Dr. Bratati Bhattacharyya, Kolkata V. DCIT, C ircle- 55, Kolkata, Kolkata

ITA 1843/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48063 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-03-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 30-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PIYUSH KOLHE
• Assessee Lawyers: I BAN ERJEE
• Keywords: Unexplained cash credit

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [ () .. , , ! . .. .'# '#'# '#. .. . , ,, , $% ] ]] ] [BEFORE HONBLE SRI B. R. MITTAL, JM & HONBLE SR I C. D. RAO, AM] !' / I.T.A NO. 1843/KOL/2010 () *+/ ASSESSMENT YEAR : 2006-07 DR. BRATATI BHATTACHARYYA -VS.- DY. COMMISSIONER OF INCOME TAX KOLKATA. CIRCLE-55, KOLKATA [PAN : ADPP B 8039 A] [ -. /APPELLANT ] [ /0-./ RESPONDENT ] -. / FOR THE APPELLANT : SHRI I. BANERJEE /0-. / FOR THE RESPONDENT : SHRI PIYUSH KOLHE $1 /ORDER . .. .'# '#'# '#. .. . , ,, , $% PER C. D. RAO, A. M. THIS APPEAL FILED BY ASSESSEE IS PREFERRED AGAINST ORDER OF LD. CIT(A)-XXXVI, KOLKATA DATED 29.07.2010, PERTAINING TO ASSESSMENT YEAR 20 06-07. 2. THE ONLY ISSUE RAISED BY THE ASSESSEE IN THIS AP PEAL REGARDING CONFIRMATION OF ADDITION OF RS.4,06,500/- AS UNEXPLAINED INCOME. 3. BRIEF FACTS OF THE ISSUE ARE THAT WHILE DOING SC RUTINY ASSESSMENT ASSESSING OFFICER HAS DISALLOWED AN AMOUNT OF RS.6,16,500/- BY OBSERVING THAT ASSESSEE ACCEPTED UNSECURED LOANS IN CASH BELOW RS.20,000/- FROM 21 PERSONS. BESIDES THI S, THERE ARE OTHER LOANS AS WELL. SUCH LOANS HAVE BEEN TAKEN ON DIFFERENT DATES. IT WAS NOTICED THAT ASSESSEE HAD A LOT OF MONEY INVESTED IN THE UNITS OF MUTUAL FUNDS. SUCH INVESTMENTS WERE MADE W ITHOUT TAKING INTO ACCOUNT THE CASH AVAILABILITY IN THE BOOKS. SUCH ACCOMMODATION ENTRI ES WERE PASSED TO MAKE UP FOR THE SHORTAGE OF CASH. THERE HAS BEEN NO TRANSFER OF MONEY. THE ASSE SSEE HAS A VERY SOUND PRACTICE IN THE FIELD OF ITA NO. 1843/KOL/20 10 2 MEDICINE. MOST OF THE RECEIPT FROM PATIENTS COMES I N CASH. SUCH CASH RECEIPT HAS BEEN ROUTED THROUGH UNSECURED LOANS. THE ASSESSEE SUBMITTED THE PROOF IN THE SHAPE OF RETURN OF INCOME FILED BY SUCH PERSONS. THIS IS CERTAINLY A COLOURABLE DEV ICE IN THE GRAB OF CASH UNSECURED LOANS, THE ASSESSEE HAS ACTUALLY BROUGHT INTO HIS BOOKS HIS CO NCEALED INCOME. THIS IS, THEREFORE, DEFINITELY THE INCOME OF ASSESSEE. THE DECISION OF HONBLE S UPREME COURT IN THE CASE OF MCDOWELL & CO. LTD. VS. CTO [1985] 154 ITR 148, THAT WHERE A DEVIC E HAS BEEN ADOPTED TO EVADE TAX, THE AUTHORITY IS ENTITLED TO UNRAVEL THE DEVICE IS DEFI NITELY APPLICABLE IN THIS CASE. AS SUCH, THE CASH LOAN WORTH RS.6,16,500/- IS DISALLOWED AND ADDED T O THE INCOME OF THE ASSESSEE. 4. ON APPEAL, LD. CIT(A) HAS RESTRICTED THE DISALLO WANCE TO RS.4,06,500/- FOR ASSESSMENT YEAR 2006-07 BY OBSERVING THAT THESE UNSECURED LOAN S INCLUDES RS.2,10,000/- AS ON 01.04.2005. SINCE THESE AMOUNTS WERE RECEIVED DURING THE EARLIE R YEARS, THE SAME CANNOT BE ASSESSED IN ASSESSMENT YEAR 2006-07. ACCORDINGLY, ASSESSING OFF ICER IS DIRECTED TO EXCLUDE RS.2,10,000/- FROM THE ADDITION OF RS.6,16,500/- AND THUS, CONFIR MED THE BALANCE OF RS.4,06,500/-. 5. AGGRIEVED BY THIS, NOW THE ASSESSEE IS IN APPEAL BEFORE US. 6. AT THE TIME OF HEARING BEFORE US, LD. COUNSEL AP PEARING ON BEHALF OF THE ASSESSEE BY REFERRING TO PAGES 30 TO 53, WHEREIN LOAN CONFIRMAT ION SHOWING PAN HAS BEEN MENTIONED. SINCE LD. CIT(A) HAS ACCEPTED THE OPENING BALANCE OF THE LOAN CREDITORS, IT IS NOT JUSTIFIED ON THE PART OF THE REVENUE NOT TO DISBELIEVE THE SAID LOAN TRANSAC TION DURING THE FINANCIAL YEAR WHEN THE LOAN CREDITORS HAVE GIVEN THEIR CONFIRMATION LETTER ALON G WITH PAN. THEREFORE, HE REQUESTED TO DELETE THE SAME. 7. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATI VE SUPPORTED THE ORDER OF ASSESSING OFFICER. 8. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF THE MATERIAL AVAILABLE ON RECORD, IT IS OBSERVED THAT ASSESSEE HAS FILED ALL THE RELEVANT LOAN CONFIRMATIONS SHOWING RESPECTIVE LOAN CREDITORS, PERMANENT ACCOUNT NUMBER AND LD. CIT(A) ALSO HAS OBSERVED THAT ASSESSEE HAS TAKEN SUCH SHORT LOANS IN THE PREVIOUS YEAR. THEREFORE, WE FIND NO REASON TO DISBELIEVE THE CONTENTION OF THE ASSESSEE AND TREAT THE SAME AS UNEXPLAINED CREDITS. HENCE, WE SET ITA NO. 1843/KOL/20 10 3 ASIDE THE ORDERS OF THE REVENUE AUTHORITIES AND DEL ETE THE ADDITIONS MADE BY ASSESSING OFFICER. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. $1 2 3( 4 56 ORDER PRONOUNC ED IN THE COURT ON 13. 04. 2011. SD/- SD/- [ .. , ] [ . .. .'# '#'# '#. .. . , ,, , $% ] [ B. R. MITTAL ] [ C. D . RAO ] JUDICIAL MEMBER ACCOUNTANT MEMBER (#%) DATED : 13TH APRIL, 2011. $1 7 /8 9$8*/ COPY OF THE ORDER FORWARDED TO: 1. -. /APPELLANT- DR. BRATATI BHATTACHARYYA, 16/1, MOTI JHEEL AVENUE, FLAT NO.41, KOLKATA-700 074 . 2 /0-. / RESPONDENT : DY. COMMISSIONER OF INCOME TAX, CIRC LE-55, 54/1, RAFI AHMED KIDWAI ROAD, KOLKATA-700 016. 3. 1(/ THE CIT, 4. 1( ()/ THE CIT(A), KOLKATA. 5. ?4 /(/ DR, KOLKATA BENCHES, KOLKATA [08 // TRUE COPY] $1(3 / BY ORDER, !A /DEPUTY/ASSTT REGISTRAR. [KKC BC (DA E /SR.PS]