS)-XXXVI, KOLKATA FOR ASSESSMENT YEAR 2008-09. 2. REVENUE HAS FILED REVISED GROUNDS, WHICH ARE REP RODUCED AS UNDER:- (1) THAT, THE LD. CIT(APPEAL)-XXXVI, KOLKATA ERRED IN ACCEPTING THE ADDITIONAL EVIDENCE AND RELIED UPON T HE SAME WITHOUT ALLOWING ANY OPPORTUNITY TO THE ASSESS ING OFFICER TO EXAMINE THE SAME AS ENVISAGED IN RULE 46 A(1). (2) THAT, THE LD. CIT(APPEAL)-XXXVI, KOLKATA ERRED IN ALLOWING THE CASH DEPOSIT TO THE TUNE OF RS.32,40,2 32/-, I.T.A. NO.: 1676/KOL./2011 ASSESSMENT YEAR : 2008-09 PAGE 1 TO 4 2 IN BANK, SOURCE OF WHICH WAS NOT EXPLAINED BEFORE T HIS OFFICE IN SPITE OF BEING OFFERED WITH SEVERAL OPPOR TUNITIES WHICH IS DULY RECORDED IN THE ASSESSMENT ORDER. (3) THAT, THE LD. CIT(APPEAL)-XXXVI, KOLKATA ERRED IN ACCEPTING THE SOURCE OF CASH DEPOSITS OF RS.32,40,2 32/- IN THE SB A/C. FROM CASH WITHDRAWALS FROM TWO CURRENT BANK ACCOUNTS; WHICH WAS NOT SUBMITTED BEFORE THIS OFFICE. 3. IN SUPPORT OF THE GROUNDS, LD. D.R. SUBMITTED TH AT ASSESSEE, ENGAGED IN THE BUSINESS OF TRANSPORTATION, HAD DEPOSITED A SUM OF RS.32,40,232/- IN SAVINGS BANK A/C. WITH ICICI BANK. AS PER LD. D. R., ASSESSEE COULD NOT FILE ANY EXPLANATION FOR SUCH CASH DEPOSITS DESPITE A NUMBER OF OPPORTUNITIES GIVEN. EVEN A SHOW-CAUSE NOTICE WAS I SSUED, BUT ASSESSEE DID NOT GIVE ANY EXPLANATION. ASSESSING OFFICER, TH EREFORE, MADE AN ADDITION OF RS.32,40,232/-. AS PER LD. D.R., LD. CI T(APPEALS) CONSIDERED A RECONCILIATION STATEMENT FILED BY ASSESSEE FOR THE FIRST TIME BEFORE HIM. LD. CIT(APPEALS) ACCEPTED THE CONTENTION OF ASSESSE E THAT CASH FLOW STATEMENT SHOWING CURRENT ACCOUNTS OF THE ASSESSEE WITH PUNJAB NATIONAL BANK AND SAVINGS BANK ACCOUNT WITH ICICI BANK WERE FILED BEFORE THE ASSESSING OFFICER DURING ASSESSMENT PROCEEDINGS. AS PER LD. D.R. NO SUCH CASH FLOW STATEMENT WAS FILED. HE CONTENDED THAT TH ERE WAS A CLEAR VIOLATION OF RULE 46A OF THE INCOME TAX RULES,1962. LD. CIT(APPEALS) HAD UNFAIRLY ACCEPTED THE CASH FLOW STATEMENT AND DELET ED THE ADDITION MADE BY THE ASSESSING OFFICER. 4. PER CONTRA, LD. A.R. SUBMITTED THAT CASH FLOW ST ATEMENT WAS INDEED FILED BEFORE THE ASSESSING OFFICER DURING THE COURS E OF ASSESSMENT PROCEEDINGS. IN SUPPORT THEREOF, HE FILED A COPY OF ORDER-SHEETS. ACCORDING TO HIM, ASSESSING OFFICER HAD IN THE ORDE R SHEET NOTINGS DATED 05.10.2010 MENTIONED THE FACTUM OF FILING OF CASH F LOW STATEMENT. THEREFORE, AS PER LD. A.R., THERE WAS NO VIOLATION OF RULE 46A. I.T.A. NO.: 1676/KOL./2011 ASSESSMENT YEAR : 2008-09 PAGE 1 TO 4 3 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND FROM THE ASSESSMENT ORDER THAT ASSE SSEE HAD NOT FURNISHED ANY EXPLANATION FOR HIS DEPOSITS IN SAVIN GS BANK A/C. WITH ICICI BANK. LD. CIT(APPEALS) GAVE RELIEF TO THE ASSESSEE ON THE PRESUMPTION THAT ASSESSEE HAD FILED CASH FLOW STATEMENT LINKING HIS CURRENT ACCOUNT WITH PUNJAB NATIONAL BANK AND WITH SAVINGS BANK A/C . IN ICICI BANK THEREBY EXPLAINING THE SOURCE OF THE DEPOSITS IN TH E LATTER ACCOUNT. THE ORDER-SHEET NOTING DATED 05.10.2010 OF ASSESSING OF FICER RELIED ON BY THE LD. A.R. IS REPRODUCED HEREUNDER :- SRI VINAY KUMAR GUPTA, A/R OF THE ASSESSEE APPEARE D AND FILED CASH FLOW STATEMENT AND COPY OF BANK STATEMEN T OF PNB. THE CASE IS DISCUSSED AND ADJOURNED TO 19.10.1 0. THE ABOVE ORDER-SHEET DOES MENTION THAT ASSESSEE HA D FILED A CASH FLOW STATEMENT AND COPY OF BANK STATEMENT OF HIS ACCOUNT WITH PUNJAB NATIONAL BANK. IT DOES NOT IN ANY WAY SAY THAT ASSE SSEE HAD GIVEN AN EXPLANATION FOR HIS DEPOSITS WITH ICICI BANK. IN TH ESE CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE MATTER REQUIRES ADJUDIC ATION AFRESH. WE, THEREFORE, SET ASIDE THE ORDERS OF AUTHORITIES BELO W AND REMIT THE MATTER REGARDING DEPOSIT OF THE ASSESSEE IN HIS SAVINGS BA NK ACCOUNT WITH ICICI BANK BACK TO THE FILE OF ASSESSING OFFICER FOR CONS IDERATION AFRESH IN ACCORDANCE WITH LAW. ASSESSEE SHALL BE GIVEN AN OPP ORTUNITY TO JUSTIFY HIS EXPLANATION. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH DAY OF NOVEMBER, 2013. SD/- SD/- GEORGE MATHAN ABRAHAM P. GEORGE (JUDICIAL MEMBER) (ACC OUNTANT MEMBER) KOLKATA, THE 28 TH DAY OF NOVEMBER, 2013 I.T.A. NO.: 1676/KOL./2011 ASSESSMENT YEAR : 2008-09 PAGE 1 TO 4 4 COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.