M/s. B.D. Enterprise, Kolkata V. ITO, Ward - 33(2), Kolkata, Kolkata

ITA 1756/KOL/2010

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92020 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 9 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2001-2002
• Appeal Filed On: 09-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A BHATTACHARJEE
• Assessee Lawyers: R CHANDRA

Judgement Text

I.T.A. NO . 1756 / KOL ./20 1 0 ASSESSMENT YEAR: 200 1 - 20 0 2 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA BEFORE SHRI P.K. BANSAL , ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH , JUDICIAL MEMBER I.T.A. NO. 1756 / KOL / 20 1 0 ASSESSMENT YEAR : 200 1 - 20 0 2 M/S. B.D. ENTERPRISE,........................... . ......... ........ . APPELLANT 118A, SARAT GHOSH GARDEN ROAD, KOLKATA - 700 031 [PAN : AA DFB 4920 F ] - VS. - INCOME TAX OFFICER,...................................... .. ..... . RESPONDE NT WARD - 33(2), KOLKATA, 10B, MIDDLETON ROW, KOLKATA - 700 071 APPEARANC ES BY: SHRI R. CHANDRA, C.A. , FOR THE ASSESSEE SHRI A. BHATTACHARJEE , D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : JUNE 11 , 2 01 5 DATE OF PRONOUNCING THE ORDER : JUNE 11 , 201 5 O R D E R PER P.K. BANSAL : THIS A PPEAL HA S BEEN FILED BY THE ASSESSE E AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - XX, KOLKATA D ATED 16 . 0 7 .20 1 0 FOR THE ASSESSMENT YEAR 200 1 - 0 2 BY TAKING THE FOLLOWING EFFECTIVE GROUND OF APPEAL: - THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(APPEAL) - XX, KOLKA TA, WAS NOT JUSTIFIED TO CONFIRM A SUM OF RS.1,85, 323/ - ON ACCOUNT OF BOGUS EXPENSES AND CHARGES PAYABLE FOR LAND RS.5,00,000/ - . THE REASON ADDUCED BY LD. CIT(APPEALS) - XX, KOLKATA AS WELL AS AO, WARD - 33(2) ARE VAGUE AND ARBITRARY . 2. WE HAVE HEARD THE R IVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME ALONG WITH THE ORDER OF THE TAX AUTHORITIES BELOW. SO FAR AS THE ADDITION OF RS.1,85,323/ - IS CONCER N ED, WE NOTED THAT THE SAID PAYMENT HAS BEEN MADE BY THE ASSESSEE TO THE LABOUR CONTRACTOR MR. MRINMOY CH AKRABORTY AND WHILE MAKING THE PAYMENT , THE ASSESSEE HAS DULY DEDUCTED THE TDS ISSUING IN FORM NO. 16A, THE COPY OF WHICH IS AVAILABLE I.T.A. NO . 1756 / KOL ./20 1 0 ASSESSMENT YEAR: 200 1 - 20 0 2 PAGE 2 OF 3 BEFORE US. COPIES OF THE VOUCHERS WERE ALSO FILED BEFORE US. IN VIEW OF THIS FACT, WE DO NOT FIND THAT THE EXPENDITURES I NCURRED BY THE ASSESSEE ARE NOT THE GENUINE EXPENDITURES. WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT(APPEALS) ON THIS ISSUE AND DELETE THE ADDITION OF RS.1,85,323/ - . 3. THE SECOND ISSUE INVOLVED IN THE GROUND TAKEN BY THE ASSESSEE RELATES TO THE ADDITI ON OF RS.5,00,000/ - . WE NOTED THAT THE EXPENSES INCLUDING THE PAYMENT TO THE LAND OWNER AMOUNTING TO RS.5,00,000/ - HAS DULY BEEN DEBITED BY THE ASSESSEE IN THE PROFIT & LOSS A/C. THE ASSESSEE HAS FULL - FLEDGED CONSTRUCTION WORK STARTED DURING THE IMPUGNED A SSESSMENT YEAR. THE ASSESSEE HAS DULY MADE THE PAYMENT IN RESPECT OF THIS AMOUNT IN THE FINANCIAL YEAR 2004 - 05 AND THIS FACT HAS NOT BEEN DISPUTED BY THE REVENUE. COPIES OF THE AGREEMENT WITH THE LANDLORD WERE ALSO FILED. THE FIRST AGREEMENT WAS ENTERED I NTO ON 12.01.1999 AND THE SECOND ONE ON 22.03.1999. THE ASSESSING OFFICER HAS TREATED THE EXPENDITURE TO BE BOGUS BUT HAS NOT BROUGHT OUT ANY MATERIAL WHICH MAY PROVE THAT THE EXPENDITURE INCURRED BY THE ASSESSEE IS BOGUS OR THE AGREEMENT ENTERED INTO IS F ABRICATED ONE. ONCE THE ASSESSING OFFICER TREATS THE AGREEMENT TO BE BOGUS, THE ONUS IS ON THE ASSESSING OFFICER TO PROVE THAT THE AGREEMENT IS BOGUS OR THE EXPENDITURE IS BOGUS. LD. D.R. EVEN THOUGH VEHEMENTLY RELIED ON THE ORDER OF THE ASSESSING OFFICER, BUT COULD NOT ADDUCE ANY COGENT MATERIAL OR EVIDENCE. ON TH IS BASIS, IT COULD BE SAID THAT THE AGREEMENT FOR THE EXPENDITURE INCURRED BY THE ASSESSEE AMOUNTING TO RS.5,00,000/ - IS BOGUS. WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT(APPEALS) ON THIS COUNT AND DELETE THE ADDITION. 4 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSE E IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON JUNE 11 , 201 5 . SD/ - SD/ - MAHAVIR SINGH P.K. BANSAL ( JUDICIAL MEMBER) ( ACCOUNT ANT MEMBER) KOLKATA, THE 11 TH D AY OF JUNE , 201 5 I.T.A. NO . 1756 / KOL ./20 1 0 ASSESSMENT YEAR: 200 1 - 20 0 2 PAGE 3 OF 3 COPIES TO : (1) M/S. B.D. ENTERPRISE, 118A, SARAT GHOSH GARDEN ROAD, KOLKATA - 700 031 (2) INCOME TAX OFFICER, WARD - 33(2), KOLKATA, 10B, MIDDLETON ROW, KOLKATA - 700 071 (3) COMMISSIONER OF INCOME - TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKA TA B ENCHES, KOLKATA LAHA/SR. P.S .