Shri Hillol Day, Kolkata V. ITO, Ward - 1(1), Durgapur, Durgapur

ITA 1819/KOL/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7915 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 26-05-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 24-09-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K PRAMANICK SR D R TH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH: K OLKATA [BEFORE SMT. DIVA SINGH, HONBLE JUDICIAL MEMBER ] I.T.A. NO.1819/KOL/2010 ASSESSMENT YEAR : 2006-07 SRI HILLOL DEY, VS- ITO , WARD-1(1), DURGAPUR M/S. ANAND, BENGAL CHRISTY, B-160, CITY CENTRE, DURGAPUR 713 216 (PAN:ADVPD 7223Q) ( APPELLANT ) ( RESPONDENT ) DATE OF CONCLUDING THE HEARING : 07.08.2012 DATE OF PRONOUNCING THE ORDER : 07.08.2012 APPEARANCES : FOR THE APPELLANT : SHRI SOUMI TRA CHOUDHURY : FOR THE RESPONDENT : SRI A.K.PRAMANICK, SR.D.R. O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AG AINST THE ORDER DATED 24.02.2010 OF COMMISSIONER OF INCOME TAX (APPEALS), DURGAPUR PERT AINING TO THE ASSESSMENT YEAR 2006-07 ON THE FOLLOWING GROUNDS: 1. THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN CONFIRMING THE ADDITION OF RS.50,000/- BEING DIFF ERENCE IN BALANCE BETWEEN SHOWN BY ASSESSEE AND AMOUNT SHOWN BY THE SUPPLIER IN THEIR BOOKS AS ON 31-03-2006. 2. THAT THE C.I.T.(A) HAS FURTHER ERRED IN CONFI RMING THE ADDITION OF RS.15,000/- AS MADE BY I.T.O. TREATING RECURRING DEPOSIT IN A BANK RS.15,000/- AS UNEXPLAINED AS TO SOURCE BY NOT AC CEPTING THAT IT WAS MADE OUT OF PERSONAL DRAWING.. 2. ADDRESSING THE DELAY OF 111 DAYS, AS POINT ED OUT BY THE REGISTRY, THE LD. A.R., INVITED ATTENTION TO THE AFFIDAVIT FILED BY S HRI BASU DEB CHATTERJEE, WHO REPRESENTED THE ASSESSEE BEFORE THE CIT(A) STATING THAT THE DELAY HAS OCCURRED ON ACCOUNT OF THE FACT THAT THE SAID LD. A.R. WAS ADMI TTED ON ACCOUNT OF HEART AILMENT 2 ITA NO.1819/KOL/2010 SRI HILLOL DEY ASSESSMENT YEAR: 2006-07 IN THE HOSPITAL IN THE MIDDLE OF MARCH, 2010 AND SU BSEQUENTLY, WAS OPERATED AND RELEASED ON OR ABOUT 19.04.2010. AS A RESULT OF THI S, ON THE DOCTORS ADVICE, HE REMAINED BED-RIDDEN FOR THREE MONTHS AND STARTED AT TENDING THE OFFICE ONLY IN SEPTEMBER, 2010. THE PAPERS FOR FILING THE APPEAL B EFORE THE TRIBUNAL WAS RECEIVED SOMETIME IN APRIL, 2010, AS THE IMPUGNED ORDER WAS RECEIVED ON OR ABOUT 6 TH APRIL, 2010. ON THE RECEIPT OF THE ORDER, THE A.R. S CLIENT I.E. THE ASSESSEE COULD NOT CONTACT THE LD. A.R. AND GIVE NECESSARY PAPERS ON A CCOUNT OF HIS SERIOUS ILLNESS, AS THE ASSESSEE WAS UNDER A BELIEF THAT THE APPEAL CAN BE FILED WITHIN SIX MONTHS AND IT IS ONLY WHEN ON 12.09.2010, THE ASSESSEE WAS SERVED WITH NOTICE OF HEARING IN THE PENALTY PROCEEDINGS THAT THIS FACT BECAME KNOWN TO THE ASSESSEE. AS A RESULT OF THESE FACTS AND CIRCUMSTANCES, THE APPEAL COULD NOT BE FILED WITHIN 60 DAYS FROM THE RECEIPT OF THE IMPUGNED ORDER. IN THESE CIRCUMS TANCES, A PRAYER WAS MADE RELYING UPON THE CIT-VS- WEST BENGAL INFRASTRUCTURE DEVELOPMENT FINANCE CORPORATION LTD. 334 ITR 269 (SC) AND VARIOUS ORDER S OF THE COORDINATE BENCH, NAMELY, THE ORDER DATED 26.06.2007 IN ITA NO.1176/K OL/2007 IN THE CASE OF M/S. BENGAL CONSTRUCTION & CO. VS- ACIT, ETC. STATING T HAT THE DELAY DESERVES TO BE CONDONED AS THE DELAY HAS OCCURRED FOR REASONS BEYO ND THE CONTROL OF THE ASSESSEE I.E., THE ILLNESS OF THE LD. A.R. AND UNDER THE BONA FIDE BELIEF OF THE ASSESSEE THAT SIX MONTHS WERE AVAILABLE FOR FILING THE APPEAL AFTER T HE RECEIPT OF THE ORDER. 3. THE LD. SR. D.R., SHRI SANJAY CONFRONTED WITH TH E AFFIDAVIT FILED ON BEHALF OF THE LD. A.R., SHRI BASU DEB CHATTERJEE AND TAKING I NTO CONSIDERATION THE JUDGMENT OF THE HONBLE APEX COURT AND THE ORDERS OF THE TRI BUNAL, THE COPIES OF WHICH HAVE BEEN FILED BY THE LD. A.R., FAIRLY CONCEDED TH AT HE HAS NO OBJECTION IF THE DELAY IS CONDONED AND THE APPEAL OF THE ASSESSEE IS DECIDED ON MERIT. ACCORDINGLY, IN THE LIGHT OF THE ARGUMENTS ADVANCED AND THE MATE RIALS AVAILABLE ON RECORD, THE EXPLANATION OFFERED ON BEHALF OF THE ASSESSEE IS AC CEPTABLE AS SUCH THE DELAY OF 111 DAYS IS CONDONED. THE SAID ORDER WAS PRONOUNCED IN THE OPEN COURT IN PRESENCE OF THE PARTIES. 3 ITA NO.1819/KOL/2010 SRI HILLOL DEY ASSESSMENT YEAR: 2006-07 4. THE RELEVANT FACTS OF THE CASE, QUA THE FIRST IS SUE PERTAINING TO THE ADDITION OF RS.50,000/- IN THE CASE OF THE ASSESSEE, WHO IS ENG AGED IN THE BUSINESS OF FOREIGN LIQUOR SHOP, IS THE ADDITION OF RS.50,000/- ON ACCO UNT OF UNDER-STATEMENT OF SUNDRY DEBTORS AMOUNT ON THE BASIS OF CONFIRMATION RECEIV ED FROM A SUNDRY DEBTOR. THE RECORD SHOWS THAT THE AO OBSERVED THAT, AS THE CLOS ING STOCK BALANCE WAS RS.5,78,479/- (DEBIT) IN REGARD TO THE POSITION OF JHARKHAND LIQUORS PVT. LTD. WHICH THE ASSESSEE HAD SHOWN THIS AS ADVANCE TO M/S . JHARKHAND LIQUORS PVT. LTD. IN HIS OWN BOOKS. HOWEVER, AS PER THE REPLY RECEIVE D FROM M/S. JHARKHAND LIQUORS PVT. LTD., THERE WAS A CLOSING STOCK BALANCE OF RS. 6,28,479/- (CREDIT) AS AGAINST RS.5,78,479/- IN THE BOOKS OF THE ASSESSEE. ON ACCO UNT OF THE FACT THAT THE ASSESSEE COULD NOT EXPLAIN THE DIFFERENCE OF RS.50,000/-, T HE SAID AMOUNT WAS ADDED BACK BY THE AO. 5. IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY, IT WAS STATED THAT THE ASSESSEE HAD PAID THE SAID AMOUNT TWO TO THREE DAYS AFTER TH E CLOSE OF THE FINANCIAL YEAR AND WAS WRONGLY ENTERED IN THIS YEAR. IT WAS SUBMITTED THAT THIS FACT WILL BE VERIFIABLE ON GOING THROUGH THE BOOKS OF THE NEXT YEAR. IN THE CIRCUMSTANCES, THE MATTER WAS REMANDED TO THE AO WHO SENT HIS REMAND REPORT DATED 09.02.2010. IN THE SAID REMAND REPORT, IT WAS STATED THAT ON VERIFICATION O F THE LEDGER STATEMENT FURNISHED BY M/S. JHARKHAND LIQUORS PVT. LTD., IT WAS FOUND T HAT THE TOTAL PAYMENT MADE BY THE ASSESSEE WAS RS.16,87,598/- AND THE CLOSING BAL ANCE WAS RS.6,28,479/- WHEREAS IN THE ASSESSEES BOOKS, IT WAS SHOWN THAT THE TOTAL PAYMENTS WERE OF RS.16,37,598/- AND THE CLOSING BALANCE WAS OF RS. 5 ,78,479/-. THE CLAIM WAS PUT FORTH IN THE REMAND PROCEEDINGS THAT ON 02.04.2006, 03.04.2006 AND 06.04.2006, THE ASSESSEE HAD MADE THE PAYMENTS OF RS.19,000/-, RS.19,000/- AND RS.12,000/- RESPECTIVELY TOTALING TO RS.50,000/-. IN VIEW OF TH E FACT THAT THE ASSESSEE COULD NOT OFFER ANY EVIDENCE IN SUPPORT OF THIS CLAIM, THE AO OBSERVED THAT THE PAYMENTS WERE MADE IN CASH AND MADE A COMPARISON OF THE PAYM ENT SCHEDULES, WHICH 4 ITA NO.1819/KOL/2010 SRI HILLOL DEY ASSESSMENT YEAR: 2006-07 TOTALED UPTO RS.50,000/-. THE SAID TABLE FROM THE I MPUGNED ORDER IS REPRODUCED HEREINBELOW:- SL. DATE PAYMENT AS PER J.L.P.L. MODE OF PAYMENT PAYMENT SHOWN BY THE ASSESSEE DIFFERENCE 1 04.03.2006 RS.15,000/- CASH - (+)RS.15,000 2 20.03.2006 - CASH RS.10,000 (-)RS.10,000 3 21.03.2006 RS.10,000 CASH RS.5,000 (+)RS.5,000 4 22.03.2006 RS.10,000 CASH RS.10,000 (+)RS.5,000 5 27.03.2006 RS.15,000 CASH - (+)RS.15,000 6 28.03.2006 RS.10,000 CASH RS.15,000 (-)RS.5,000 7 29.03.2006 RS.15,000 CASH - (+)RS.15,000 8 31.03.2006 RS.10,000 CASH - (+)RS.50,000 TOTAL DISCREPANCIES RS.50,000 COPY OF THE REMAND REPORT WAS FORWARDED TO THE ASSE SSEE FOR HIS EXPLANATION BY THE CIT(A) AND THE ASSESSEE WAS REPRESENTED ON 22.0 7.2010 THROUGH HIS A.R. HOWEVER, AS PER THE IMPUGNED ORDER HE COULD NOT OFF ER ANY EXPLANATION. ACCORDINGLY, THE FINDING ARRIVED AT BY THE AO IN RE GARD TO THE DISCREPANCY OF RS.50,000/- WAS HELD TO BE A CORRECT FINDING AND TH E SAME WAS CONFIRMED. 6. AGGRIEVED BY THIS, THE ASSESSEE IS IN APPEAL BEF ORE THE TRIBUNAL. LD. A.R. INVITED ATTENTION TO COPY OF ASSESSEE FIRMS ACCOUN T IN THE BOOKS OF THE SUPPLIER M/S. JHARKHAND LIQUORS PVT. LTD., FOR 2005-06 AND 2 006-07 ACCOUNTING YEARS PLACED AT PAGES 12 TO 18 OF THE PAPER BOOK. INVITIN G ATTENTION TO PAPER BOOK PAGE NO.44, IT WAS SUBMITTED THAT THIS IS THE LEDGER ACC OUNT OF THE SUPPLIER IN ASSESSEES BOOKS WHICH WOULD SHOW THAT IN THE YEAR THE AMOUNT DID NOT TALLY WITH THE SUPPLIER. HOWEVER, AS PER PAGES 45 TO 48 I.E. NEXT YEAR, THE CLOSING STOCK BALANCE TALLIED. THUS, IF THE ACCOUNTS OF THE SUPPLIER ARE NOT CORRECT, WHO MAY HAVE CARRIED OUT THE CORRECTION IN THE NEXT YEAR, HOW CAN ASSESS EES ACTION BE DISBELIEVED. 5 ITA NO.1819/KOL/2010 SRI HILLOL DEY ASSESSMENT YEAR: 2006-07 7. THE LD. SR.D.R., PLACING HEAVY RELIANCE UPON THE IMPUGNED ORDER, SUBMITTED THAT THE FACTS HAVE NOT BEEN DISTINGUISHED AND GENE RAL ARGUMENTS HAVE BEEN MADE. IT WAS HIS SUBMISSION THAT THE CHART REPRODUCED BY THE CIT(A) DOES NOT TALLY WITH THE ACCOUNTS OF THE SUPPLIER I.E. M/S. JHARKHAND LI QUORS PVT. LTD., AND THE EXCESS IS NOT REFLECTED THERE AND THE DISCREPANCIES POINTED O UT BY THE CIT(A) WERE NOT REBUTTED THERE AND EVEN HERE GENERAL ARGUMENTS HAVE BEEN ADVANCED. SPECIFIC ATTENTION WAS INVITED TO SERIAL NOS.1 TO 3 ON THE S PECIFIC DATES ON WHICH PAYMENTS HAVE BEEN SHOWN, AS PER M/S. JHARKHAND LIQUORS PVT. LTD., AND AS SHOWN BY THE ASSESSEE AND NO RECONCILIATION IS GIVEN IN REGARD T HERETO, DESPITE MORE THAN ADEQUATE OPPORTUNITY AT EVERY STAGE. 8. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIALS AVAILABLE ON RECORD. ON A CAREFUL CONSIDERATION OF THE SAME, I A M OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESSEE H AS NOT BEEN ABLE TO SUCCESSFULLY REBUT THE FINDINGS ARRIVED AT IN THE IMPUGNED ORDER . IT IS SEEN THAT NEITHER THERE WAS A REBUTTAL BEFORE THE CIT(A) ON BEING CONFRONTED WI TH THE REMAND REPORT NOR ANY SPECIFIC FACT/EVIDENCE HAS BEEN BROUGHT ON RECORD A DDRESSING THE FINDINGS OF THE CIT(A) IN THE PRESENT PROCEEDINGS. ONLY GENERAL ARG UMENTS HAVE BEEN ADVANCED THAT THE NEXT YEARS BALANCE IS TALLIED. IN THE FAC E OF THE SPECIFIC FACTUAL FINDINGS, WHICH STAND UNREBUTTED ON RECORD, GROUND NO.1 OF TH E ASSESSEE IS REJECTED. 9. THE FACTS QUA THE SECOND ISSUE AGITATED BY THE ASSESSEE ARE THAT THE AO MADE AN ADDITION OF RS.15,094/- TAKING INTO CONSIDE RATION THE FACT THAT THE ASSESSEE HAD MADE A DEPOSIT IN A RECURRING DEPOSIT ACCOUNT O F AN AMOUNT OF RS.15,094/-. THE SAID DEPOSITS WERE NOT SHOWN IN THE BALANCE-SHE ET AND IT WAS STATED THAT THESE WERE MADE OUT OF PERSONAL DRAWING OF RS.63,772/-. T HE SAME WERE CONSIDERED TO BE TOO LOW. AS SUCH, THE SAID ACTION OF THE AO WAS CONFIRMED IN APPEAL. AGGRIEVED BY THIS, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBU NAL. 6 ITA NO.1819/KOL/2010 SRI HILLOL DEY ASSESSMENT YEAR: 2006-07 10. THE LD. A.R., INVITING ATTENTION TO PAGE 43 OF THE PAPER BOOK, SUBMITTED THAT AT THE RELEVANT POINT OF TIME, THE ASSESSEE WAS A B ACHELOR RESIDING IN HIS OWN RESIDENTIAL HOUSE ALONG WITH HIS PARENTS AND WAS TH E ONLY CHILD. AS SUCH, APART FROM THE PERSONAL DRAWINGS OF THE ASSESSEE, THE FAT HER AND THE MOTHERS DRAWINGS WHEN INCLUDED THE TOTAL FUNDS AVAILABLE WERE TO THE TUNE OF RS.1,20,000/-. AS SUCH, NO ADDITION CAN BE MADE. THE LD. SR. D.R. RELIED UP ON THE IMPUGNED ORDER. 11. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD, IT IS SEEN THAT THE VERACITY OF THE ARGUMEN TS ADVANCED NEEDS TO BE VERIFIED. AS NO EVIDENCE IN SUPPORT OF THE ASSERTION HAS BEEN MADE, IT IS CONSIDERED APPROPRIATE TO RESTORE THE ISSUE BACK TO THE AO FOR VERIFICATION ON FACTS. THE GROUND RAISED AS SUCH IS ALLOWED FOR STATISTICAL PU RPOSES. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09.08. 2011. SD/- (DIVA SINGH) JUDICIAL MEMBER DATED : 09/ 08/ 2011 COPY OF THE ORDER FORWARDED TO: 1. SRI HILLOL DEY, M/S. ANAND, BENGAL CHRISTY, B-160, CITY CENTRE, DURGAPUR 713 216 2 ITO, WARD-1(1), DURGAPUR 3. CIT(A)- ,DURGAPUR 4. CIT- , DURGAPUR 5. DR, KOLKATA BENCHES, KOLKATA (TRUE COPY) BY ORDER ASSISTANT REGISTRAR, I.T.A.T., KOLKA TA. TALUKDAR/SR.P.S. 7 ITA NO.1819/KOL/2010 SRI HILLOL DEY ASSESSMENT YEAR: 2006-07