SHRI HARI PRAKASH CHOWDHURY, Howrah V. I.T.O.,WARD 46(2), KOLKATA, Kolkata

ITA 1814/KOL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2464 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2010
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 30-10-2009
• Court: TRIBUNAL
• Department Lawyers: MRS JYOTI KUMARI
• Assessee Lawyers: S P CHOWDHURY
• Keywords: Business income; Business expenditure; Opportunity of being heard; Principle of natural justice; Additional evidence
• Section: 133A; 143(2)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA ( (( ( ) )) ) . .. . . . . . , ,, , ! ! ! ! '#$ '#$ '#$ '#$ . .. .% %% % . . . . &' &' &' &', , , , () () () () [BEFORE HONBLE SHRI G. D. AGRAWAL, VP & HONBLE SR I D. K. TYAGI, JM] $* $* $* $* / ITA NO. 1814 /KOL/2009 +, #-. +, #-. +, #-. +, #-./ // / ASSESSMENT YEAR : 2006-07 SRI HARI PRAKASH CHOWDHURY -VS- INCOME-TAX OFFIC ER, WD-46(2), KOLKATA. (PA NO. ACCPC 0781 C) (01 / APPELLANT ) (2&01/ RESPONDENT ) '#$ '#$ '#$ '#$ /AND $* $* $* $* / ITA NO. 1905 /KOL/2009 +, #-. +, #-. +, #-. +, #-./ // / ASSESSMENT YEAR : 2006-07 INCOME-TAX OFFICER, WD-46(2), KOLKATA -VS- SHRI HARI PRAKASH CHOWDHURY (APPELLANT) (RESPONDENT) FOR THE ASSESSEE: / SRI S. P. CHOWDHURY FOR THE DEPARTMENT: MRS. JYOTI KUMARI (%3 / ORDER PER BENCH : BOTH THESE CROSS APPEALS PREFERRED BY THE ASSESSEE AND REVENUE ARE DIRECTED AGAINST THE COMMON ORDER OF THE LD. CIT(A), KOLKATA DATED 26.08.2009 FOR THE ASSESSMENT YEAR 2006-07. SINCE BOTH THE APPEALS AR ISE OUT OF SAME ORDER OF THE LD. CIT(A) AND WERE HEARD TOGETHER, THE SAME ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. IN ASSESSEES APPEAL THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS : 1. FOR THAT ON THE FACTS OF THE CASE, THE ESTIMATE D DISALLOWANCE OF BUSINESS EXPENSES RS.7,000/- IS WITHOUT ANY BASIS. 2. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I.T .(A) WAS WRONG IN SUSTAINING THE ESTIMATED ADDITION OF RS.2,39,225/- UP TO THE DATE OF SURVEY ON 7.3.2006 AND FOR THE BALANCE PERIOD I.E. AFTER THE DATE OF SEARCH AT RS. 50,000/- IT AGGREGATES TO RS.2,89,225/- IN TRADING ACCOUNT, HIS ACTION IS COMPLETELY ARBITR ARY, UNJUSTIFIED, UNWARRANTED AND ILLEGAL. 3. FOR THAT ON THE FACTS OF THE CASE, THE BUSINESS INCOME HAS BEEN COMPUTED AS PER TRADING AND PROFIT & LOSS ACCOUNT FOR THE FINANCIAL YEAR 2005-06 AT RS.1,57,368/-, SO GROSS PROFIT CANNOT BE BIFURCATED IN TWO PARTS I.E. UP TO THE DATE OF SURVEY 7.3.2006 AND BALANCE PERIOD OF MARCH, SO THE ENTIRE ESTIMATED AD DING IN TRADING ACCOUNT IS UNNULLED FOR. 4. FOR THAT THE LD. C.I.T.(A) RECASTED THE TRADING ACCOUNT UPTO THE DATE OF SURVEY AND ESTIMATED THE G.P. AT RS.8,97,770/- WITHOUT CONSIDE RING THE CARRIAGE INWARD AND AS PER ACCOUNT FOR FINANCIAL YEAR 2005-06 G.P. DISCLOSED A T RS.5,48,518/- WHICH HAS 2 ARBITRARILY BEEN ESTIMATED AT RS.8,97,770/- AS SUCH HIS FINDING IS COMPLETELY ERRONEOUS, PERVERSE AND ILLEGAL. 5. FOR THAT ON THE FACTS OF THE CASE, AND CONSIDERI NG THE VOLUME OF BUSINESS CASH FOUND ON SURVEY RS.27,250/- SHOULD HAVE BEEN DELETED IN T HIS APPEAL. 6. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I.T .(A) WAS WRONG IN SUSTAINING THE ESTIMATED ADDITION OF RS.30,000/- BY UPHOLDING THE A.O.S FINDING BEING IN SUFFICIENT DRAWING IS QUITE BASELESS AND SHOULD BE DELETED. 7. FOR THAT THE APPELLANT RESERVES THE RIGHT TO ADD UCE ANY FURTHER GROUND/GROUNDS, EVIDENCE OR EVIDENCES ON HEARING OF APPEAL. THE REVENUE HAS ALSO RAISED THE FOLLOWING GROUND OF APPEAL : THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS NOT JUSTIFIED IN DELETING THE MAJOR AMOUNT OF ADDITION IN G. P. J UST RELYING ON STOCK STATEMENT WHICH WAS FURNISHED BY ASSESSEE TO THE BANK. THE RELIANC E ON SUCH STOCK STATEMENT BY THE CIT(A) WAS NOT JUSTIFIED SINCE THE SAID STATEMENT I S FABRICATED AND INFLATED. AGAIN IN COURSE OF ASSESSMENT PROCEEDING, ASSESSEE COULD NOT CLEARLY SUBSTANTIATED THE EXISTENCE OF ANY OTHER GODOWN WHEREFROM THE PHYSICAL STOCK CO ULD HAVE BEEN RECONCILED. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESEE FIL ED HIS RETURN OF INCOME ON 27.3.2007 SHOWING TOTAL INCOME OF RS.1,25,973/-. SURVEY OPE RATION U/S. 133A WAS CONDUCTED AT THE BUSINESS PREMISES OF THE ASSESSEE ON 7.3.2006. CONSEQUENTLY, THE CASE WAS TAKEN UP FOR SCRUTINY AND NOTICE U/S. 143(2) WAS DULY SERVE D ON THE ASSESSEE. THEREAFTER, THE AO COMPLETED THE ASSESSMENT DETERMINING INCOME AT RS. 32,29,950/- MAKING VARIOUS ADDITIONS. IN APPEAL, THE LD. CIT(A) TO SOME EXTEN T GAVE RELIEF TO THE ASSESSEE AND SOME ADDITIONS WERE SUSTAINED. AGGRIEVED BY THE SAID OR DER, BOTH THE PARTIES ARE NOW IN APPEALS BEFORE US. 4. AT THE OUT SET, THE LD. DR SUBMITTED THAT THE LD . CIT(A)HAS GIVEN RELIEF TO THE ASSESEE BY ADMITTING ADDITIONAL EVIDENCE, THEREFORE , THE MATTER SHOULD GO BACK TO THE AO. FOR FRESH ADJUDICATION. 5. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER H AND, INTER ALIA ALSO WANTED TO PLACE RELIANCE ON ONE MORE LETTER OF UCO BANK IN S UPPORT OF HIS CLAIM MADE BY HIM BEFORE THE LOWER AUTHORITIES. 6 WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BOT H THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE DID NOT CONTROVERT THE SUBMISSION OF THE LD. DR AND ALS O WANTED TO PLACE ONE MORE LETTER FROM THE UCO BANK ON RECORD FOR THE FIRST TIME IN S UPPORT OF HIS CLAIM MADE BEFORE THE LOWER AUTHORITIES. IN VIEW OF THIS, WE, IN THE INTE REST OF NATURAL JUSTICE, FEEL THAT THE MATTER SHOULD GO BACK TO THE FILE OF THE AO TO ADJU DICATE AFRESH AFTER TAKING INTO 3 CONSIDERATION THE LETTER NOW FILED BY THE ASSESSEE BEFORE US AND THE ADDITIONAL EVIDENCE FILED BEFORE THE LD.CIT(A). NEEDLESS TO SAY THAT H E WILL GIVE ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THEREFORE, BOTH THE AP PEALS OF THE ASSESSEE AND REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 16.7.10 SD/- SD/- . .. . . . . . , , , , ! ! ! ! . . . . % %% % . . . . &' &' &' &', , , , () (G. D. AGRAWAL) (D. K. TYAGI) VICE PRESIDENT JUDICIAL MEMBER ( (( (4 4 4 4) )) ) DATED :16TH JULY, 2010 #56 +7 +8# JD.(SR.P.S.) (%3 9 2++: %:-;- COPY OF THE ORDER FORWARDED TO: 1. 01 /APPELLANT SRI HARI PRAKASH CHOWDHURY, 21, ROSE MARRY LANE, HOWRAH-711 101 2. 2&01 /ITO, WARD-46(2), KOLKATA. 3. +3 / THE CIT, KOLKATA 4. +3 ()/ THE CIT(A), KOLKATA 5. #=+' 2+ / DR, KOLKATA BENCHES, KOLKATA &: 2+/ TRUE COPY , (%3>/ BY ORDER , $ / DEPUTY REGISTRAR .