ITO, Ward - 31(1), Kolkata, Kolkata V. Shri Prabir Santra, Howrah

ITA 1682/KOL/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6175 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 27-06-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 19-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RADHEY SHYAM
• Assessee Lawyers: S JHAJHARIA
• Keywords: Unexplained investment; Accommodation entries
• Section: 147; 144

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 168 1 - 1683 / KOL / 2017 & C.O. NO.103-105/KOL/2017 (A/O ITA NO.1681-1683/KOL/2017) ASSESSMENT YEARS :2007-08 TO 2009-10 INCOME TAX OFFICER WARD-31(1), 10B,MIDDLETON ROW, 4 TH FLOOR, KOLKATA-700 071 V/S . SHRI PRABIR SANTRA VILL. & P.O. BANIPUR (PANCHANTALLA), P.S. SANKRAIL, DIST. HOWRAH- 711304 [ PAN NO.BCYPS 6478 M ] /APPELLANT .. / RESPONDENT /CO-OBJECTOR /BY ASSESSEE SHRI S. JHAJHARIA, FCA /BY RESPONDENT SHRI RADHEY SHYAM, CIT-DR /DATE OF HEARING 23-07-2019 /DATE OF PRONOUNCEMENT 07-08-2019 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THESE REVENUES APPEAL(S) AND ASSESSEES AS MANY T HREE CROSS OBJECTION THEREIN FOR ASSESSMENT YEAR(S) 2007-08 TO 2009-10 ARISE AGAINST COMMISSIONER OF INCOME TAX (APPEALS)-9 KOLKATAS CO MMON ORDER ALL 12.04.2017 PARTLY AFFIRMING ASSESSING OFFICERS IDE NTICAL ACTION TREATING THE ENTIRE BANK DEPOSITS OF 5,81,70,150/-, 47,17,77,433/- & 18,57,61,175/- AS U/S 69A UNEXPLAINED INVESTMENTS TO THE EXTENT OF CO MMISSION / ENTRY BUSINESS ITA NO.1681-1683/KOL/2017 & CO 103-105/K/17 A.YS. 0 7-08 TO 09-10 ITO WD-31(1),KOL. VS. SHRI PRABIR SANTRA PAGE 2 INCOME ASSESSABLE @ 0.5% ONLY; RESPECTIVELY INVOLVI NG PROCEEDINGS U/S 144 R.W.S. 147 OF THE INCOME TAX ACT, 1961; IN SHORT T HE ACT HEARD BOTH THE PARTIES. CASE FILE(S) PERUSED. 2. BOTH THE LEARNED REPRESENTATIVES INVITE OUR ATTE NTION TO THE CIT(A)S IDENTICAL ACTION APPLYING 0.5% COMMISSION RATE ON A SSESSEES ABOVE STATED BANK DEPOSITS AS UNDER:- 4. CONCLUSION: 4.2 AS REGARD GROUNDS NO. 5, 6 & 7 WHICH CONTAIN TH E MERIT OF THE APPEAL AND IS AGAINST THE ADDITION RS.47,17,77,433/-, I FIND T HAT THE THREE BANK ACCOUNTS PERTAINING TO THE THREE PROPRIETORSHIP FIRMS RUN BY THE APPELLANT HAVE DEPOSITS OF CASH, CHEQUES AND THEN WITHDRAWAL OF SUMS SO DEP OSITED IN FORM OF CHEQUES ISSUE TO VARIOUS BENEFICIARIES. SUCH CHEQUE S HAVE BEEN ISSUED TO THE BENEFICIARIES ON THE SUBSEQUENT DAY OF THE DEPO SIT ITSELF. THE BANK ACCOUNTS SO MENTIONED BY THE AO FIND MENTION IN THE STATUS REPORT SO SENT BY THE AO ALONGWITH THE REMAND REPORT. THE STATUS REPO RT GIVEN BY THE INVESTIGATION WING VERY CLEARLY MENTIONS THAT SUCH BANK ACCOUNTS HAVE BEEN USED FOR THE PURPOSE OF PROVIDING ACCOMMODATION ENT RY TO VARIOUS COMPANIES SO MENTIONED IN REMAND REPORT AND TO NAME A FEW I.E . SAROWAR GOODS PVT. LTD., CHITRA GOODS GOODS PVT. LTD., KINGHSUK NIWAS PVT. LG. AND SO MANY OTHERS AS MENTIONED THEREIN. THE STATUS REPORT VERY CLEARLY INDICATES THAT THE BANK ACCOUNTS HAVE BEEN USED FOR PROVIDING ACCOMMOD ATION ENTRY TO SUCH COMPANY/CONCERN. THE APPELLANT HAD ITSELF ADMITTED THAT IT HAD EARNED COMMISSION @ 0.20% - 0.25%. THE CONTENTION OF THE A PPELLANT IS ACCEPTABLE IN THE BACKGROUND AND THE LIGHT OF THE REMAND REPOR T AND THE STATUS REPORT SO PLACED BEFORE ME AND I CONCUR WITH THE SUBMISSION S O MADE IN SUCH RESPECT AND RESTRICT THE ADDITION TO 0.5% OF THE ADDITION S O MADE I.E.RS.23,58,888 FOR THE COMMISSION EARNED ON SUCH SUM. HENCE THESE GROU NDS OF THE APPELLANT ARE PARTLY ALLOWED. 4.3 OTHER GROUNDS BEING GROUND NO. 8 & 9 ARE OF GEN ERAL IN NATURE AND DO NOT REQUIRE ADJUDICATION. 4.4 IN RESPECT OF A.Y 2007-08 AND 2009-10 THE APPE LLANT RAISED SIMILAR GROUNDS AND AS SUCH THE SAME ARE DECIDED AS FOLLOWS :- AY 2007-08 A) AS REGARDS NO.1 TO 4 FOR THE VALIDITY OF RE-ASSE SSMENT PROCEEDINGS THE SAME IS REJECTED IN VIEW OF THE DISCUSSION AND DECI SION SO MADE IN RESPECT OF A.Y 2008-09. HENCE SUCH GROUNDS ARE DISMISSED. B) B) AS REGARDS GROUND NO. 5,6 & 7 REGARDING ADDIT ION OF RS.5,81,70,150 THE ADDITION IS RESTRICTED TO THE AMOUNT OF COMMISSION EARNED @ 0.5% I.E. RS.2,90,851 ONLY HENCE SUCH GROUNDS ARE PARTLY ALLO WED. C) OTHER GROUNDS BEING GROUND NO. 8 & 9 ARE OF GENE RAL IN NATURE AND DO NOT REQUIRE ADJUDICATION. A.Y 2009-10 D) A) AS REGARDS NO.1 TO 4 FOR THE VALIDITY OF RE-A SSESSMENT PROCEEDINGS THE SAME IS REJECTED IN VIEW OF THE DISCUSSION AND DECI SION SO MADE IN RESPECT OF A.Y 2008-09. HENCE SUCH GROUNDS ARE DISMISSED. ITA NO.1681-1683/KOL/2017 & CO 103-105/K/17 A.YS. 0 7-08 TO 09-10 ITO WD-31(1),KOL. VS. SHRI PRABIR SANTRA PAGE 3 B) AS REGARDS GROUND NO. 5,6 & 7 REGARDING ADDITION OF RS.28,57,61,175 THE ADDITION IS RESTRICTED TO THE AMOUNT OF COMMISS ION EARNED @ 0.5% I.E. RS.9,28,806 ONLY HENCE SUCH GROUNDS ARE PARTLY ALLO WED. C) OTHER GROUNDS BEING GROUND NO. 8 & 9 ARE OF GENE RAL IN NATURE AND DO NOT REQUIRE ADJUDICATION. 3. WE NOW ADVERT TO BASIC RELEVANT FACTS. THERE IS NO DISPUTE THAT THIS ASSESSEE MAINTAINS THREE BANK ACCOUNT(S) IN DEVELOP MENT CREDIT BANK, IN THE NAME OF M/S MA TARA TRADERS, M/S MAGNATA UDYOG AND M/S SINGHANIA BROTHERS HAVING HUGE DEPOSITS THEREIN. THE ASSESSIN G OFFICERS ASSESSMENT(S) TREATED THE SAME AS HIS SEC. 69A UNEXPLAINED INCOME (S) RESULTING IN THE IMPUGNED ADDITION(S). SUFFICE TO SAY, THE CIT(A) HA S DIRECTED THE ASSESSING OFFICER TO ASSESS THE SAID DEPOSITS @ 0.5% ONLY AFT ER CONCLUDING THE ASSESSEE TO HAVE BEEN PROVIDING ACCOMMODATION ENTRIES ONLY. 4. LEARNED CIT-DR VEHEMENTLY CONTENDED DURING THE C OURSE OF HEARING THAT THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN AP PLYING THE FOREGOING COMMISSION RATE ON ASSESSEES BANK DEPOSITS THEN AD DING THE ENTIRE SUMS. AND THAT THE ASSESSEE OUGHT TO HAVE EXPLAINED THE L IST OF ULTIMATE BENEFICIARIES IN ORDER TO PROVE HIS ALLEGED ACCOMMO DATION ENTRY BUSINESS. WE FIND NO MERIT IN ALL THESE REVENUES ARGUMENTS. WE MAKE IT CLEAR FIRST OF ALL THAT THE CIT(A) HAD DULY SOUGHT A REMAND REPORT FRO M THE ASSESSING OFFICER WHEREIN TAXPAYER HAD FILED THE LIST OF ALLEGED BENE FICIARIES WHICH WERE NEVER PUT TO ANY FACTUAL VERIFICATION AS PER THE CASE REC ORD(S) BEFORE US. THIS IS ALSO NOT REVENUES CASE THAT ASSESSEE HAD CARRIED OUT AN Y ACTUAL BUSINESS GIVING RISE TO ANY UNEXPLAINED INCOME. IT IS THEREFORE A C ASE WHEREIN ASSESSEES ALL DEPOSITS HAVE SEEN WITHDRAWALS WITHIN A DAY OR TWO AS DEMONSTRATED IN THE LOWER APPELLATE PROCEEDINGS. THIS TRIBUNALS ORDERS IN YOGESH SHARMA VS. INCOME-TAX OFFICER, WARD-48(3) KOLKATA ITA NO.1085/KOL/2017 DECIDED ON 30.11.2018, DCIT CC.XXI KOLKATA VS. M/S SAFECO PROJECTS PVT. LT D. ITA NO.1948/KOL/2014 DECIDED ON 03.11.2017 AND DCIT, CC-1(4) VS. SHRI MAHENDRA SETHIA IN IT(SS)A NO.48 TO 54/KOL/2016 DECIDED ON 01.06.2 018 HAVE ALSO REJECTED THE REVENUES IDENTICAL ARGUMENT S SEEKING TO REVIVE THE ITA NO.1681-1683/KOL/2017 & CO 103-105/K/17 A.YS. 0 7-08 TO 09-10 ITO WD-31(1),KOL. VS. SHRI PRABIR SANTRA PAGE 4 ENTIRE DEPOSIT(S) AMOUNTS THEN MERE ONLY COMMISSION COMPONENT THEREIN. WE CONCLUDE IN THESE FACTS THAT THE CIT(A) HAS RIGHTLY RESTRICTED THESE THREE IDENTICAL ADDITION SUM(S) TO THE EXTENT OF ACCOMMOD ATION ENTRY INCOME COMPONENT @ 0.5% ONLY. THESE THEE REVENUES APPEAL( S) ITA NO.1681- 1683/KOL/2017 FAIL. 5. LEARNED COUNSEL STATES AT THE BAR THAT HE DOES N OT WISH TO PRESS FOR THE ASSESSEES ALL THREE CROSS OBJECTION(S). 6. THESE REVENUE APPEAL(S) ARE DISMISSED WHEREAS AS SESSEES CROSS OBJECTIONS ARE DISMISSED AS NOT PRESSED. ORDER PRONOUNCED IN THE OPEN COURT 07 /08/2019 SD/- SD/- ( ) () ) ( A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP *- 07 / 08 /201 9 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-SHRI PRABAIR SANTRA VILL & P.O. BANIPUR ( PANCHANTALLA) P.S. SANKRAIL DIST. HOWRAH-7113 04 2. /REVENUE-ITO WD-31(1), 10B, MIDDLETON ROW, 4 TH FLOOR, KOLKATA-71 3. 5 6 / CONCERNED CIT KOLKATA 4. 6- / CIT (A) KOLKATA 5. 9 ))5, 5, / DR, ITAT, KOLKATA 6. > / GUARD FILE. BY ORDER/ , /TRUE COPY/ 5,