A.C.I.T., Circle-Malda, Malda, Malda V. Biplab Mondal, Dakshin Dinajpur

ITA 1690/KOL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1585 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 30-05-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 19-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PRABIR RANJAN DATTA
• Keywords: Unexplained cash credit; Additional evidence
• Section: 143(3); 68

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI N.V.VASUDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 1690 / KOL / 2014 ASSESSMENT YEAR :2010-11 ACIT, MALDA CIRCLE, MALDA INCOME TAX OFFICE MALDA PIN 732101 V/S . BIPLAB MONDAL ANKHIRAPARA, CHAKVIRGU, DASKHIN DINAJPUR, PIN 733 102 [ PAN AEUPM 7856 C ] /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI NICHOLAS MURMU, JCIT-SR-DR /BY RESPONDENT SHRI PRABIR RANJAN DATTA, CA /DATE OF HEARING 27-07-2017 !' /DATE OF PRONOUNCEMENT 30-08-2017 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), JALPAIGURI DA TED 20.06.2014. ASSESSMENT WAS FRAMED BY DCIT, CIRCLE-MALDA U/S 143 (3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VI DE HIS ORDER DATED 15.03.2013 FOR ASSESSMENT YEAR 2010-11. GROUNDS RAISED BY REVE NUE PER ITS APPEAL ARE AS UNDER:- I. CIT(A) HAS NOT APPRECIATE THE FACTS DISCUSSED BY AO WILE DELETING THE ADDITION OF RS.33,44,655 AS CASH CREDIT. II CIT(A) HAS NOT GIVEN REASONS FOR DELETING THIS A DDITION. RELIANCE IS PLACED ON THE JUDGMENT OF HON'BLE SUPRE ME COURT IN THE CASE OF CIT-IV NAGPUR VS RATAN BABULAL PODDAR [2014] 45 TAXMAN.COM 223 (SC). HON'BLE SUPREME COURT OBSERVED THAT AN ORDER WHICH DOES NOT CONTAIN REASONS IS NO ORDER IN THE EYE OF LAW AND R EQUIRE TO BE SET ASIDE. III. CIT(A) HAS GIVEN DIRECTIONS TO VERIFY CERTAIN OTHER ADDITION BY AO. THIS DIRECTION AMOUNTS TO SET ASIDE. ITA NO.1690/KOL/2014 A.Y. 2010-11 ACIT MALDA CIR VS. B. MONDAL PAGE 2 RELIANCE IS PLACED ON THE JUDGEMENT IN THE CASE OF ITO-6(1), KANPUR VS. M/S DOLPHIN DEVELOPERS ITA NO.364/LK/2011 IV. THE APPELLANT MAY PLEASE BE ALLOWED TO ADD OR A LTER THE GROUNDS OF APPEAL, IF ANY. SHRI NICHOLAS MURMU, LD. DEPARTMENTAL REPRESENTATIV E REPRESENTED ON BEHALF OF REVENUE AND SHRI PRABIR RANJAN DUTTA, LD. AUTHOR IZED REPRESENTATIVE APPEARED ON BEHALF OF ASSESSEE. 2. AT THE OUTSET, IT WAS OBSERVED THAT ASSESSING OF FICER IN HIS ASSESSMENT ORDER FRAMED U/S. 143(3) INTER ALIA MADE THE FOLLOWING ADDITIONS:- I) CONTRACT RECEIPT 3,12,900/- II) PRIVATE CONTRACT WORKS 33,44,655/- 3. FIRST ISSUE RAISED BY REVENUE IN THIS APPEAL IS THAT LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER FOR 33,44,655/- ON ACCOUNT OF CASH CREDIT. 4. BRIEFLY STATED FACTS ARE THAT ASSESSEE IS AN IND IVIDUAL ENGAGED IN CIVIL CONSTRUCTION AS WELL AS TRUCK PLYING. THE ASSESSEE IN THE YEAR UNDER CONSIDERATION CLAIMED TO HAVE RECEIVED A SUM OF 33,44,655/- ONLY AGAINST THE EXECUTION OF PRIVATE CONTRACT OF CERTAIN PARTIES. H OWEVER, THE ASSESSEE FAILED TO FURNISH THE DOCUMENTARY EVIDENCE IN SUPPORT OF H IS CLAIM BEFORE ASSESSING OFFICER AT THE TIME OF ASSESSMENT PROCEEDINGS. THER EFORE, AO TREATED THE RECEIPT OF 33,44,655/- AS UNEXPLAINED CASH CREDIT U/S 68 OF TH E ACT AND ADDED TO THE TOTAL INCOME OF ASSESSEE. 5. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A). THE ASSESSEE BEFORE LD. CIT(A) FILED VARIOUS ADDITIONAL EVIDENCE IN SUPPORT OF THE PRIVATE CONTRACT EXECUTED BY HIM. ACCORDINGLY, LD. CIT(A) CALLED FOR REMAND REPORT FROM THE AO WHO HAS CONFIRMED THE SUBMISSION OF ASSESSEE. ACCORDINGLY, LD. CIT(A) DELETED THE ADDITION MADE B Y AO. THE REVENUE, BEING AGGRIEVED, IS IN APPEAL BEFORE U S. 6. BEFORE US LD. DR SUBMITTED THAT REMAND REPORT IS NOT CLEAR WHETHER ASSESSEE HAS EXECUTED THE CONTRACT FOR THE PRIVATE CONTRACTORS. FURTHER LD. DR PRAYED TO THE BENCH TO RESTORE THE ISSUE TO THE AO FOR FRESH CONSIDERATION. ITA NO.1690/KOL/2014 A.Y. 2010-11 ACIT MALDA CIR VS. B. MONDAL PAGE 3 ON THE OTHER HAND, LD. AR FOR THE ASSESSEE FILED PA PER BOOK WHICH IS RUNNING PAGES FROM 1 TO 92 AND RELIED ON THE ORDER OF LD. C IT(A). 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ADDI TION IN THE INSTANT CASE WAS MADE BY AO ON THE GROUND THAT ASSESSEE FAILED TO FU RNISH THE DETAILS OF THE CONTRACTS EXECUTED BY HIM FOR PRIVATE PARTIES. HOWE VER, WE FIND THAT ALL THE NECESSARY DETAILS WERE DULY FURNISHED BY ASSESSEE A T THE TIME OF REMAND REPORT TO THE AO. THE AO ALSO DEPUTED THE INSPECTOR OF INCOME-TAX TO VERIFY THE VERACITY OF THE DETAILS SUBMITTED BY THE ASSESS EE WHO IN TURN SUBMITTED IN ITS REPORT AS DETAILED UNDER:- INSPECTORS REPORT AS DIRECTED BY THE ASSISTANT COMMISSIONER OF INCOME TAX, MALDA CIRCLE, MALDA I WENT TO BALAURGHAT, D.DINAJPUR TO ENQUIRE T HE PRIVATE CONTRACTEE IN THE CASE OF SRI BIPLAB MONDAL, BALAURGHAT, SOUTH DINAJP UR. I MET THERE WITH THE PRIVATE CONTRACTEE WHOSE NAMES ARE AS UNDER:- 1. SAMI KUMAR MONDAL, S/O SRI BIRENDRA MONDAL, BALU RGHAT 2. ARUN CHANDRA MONDAL, S/O SRI RANENDRA NATH MONDA L, BALURGHAT 3. ARUN CHANDRA MONDAL, S/O SRI RANENDRA NATH MONDA L, BALURGHAT 4. SANJOY DAS, S/O SRI HAREN CHANDRA DAS, BALURGHAT 5. BALRAM BISWAS, S/O SRI BUDDHESHWAR BISWAS, BALUR GHAT 6. PRAHLAD MONDAL, S/O ROHINI MONDAL, BALURGHTA 7. NIDHUBALA MONDAL, W/O LATE DEBENDRA MONDAL, BALU RGHAT 8. BELI MONDAL, W/O LATE RAM CHANDRA MONDAL, BALAUR GHT 9. RENUKA DAS, W/O DWIJENDRA DAS, BALURGHAT 10. SATEYENDRA NATH BALL CHOWDHURY S/O LATE SUDHIR CHANDRA BALL CHAUDHURY, BALURGHAT THEY STATED THAT THEY HAD GIVEN CONTRCT TO BUILD SM ALL ROOM ADJACENT TO THE HOUSE OR REPAIRING OF THEIR HOUSE TO BIPLAB MONDAL, (STATEMENT ATTACHED). THIS IS FOR YOUR KIND INFORMATION. ENCL: AS STATED ABOVE. SD/- ANAND JYOTI (ANAND JYOTI) INSPECTOR O/O THE ACIT, MALDA CIRCLE, MALDA THE AO ALSO FILED ITS REMAND REPORT TO LD. CIT(A) W HICH READS AS UNDER:- 4. UNEXPLAINED CASH CREDIT ENTRIES IN THE ASSESSEE S BOOKS OF ACCOUNT INVOKING OF SECTION 68 OF THE INCOME TAX ACT 1961. AO COMMENT: ON THIS ISSUE THE DEPARTMENTAL INSPECTO R WAS DEPUTED FOR PHYSICAL VERIFICATION OF THE PRIVATE CONTRACTEE. TH E INSPECTOR SUBMITTED HIS REPORT (COPY ATTACHED) AND FROM THE INSPECTORS REP ORT IT IS OBSERVED THAT THE PRIVATE CONTRACTEE HAD GIVEN CONTRACT TO THE ASSESS EE TO CONSTRUCT SMALL ROOM ITA NO.1690/KOL/2014 A.Y. 2010-11 ACIT MALDA CIR VS. B. MONDAL PAGE 4 ADJACENT TO THE HOUSE OR REPAIRING OF THEIR HOUSE. HENCE, NO ADVERSE HAS BEEN DETECTED IN THOSE ENTRIES. BESIDES THE ABOVE, WE ALSO FIND NECESSARY DETAILS O F THE PRIVATE PARTIES FOR WHOM THE ASSESSEE HAS EXECUTED THE CONTRACTS ARE AV AILABLE ON PAGES 69 TO 88 OF THE PAPER BOOK. IN VIEW OF ABOVE, WE FIND NO REASON TO INTERFERE IN THE ORDER OF LD. CIT(A). WE HOLD ACCORDINGLY. HENCE, TH IS GROUND OF REVENUE IS DISMISSED. 8. NEXT ISSUE RAISED BY REVENUE IN THIS APPEAL IS T HAT LD. CIT(A) ERRED IN GIVING DIRECTION TO THE AO TO VERIFY CERTAIN ADDITI ONS WHICH AMOUNTS TO REMAND REPORT AND AGAINST THE PROVISION OF LAW. 9. IN THIS CASE, THE AO OBSERVED THAT ASSESSEE HAS CONCEALED ITS RECEIPT OF 3,12,900/- WHICH WAS NOT REFLECTED IN PROFIT AND LO SS ACCOUNT. HOWEVER, ASSESSEE MADE THE SUBMISSION THAT THE IMPUGNED RECE IPT WAS RECEIVED BY HIM IN THE YEAR UNDER CONSIDERATION IN ITS BANK ACC OUNT WHICH WAS DISCLOSED IN THE INCOME TAX RETURN. THUS, IMPUGNED RECEIPT WAS D ULY DISCLOSED IN THE FINANCIAL STATEMENTS WHICH WERE DULY FILED. HOWEVER THE AO DISREGARDED THE CONTENTIONS OF THE ASSESSEE AND ADDED THE SAME TO T HE TOTAL INCOME OF THE ASSESSEE. 10. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A). THE ASSESSEE BEFORE LD. CIT(A) SUBMITTED THAT IT HAS RE CEIVED A SUM OF 2,61,472/- FROM THE CONTRACTS BUT THE SAME WAS INAD VERTENTLY SHOWN UNDER THE HEAD PRIVATE CONTRACTS. THE LD. CIT(A) ACCORD INGLY ALLOWED RELIEF TO THE ASSESSEE BY DIRECTING THE AO TO VERIFY THE RECEIPT OF 2,61,472/- FROM THE BOOKS OF ACCOUNT AND BANK STATEMENT BY OBSERVING AS UNDER:- .. REGARDING THE ADDITION OF RS.3,12,900 ON ACCOUNT OF SUPPRESSION OF SALE, THE AO IS DIRECTED TO VERIFY FROM THE BOOKS O F ACCOUNT AND BANK STATEMENT WHETHER RS.2,61,472 IS PART OF GOVERNMENT CONTRACTS OR PRIVATE CONTRACTS. IF THIS AMOUNT OF RS.2,61,472 IS PART OF THE GOVERNMENT CONTRACTS OF RS.3,12,900 WHICH WAS NOT DISCLOSED, THE AO IS D IRECTED TO REDUCE RS.2,61,472 FROM THE UNDISCLOSED RECEIPTS OF RS.3,1 2,900 THE REVENUE, BEING AGGRIEVED, IS IN APPEAL BEFORE U S. ITA NO.1690/KOL/2014 A.Y. 2010-11 ACIT MALDA CIR VS. B. MONDAL PAGE 5 11. LD. DR BEFORE US SUBMITTED THAT LD. CIT(A) HAS NO POWER TO SET ASIDE APPEAL OF AO. HE FURTHER RELIED ON THE ORDER OF AO. ON THE OTHER HAND, LD. AR FOR THE ASSESSEE SUBMITTE D THAT THE MATTER WAS NOT ACTUALLY SET ASIDE TO THE AO BUT IT WAS SENT BACK T O THE AO WITH THE DIRECTION TO VERIFY THE BANK STATEMENT AND THE BOOKS OF ACCOUNT AND ACCORDINGLY DISPOSED OF. THUS, SUCH DIRECTION CANNOT AMOUNT TO SET ASIDE THE ORDER TO THE AO. LD. AR RELIED ON THE ORDER OF LD. CIT(A). 12. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AT THE OUTSET, IT WAS OBSERVED THAT THE MATTER WAS NOT RESTORED BACK TO THE FILE OF AO FOR FRESH A DJUDICATION RATHER IT WAS DIRECTED TO VERIFY THE BOOKS OF ACCOUNT AND THE BAN K STATEMENT BEFORE ADMITTING THE CLAIM OF ASSESSEE. THEREFORE, THERE I S NO LOSS TO THE REVENUE IF ANY DIRECTION IS GIVEN BY LD. CIT(A) FOR ADJUDICATI NG THE MATTER. IN THE BACKGROUND OF THE ABOVE DISCUSSIONS WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A). WE UPHOLD THE SAME. THIS GROUND OF REVENUE IS DISMISSED. 13. IN THE RESULT, REVENUES APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 30/ 08/2017 SD/- SD/- ($%&) ( %&) (N.V.VASUDEVAN) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP, SR.P.S (%)*- 30 / 08 /201 7 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ACIT, MALDA CIRCLE, INCOME TAX OFFICE MA LDA, PIN 732101 2. /RESPONDENT-BIPLAB MONDAL, ANKHIRAPARA, CHAKVIRGU, DAKSHIN DINAJPUR PIN733101 3.)2)3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA 5.789$$3 , 3 , / DR, ITAT, KOLKATA 6.9;<=> / GUARD FILE. BY ORDER/ %, /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO 3 ,