I.T.O Wd - 55(4),kolkata., Kolkata V. Sri Suvaprasanna Bhattacharjee., Kolkata

ITA 178/KOL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4504 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2016
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 22-08-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 24-01-2013
• Court: TRIBUNAL
• Assessee Lawyers: TARUN KUMAR BANERJEE
• Section: 143(3)

Judgement Text

ITA NO.178 /KOL/2013 SRI SUVAPRASANNABHATTACHARJEE 1 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A, KOLKATA (BEFORE SHRI N.V.VASUDEVAN, J.M. &DR.A.L.SAINI, A.M .) ITA NO. 178/KOL/2013 : ASSTT. YEAR : 2009-1 0 I.T.O., WARD-55(4), 54/1, R.H. KIDWAI ROAD, KOLKATA 700 091 VS SRI SUVAPRASANNABHATTACHARJEE BH-167, SALT LAKE CITY, KOLKATA 700 091 PAN: AEDPB 2611R (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI SALLONGYADEN, ADDL.CIT, RESPONDENT BY:SHRI TARUN KUMAR BANERJEE, FCA DATE OF HEARING : 22.08.2016 DATE OF PRONOUNCEMENT :- 21/09/16 ORDER PER DR. A.L.SAINI, A.M .: THE CAPTIONED APPEAL FILED BY THE REVENUE PERTAININ G TO ASSESSMENT YEAR 2009-10, IS DIRECTED AGAINST THE ORDER PASSED BY TH E LD. COMMISSIONER OF INCOME- TAX (A) -XXXVI, KOLKATA IN APPEAL NO.285/CIT(A)-XXX VI/KOL/WD.55(4)/11-12 DATED 05/11/2012, WHICH IN TURN ARISES OUT OF AN OR DER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT), DATED 29/12/ 2011. 2. THE REVENUE FLIED THIS APPEAL WITH A DELAY OF 09 DAYS. THE REVENUE HAS FILED A PETITION DATED 24.01.2013 PRAYI NG FOR CONDONATION OF DELAY. WE FIND THE REASONS STATED IN THE CONDONA TION PETITION APPEAR TO BE REASONABLE. THE LD.AR SUBMITTED NO OBJECTION AND THEREFORE THE DELAY OF 09 DAYS IS CONDONED AND APPEAL IS ADMITTED AND HEARD. ITA NO.178 /KOL/2013 SRI SUVAPRASANNABHATTACHARJEE 2 3. ALTHOUGH IN THIS APPEAL, THE REVENUE HAS RAISED MULTIPLE GROUNDS OF APPEAL BUT AT THE TIME OF HEARING, THE MAIN GRIEVANCE OF T HE ASSESSEE HAS BEEN CONFINED TO GROUND NO.1 AND OTHER GROUNDS HAVE NOT BEEN PRESSED . HENCE, GROUNDS, EXCEPT GROUND NO.1, ARE DISMISSED AS NOT BEING PRESSED. GR OUND NO.1 IS BEING ADJUDICATED. 4. THE FACTS OF THE CASE ARE STATED IN BRIEF. THE A SSESSEEFILED RETURN OF INCOME ON 31.03.2010 FOR THE ASSESSMENT YEAR 2009-10 SHOWI NG A TOTAL INCOME OF RS.3,20,378/-. THE RETURN WAS PROCESSED UNDER SECTI ON 143(1). THE CASE HAD BEEN SELECTED FOR SCRUTINY THROUGH CASS.THE ASSESSMENT U NDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 WAS COMPLETED ON 29.12.2011BY MAKING ADDITIONS OF RS.79,25,000/- ON ACCOUNT OF UNDISCLOSED INCOME. 5. GROUND NO.1, WHICH IS THE MAIN GRIEVANCE RAISED BY THE REVENUE RELATES TO THE FOLLOWING: THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN DELETING RS.79,25,000/-. 6. THE FACTS OF THIS ISSUE ARE STATED IN BRIEF. THE ASSESSEE IS A RENOWNED ARTIST (PAINTER). DURING THE PREVIOUS YEAR 2008-09 RELEVAN T TO THE ASSESSMENT YEAR 2009- 10, THE ASSESSEE DERIVED INCOME FROM BUSINESS AND I NCOME FROM OTHER SOURCE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON THE BASIS OF DOCUMENTS AND MATERIALS AVAILABLE ON RECORDS, THE FOLLOWING OBSER VATIONS WERE MADE: IT IS SEEN FROM THE ITS DATA THAT CASH AMOUNTING TO RS.39,75,000/- WAS DEPOSITED IN JOINT A/C. (SUVA PRASANNA BHATTACHARYA AND SIPRA BHATTACHARYA) BEING NO.33510088157 WITH STANDARD CHARTERED BANK, SALT L AKE BRANCH, KOLKATA, AND CASH AMOUNTING TO RS.39,50,000/- IN SINGLE A/C. (MR . SUVA PRASANNA BHATTACHARYA) BEING NO.300510108476 WITH STANDARD CHARTERED BANK, SALT LAKE BRANCH, KOLKATA TOTALING CASH AMOUNTING TO RS.79,25,000/- WAS DEPOS ITED DURING THE FINANCIAL YEAR ITA NO.178 /KOL/2013 SRI SUVAPRASANNABHATTACHARJEE 3 2008-09 RELEVANT TO ASSESSMENT YEAR 2009-10. THE AO ADDED RS.79,25,000/- AS AN UNDISCLOSED INCOME OBSERVING THE FOLLOWING: THE ABOVE SUBMISSION OF THE ASSESSEE IS CONSIDERED BUT NOT TREATED AS CONVINCING. THE SO-CALLED DISCLOSURE OF INCOME OF R S.1,56,02,400/- CANNOT BE ENTERED IN THE BOOKS OF ACCOUNT OF THE AS SESSEE ON 28.01.2009 AS CASH RECEIPTS BY CREDITING CAPITAL AC COUNT, WHEN THE SAID DISCLOSURES WAS FOR THE ASSESSMENT YEARS 2004- 05, 2005-06 AND 2006-07. HENCE, THE SOURCE OF CASH DEPOSITS OF RS.7 9,25,000/- IN THE BANK ACCOUNTS IS NOT AT ALL ESTABLISHED WHEN THE OP ENING CASH IN HAND AS ON 1.4.2008 AS SHOWN BY THE ASSESSEE WAS RS.34,6 06/-. AS SUCH, THE AMOUNT OF RS.79,25,000/- IS TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE FOR THE F.Y. 2008-09 RELEVANT TO THE ASSES SMENT YEAR 2009-10 AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2009-10. 7. BEING AGGRIEVEDFROM THE ORDER OF THE LD. AO, THE ASSESSEE FILED APPEAL BEFORE THE CIT(A)-XXXVI, KOLKATA WHO HAS DELETED TH E ADDITION OBSERVING THE FOLLOWING: 3. I HAVE DULY CONSIDERED THE ASSESSMENT ORDER OF THE A.O., THE GROUNDS OF APPEAL, THE STATEMENT OF FACTS AND THE S UBMISSIONS MADE BY THE A/R. THE IDENTITY, CREDITWORTHINESS AND GENUINE NESS OF THE TRANSACTIONS WERE VERIFIED. I FIND THAT THE ASSESSE E HAVING DISCLOSED THE AMOUNT OF RS.1,56,02,400/- FOR ASSESSMENT YEAR S 2004-05, 2005- 06 AND 2006-07 AND HAVING PAID THE DEMANDED TAXES, INTEREST AND PENALTY, CANNOT BE ASKED TO PAY TAX ON THE SAME FOR THE A.Y. 2009-10 AGAIN AND AS SUCH THE SAME CANNOT BE TREATED AS UND ISCLOSED INCOME AGAIN IN A.Y. 2009-10. IN VIEW OF THE ABOVE, THE A. O. IS DIRECTED TO DELETE RS.79,25,000/-. APPELLANT GETS RELIEF OF RS. 79,25,000/-. 8. NOT BEING SATISFIED FROM THE ORDER OF THE LD. CI T(A), THE REVENUE IS IN APPEAL BEFORE US. 9. THE LD. DR FOR THE REVENUE HAS VEHEMENTLY SUBMIT TED THAT THE ASSESSEE HAS DERIVED INCOME OF RS.79,25,000/- IN THE ASSESSMENT YEAR 2009-10 WHICH REMAINED UNDISCLOSED. THEREFORE, THE LD. DR HAS PRIMARILY RE LIED ON THE STAND TAKEN BY THE LD. ITA NO.178 /KOL/2013 SRI SUVAPRASANNABHATTACHARJEE 4 AO WHICH WE HAVE ALREADY NOTED IN OUR EARLIER PARA AND IS NOT BEING REPEATED FOR THE SAKE OF BREVITY. 10. THE LD. AR FOR THE ASSESSEE HAS SUBMITTED THAT HE HAS FILED COPIES OF ASSESSMENT ORDERS FOR THE ASSESSMENT YEARS 2004-05, 2005-06 AND 2006-07 DURING THE COURSE OF HEARING BEFORE THE AO. THE AMOUNT OF RS.1,56,02,400/- BEING INCOME DISCLOSED PERTAINING TO ASSESSMENT YEARS 2004-05, 2 005-06 AND 2006-07 IN COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS FOR THE ASSESSME NT YEAR 2006-07, ON WHICH THE ASSESSEE PAID THE DEMANDED TAX, INTEREST AND PENALT Y, WHICH WAS ENTERED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE ON 28.01.2009 AS C ASH BY CREDITING CAPITAL ACCOUNT. OUT OF THE SAID CASH THE ASSESSEE HAD DEPO SITED MONEY INTO HIS BANK ACCOUNTS AMOUNTING TO RS.82,75,000/-. STATEMENT SHO WING DETAILS OF THE SAID DEPOSITS IS ATTACHED. THE ASSESSEE HAD COMMENCED DE POSITING CASH INTO BANK ACCOUNTS FROM THE END OF JANUARY 2009 AND DID NOT W ANT TO TAKE THE RISK OF CARRYING BIG AMOUNTS OF CASH TO BANK, AS SUCH A SUM OF RS.58 ,46,055/- REMAINED AS CASH IN HAND ON 31.3.2009 AND WAS DEPOSITED INTO THE BANK A CCOUNTS IN FINANCIAL YEAR 2009-10. THE LD. AR FURTHER SUBMITTED THAT THE AO H AS ALSO NOT CONSIDERED THE SUBMISSIONS MADE ON BEHALF OF THE ASSESSEE IN HIS L ETTER DATED 29.12.2011 FILED IN THE COURSE OF HEARING THAT IT IS NOW A SETTLED AND ACCEPTED LAW THAT THE SAME INCOME CANNOT BE TAXED TWICE. THE ASSESSEE HAVING DISCLOSE D THE AMOUNT OF RS.1,56,02,400/- AND HAVING PAID THE DEMANDED TAXES , INTEREST AND PENALTY ON THE SAID DISCLOSED INCOME CANNOT BE ASKED TO PAY TAX ON THE SAME AGAIN AND THE SAME CANNOT BE TREATED AS UNDISCLOSED INCOME AGAIN IN AS SESSMENT YEAR 2009-10. RELIANCE IS PLACED ON THE HONBLE SUPREME COURT JUD GMENT IN THE CASE OF LAXMIPATSINGHANIAVS CIT U.P. [1969] 72 ITR 291 WHER EIN IT WAS HELD THAT IT IS A FUNDAMENTAL RULE OF THE LAW OF TAXATION THAT, UNLES S OTHERWISE EXPRESSLY PROVIDED, INCOME CANNOT BE TAXED TWICE. AGAIN, IT IS NOT OPEN TO THE INCOME TAX OFFICER, IF ITA NO.178 /KOL/2013 SRI SUVAPRASANNABHATTACHARJEE 5 INCOME HAS ACCRUED TO THE ASSESSEE AND IS LIABLE TO BE INCLUDED IN THE TOTAL INCOME OF A PARTICULAR YEAR, TO IGNORE THE ACCRUAL AND THE REAFTER TO TAX IT AS INCOME OF ANOTHER YEAR ON THE BASIS OF RECEIPT. 11. HAVING HEARD THE RIVAL SUBMISSIONS, WE ARE OF T HE VIEW THAT THERE IS MERIT IN THE SUBMISSIONS OF THE ASSESSEE AS THE PROPOSITIONS CANVASSED BY THE LD. AR FOR THE ASSESSEE ARE SUPPORTED BY THE FACTS NARRATED ABOVE AND THE CASE LAWS CITED BY HIM. AS THE ASSESSEE HAS OFFERED THE TAX OF RS.79,25,000 /- DURING THE ASSESSMENT YEARS 2004-05, 2005-06 AND 2006-07 AND THE ASSESSEE HAS P AID THE DEMANDED TAX AND PENALTIES THEREON, THEREFORE, IT SHOULD NOT BE TAXE D TWICE. BASED ON THE ABOVE FACTS AND CIRCUMSTANCES, WE DO NOT HESITATE TO CONFIRM TH E ORDER OF THE LD. CIT(A). 12. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21.09.2016 SD/- SD/- (N.V.VASUDEVAN) (DR. A.L.SAINI) JUDICIALMEMBER ACCOUNTANT MEMBER DATED: 21/09/2016 TALUKDAR (SR.PS) COPY OF THE ORDER FORWARDED TO: 1. REVENUE 2 ASSESSEE 3. THE CIT-I, 4. THE CIT (A)-I, 5. DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, ASST. REGISTRAR , ITAT, KOLKATA BENCHES