Sri Dibakar Bisoi, Midnapore V. ITO, Ward-1(),Midnapore, Midnapore

ITA 1760/KOL/2014

• Counselvise Citation: 176023514 RSA 2014
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-06-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 08-09-2014
• Court: TRIBUNAL
• Department Lawyers: SANJAY SR DR
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH: KOLKATA [BEFORE HON BLE SHRI B.P.JAIN, AM] I.T.A NO.1760/KOL/2014 ASSESSMENT YEAR: 2008 - 09 SRI DIBAKAR BISOI V S I.T.O., WARD - 1(1), PROP. OF BISUI GAS CENTRE,MIDNAPORE MIDNAPORE. . (APPELLANT) ( RESPONDENT) (PAN: ADPPB 4374 C) FOR THE APPELLANT : NONE FOR THE RESPONDENT : SHRI SANJAY, SR.DR, ADDL. C.I.T. DATE OF HEARING : 05 .06 .2015. DATE OF PRONOUNCEMENT: 05 .06 .2015. ORDER PER SHRI B.P.JAIN, AM : THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF LD.CIT(A) - XXXVI, KOLKATA DATED 27.12 .2013 FOR ASSESSMENT YEAR 2008 - 09. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1. FOR THAT THE I.T.O. WAS UNJUSTIFIED IN COMPUTATION THE UN DISCLOSED PURCHASE OF RS.36,004/ - AND THE SAME IS ILLEGAL. 2. FOR THAT THE ITO ERRED IN ADDING RS.1,61,923/ - (RS.16,922/ - ) & RS.54,006/ - AND RS.14,884/ - FOR UNDISCLOSED ADVANCE AND AS WELL AS BILLS PAYABLE WERE NOT ACCORDING TO LAW. 4. FOR THAT THE ADDITIO N IN TRADING A/C OF RS.40,000/ - AND DISALLOWING EXPENDITURE FOR RS.40,000/ - WERE NOT PROPER. 3. THE BRIEF FACTS OF THE CASE AS EMAN ATING FROM AO S ORDER AT PAGES 2 AND 3 ARE REPRODUCED HEREIN BELOW FOR THE SAKE OF CONVENIENCE : ON VERIFICATION OF THE S TATEMENT OF PURCHASES AND SALES RECEIVED BY THE UNDERSIGNED FROM THE HINDUSTAN PETROLEUM CORPORATION LTD. VIDE ITS LETTER DATED 4.9.10, IN RESPONSE TO THE NOTICE OF THE UNDERSIGNED U/S 133(6) OF THE IT ACT, 1961, VIDE THIS OFFICE NO.ITO/W - 1(1)/MID/U/S.133( 6)/ADAPB4374C/2010 - 11 DATED 23.8.2010, IT HAS BEEN FOUND THAT THE ASSESSEE HAD PURCHASED 82462 NOS. OF LPG CYLINDERS FROM THE ABOVE COMPANY AND PAID RS.2,33,80,390.00. AGAIN, LETTER WAS ISSUED TO THE HINDUSTAN PETROLEUM CORPORATION LTD., PAHARPUR LPG BOTTL ING PLANT, KOLKATA - 88, VIDE THIS OFFICE LETTER NO.ITO/ W - ITA NO. 1760/KOL/2014 SHRI DIBAKAR BISOI,PROP.OF BISOI GAS CENTRE A.YR. 2008 - 09 2 1(1)/MID/U/S.133(6)/ADAPB4374C/2010 - 11 DATED 18.11.10, REQUIRING INFORMATION WHETHER ANY AMOUNT OF VAT OR ANY OTHER TAXES ARE INCLUDED IN THE ABOVE PURCHASES. IN COMPLIANCE, THE SR.ACCOUNTS OFFICER, HINDUSTAN PETROLEUM CORPORATION, PHARPUR BOTTLING PLANT, KOL - 88, UNDER REF.KLRO:TKD:FIN, DATED 30.11.10, STATED : 1. THE MENTIONED SALES PRICE OF RS.2,3301,635.85 (I.E. PURCHASES MADE BY YOUR ASSESSEE FROM OUR COMPANY DURING THE FINANCIAL YEAR 07 - 08) INCL UDES VAT @4% FOR 14.2 KG CYLINDERS AND VAT @4% FOR 19 KG CYLINDER RS.19 PER CYLINDER AS ST CASES : 2. THE AMOUNT OF VAT AND ST CESS ACTUALLY PAID BY YOUR ASSESSEE TO OUR COMPANY FOR SUCH PURCHASES MADE DURING FINANCIAL YEAR 07 - 08 IS AS UNDER : FOR 14.2 KG CYLINDER = 876441.15 FOR 19 KG CYLINDER = 31102.54 907543.69 THUS IT IS SEEN FROM THE ABOVE INFORMATION RECEIVED U/S 133(6) OF THE IT ACT, 1961 FROM THE HINDUSTHAN PETROLEUM CORPORATION THAT THE ACTUAL PURCHASE MADE BY THE ASSESEE FROM THE HIND USTAN PETROLEUM CORPORATION, DURING THE FINANCIAL YEAR 07 - 08, RELEVANT TO THE ASSESSMENT YERAR 08 - 09 IS RS.2,23,94,092.16 (I.E. RS.2,33,01,635.85 VAT AND ST CESS OF RS.9,07,543.69). ON VERIFICATION OF THE AUDITED TRADING ACCOUNT FOR THE YEAR ENDED 31.3.0 8, IT HAS BEEN FOUND THAT THE ASSESSEE HAS SHOWN THE FOLLOWING PURCHASES : TAX PAID PURCHASE RS. 41,98,004.33 TAXABLE PURCHASES RS.1,90,67,627.24 TOTAL PURCHASES RS.2,32,65,631.54 SO, AS PER TRADING ACCOUNT FOR THE YEAR ENDING 31.3.08, THE ACTUAL PURC HASES COMES TO RS.2,32,65,631.54. THE A/R OF THE ASSESSEE, DURING THE COURSE OF HEARING, HAS MADE THE FOLLOWING RECONCILIATION ON 22.12.10 : TAX PAID PURCHASES RS. 41,98,004.33 TAXABLE PURCHASE (INCLUDING VAT) RS.1,90,67,627.24 TOTAL PURCHASE FROM HPCL (AS PER AUDITED ACCOUNTS) RS.2,32,65,631.57 AMOUNT OF PURCHASE AS PER HPCL INCLUDING VAT AND ST CESS, AS PER VERIFICATION/INFORMATION COLLECTED U/S 133(6) RS.2,33,01,635.85 DIFFERENCE (RS.2,33,01,635.85 RS.2,32,65,631.54) RS. 36,004.28 AS PE R AUDITED TRADING ACCOUNT FOR THE YEAR ENDING 31.3.08, THE PURCHASE IS RS.2,32,65,631.54 AND AS PER INFORMATION COLLECTED FROM THE HINDUSTAN PETROLEUM CORPORATION LTD., THE PURCHASE MADE BY THE ASSESEE FOR THE PERIOD FROM 1/4/07 TO 31.3.08 IS RS.2,33,01,63 5.85. THUS, THE DIFFERENCE OF PURCHASE ARISES OF RS.36,004.31 (RS.2,33,01,635.85 RS.2,32,65,631.54). THE DIFFERENCE OF RS.36,004.28 IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE FOR THE ASSESSMENT YEAR 08 - 09 AS UNDISCLOSED PURCHASES. PROCEEDINGS U/S 271(1 )(C) HAVE BEEN INITIATED SEPARATELY. THE LD. CIT(A) CONFIRMED THE ACTION OF AO. ITA NO. 1760/KOL/2014 SHRI DIBAKAR BISOI,PROP.OF BISOI GAS CENTRE A.YR. 2008 - 09 3 4. SINCE THE ASSESSEE HAS NOT BEEN ABLE TO REBUT THE FINDINGS OF THE AO DURING THE ASSESSMENT PROCEEDINGS NOR BEFORE THE LD.CIT(A). 5. NONE APPEARED ON BEHALF OF THE ASSESS EE. ACCORDINGLY I PROCEED TO DECIDE AFTER HEARING THE LD. DR AND MATERIALS AVAILABLE ON RECORD. IN THE PRESENT CASE, THE DIFFERENCE HAS BEEN WORKED OUT BY THE AO AS RS.36004 WHICH HAS NOT BEEN RECONCILED EITHER BEFORE AO OR BEFORE LD. CIT(A). IT IS NOT A CASE WHERE THE ASSESSEE HAD NOT BEEN GIVEN AN OPPORTUNITY BY ANY OF THE AUTHORITIES BELOW. THE ASSESSEE DID NOT RECONCILE THE DIFFERENCE EVEN BEFORE THE LD.CIT(A) PRESENT ED BY THE LD. AR SHRI RATAN GUHA, WHO APPEARED ON BEHALF OF THE ASSESSEE. HOWEVER, IN THE ABSENCE OF ANY EVIDENCE BEFORE BOTH THE AUTHORITIES BELOW, AND IN THE ABSENCE OF ANY RECONCILIATION OR ANY EVIDENCE ON RECORD WITH REGARD TO THE SAID PURCHASE SUPPRESSION , I FIND NO INFIRMITY IN THE ORDER OF LD. CIT(A), WHO HAS RIGHTLY CONFIRMED THE AC TION OF AO. THUS GROUND NO.1 OF THE ASSESSEE IS DISMISSED. 6. AS REGARDS GROUND NO.2 THE BRIEF FACTS OF THE CASE AS EMANATING FROM AO S ORDER ARE REPRODUCED HEREIN BELOW FOR THE SAKE OF CONVENIENCE : - ON VERIFICATION OF THE LETTER OF HINDUSTAN PETROLEUM CORPORATION LTD. DATED 4.9.10 FURNISHED TO THE UNDERSIGNED UNDER REFERENCE KLRO:TKD:FIN, IN COMPLIANCE TO NOTICE U/S 133(6) OF THE IT ACT DATED 23.8.10, IT HAS BEEN FOUND THAT THE ASSESSEE HAD PURCHASED 82462 NOS. OF LPG CYLINDERS FROM THE ABOVE COMPANY FO R RS.2,33,01,635.85, DURING THE FINANCIAL YEAR 07 - 08 AND PAID TO THE ABOVE COMPANY RS.2,33, 80,390.00 FOR SUCH PURCHASE. THUS, THE ASSES SEE MADE AN ADVANCE PAYMENT OF R S.78,754.15 (RS.2,33,80,390.00 RS.2,33,01,635.85). BUT IT HAS BEEN FOUND IN TH E BALANCE SHEET AS AT 31.3.08 THAT THE ASSESSEE SHOWN LOANS AND ADVANCES PAID TO HINDUSTAN PETROLEUM CORPN. LTD. FOR RS.61,832.00. SO, THE DIFFERENCE OF RS.16,922.15 (RS.78754.15 RS.61,832.00) IS ADDED BACK TO THE TOTAL INCOME AS UNDISCLOSED ADVANCE. PRO CEEDINGS U/S 271(1)(C) HAVE BEEN INITIATED SEPARATELY. ON VERIFICATION OF THE BANK STATEMENT FURNISHED BY THE BANK OF BARODA, KHARAGPUR BRNACH, KHARAGPUR, FOR THE PERIOD FROM 1.4.07 TO 31.3.08, VIDE LETTER NO.ITO/W - 1(1)/MID/U/S133(6)/ADAPB4374C/2 010 - 11 DATED 23.8.10, IN RESPONSE TO THE NOTICE U/S. 133(6) OF THE IT ACT, 1961, IT HAS BEEN DETECTED THAT THE ASSESSEE HAD MAINTAINED THE FOLLOWING BANK ACCOUNTS/TERM DEPOSITS, DURING THE FINANCIAL YEAR 2007 - 08, RELEVANT TO THE ASSESSMENT YEAR 2008 - 09: SL .NO. ACCOUNT NO. AMOUNT STANDING TO THE CREDIT AS AT 31.3.08 (I). 09040300019403 RS.18,702.00 ITA NO. 1760/KOL/2014 SHRI DIBAKAR BISOI,PROP.OF BISOI GAS CENTRE A.YR. 2008 - 09 4 (II) 09040300019195 RS.16,610.00 (III) 09040300018639 RS.18,694.00 TOTAL RS.54,006.00 BUT THE ABOVE BANK ACCOUNTS WERE NOT REFLECTED IN THE AUDITED BALANCE SHEET AS AT 31.3.08 U/S 44AB OF THE IT ACT, 1961, FURNISHED BY THE ASSESSEE ALONG WITH HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 08 - 09 AND ALSO IN HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 08 - 09, FURNISHED ON 30.9.08. CONSEQUENTLY, A LETTER W AS ISSUED TO THE ASSESSEE ON 18.10.10 VIDE NO.ITO/W - 1(1)/MID/ ADAPB4374C/2010 - 11 , REQUIRING HIM TO SHOW CAUSE AS TO WHY THE UNDISCLOSED BANK ACCOUNT HAVING CASH BALANCE OF RS.54,006/ - AS AT 31.3.08, SHALL NOT BE ADDED TO THE TOTAL INCOME OF THE ASSESSEE. IN RESPONSE, THE A/R OF THE ASSESSEE FURNISHED A WRITTEN SUBMISSION REQUESTING TO CONSIDER THE MATTER. THE CONTENTION OF THE A/R OF THE ASSESSEE IS NOT ACCEPTED AND FOR DELIBERATE CONCEALMENT OF THE ABOVE BANK ACCOUNTS, THE AMOUNT OF RS.54,0 06/ - STANDING TO THE CREDIT OF THE ASSESSEE AS AT 31.3.08, IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE FOR THE ASSESSMENT YEAR 08 - 09. PROCEEDINGS U/S 271(1)(C) HAVE BEEN INITIATED SEPARATELY FOR CONCEALMENT OF RS.54,006/ - ON VERIFICATION OF THE L EDGER COPY OF THE ACCOUNTS IN RESPECT OF PURCHASE AND SALES, RECEIVED BY THE UNDERSIGNED FROM THE ITCO IMPEXLTD.65, AUROBINDA SARANI, KOLKATA, VIDE ITS LETTER 10.9.10, IN RESPONSE TO THE NOTICE U/S 133(6) OF THE IT ACT, 1961 VIDE THIS OFFICE NO. ITO/W - 1(1) /MID/U/S133(6)/ADAPB4374C/2010 - 11 DATED 23.8.10, IT HAS BEEN FOUND THAT THE ASSESSEE HAD MADE A PUR CHASE OF STOVES AND HOUSES FOR R S.7,52,846/ - AGAINST WHICH A SUM OF RS.14,884/ - REMAINED PAYABLE BY THE ASSESSEE TO THE ABOVE COMPANY UP TO 31.03.2008 VIDE I TS BILL NO.BEN/786, DATED 31.3.08. THE AMOUNT OF RS.14,884/ - PAYABLE BY THE ASSESSEE TO THE ABOVE COMPANY AS AT 31.3.08 IS NOT REFLECTED IN THE RETURN OF INCOME FILED BY THE FOR THE ASSESSMENT YEAR 08 - 09 ON 30.09.09 AND NOT ALSO REFLECTED IN THE AUDITED BA LANCE SHEET AS AT 31.308, FILED BY HIM ALONG WITH THE RETURN, AS SUNDRY CREDITORS OR BILLS PAYABLE. UNDER THE CIRCUMSTANCES STATED ABOVE, THE ASSESSEE WAS REQUESTED TO SHOW CAUSE, VIDE THIS OFFICE LETTER NO. ITO/W - 1(1)/MID/ ADAPB4374C/2010 - 11, DAT ED 25.10.10 AS TO WHY THE AMOUNT OF RS.14,884/ - PAYABLE BY HIM TO THE ITOCO IMPEX LTD. AS AT 31.3.08, SHALL NOT BE ADDED BACK TO HIS TOTAL INCOME FOR THE ASSESSMENT YEAR 08 - 09, AS UNDISCLOSED BILLS PAYABLE. THE ASSESSEE OR A/R OF THE ASSESSEE DID NO T OFFER ANY EXPLANATION IN THIS RESPECT. FOR CONCEALMENT OF RS.14,884/ - IN THE BALANCE SHEET AS BILLS PAYABLE, THE AMOUNT OF RS.14,884/ - IS ADDED BACK TO THE TOTAL INCOME OF THE ASSESSE. PROCEEDINGS U/S 271(1)(C) HAVE BEEN INITIATED SEPARATELY. 6.1. THE LD.CIT(A) CONFIRMED THE ACTION OF AO. SINCE THE LD. CIT(A) HAD GIVEN A FINDING THAT AO HAD NECESSARY ENQUIRIES AND CONFRONTED OF THE EVIDENCES GATHERED TO THE ASSESSEE BUT NEITHER DURING THE ASSESSMENT PROCEEDINGS NOR BEFORE HIM , THE ASSESSEE WAS ABLE TO R EBUT THE EVIDENCES AGAINST THE ASSESSEE. ITA NO. 1760/KOL/2014 SHRI DIBAKAR BISOI,PROP.OF BISOI GAS CENTRE A.YR. 2008 - 09 5 7. NONE APPEARED ON BEHALF OF THE ASSESSEE. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. IN THE PRESENT CASE AS IN THE FINDINGS OF THE LD. CIT(A) AND AO NECESSARY ENQUIRY HAS BEEN MADE BY T HE AO AND THE SAME WAS CONFRONTED TO THE ASSESSEE. BUT NEITHER DURING THE ASSESSMENT PROCEEDINGS NOR BEFORE THE LD.CIT(A) SUCH EVIDENCES HAD BEEN REBUTTED AND THERE IS NOTHING ON RECORD BEFORE US AS WELL TO REBUT SUCH EVIDENCES. THE ONLY REPRESENTATION MA DE BY THE LD. COUNSEL FOR THE ASSESSEE BEFORE THE LD.CIT(A) HAS ALREADY BEEN REPRODUCED BY THE LD.CIT(A) IN PARA 4.2. OF HIS ORDER WHICH FOR THE SAKE OF CONVENIENCE IS REPRODUCED HEREIN BELOW : - THAT THE ITO WAS NOT JUSTIFIED IN ADDING RS.16,923/ - , RS.44, 006/ - AND RS.14,888/ - FOR DIFFERENT ACCOUNTS AND ADVANCE BANK ACCOUNTS AND BILLS PAYABLE WAS ENTIRELY UNJUSTIFIED AND SAME SHOULD NOT ADDED BACK OF THE TOTAL INCOME. 7.1. ON PERUSAL OF THE SAME AND FACTS ON RECORD AND I N THE CIRCUMSTANCES AND FACTS OF TH E CASE , I FIND NO INFIRMITY IN THE ORDER OF L.D CIT(A), WHO HAS RIGHTLY CONFIRMED THE ACTION OF AO. THUS GROUND NO.2 OF THE ASSESSEE IS DISMISSED. 8. AS REGARDS GROUND NO.3 THE BRIEF FACTS OF THE CASE AS EMANATING FROM AO S ORDER ARE REPRODUCED HEREIN BEL OW FOR THE SAKE OF CONVENIENCE : - ON VERIFICATION OF THE AUDITED TRADING ACCOUNT FOR THE YEAR ENDED 31.3.08, IT HAS BEEN FOUND THAT THE ASSESSEE HAS DEBITED RS.5,14,534/ - AS LOADING AND UNLOADING CHARGES. FOR NON PRODUCTION OF THE BILLS AND VOUCHERS IN FU LL, R S.30,000/ - IS DISALLOWED AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2008 - 09. THE ASSESSEE ALSO DEBITED RS.90,000/ - AS WAGES IN THE TRADING ACCOUNT. BUT FOR NON PRODUCTION OF THE BILLS AND VOUCHERS RS.10,000/ - IS DISALLOWED AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSE. IN THE P&L ACCOUNT, THE ASSESSEE DEBITED RS.8,72,426/ - AS TRANSPORTATION EXPENSES. FOR NON SUBMISSION OF THE BILLS AND VOUCHERS RS.30,000/ - IS DISALLOWED AND ADDED BACK TO THE TOTAL INC OME OF THE ASSESSEE. THE LD.CIT(A) CONFIRMED THE ACTION OF AO. 9. I HAVE HEARD THE LD. DR AND PERUSED THE FACTS OF THE CASE. THE ADDITION HAD BEEN MADE BY THE AO ON ESTIMATE BASIS AND WITHOUT POINTING OUT ANY DEFECT. THEREFORE SUCH ADDITIONS CANNOT IN FA CT BE MADE AND THEREFORE ORDER OF THE LD.CIT(A) IS REVERSED AND THE AO IS DIRECTED TO DELETE THE ADDITIONS SO MADE. THUS GROUND NO.3 OF THE ASSESSEE IS ALLOWED. ITA NO. 1760/KOL/2014 SHRI DIBAKAR BISOI,PROP.OF BISOI GAS CENTRE A.YR. 2008 - 09 6 10. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDE R PRONOUNCED IN THE OP EN COURT ON 0 5 .06 .2015. SD/ - [ B.P.JAIN ] ACCOUNTANT MEMBER DATE: 05 .06 .2015. R.G.(.P.S.) C OPY OF THE ORDER FORWARDED TO: 1 . SHRI DIBAKAR BISOI, PROP. OF BISUI GAS CENTRE, RATAN KUMAR GUHA, ADVOCATE, KSHUDIRAM NAGAR, MIDNAPO RE - 721101. 2 I.T.O., WARD - 1(1), MIDNAPORE. 3 . CIT(A) - XXXVI, KOLKATA 4. CIT - KOLKATA. 5. CIT - DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, D EPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES