Sri Narayan Chandra Bera (L/H Late Srikanta Bera), Purba Medinipur V. I.T.O Wd - 3,Haldia, Haldia

ITA 1927/KOL/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1610 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 06-03-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 17-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUBASH AGARWAL SHRI ATIN DAS
• Assessee Lawyers: T VARKEY JUDIC IA L M EMBER
• Keywords: Unexplained investment; Document seized; Peak credit; Revised return; Documents seized; Ignorance of law
• Section: 69C; 142(1); 133A; 27

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI ABY.T VARKEY, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 1731/ KOL / 2013 ASSESSMENT YEAR :2005-06 INCOME TAX OFFICER, WARD-3, VILL. BASUDEVPUR, P.O. KHANJANCHAK, HALDIA, PURBA MEDINIPUR, PIN-721602 V/S . NARAYAN CHANDRA BERA NANDAKUMAR, TAMLUK, PURBA MEDINIPUR, PIN- 7216632 [ PAN NO.ADFPB 4114 Q ] /APPELLANT .. / RESPONDENT ITA NO.1923 - 1927/KOL/2013 ASSESSMENT YEARS:2001-02 TO 2005-06 SRI NARAYAN CH BERA L/H LT. SRIKANTA BERA, BAHARGRAM, PANSKURA-RS, PURBA MEDINIPUR [ PAN NO. ADFPB 4114 B ] V/S . INCOME TAX OFFICER, WARD-3, VILL. BASUDEVPUR, P.O. KHANJANCHAK, HALDIA, PURBA MEDINIPUR, PIN-721602 /APPELLANT .. / RESPONDENT ITA NO.1928 - 1932/KOL/2013 ASSESSMENT YEARS: 2001-02 TO 2005-06 SRI NARAYAN CH BERA NANDAKUMARA, PURBA MEDINIPUR, PIN.721627 [ PAN NO. ADFPB 4114 Q ] V/S . INCOME TAX OFFICER, WARD-3, VILL. BASUDEVPUR, P.O. KHANJANCHAK, HALDIA, PURBA MEDINIPUR, PIN-721602 /APPELLANT .. / RESPONDENT ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 2 ITA NO.1873-1876/KOL/2013 ASSESSMENT YEAR: 2002-03 TO 2005-06 INCOME TAX OFFICER, WARD-3, VILL. BASUDEVPUR, P.O. KHANJANCHAK, HALDIA, PURBA MEDINIPUR, PIN-721602 V/S . NARAYAN CHANDRA BERA L/H OF LT SRIKANTA BERA, NANDAKUMAR, TAMLUK, PURBA MEDINIPUR, PIN- 7216632 [ PAN NO.ADFPB 4114 B ] /APPELLANT .. / RESPONDENT /BY ASSESSEE SHRI SUBASH AGARWAL, ADVOCATE SHRI ATIN DAS, ADVOCATE SHRI SUGATA DAS, ADVOCATE /BY REVENUE SHRI SATYAJIT MONDAL, JCIT, SR-DR !' # /DATE OF HEARING 05-07-2017 /DATE OF PRONOUNCEMENT 23-08-2017 / O R D E R PER BEMCH:- OUT OF 15 APPEALS 10 APPEALS BY THE ASSESSEE AND 5 APPEALS BY THE REVENUE ARE DIRECTED AGAINST ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS)-XXXIII, KOLKATA ALL OF DATED 28.03.2013. ASSESSMENTS WERE FRAMED BY ITO, WARD-3, HALDIA U/S 147/143(3)/145(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE THEIR O RDERS DATED 26.06.2008 FOR ASSESSMENT YEARS 2001-02 TO 2005-06 RESPECTIVELY. SHRI SUBASH AGARWAL, SHRI ATIN DAS & SHRI SUGATA DA S, LD. ADVOCATES APPEARED ON BEHALF OF ASSESSEE AND SHRI SATYAJIT MO NDAL, LD. DEPARTMENTAL REPRESENTATIVE REPRESENTED ON BEHALF OF REVENUE. FIRST WE TAKE UP ASSESSEES APPEAL IN ITA NO.1927/K OL/2013 AND REVENUES APPEAL IN ITA NO.1876/KOL/2013 FOR AY 05-06 . 2. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSES SEE HAS NOT PRESSED THE REVISED GROUNDS OF APPEAL. HENCE, SAME ARE DISMISSE D AS NOT PRESSED. ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 3 SIMILARLY THE ASSESSEE HAS NOT PRESSED THE GROUNDS NOS. 1,2,3,& 5 RAISED IN THE ORIGINAL GROUNDS OF APPEAL. HENCE, SAME ARE DIS MISSED AS NOT PRESSED. 3. THE EFFECTIVE GROUND NO.4 RAISED BY ASSESSEE IS REPRODUCED BELOW:- 4. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE THE CIT(A) ERRED IN ESTIMATING THE GROSS TURNOVER 2.58 CRORES IN PLA CE OF 1.69 CRORE AS PER PROFIT & LOSS ACCOUNT SUBMITTED BEFORE THE LD. CIT( A) SO THE GROSS TURNOVER SHOULD BE ACCEPTED RS.1.69 CRORES IN PLACE OF 2.58 CRORE. THE EFFECTIVE GROUND RAISED BY REVENUE IS REPRODUCE D BELOW : 5) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE CIT(A) ERRED IN CONSIDERING THE INCOME FROM COMMISSION @ 2.5% AS IN HIS BUSINESS AND FAILED TO APPRECIATE THAT THE RATE OF PROFIT FR OM COMMISSION IS NORMALLY HIGHER THAN THE NORMAL BUSINESS. 4. BRIEFLY STATED FACTS ARE THAT ASSESSEE IS LEGAL HEIR OF LATE SRIKANTA BERA WHO WAS ENGAGED IN WHOLESALE BUSINESS OF FRUIT. A S URVEY OPERATION U/S 133A OF THE ACT WAS CONDUCTED ON 18.03.2005 AT THE BUSIN ESS PREMISES OF THE ASSESSEE. THEREAFTER THE CASE WAS SELECTED UNDER SC RUTINY, ACCORDINGLY NOTICE U/S. 143(2)/142(1) WERE SERVED UPON THE ASSESSEE. 5. DURING THE COURSE OF SURVEY OPERATION SEVERAL BO OKS OF ACCOUNT / DOCUMENTS WERE INVENTORIED MARKED AS SKB/1 TO SKB/3 2. HOWEVER, OUT OF BOOKS OF ACCOUNT / DOCUMENTS INVENTORIED AS SKB/1 T O SKB/32, ONLY DOCUMENTS / BOOKS OF ACCOUNT MARKED AS SKB/1 TO SKB /13 AND SKB/32 WERE IMPOUNDED. DURING THE COURSE OF ASSESSMENT PROCEEDI NGS, THE ASSESSING OFFICER REQUESTED THE ASSESSEE TO PROVIDE BOOKS OF ACCOUNT INVENTORIED AS SKB/14 TO SKB/31 BUT ASSESSEE FAILED TO DO SO. THE AO ALSO OBSERVED THAT THE TURNOVER FOUND IN THE IMPOUNDED DOCUMENTS OF TH E ASSESSEE IS NOT MATCHING WITH THE TURNOVER DECLARED BY THE ASSESSEE IN ITS REVISED RETURN OF INCOME. ACCORDINGLY, AO SOUGHT CLARIFICATION FROM T HE ASSESSEE BY ISSUING SEVERAL NOTICES / LETTERS U/S. 142(1) OF THE ACT ON DIFFERENT DATES. BUT THE ASSESSEE DID NOT COMPLY WITH SUCH NOTICES / LETTERS . IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCE, THE AO REJECTED THE BOOKS OF ACCOUNT OF ASSESSEE BY INVOKING THE PROVISION OF SECTION 145(3) OF THE ACT . ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 4 6. THE ASSESSEE IN ITS ORIGINAL RETURN OF INCOME FO R THE YEAR UNDER CONSIDERATION DECLARED TURNOVER OF 42.90 LAKH ONLY. SUBSEQUENT TO THE SURVEY OPERATION ASSESSEE REVISED ITS RETURN OF INCOME AND DECLARED TOTAL TURNOVER AT 169.21 LACS. ACCORDINGLY, AO WAS OF THE VIEW THAT A SSESSEE IS IN THE HABIT OF SUPPRESSING TURNOVER TO A CONSIDERABLE EXTENT. THE AO FROM THE IMPOUNDED DOCUMENTS OBSERVED THAT A SSESSEES TURNOVER IS AT 2,15,76,240/- WHICH IS FOR 10 MONTHS ONLY AS THE AS SESSEE WAS FOLLOWING BENGALI YEAR. ACCORDINGLY, AO COMPUTED THE TURNOVER OF ASSESSEE FOR 12 MONTHS FOR 2,58,92,088/- ONLY ( 21576240X1210 ). THE AO FURTHER OBSERVED THAT ASSESSEE HAS DECLARED ITS GROSS PROFIT @ 5.63% ON THE TURNOVER DECLARED BY HIM (DECEASED) IN ITS REVISED RETURN OF INCOME. THE AO ALSO FOUND THAT SON OF ASSESSEE IS IN THE SIMILAR BUSINESS WHO DECLARED GROSS PROFIT 7.48% DURING THE ASSESSMENT YEAR 2002-03. ACCORDINGLY, AO WORKED OUT GROSS PROFIT ON THE TURNOVER OF 2,58,92,088/- @ 7% WHICH COMES TO 18,12,446/-. THE ASSESSEE HAS DECLARED GROSS PROFIT IN ITS REVISED RETURN OF INCOME FOR 9,53,129.00 ONLY. THUS, THE AO WORKED OUT THE SUPPRESSION OF GROSS PR OFIT FOR 8,59,317/- (18,12,446 9,53,129). FINALLY, THE AO TREATED THE SUM OF 8,59,317/- AS SUPPRESS GROSS PROFIT AND ADDED TO THE TOTAL INCOME OF ASSESSEE. 7. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A). THE ASSESSEE BEFORE LD. CIT(A) SUBMITTED AS UNDER:- I) THE TURNOVER DETERMINED ON THE BASIS OF IMPOUNDE D DOCUMENTS SKB/2, SKB/5 AND SKB/32 AT 2,18,76,240/- CONTAINS TURNOVER PERTAINING TO FINANCIAL YEAR 2003-04. THEREFORE, IF THE TURNOVER OF THE EARLIER YEAR IS ADDED TO THE TURNOVER OF THE CURREN T YEAR THEN IT WOULD NOT GIVE CORRECT PICTURE, II) SOME OF THE DOCUMENTS IMPOUNDED ARE REPRESENTIN G THE CASHBOOK AND COPY OF PARTIES LEDGER. THE AO HAS CLUBBED BOTH THE FIGURES AND ARRIVED AT TURNOVER OF ASSESSEES BUSINESS. THE CLU BBING OF THE TURNOVER FROM THE CASHBOOK AS WELL AS FROM THE PARTY LEDGER WILL CERTAINLY LEAD TO DOUBLE ADDITION TO ARRIVE AT THE TURNOVER OF ASSESS EE; ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 5 III) ALL THE TURNOVER SHOWN IN THE IMPOUNDED DOCUME NTS DO NOT PERTAIN TO ASSESSEE ONLY. THE ASSESSEE WAS DOING BUSINESS ALON G WITH THREE OTHER PERSONS NAMELY, SHRI PABAN CHANDRA MONDAL, SH RI SATISH CH. MALAKAR AND SHRI MADAN MOHAN BHUNIA. IF THE ENTIRE TURNOVER IS COMBINED IN THE HANDS OF THE ASSESSEE THEN IT WILL AMOUNT TO DOUBLE ADDITION RESULTING DOUBLE TAXATION IN HIS HAND. IT IS BECAUSE ALL OTHER PERSONS HAVE SHOWN TURNOVER IN THEIR RESPECTIVE HAN DS BY FILING THEIR INCOME TAX RETURNS. IV)THE AO ERRED IN EXTRAPOLATING THE TURNOVER ON TH E GROUND THAT THE TURNOVER FROM THE IMPOUNDED DOCUMENT WAS FOR 10 MON THS ONLY. THE AO SHOULD HAVE MADE THE ADDITION ONLY ON THE BASIS OF IMPOUNDED DOCUMENT ALONE WITHOUT EXTRAPOLATING THE SAME. AFTER CONSIDERING THE CONTENTIONS OF ASSESSEE LD. C IT(A) CALLED FOR REMAND REPORT FROM ASSESSING OFFICER WHICH READS AS UNDER: - 1) THERE WAS NO DOUBLE ADDITION OF THE TURNOVER IN THE HANDS OF ASSESSEE ON THE BASIS OF CASH BOOK AS WELL AS PARTY LEDGER. THERE WAS NO REFLECTION OF THE TRANSACTIONS RECORDED IN P ARTY LEDGER IN CASH BOOK OF THE ASSESSEE. 2) THE ASSESSEE FAILED TO JUSTIFY ON THE BASIS OF S UPPORTING EVIDENCE THAT THE TURNOVER DETERMINED FOR THE YEAR UNDER CON SIDERATION INCLUDES THE TURNOVER OF EARLIER YEAR. THE ASSESSEE WAS REQUESTED TO JUSTIFY HIS CONTENTION THAT THE TURNOVER OF EARLIER YEAR IS INCLUDED IN THE TURNOVER OF THE CURRENT YEAR. BUT THE ASSESSEE FAILED TO MAKE ANY REPLY IN SUPPORT OF HIS CLAIM. 3) THERE WAS NO EVIDENCE SUGGESTING THAT THE STATUS OF ASSESSEE WAS AS AOP OR FIRM. THE ASSESSEE HAS NEVER FILED IT S RETURN OF INCOME CLAIMING HIM AS AOP OR FIRM. THERE WAS NO DO CUMENT IMPOUNDED DURING THE SURVEY PROCEEDINGS SHOWING THE PROFIT SHARING RATIO OR INVESTMENT BY THE PERSONS AS CLAIMED TO BE PARTNER OF THE AOP/FIRM. ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 6 LD. CIT(A) AFTER CONSIDERING THE CONTENTION OF ASSE SSEE AND REMAND REPORT OBSERVED CERTAIN FACTS AS ENUMERATED BELOW:- I) THE ASSESSEE WAS CONFRONTED WITH THE OBSERVATION OF AO GIVEN BY HIM IN REMAND REPORT BUT HE FAILED TO BRING ANY DEFECT IN THE REMAND REPORT OF ASSESSING OFFICER. II) THERE IS NO LOGIC IN THE CONTENTION OF THE ASSE SSEE THAT THE TURNOVER SHOWS FOR 10 MONTHS IN THE IMPOUNDED DOCUM ENTS CANNOT BE EXTRAPOLATED TO 12 MONTHS. IT IS BECAUSE UNDER THE INCOME PROCEEDINGS THE STRICT LAW OF EVIDENCE DOES NOT PREVAIL AS IT IS NOT CRIMINAL PROCEEDINGS. THE INCOME TAX PROV ISIONS ARE BASED ON THE PREPONDERANCE OF PROBABILITY. THEREFOR E, AO HAS NOT ERRED IN EXTRAPOLATED TURNOVER OF THE ASSESSEE. III) A STATEMENT AT THE TIME OF SURVEY WAS RECORDED OF SHRI PABAN CH. MONDAL ON 18.03.2005 THE STATEMENT REVEALS THE FOLLOWING FACTS:- A) THE BUSINESS OF ASSESSEE WAS OWNED BY THREE OTHE R PARTIES AS DISCUSSED ABOVE; B) THERE WAS NO WRITTEN DOCUMENT BETWEEN THEM IN RELATION TO THE IMPUGNED BUSINESS. THE BUSINESS WAS BEING CARRIED ON MUTUAL UNDERSTANDING AMONG FOUR PERSONS. C) THERE WAS VERBAL UNDERSTANDING THAT THE PROFIT S HALL BE DIVIDED AMONG FOUR PERSONS IN THE RATIO AS DETAILED UNDER : I. 40% TO SHRI SRIKANTA BERA II. 30% TO SHRI MADAN MOHAN BHUNIA, III. 15% TO SATISH CH. MALAKAR AND IV. 15% TO PABAN CH. MONDAL. D) NO SEPARATE ACCOUNT WAS MAINTAINED BY EACH OF TH E PERSON ASSOCIATED WITH THE BUSINESS ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 7 IV) NO FORMAL PARTNERSHIP DEED OR AOP WAS FORMED DU E TO IGNORANCE OF LAW. V) IT WAS ALSO OBSERVED THAT THE NAMES OF 4 PERSONS WERE ALSO APPEARING IN THE IMPOUNDED DOCUMENTS AND THIS FACT WAS ALSO ACCEPTED BY THE AO IN THE REMAND REPORT WHERE IT RE FERRED TO SCRIBBLING SENTENCES IN ITS REPORT. VI) THERE REMAINS NO DOUBT THAT THE BUSINESS WAS CA RRIED ON BY 4 PERSONS JOINTLY. VII) THERE IS NO BASIS OR COGENT REASON FOR ALLOCAT ING TURNOVER AMONG 4 PERSONS ASSOCIATED WITH THE BUSINESS. VIII) SPLITTING OF TURNOVER WAS NOT POSSIBLE THEREF ORE DCIT WAS OF THE VIEW TO CONSIDER THE ENTIRE TURNOVER IN THE HAN DS OF ASSESSEE ONLY. AFTER CONSIDERING THE ABOVE STATED FACTS, REMAND RE PORT AND CONTENTIONS OF ASSESSEE LD. CIT(A) GRANTED RELIEF IN PART TO ASSES SEE BY OBSERVING AS UNDER:- 7.8. HOWEVER, THE ASSESSING OFFICER HAS ESTIMATED I NCOME FROM UNACCOUNTED TRANSACTIONS BY APPLYING GROSS PROFIT RATE ON THE T URNOVER WORKED OUT FROM THE IMPOUNDED MATERIAL AND REDUCING THE GROSS PROFIT SH OWN IN THE RETURN. IT IS TRUE THAT IN A CASE WHERE IT IS FOUND THAT THE ASSE SSEE WAS ENGAGED IN UNACCOUNTED TRADING TRANSACTIONS, INCOME FROM SUCH TRANSACTIONS IS GENERALLY ESTIMATED BY APPLYING APPROPRIATE GROSS PROFIT RATE , THE UNDERLYING LOGIC FOR THIS APPROACH IS THAT ALL THE INDIRECT EXPENSES MUS T HAVE ALREADY BEEN CLAIMED BY THE ASSESSEE IN HIS PROFIT AND LOSS ACCO UNT PREPARED FOR THE ACCOUNTED TRANSACTIONS. THE INDIRECT EXPENSES ARE R ELATED TO ESTABLISHMENT COST AND GENERALLY DO NOT INCREASE MUCH WITH THE TU RNOVER. THEREFORE, THE ONLY ADDITIONAL EXPENDITURE INCURRED IN RESPECT OF UNACC OUNTED SALES WOULD BE THE DIRECT EXPENSES SUCH AS PURCHASE, CARRIAGE INWARD E TC. RELATED TO SUCH SALES AND HENCE PROFIT FROM UNACCOUNTED SALES CAN NORMALL Y BE WORKED OUT BY APPLYING GROSS PROFIT RATE ON SUCH SALES. HOWEVER, THE APPELLANTS CASE IS VITALLY DIFFERENT ON FACTS HERE EVEN ALL THE ACCOUN TED TRANSACTIONS OF BUSINESS HAVE NOT BEEN SHOWN IN HANDS OF THE APPELLANT ONLY BUT HAVE BEEN SPLIT AMONG FOUR PERSONS. THE APPELLANT WAS OF OPINION TH AT THE BUSINESS WAS A JOINT ACTIVITY OF THE FOUR PERSONS AND SALES, PURCH ASE AND OTHER EXPENSES ETC. WERE REQUIRED TO BE CONSIDERED IN FOUR DIFFERENT HA NDS. AS A RESULT, THE ENTIRE ACCOUNTED TURNOVER AND EXPENSES HAVE BEEN SPLIT IN FOUR HANDS AND FOR ALL FOUR PERSONS SEPARATE PROFIT AND LOSS ACCOUNT HAVE BEEN PREPARED THEREFORE, IT WOULD NOT BE CORRECT TO SAY THAT ALL THE INDIREC T EXPENSES OF THE BUSINESS HAVE BEEN ALREADY DEBITED IN THE PROFIT AND LOSS AC COUNT OF THE APPELLANT. AS A MATTER OF FACT THEY HAVE BEEN DEBITED ONLY PARTLY I N THE PROFIT AND LOSS ACCOUNT OF THE APPELLANT WITH REMAINING EXPENSES BEING BOOK ED IN PROFIT AND LOSS ACCOUNT OF THREE OTHER PERSONS. WHILE IT HAS BEEN H ELD IN THE PREVIOUS PARA ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 8 THAT THERE WAS NO VALID REASON AND BASIS FOR SUCH S PLITTING OF PROFIT AND LOSS ACCOUNT, AS THE THINGS STAND, THE APPELLANT HAS ACT UALLY DONE SUCH A SPLITTING. THEREFORE, WHEN THE ENTIRE TURNOVER RECORDED IN THE IMPOUNDED MATERIAL IS BEING TAXED IN THE HAND OF APPELLANT IT WOULD BE FA IR AND REASONABLE TO ALSO CONSIDER ALL THE INDIRECT EXPENSES SHOWN IN THE HAN DS OF OTHER THREE PERSONS. MOREOVER, WHILE IT IS TRUE THAT INDIRECT EXPENSES D O NOT VARY PROPORTIONATELY WITH THE TURNOVER, SOME CHANGE IN INDIRECT EXPENSES IS EXPECTED TO BE THERE IF THE CHANGE IN TURNOVER IS SIGNIFICANT AS IN THE CAS E OF THE APPELLANT. THUS, THE APPELLANT'S ACCOUNTS ARE DEFECTIVE AND UNRELIABLE N OT ONLY WITH REFERENCE TO TURNOVER AND PURCHASE BUT ALSO IN RESPECT OF INDIRE CT EXPENSES WHICH HAVE BEEN SPLIT IN FIVE HANDS AND NOT PROPERLY CLAIMED. UNDER THESE CIRCUMSTANCES, INSTEAD OF APPLYING GROSS PROFIT RATE, A MORE APPRO PRIATE METHOD, IN MY OPINION, WOULD BE TO APPLY NET PROFIT RATE ON THE E NTIRE TURNOVER WORKED OUT BY THE ASSESSING OFFICER TO ARRIVE AT A REASONABLE EST IMATE FOR THE APPELLANT'S INCOME. ON GOING THROUGH THE PAST RECORD OF THE APP ELLANT IT IS SEEN THAT HIS NET PROFIT VARIED BETWEEN 1.12% AND 373% BETWEEN FY 2000-01 TO FY.2004- 05 WITH AVERAGE BEING ABOUT 2.5%. ALSO, NET PROFIT SHOWN IN THE CASE OF NARAYAN CH BERA SON OF THE APPELLANT, ENGAGED IN SI MILAR BUSINESS IN THE SAME YEARS HAS VARIED BETWEEN 1.18% AND 2.09%. THER EFORE I CONSIDER IT REASONABLE TO APPLY NET PROFIT RATE OF 2.5% ON THE TURNOVER OF RS.2,58,92,088/- WORKED OUT BY THE ASSESSING OFFICER. NET PROFIT WOU LD ACCORDINGLY COME TO RS.6,47,022/-, RESULTING IN ADDITION OF RS.2,51,622 /- TO THE DISCLOSED NET PROFIT. THE ASSESSING OFFICER IS DIRECTED TO REDUCE THE ADD ITION ACCORDINGLY. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) BOTH AS SESSEE AND REVENUE CAME IN APPEAL BEFORE US. 8. THE ASSESSEE IS IN APPEAL AGAINST THE AMOUNT OF TURNOVER ENHANCED BY ASSESSING OFFICER AND CONFIRMED BY LD. CIT(A) FOR .89 CRORES (2.58 1.69) WHEREAS REVENUE IS IN APPEAL FOR DETERMINING THE SUPPRESSED INCOME OF THE ASSESSEE ON THE BASIS OF NET PROFIT. FIRST WE DEAL WITH ASSESSEES APPEAL IN ITA NO.1927 /KOL/2013 . 9. LD. AR FOR THE ASSESSEE FILED PAPER BOOK WHICH I S RUNNING PAGES 1 TO 68 AND FAIRLY CONCEDED AND REQUESTED THE BENCH TO MAINTAIN THE STATUS QUO OF THE ORDER OF LD. CIT(A). ON THE OTHER HAND, LD. DR VEHEMENTLY RELIED ON THE ORDER OF AO. 10. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AT THE OUTSET, IT WAS OBSERVED THAT LD. AR RAISED NO OBJECTION AGAINST THE ORDER OF LD. CIT(A), HENCE TH E APPEAL FILED BY THE ASSESSEE BECOMES INFRUCTUOUS. 11. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED A S INFRUCTUOUS. NOW WE DEAL WITH REVENUES APPEAL IN ITA NO.1876/KO L/2013 . ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 9 12. LD. DR BEFORE US SUBMITTED THAT THERE IS NO PRO VISION UNDER THE ACT FOR CONSIDERING THE BUSINESS OF ASSESSEE AS JOINT BUSIN ESS WITHOUT THE DOCUMENTARY EVIDENCE. THE ASSESSEE HAS ALREADY CLAIMED ALL THE INDIRECT EXPENSE IN THE REVISED RETURN OF INCOME FILED BY ASSESSEE (DECEASED). THER EFORE, ONLY BASIS REMAINS TO BE ADOPTED FOR TAXING THE SUPPRESSED SALE IS GROSS PRO FIT RATIO. LD. DR VEHEMENTLY RELIED ON THE ORDER OF AO. ON THE OTHER HAND, LD. AR SUBMITTED THAT THE BUSINE SS OF ASSESSEE WAS CARRIED ON JOINTLY BY A GROUP OF 4 PERSONS AND ALL THE PERSONS IN THE GROUP HAVE ALREADY DISCLOSED INCOME IN THEIR RESPECTIVE HANDS BY FILIN G THEIR RETURN OF INCOME. FURTHER THE ADDITION IN THE HANDS OF ASSESSEE WILL CERTAINL Y LEAD TO DOUBLE ADDITION AS WELL AS DOUBLE TAXATION IN THE HANDS OF ASSESSEE. LD. AR DR EW OUR ATTENTION ON THE TRANSLATED STATEMENT GIVEN BY SHRI PABANA CH. MONDA L, WHICH WAS RECORDED DURING THE SURVEY OPERATION DATED 18.03.2005 WHICH IS PLAC ED ON PAGES 7 TO 13 OF THE PAPER BOOK. THE RELEVANT EXTRACT OF THE STATEMENT IS REPR ODUCED BELOW:- :Q(2) - - WHAT IS YOUR POSITION IN S.K.BERA & OTHER S? A - - I AM ONE OF THE FOUR PROPRIETORS OF S.K.B ERA & OTHERS. I AM A PARTNER OF THE PROFIT AND LOSS OF THIS COMPANY. Q(3) - - WHAT ARE THE NAMES AND ADDRESS OF THE OTH ER THREE OWNERS? A - - THE NAMES AND ADDRESS ARE BELOW (1)SRI SRIKANTA BEA ANANATAPUR, CHAPSA RPUR, PURBA MEDINIPOUR (2) SRI MANDAN MOHAN BHUNIYA - DO (3) SRI SATISH CH. MAHATO PANSKURA RLY. STN. PANS KURA, PURBA MEDINIPUR LD. AR FURTHER DREW OUR ATTENTION ON THE TRANSLATED COPIES OF SEIZED MATERIALS WHICH ARE PLACED ON PAGES 14 TO 33 OF THE PAPER BOO K AND THE RELEVANT EXTRACT MENTIONED ON PAGE 17 REPRESENTS AS UNDER:- 2002-03 ALL THE ENTRIES IN THIS CASH BOOK RELATING TO THE FOLLOWING PARTNERS: 1. SRI KANTA BERA 2.MADAN MOHAN BHU IYA 3. PAWAN CHANDRA MONDAL 4.SATISH KUMAR MALAKAR LD. AR ALSO DREW OUR ATTENTION PAGES 34 AND 35 OF T HE PAPER BOOK WHERE THE AFFIDAVIT BEFORE THE NOTARY PUBLIC WAS DULY SUBMITT ED BY THE ASSESSEE IN SUPPORT OF HIS CLAIM. FURTHER, LD. AR ALSO DREW OUR ATTENTION ON PAGES 37 TO 42 ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 10 OF THE PAPER BOOK WHERE THE COPIES OF RETURN OF ALL THREE PERSONS WERE ENCLOSED. HE RELIED ON THE ORDER OF LD. CIT(A). 13. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE INSTANT CASE B EFORE US THE ASSESSEE CLAIMED TO HAVE CARRIED OUT HIS BUSINESS ALONG WITH THREE OTHER PERSONS. ACCORDINGLY, ASSESSEE SEPARATED ALL THE TRANSACTION S OF THE BUSINESS AMONGST 4 PERSONS AND FILED RESPECTIVE RETURN OF INCOME DIS CLOSING THE PROFIT ATTRIBUTABLE TO THEM. HOWEVER, AO TREATED THE ENTIR E TURNOVER OF ASSESSEE ONLY AND ACCORDINGLY WORKED OUT THE SUPPRESSED AMOUNT OF SALE. THUS, AO DETERMINED THE GROSS PROFIT ON THE SUPPRESSED SALE AND INCOME OF ASSESSEE. HOWEVER, LD. CIT(A) CONFIRMED THE ORDER OF AO FOR D ETERMINING THE SUPPRESSED SALES OF ASSESSEE. BUT LD. CIT(A) ADMITT ED THE FACT THAT BUSINESS WAS CARRIED ON BY GROUP OF 4 PERSONS ON THE BASIS O F SEIZED DOCUMENTS IMPOUNDED DURING THE SURVEY OPERATION. HOWEVER, LD. CIT(A) WAS NOT SATISFIED WITH THE SPLITTING OF THE TURNOVER AMONGST 4 PERSON S. THEREFORE, LD. CIT(A) OBSERVED THE BASIS ADOPTED BY THE AO FOR DETERMININ G THE PROFIT ON SUPPRESSED SALE AT THE GROSS PROFIT RATIO WAS NOT C ORRECT. ACCORDINGLY, LD. CIT(A) ADOPTED NET PROFIT RATIO TO DETERMINE THE PR OFIT ON THE SUPPRESSED SALE. NOW, THE QUESTION BEFORE US ARISES FOR OUR ADJUDICA TION SO AS TO WHETHER PROFIT DETERMINED ON THE NET PROFIT RATIO ON SUPPRESSED SA LE IS JUSTIFIABLE IN THE AFORESAID FACTS AND CIRCUMSTANCES OF THE CASE. IN OUR CONSIDERED VIEW, THERE IS NO DISPUTE ON THE BASIS OF THE DOCUMENT IMPOUNDED DURING THE SURVEY OPERATION ARE SUGGESTIN G THAT THE BUSINESS WAS CARRIED BY GROUP OF 4 PERSONS. BESIDES THE DOCUMENT , ASSESSEE ALSO FURNISHED THE AFFIDAVIT IN SUPPORT OF HIS CLAIM. IN OUR CONSIDERED VIEW, THE ASPECT OF JOINT BUSINESS CANNOT BE IGNORED. 4.1 THE NEXT QUESTION ARISES IF THE BUSINESS IS CAR RIED ON BY A GROUP OF 4 PERSONS THEN ON WHAT BASIS THE TURNOVER AND CORRESP ONDING EXPENSES HAVE BEEN ALLOCATED AMONGST THE GROUP OF PERSONS. IN THI S REGARD, LD. AR HAS NOT BROUGHT ANYTHING ON RECORD SUGGESTING THE BIFURCATI ON OF TURNOVER AND CORRESPONDING EXPENSES. ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 11 LD. AR BEFORE US HAS JUST FILED THE COPIES OF IT RE TURN. THUS IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCE AND CONSIDERING THE PECULI AR FACTS AND CIRCUMSTANCES LD. CIT(A) HAS ADOPTED THE NET PROFIT RATIO TO WORK OUT THE PROFIT ON SUPPRESSED SALE. THEREFORE, CONSIDERING THE FACT S AND CIRCUMSTANCES, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LD. CIT(A ). THEREFORE WE FULLY AGREE WITH THE REASONS GIVEN BY THE LD. CIT-A AND FOR THE SAME WE RELY IN THE JUDGMENT OF HONBLE SUPREME COURT OF INDIA IN THE C ASE OF CIT VS. K.Y. PILLIAH & SONS REPORTED IN 63 ITR 411 WHEREIN IT WAS HELD AS UNDE R:- THE TRIBUNAL IS THE FINAL FACT-FINDING AUTHORITY A ND NORMALLY IT SHOULD RECORD ITS CONCLUSION ON EVERY DISPUTED QUESTION RA ISED BEFORE IT, SETTING OUT ITS REASONS IN SUPPORT OF ITS CONCLUSIO N. BUT, IN FAILING TO RECORD REASONS, WHEN THE TRIBUNAL FULLY AGREES WITH THE VIEW EXPRESSED BY AAC AND HAS NO OTHER GROUND TO RECORD IN SUPPORT OF ITS CONCLUSION, IT DOES NOT ACT ILLEGALLY OR IRREGULARLY, MERELY BE CAUSE IT DOES NOT REPEAT THE GROUNDS OF THE AAC ON WHICH THE DECISION WAS GI VEN AGAINST THE ASSESSEE OR THE DEPARTMENT. THEREFORE WE CONCUR WITH THE VIEW OF LD. CIT(A) AN D HENCE THIS GROUND OF REVENUES APPEAL IS DISMISSED. 14. NEXT ISSUE RAISED BY REVENUE IN GROUND NO.1 IS THAT LD. CIT(A) ERRED IN REDUCING THE COMMISSION INCOME FROM 20,12,178 TO 51,804/- BY APPLYING NET PROFIT RATIO @ 2.5%. 15. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO OBSERVED ON THE BASIS OF IMPOUNDED DOCUMENT MARKED AS SKB/8 THAT AS SESSEE HAS EARNED COMMISSION INCOME ON SALE OF FRUIT FOR 20,12,178/- ONLY. DURING THE YEAR UNDER CONSIDERATION THE SAME HAS NOT BEEN OFFERED T O TAX IN INCOME TAX RETURN. ACCORDINGLY, AO CALLED UPON THE ASSESSEE FOR MAKING THE ADDITION OF COMMISSION INCOME. BUT ASSESSEE FAILED TO REPLY TO AO ACCORDINGLY HE CONFIRMED THE ADDITION IN THE HANDS OF ASSESSEE. 16. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A). THE ASSESSEE BEFORE LD. CIT(A) SUBMITTED THAT AO HAS MI SUNDERSTOOD THE ENTRY REFLECTED IN THE DOCUMENTS MARKED AS SKB/8 WHERE SH RI PAWAN CH. MONDAL IN HIS STATEMENT STATED THAT DURING THE SURVEY ASSESSE E IS ENGAGED AS ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 12 WHOLESALER AND COMMISSION AGENT. CONSIDERING THE CO NTENTION OF ASSESSEE LD. CIT(A) GRANTED RELIEF TO ASSESSEE IN PART BY OB SERVING AS UNDER:- 11.2 THE APPELLANT HAS NOT DISPUTED THAT THE BANK ACCOUNT UNDER CONSIDERATION WAS UNDISCLOSED. HE HAS ACCEPTED THAT THE PEAK OF THE DEPOSITS AND WITHDRAWALS SHOULD HAVE BEEN ADDED. HO WEVER, THE ASSESSING OFFICER HAS MENTIONED IN HIS ORDER THAT T HE AMOUNT ADDED WAS PEAK CREDIT ONLY. THEREFORE I FIND NO REASON TO INTERFERE WITH THE ADDITION AS SUCH. HOWEVER, THERE IS FORCE IN THE AL TERNATIVE SUBMISSION MADE BY THE APPELLANT. FOR THE REASONS DISCUSSED IN PARA 9.2, IT IS REASONABLE TO ALLOW BENEFIT OF TELESCOPING BETWEEN THE ADDITION FOR PROFIT FROM UNACCOUNTED TRANSACTIONS AND UNEXPLAINED INVES TMENT IN BANK ACCOUNT. THEREFORE NO SEPARATE ADDITION IS REQUIRED TO BE MAD FOR THE LATER. SUBJECT TO THE REMARK IN PARA 9.2 THE APPELL ANT GETS RELIEF IN RESPECT OF THE ADDITION. THE REVENUE, BEING AGGRIEVED, IS IN APPEAL BEFORE U S AGAINST THE RELIEF GRANTED PART TO ASSESSEE. 17. BEFORE US BOTH PARTIES RELIED ON THE ORDER OF A UTHORITIES BELOW AS FAVOURABLE TO THEM. 18. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. FROM THE FOREGOING DI SCUSSION, WE FIND THAT AO HAS TAKEN THE GROSS AMOUNT AS COMMISSION INCOME OF THE ASSESSEE WHEREAS LD. CIT(A) FOUND THAT THE AO HAS NOT REDUCED THE CO MMISSION PAID BY ASSESSEE FROM THE AMOUNT OF GROSS COMMISSION. ACCOR DINGLY, LD. CIT(A) APPLIED THE NET PROFIT RATE ON THE GROSS AMOUNT OF COMMISSION. WE ALSO FIND THAT THE COMMISSION WAS EARNED BY ASSESSEE IN THE E ARLIER YEAR AS WELL AFTER REDUCING THE COMMISSION EXPENSES. IN THE CASE BEFOR E US THE AO HAS NOT REDUCED THE COMMISSION EXPENSES AGAINST THE GROSS A MOUNT OF COMMISSION. ACCORDINGLY, IN OUR CONSIDERED VIEW, AO WAS TO REDU CE THE AMOUNT OF COMMISSION EXPENSE AGAINST THE GROSS AMOUNT OF COMM ISSION INCOME. THUS, IN THE ABSENCE OF COMMISSION EXPENSES LD. CIT(A) HA S CORRECTLY APPLIED THE NET PROFIT RATIO ON THE GROSS AMOUNT OF COMMISSION INCOME. IN THE LIGHT OF ABOVE REASONING, WE HOLD THAT THE ORDER OF THE LD. CIT(A) IS CORRECT AND IN ACCORDANCE WITH LAW AND NO INTERFERENCE IS CALLED F OR. THIS GROUND OF REVENUES APPEAL IS DISMISSED. ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 13 19. NEXT ISSUE RAISED BY REVENUE IN THIS APPEAL IS THAT LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY AO FOR 67,08,546/- ON ACCOUNT OF UNACCOUNTED PURCHASE. 20. ASSESSEE IN ITS REVISED RETURN OF INCOME HAS SH OWN PURCHASE WORTH OF 1,47,18,455/- WHEREAS AO DETERMINED THE PURCHASE FO R 10 MONTHS ON THE BASIS OF IMPOUNDED DOCUMENTS MARKED SKB/3 AND SKB/9 FOR 1,80,20,501/- ONLY. THE AO FURTHER OBSERVED FROM THE IMPOUNDED DO CUMENTS THAT PURCHASES FOR 1,80,22,501/- WAS FOR A PERIOD OF 10 MONTHS. THEREF ORE, IT WAS ACCORDINGLY EXTRAPOLATED TO 12 MONTHS WHICH COMES TO 2,16,27,01/- (18022501 X 12 10), THEREFORE THE ASSESSING OFFICER TREATED THE DI FFERENCE IN THE AMOUNT OF PURCHASE FOR 67,08,546/- (21627001 14918455) AS INCOME U/S 69C OF THE ACT WHICH WAS ADDED TO THE TOTAL INCOME OF ASSESSEE . 21. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A). THE ASSESSEE BEFORE LD. CIT(A) SUBMITTED THAT THE ADDIT ION HAS BEEN MADE BY THE AO ON THE BASIS OF GUESSWORK. THE BOOKS OF ACCOUNT WERE DULY AUDITED AND NO DEFECT WHATSOEVER HAS BEEN POINTED OUT IN FINANC IAL STATEMENT. IF IT IS PRESUMED THAT ASSESSEE WAS INVOLVED IN UNACCOUNTED PURCHASES THEN ALSO ENTIRE AMOUNT CANNOT BE TREATED AS INVESTMENT IN TH E BUSINESS. IT IS BECAUSE THE SALE PROCEEDS OF GOODS FOR A DAY WERE UTILIZED FOR THE PURCHASE TO BE MADE ON THE NEXT DAY. AS THE ASSESSEE WAS DEALING I N PERISHABLE GOODS SO THERE WAS NO POINT TO KEEP THE STOCK OF THE GOODS F OR LONGER PERIOD. MOREOVER THE GOODS WERE SOLD ON CASH BASIS AND THEREFORE SUF FICIENT CASH WAS AVAILABLE WITH THE ASSESSEE FOR MAKING THE PURCHASE ON THE NE XT DAY. IT WAS ALSO POINTED OUT THAT THE BUSINESS WAS OWNED BY THE GROUP OF 4 PERSONS AND THEREFORE THE ADDITION ON ACCOUNT OF UNDISCLOSE D INVESTMENT CANNOT BE MADE IN THE HANDS OF THE ASSESSEE. AFTER CONSIDERIN G THE SUBMISSIONS OF ASSESSEE LD. CIT(A) DELETED THE ADDITION MADE BY AO IN PART BY OBSERVING AS UNDER : 8.2 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE C ASE. SO FAR AS THE FIGURE OF PURCHASE WORKED OUT BY THE ASSESSING OFFI CER FROM THE IMPOUNDED MATERIAL IS CONCERNED, THE APPELLANT HAS NOT POINTED OUT ANY SPECIFIC ERROR. IT HAS BEEN STATED IN A GENERAL MAN NER THAT THE WORKING ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 14 DONE BY THE ASSESSING OFFICER WAS INCORRECT. THE AP PELLANT HAD BEEN DULY GIVEN COPY OF THE IMPOUNDED MATERIAL BY THE AS SESSING OFFICER. THEREFORE, HE SHOULD HAVE MADE HIS OWN WORKING AND IT THERE WAS ANY ERROR IN THE FIGURES WORKED OUT BY THE ASSESSING OF FICER THE SAME SHOULD HAVE BEEN SPECIFICALLY POINTED OUT. IT MAY ALSO BE MENTIONED THAT IN THE COURSE OF APPELLANT PROCEEDINGS THE REPORT OF THE A SSESSING OFFICER HAD BEEN CALLED FOR IN RESPECT OF THE OBJECTIONS INVOLV ING IMPOUNDED MATERIAL AND AS DISCUSSED EARLIER, IN THE REPLY GIV EN BY THE ASSESSING OFFICER IT HAS NOT BEEN ACCEPTED THAT THERE WAS AN ERROR IN THE FIGURES WORKED OUT IN THE ASSESSMENT ORDER. CONSIDERING THI S AND THE FACT THAT THE APPELLANT HAS NOT POINTED OUT ANY SPECIFIC ERRO R IN THE WORKING, THE FIGURE OF RS.1,80,22,501/- HAS TO BE TAKEN AS CORRE CT. IN FACT, THE FIGURE TAKEN BY THE ASSESSING OFFICER IS ON A LOWER SIDE. AS DISCUSSED EARLIER, THE TURNOVER WORKED OUT FROM THE IMPOUNDED MATERIAL AND EXTRAPOLATED FOR THE FULL YEAR WAS OF RS.2,58,76,240/-. AT THE G ROSS PROFIT RATE OF 7% TAKEN BY THE ASSESSING OFFICER, THAT WOULD CORRESPO ND TO PURCHASES OF RS.2,40,64,903/-. SINCE THE APPELLANT DEALS IN A PE RISHABLE COMMODITY ( FRUIT ), THERE IS NORMALLY NO SIGNIFICANT STOCK. HENCE, I T CAN BE INFERRED THAT THE ENTRIES ON THE IMPOUNDED MATERIAL ARE FOR ONLY A PART OF ACTUAL PURCHASES, WHICH MUST BE ABOUT RS.2,40,64,903/-. 8.3 HOWEVER, THE CONTENTION THAT THE TRANSACTIONS P ERTAIN NOT ONLY TO THE APPELLANT BUT 4 PERSONS H SOME FORCE AS DISCUSSED E ARLIER. THOUGH THE SPLITTING OF TRANSACTIONS AND INCOME HAS BEEN HELD TO BE WITHOUT ANY VALID BASIS, IF ANY PURCHASE HAS BEEN ACCOUNTED FOR IN HAND OF ANY OF THREE OTHER PERSONS, SOURCE OF THE SAME CANNOT BE T REATED AS UNEXPLAINED. IT IS SEEN THAT IN THE YEAR UNDER CONS IDERATION AFTER PURCHASES OF ALL 4 PERSONS ARE ADDED UP THEY COVER THE PURCHASE WORKED OUT AS ABOVE AND THERE REMAINS NO GAP TO BE TREATED AS UNACCOUNTED PURCHASE OF THE APPELLANT. THE ADDITION IS THEREFORE DELETED. THE REVENUE, BEING AGGRIEVED, IS IN APPEAL BEFORE U S. 22. BEFORE US BOTH PARTIES RELIED ON THE ORDER OF A UTHORITIES BELOW AS FAVOURABLE TO THEM. 23. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS UNDISPUTED FACT THAT ASSESSEE ENGAGED IN TRADING OF WHOLESALE FRUIT BEING PERISHABLE GOODS N EEDS TO BE SOLD AS EARLY AS POSSIBLE. THUS, IT IS INFERRED THE TURNOVER RATIO O F THE BUSINESS OF ASSESSEE WAS VERY HIGH. THUS, THERE IS FORCE IN THE ARGUMENTS OF LD. AR THAT THERE WAS SUFFICIENT CASH AVAILABLE WITH THE ASSESSEE FOR THE PURCHASE OF FRUIT FOR THE NEXT DAY. ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 15 HOWEVER, THE ASPECT INVESTMENT IN THE BUSINESS OF A SSESSEE CANNOT BE IGNORED AND UNDISCLOSED PURCHASES HAVE BEEN FOUND O N THE BASIS OF SEIZED MATERIALS. THEREFORE, IN OUR CONSIDERED VIEW 1% OF THE UNDISCLOSED PURCHASES SHOULD BE TREATED AS UNDISCLOSED INVESTMENT IN THE BUSINESS OF THE ASSESSEE. HENCE, THIS GROUND OF REVENUES APPEAL IS PARTLY AL LOWED. AO IS DIRECTED ACCORDINGLY. 24. GROUND NO. 3, 4 & 6 ARE GENERAL IN NATURE AND D O NOT REQUIRE ANY SEPARATE ADJUDICATION. 25. NEXT ISSUE IN GROUND NO.5 RAISED BY REVENUE IS THAT LD. CIT(A) ERRED IN REDUCING THE AMOUNT OF COMMISSION INCOME FROM 20,12,178/- TO 51,804/-. 26. AT THE OUTSET, WE FIND THAT SAME ISSUE HAS ALRE ADY BEEN RAISED BY REVENUE IN GROUND NO.1 OF REVENUES APPEAL AND THE SAME HAS BEEN ADJUDICATED BY US IN PARA-18 OF THIS ORDER. THEREFORE, TAKING A CONSISTENT VIEW WE ALSO DISMISS THIS GROUND OF REVENUES APPEAL. HE NCE, THIS GROUND OF REVENUES APPEAL IS DISMISSED. 27. IN THE RESULT, REVENUES APPEAL IS PARTLY ALLOW ED. COMING TO ASSESSEES APPEAL IN ITA NO.1924/KOL/2013 AND REVENUES APPEAL IN ITA NO. 1873/KOL/2013 FOR A.YS 02-03 28. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSE SSEE HAS NOT PRESSED THE REVISED GROUNDS OF APPEAL. HENCE, SAME ARE DISMISSE D AS NOT PRESSED. SIMILARLY THE ASSESSEE HAS NOT PRESSED THE GROUNDS NOS. 1,2,3,4,& 6 RAISED IN THE ORIGINAL GROUNDS OF APPEAL. 29. THE EFFECTIVE GROUND NO.5 RAISED BY ASSESSEE IS REPRODUCED BELOW:- 5. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE THE CIT(A) ERRED IN ESTIMATING THE GROSS TURNOVER 88.46 LAKH IN PLAC E OF 20.22 LAKH AS PER PROFIT & LOSS ACCOUNT SUBMITTED BEFORE THE LD. CIT( A) SO THE GROSS TURNOVER SHOULD BE ACCEPTED RS.22.22 LACK IN PLACE OF 88.46 LACK. REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1) THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE C ASE THE LD. CIT(A) ERRED IN REDUCING THE ADDITION ON ACCOUNT OF UNACC OUNTED PURCHASES ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 16 CALCULATED AT 88,46,432/- TO 88,464/- ONLY AND REDUCED NET PROFIT @ 2.5% ON THE UNACCOUNTED PURCHASE WHICH ARRIVED AT 2,26,831/-. 2) THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CA SE, THE CIT(A) HA FAILED TO CONSIDER THE PROVISIONS OF SECTION 292C O F THE IT ACT. 3) THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE C ASE, THE CIT(A) HAS ERRED IN REDUCING THE ADDITION WHEN IN ACTUAL FACT HE NOR THE ASSESSEE HAS FOUND ANY DEFECT IN THE CALCULATION THAT HAS BE EN WORKED OUT FROM THE IMPOUNDED MATERIAL OF THE ASSESSEE. 30. THE AO DURING ASSESSMENT PROCEEDINGS OBSERVED T HAT THE ASSESSEE HAS DECLARED PURCHASES IN ITS RETURN AT RS. 18,79,7 20.00 ONLY WHEREAS THE AMOUNT OF PURCHASES WERE FROM FOUND FROM THE IMPOUN DED DOCUMENTS AT 1,07,26,152.00 ONLY. THUS THE DIFFERENCE OF RS. 88, 46,432.00 WAS FOUND WHICH WAS TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE U NDER SECTION 69C OF THE ACT AND ACCORDINGLY ADDED TO THE TOTAL INCOME OF AS SESSEE. 31. THE MATTER WAS CARRIED TO LD. CIT(A) WHO HAS AL LOWED RELIEF TO ASSESSEE IN PART BY OBSERVING AS UNDER:- 7.2 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE C ASE. SO FAR AS THE FIGURE OF PURCHASE WORKED OUT BY THE ASSESSING OFFI CER FROM THE IMPOUNDED MATERIAL IS CONCERNED, THE APPELLANT HAS NOT POINTED OUT ANY SPECIFIC ERROR. IT HAS BEEN STATED IN A GENERAL MAN NER THAT THE WORKING DONE BY THE ASSESSING OFFICER WAS INCORRECT. THE AP PELLANT HAD BEEN DULY GIVEN COPY OF THE IMPOUNDED MATERIAL BY THE AS SESSING OFFICER. THEREFORE, HE SHOULD HAVE MADE HIS OWN WORKING AND IF THERE WAS ANY ERROR IN THE FIGURES WORKED OUT BY THE ASSESSING OF FICER THE SAME SHOULD HAVE BEEN SPECIFICALLY POINTED OUT. IT MAY ALSO BE MENTIONED THAT IN THE COURSE OF APPELLATE PROCEEDINGS THE REPORT OF THE A SSESSING OFFICER HAD BEEN CALLED FOR IN RESPECT FOR CERTAIN OTHER OBJECT IONS INVOLVING IMPOUNDED MATERIAL WHICH SHALL BE DISCUSSED IN MORE DETAIL WHILE DECIDING THE SUBSEQUENT GROUND. PRESENTLY, IT WOULD SUFFICE TO SAY THAT IN REPLY GIVEN BY THE ASSESSING OFFICER NO ERROR TH E FIGURES WORKED OUT IN THE ASSESSMENT ORDER HA BEEN FOUND. CONSIDERING THI S AND THE FACT THAT THE APPELLANT HAS NOT POINTED OUT ANY SPECIFIC ERRO R IN THE WORKING, THE FIGURE OF RS.1,07,26,152- HAS TO BE TAKEN AS CORREC T. SO FAR AS THE CONTENTION THAT THE TRANSACTIONS PERTAIN NOT ONLY O THE APE BUT 3 OTHER PERSONS HAS SOME FORCE. IN THE APPEALS RELATING TO AY 2003-04 TO 2005- 06, THE ISSUE HAS BEEN DISCUSSED IN MORE DETAILS AN D DUE CREDIT HAS BEEN ALLOWED FOR THE SAME. HOWEVER, FOR THE YEAR UN DER CONSIDERATION, ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 17 THE APP HAS NOT BEEN ABLE TO SUPPORT THE TURNOVER S HOWN IN THE NAMES OF OTHER THREE PERSONS BY PRODUCING THEIR P & L ACC OUNTS OR RETURNS. THEREFORE, NO CREDIT CAN BE ALLOWED IN RESPECT OF T HE SAME AND THE AMOUNT OF RS.88,46,432/- HAS TO BE TREATED AS UNACC OUNTED PURCHASE OF THE APPELLANT. HOWEVER, IT IS ALSO TRUE THAT THE EN TIRE PURCHASE OF THE APPELLANT CANNOT BE ADDED. WHAT IS REQUIRED TO BE A DDED IS THE UNACCOUNTED INVESTMENT IN THE SAME. THE APPELLANT H AS RIGHTLY SAID THAT HE WAS MAKING PURCHASE AND SALE ON DAY TO DAY BASIS AND CASH GENERATE FROM SALE OF ONE DAY WAS AVAILABLE FOR PUR CHASE OF NEXT DAY. THE APPELLANT DEALS IN FRUITS WHICH IS A PERISHABLE COMMODITY. THE APPELLANT ALSO DOES NOT OWN COLD STORAGE. THEREFORE , PURCHASE MADE AT THE TIME CANNOT BE EXPECTED TO BE FOR MORE THAN TWO THREE DAYS. IT IS SEEN FROM THE BALANCE SHEET OF THE APPELLANT, THAT HE WAS NOT HAVING CLOSING STOCK, CREDITORS OR DEBTORS WHICH SUPPORTS THE CONTENTION THAT HE WAS CARRYING OUT TRADING TRANSACTIONS IN CASH ON AC COUNT OF DAY TO DAY BASIS. UNDER THESE CIRCUMSTANCES, INVESTMENT IN PUR CHASE CANNOT REASONABLY EXPECTED TO BE MORE THAN THE PURCHASE OF SAY, THREE OR FOUR DAYS. SINCE THE UNACCOUNTED PURCHASE FOR THE ENTIRE YEAR HAD BEEN WORKED OUT AT RS.88,46,432/- ON PROPORTIONATE BASIS , INVESTMENT THEREIN CAN BE CONSIDERED TO BE AROUND 1% WHICH WOULD COME TO RS.88,464/-. THE ADDITION IS THEREFORE REDUCED TO RS.88,464/-. 7.3 FURTHERMORE, IT IS OBSERVED THAT THOUGH THE ASS ESSING OFFICER HAS MADE ADDITION IN RESPECT OF EXCESS PURCHASE, NO ADD ITION HAS BEEN MADE FOR GROSS PROFIT EARNED ON THE CORRESPONDING S ALE. IT MAY BE MENTIONED THAT AFTER THE SURVEY ACTION RE-ASSESSMEN TS HAVE BEEN COMPLETED IN RESPECT OF AY 2001-02 TO 2005-06. IN M OST OF THE OTHER ASSESSMENT YEARS, THE ASSESSING OFFICER HAS MADE AD S FOR UNACCOUNTED PURCHASES, AS WELL AS GROSS PROFIT ON U NACCOUNTED SALES. HOWEVER, IN THE YEAR UNDER APPEAL, NO SEPARATE ADDI TION HAS BEEN MADE FOR UNACCOUNTED GROSS PROFIT. SINCE THEE APPEL LANT HAD MADE UNACCOUNTED PURCHASE OF RS.88,46,432/- HE MUST HAVE SOLD THE CONCERNED GOODS OUT OF BOOKS. THIS IS MORE SO, AS T HE APPELLANT DEALS IN FRUITS WHICH ARE PERISHABLE ITEMS AND IT IS NOT LIKELY THAT ANY PURCHASE WOULD REMAIN LYING IN STOCK. THIS POINT WAS DISCUSS ED WITH THE AUTHORIZED REPRESENTATIVES OF THE APPELLANT VIDE OR DER SHEET DATED 08.03.2013 AND THEY COULD NOT COUNTER THIS POINT. I N THE ASSESSMENT YEAR 2005-06 THE APPELLANTS APPEAL HAS BEEN DECIDE D VIDE ORDER OF EVEN DATE. IN THAT ORDER IT HAS BEEN HELD, AFTER CO NSIDERING FACTS AND CIRCUMSTANCES OF THE CASE, THAT INCOME FROM UNACCOU NTED TRANSACTIONS SHOULD BE ARRIVED AT BY APPLYING NET PROFIT RATE ON SUCH SALES. THE NET PROFIT RATE HAS BEEN TAKEN AT 2.50% AFTER CONSIDERI NG PROFIT SHOWN IN OTHER YEARS, AS WELL AS THE CASE OF THE APPELLANTS SON. THE SAME WOULD CORRESPOND TO 2.564% ON PURCHASE. ACCORDINGLY, NET PROFIT O UNACCOUNTED PURCHASE OF RS.88,46,432/- WOULD COME T O RS.2,26,831/-. THUS AMOUNT IS REQUIRED TO BE ADDED APART FROM THE ADDITION FOR IN UNACCOUNTED PURCHASE. ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 18 BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) BOTH AS SESSEE AND REVENUE CAME IN APPEAL BEFORE US. 32. THE ASSESSEE IS IN APPEAL AGAINST THE AMOUNT OF TURNOVER ENHANCED BY CONFIRMED BY LD. CIT(A) FOR 88.46 LACS WHEREAS REVENUE IS IN APPEAL FOR DETERMINING THE SUPPRESSED INCOME OF THE ASSESSEE O N THE BASIS OF NET PROFIT AND UNDISCLOSED INVESTMENT. FIRST WE DEAL WITH ASSESSEES APPEAL IN ITA NO.1924 /KOL/2013 . 33. LD. AR FOR THE ASSESSEE FILED PAPER BOOK WHICH IS RUNNING PAGES 1 TO 68 AND FAIRLY CONCEDED AND REQUESTED THE BENCH TO MAINTAIN THE STATUS QUO OF THE ORDER OF LD. CIT(A). ON THE OTHER HAND, LD. DR VEHEMENTLY RELIED ON THE ORDER OF AO. 34. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AT THE OUTSET, IT WAS OBSERVED THAT LD. AR RAISED NO OBJECTION AGAINST THE ORDER OF LD. CIT(A), HENCE TH E APPEAL FILED BY THE ASSESSEE BECOMES INFRUCTUOUS. 35. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED A S INFRUCTUOUS. NOW WE DEAL WITH REVENUES APPEAL IN ITA NO.1873/KO L/2013 . 36. LD. DR BEFORE US SUBMITTED THAT THERE IS NO PRO VISION UNDER THE ACT FOR CONSIDERING THE BUSINESS OF ASSESSEE AS JOINT BUSIN ESS WITHOUT THE DOCUMENTARY EVIDENCE. THE IMPUGNED UNDISCLOSED PURCHASE REPRESE NTS THE INCOME OF THE ASSESSEE. THEREFORE, ONLY BASIS REMAINS TO BE ADOPT ED FOR TAXING THE SUPPRESSED PURCHASE IS TO ADD THE ENTIRE AMOUNT U/S 69C OF THE ACT. LD. DR VEHEMENTLY RELIED ON THE ORDER OF AO. ON THE OTHER HAND, LD. AR SUBMITTED THAT THE BUSINE SS OF ASSESSEE WAS CARRIED ON JOINTLY BY A GROUP OF 4 PERSONS AND ALL THE PERSONS IN THE GROUP HAVE ALREADY DISCLOSED INCOME IN THEIR RESPECTIVE HANDS BY FILIN G THEIR RETURN OF INCOME. FURTHER THE ADDITION IN THE HANDS OF ASSESSEE WILL CERTAINL Y LEAD TO DOUBLE ADDITION AS WELL AS DOUBLE TAXATION IN THE HANDS OF ASSESSEE. HE RELIED ON THE ORDER OF LD. CIT(A). 37. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AT THE OUTSET WE FIND THAT THE SIMILAR ISSUE RAISED BY THE REVENUE IN GROUND NO. 2 IN ITA 1876/KOL/2013 , WHICH HAS BEEN ADJUDICATED BY US IN PARA NO. 23 OF THIS ORDER. FOL LOWING THE SAME WE DO NOT ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 19 FIND ANY INFIRMITY IN THE ORDER OF LD. CIT-A. HENCE THIS GROUND OF APPEAL OF REVENUE IS DISMISSED. 38. IN THE RESULT, REVENUES APPEAL IS DISMISSED. COMING TO ASSESSEES APPEAL IN ITA NO.1925/KOL/2013 FOR A.Y 03-04 . 39. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSE SSEE HAS NOT PRESSED THE REVISED GROUNDS OF APPEAL. HENCE, SAME ARE DISMISSE D AS NOT PRESSED. SIMILARLY THE ASSESSEE HAS NOT PRESSED THE GROUNDS NOS. 1,2,3,4,5 & 7 RAISED IN THE ORIGINAL GROUNDS OF APPEAL AND THE GROUNDS A RE DISMISSED AS NOT PRESSED. 40. THE EFFECTIVE GROUND NO.6 RAISED BY ASSESSEE IS REPRODUCED BELOW:- 6. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE THE CIT(A) ERRED IN ESTIMATING THE GROSS TURNOVER 1.70 CRORES IN PLA CE OF 23.72 LACK AS PER PROFIT & LOSS ACCOUNT SUBMITTED BEFORE THE LD. CIT(A) SO THE GROSS TURNOVER SHOULD BE ACCEPTED RS.23.72 LACK IN PLACE OF 1.70 CRORE. 41. THE FACTS OF THE CASE IN THE YEAR UNDER APPEAL IS IDENTICAL TO THE FACTS OF THE CASE FOR THE A.Y 05-06 IN ITA 1927/KOL/2013 EXCEPT THE AMOUNT. THE IMPUGNED ISSUE HAS ALREADY BEEN ADJUDICATED IN PARA 10 OF THIS ORDER. THEREFORE FOLLOWING THE SAME WE DISMISS THE APPEAL FILED BY ASSESSEE. 42. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED A S INFRUCTUOUS. COMING TO REVENUES APPEAL IN ITA NO.1874/KOL/2013 FOR A.Y 03-04 . 43. AT THE OUTSET, WE HAVE ALREADY ADJUDICATED THE INTER-CONNECTED ISSUE IN REVENUES APPEAL IN ITA NO.1876/KOL/2013 FOR A.Y. 2005-06 IN PARA 23 OF THIS ORDER. SINCE THE FACTS ARE IDENTICAL BOTH PARTIES A GREED WHATEVER VIEW TAKEN MAY BE TAKEN IN THIS APPEAL ALSO, WE HOLD ACCORDING LY. 44. IN THE RESULT, REVENUES APPEAL IS DISMISSED. COMING TO ASSESSEES APPEAL IN ITA NO.1926/KOL/2013 FOR A.Y. 04-05 . 45. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSE SSEE HAS NOT PRESSED THE REVISED GROUNDS OF APPEAL. HENCE, SAME ARE DISMISSE D AS NOT PRESSED. SIMILARLY THE ASSESSEE HAS NOT PRESSED THE GROUNDS NOS. 1,2,3,4 & 6 RAISED IN THE ORIGINAL GROUNDS OF APPEAL. ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 20 46. THE EFFECTIVE GROUND NO.5 RAISED BY ASSESSEE IS REPRODUCED BELOW:- 5. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE THE CIT(A) ERRED IN ESTIMATING THE GROSS TURNOVER 2.19 CRORES IN PLA CE OF 27.52 LACK AS PER PROFIT & LOSS ACCOUNT SUBMITTED BEFORE THE LD. CIT(A) SO THE GROSS TURNOVER SHOULD BE ACCEPTED RS.27.52 CRORES IN PLAC E OF 2.19 CRORE. 47. THE FACTS OF THE CASE IN THE YEAR UNDER APPEAL IS IDENTICAL TO THE FACTS OF THE CASE FOR THE A.Y 05-06 IN ITA 1927/KOL/2013 EXCEPT THE AMOUNT. THE IMPUGNED ISSUE HAS ALREADY BEEN ADJUDICATED IN PARA 10 OF THIS ORDER. THEREFORE FOLLOWING THE SAME WE DISMISS THE APPEAL FILED BY ASSESSEE. 48. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED AS INFRUCTUOUS. COMING TO REVENUES APPEAL IN ITA NO. 1875/KOL/2013 FOR A.Y. 04-05 . 49. COMMON GROUND NO. 1 AND 2 IN THIS APPEAL OF REV ENUE HAS ALREADY BEEN ADJUDICATED BY US IN REVENUES APPEAL NO.1876/KOL/2013 VIDE PARA NO. 10 & 23 RESPECTIVELY. SINCE THE FACTS ARE EXACTLY I DENTICAL, BOTH PARTIES ARE AGREED WHATEVER VIEW TAKEN IN THE ABOVE APPEAL OF R EVENUE MAY BE TAKEN IN THIS APPEAL ALSO. WE HOLD ACCORDINGLY. 50. IN THE RESULT, REVENUES APPEAL IS DISMISSED. COMING TO ASSESSEES APPEAL IN ITA NO.1923/KOL/2013 FOR A.Y. 01-02 . 51. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSE SSEE HAS NOT PRESSED THE REVISED GROUNDS OF APPEAL. HENCE, SAME ARE DISMISSE D AS NOT PRESSED. SIMILARLY THE ASSESSEE HAS NOT PRESSED THE GROUNDS NOS. 1,2,3,4 & 6 RAISED IN THE ORIGINAL GROUNDS OF APPEAL AND ARE DISMISSED AS NOT PRESSED. 52. THE EFFECTIVE GROUND NO.5 RAISED BY ASSESSEE IS REPRODUCED BELOW:- 5. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE THE CIT(A) ERRED IN ESTIMATING THE GROSS TURNOVER 1.20 CRORES IN PLA CE OF 39.66 LAKHS AS PER PROFIT & LOSS ACCOUNT SUBMITTED BEFORE THE LD. CIT(A) SO THE GROSS TURNOVER SHOULD BE 39.66 LACK IN PLACE OF 1.20 CROR E. AS THERE WAS NO IMPOUNDED BOOKS OF ACCOUNT. 53. AS STATED EARLIER, THE ISSUE IN THIS YEAR IS SA ME AS THAT OF THE LAST YEAR IN ITA 1927/KOL/2013 . THE ONLY DIFFERENCE IS THE AMOUNT INVOLVED. SINCE THE FACTS ARE EXACTLY IDENTICAL, BOTH PARTIES ARE AGREE D WHATEVER VIEW TAKEN IN THE ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 21 ABOVE APPEAL OF THE ASSESSEE MAY BE TAKEN IN THIS A PPEAL OF ASSESSEE ALSO. WE HOLD ACCORDINGLY. 54. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED A S INFRUCTUOUS. COMING TO REVENUES APPEAL IN ITA NO.1731/KOL/2013 FOR A.Y. 05-06 . 55. COMMON GROUND NO. 1 AND 2 IN THIS APPEAL OF REV ENUE HAS ALREADY BEEN ADJUDICATED BY US IN REVENUES APPEAL NO.1876/KOL/2013 VIDE PARA NO. 10 & 23 RESPECTIVELY. SINCE THE FACTS ARE EXACTLY I DENTICAL, BOTH PARTIES ARE AGREED WHATEVER VIEW TAKEN IN THE ABOVE APPEAL OF R EVENUE MAY BE TAKEN IN THIS APPEAL ALSO. WE HOLD ACCORDINGLY. 56. IN THE RESULT, REVENUES APPEAL IS DISMISSED. 57. NEXT ISSUE RAISED BY REVENUE IN GROUND NO.3 IS THAT LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY AO FOR 2,66,922/-, 31,520/-, 2,38,402/- AND 1,81,848/- IN RESPECT OF DRAWINGS OF UNDISCLOSED IN VESTMENT IN LAND, SB A/C AND FIXED DEPOSIT ON THE BASIS OF TELESCOPING. 58. THE ASSESSEE IN THE YEAR UNDER CONSIDERATION HA S SHOWN DRAWING FOR PERSONAL EXPENSES FOR 33,078/. THE AO ALSO OBSERVED ON THE BASIS OF DOCUMENT IMPOUNDED AND MARKED AS NCB/6 THAT ASSESSE E HAS SHOWN DRAWING OF 2,82,177/- UP TO 31.03.2004 AS WELL AS DRAWING OF 86,120 FROM 01.04.2004 TO 07.05.2004. THUS, AO WAS OF THE VIEW THAT ASSESSEE HAS SHOWN LESS AMOUNT OF DRAWING. ACCORDINGLY, AO AFTER CONSIDERING THE PREVAILING MARKET PRICE COMPUTED THE DRAWING AT 3 LAKH ON ESTIMATED BASIS. THUS, A SUM OF 2,66,922/- (3 LAKH 33,078) WAS ADDED TO THE TOTAL INCOME OF ASSESSEE. 59. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A). THE ASSESSEE BEFORE LD. CIT(A) SUBMITTED THAT THE ADDIT ION HAS BEEN MADE BY THE AO ON THE BASIS OF OWN SURMISE AND CONJECTURE AND W ITHOUT BRINING ANY COGENT REASONS AND MATERIALS. THERE WAS SUFFICIENT CASH AVAILABLE IN THE HANDS OF ASSESSEE OUT OF THE INCOME EARNED WHICH WE RE NOT RECORDED IN THE REGULAR BOOKS OF ACCOUNT. LD. CIT(A) AFTER CONSIDER ING THE SUBMISSION OF ASSESSEE DELETED THE ADDITION MADE BY AO BY OBSERVI NG AS UNDER:- ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 22 9.2 I DO NOT AGREE WITH THE APPELLANT, WHEN HE CAL LS THE ADDITION TO BE BASED WITHOUT ANY COGENT REASON. IN FACT THE ASSESS ING OFFICER HAS WORKED OUT EXPENDITURE ON THE BASIS OF THE ENTRIES RECORDED IN THE IMPOUNDED MATERIAL AND HAS COMPARED THE SAME WITH T HE DRAWINGS SHOWN. NO SPECIFIC FLAW HAS BEEN POINTED OUT BY THE APPELLANT IN THE REASONING GIVEN BY THE ASSESSING OFFICER. THEREFORE , IN PRINCIPLE THE ADDITION OF RS.2,66,922/- IS UPHELD. HOWEVER, THERE IS FORCE IN THE ALTERNATIVE SUBMISSION MADE BY THE APPELLANT. WHILE DECIDING THE GROUND NO. 6, I HAVE CONFIRMED THE ADDITION OF RS.6 ,24,007/- IN RESPECT OF PROFIT FROM UNACCOUNTED TRANSACTIONS. SUCH PROFI T WAS OBVIOUSLY AVAILABLE WITH THE APPELLANT FOR MEETING THE PERSON AL HOUSEHOLD EXPENSES. THEREFORE, IT IS REASONABLE TO ALLOW BENE FIT OF TELESCOPING BETWEEN THE ADDITION FOR PROFIT FROM UNACCOUNTED TR ANSACTIONS AND UNEXPLAINED HOUSEHOLD EXPENDITURE. THEREFORE NO SEP ARATE ADDITION IS REQUIRED TO BE MADE FOR THE LATTE. HOWEVER, IN CASE THE FORMER ADDITION IS DELETED OR REDUCED IN ANY FURTHER APPEAL, THE AD DITION IN RESPECT OF UNEXPLAINED HOUSEHOLD EXPENDITURE WOULD BE REQUIRED TO BE SUSTAINED TO THAT EXTENT. SUBJECT TO THIS REMARK, THE APPELLA NT GETS RELIEF IN RESPECT OF THE ADDITION. THE REVENUE, BEING AGGRIEVED, IS IN APPEAL BEFORE U S. 60. BEFORE US BOTH PARTIES RELIED ON THE ORDER OF A UTHORITIES BELOW AS FAVOURABLE TO THEM. 61. WE HAVE HEARD RIVAL CONTENTIONS OF BOTH THE PAR TIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT ASSESSEE HAS ALREADY BEEN TAXED FOR THE INCOME EARNED FROM UNDISCLOSED SOURCE. THER EFORE, IT CAN BE INFERRED THAT THE DRAWING MADE BY THE ASSESSEE MUST BE OUT O F UNDISCLOSED INCOME WHICH HAS BEEN TAXED BY DEPARTMENT. THEREFORE, IF T HE ADDITION IS SUSTAINED ON ACCOUNT OF LOW DRAWING THEN IT WILL AMOUNT TO DOUBL E ADDITION. HENCE, WE FIND NO REASON TO INTERFERE IN THE ORDER OF LD. CIT(A). HENCE, THIS GROUND OF REVENUE IS DISMISSED. 62. THE NEXT DELETION OF RS. 31,520.00 ON ACCOUNT O F INVESTMENT IN LAND HAS BEEN CHALLENGED BY THE REVENUE ON THE GROUND THAT L D. CIT(A) ERRED IN DOING SO. 63. SIMILARLY, AO FOUND ON THE BASIS OF PAGE 76 AND 82 OF THE IMPOUNDED DOCUMENT MARKED NCB/6 THAT ASSESSEE HAS MADE INVEST MENT IN LAND FOR ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 23 31,520/- BUT ASSESSEE MADE NO DISCLOSURE IN ITS INC OME TAX RETURN. THEREFORE, ASSESSING OFFICER TREATED THE SAME AS UN DISCLOSED INVESTMENT AND ADDED TO THE TOTAL INCOME OF ASSESSEE. 64. THE ASSESSEE BEFORE LD. CIT(A) SUBMITTED THAT I NVESTMENT IN LAND WAS DULY DISCLOSED IN THE PERSONAL BALANCE-SHEET. BESIDES THE ABOVE, ASSESSEE SUBMITTED THAT THE UNDI SCLOSED INCOME TAXED BY THE AO IS SUFFICIENT ENOUGH TO COVER THE INVESTMENT IN THE IMPUGNED LAND. LD. CIT(A) AFTER CONSIDERING THE SUBMISSION OF ASSESSEE DELETED THE ADDITION MADE BY THE AO BY OBSERVING AS UNDER:- 10.2 THOUGH IT HAD BEEN CLAIMED THAT THE BANK ACCO UNT UNDER CONSIDERATION WAS PART OF PERSONAL BALANCE SHEET, I T IS SEEN THAT NO SUCH CLAIM WAS MADE BEFORE THE ASSESSING OFFICER PR IOR TO COMPLETION OF ASSESSMENT. EVEN OTHERWISE, NO SPECIFIC EXPLANAT ION HAS BEEN GIVEN FOR THE SAID EXPENSES. CONSIDERING THIS, I FIND NO REASON TO INTERFERE WITH THE ADDITION MADE BY THE ASSESSING OFFICER. HOWEVER , THERE IS FORCE IN THE ALTERNATE SUBMISSION MADE BY THE APPELLANT. FOR THE REASONS DISCUSSED IN PARA 9.2 IT IS REASONABLE TO ALLOW BEN EFIT OF TELESCOPING BETWEEN THE ADDITION FOR PROFIT FROM UNACCOUNTED TR ANSACTIONS AND UNEXPLAINED INVESTMENT IN LAND. THEREFORE NO SEPARA TE ADDITION IS REQUIRED TO BE MADE FOR THE LATTER. SUBJECT TO THE REMARK IN PAR 9.2 THE APPELLANT GETS RELIEF IN RESPECT OF THE ADDITION. THE REVENUE, BEING AGGRIEVED, IS IN APPEAL BEFORE U S. 65. BEFORE US BOTH PARTIES RELIED ON THE ORDER OF A UTHORITIES BELOW AS FAVOURABLE TO THEM. 66. WE HAVE HEARD RIVAL CONTENTIONS OF BOTH THE PAR TIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT ASSESSEE HAS ALREADY BEEN TAXED FOR THE INCOME EARNED FROM UNDISCLOSED SOURCE. THER EFORE, IT CAN BE INFERRED THAT THE INVESTMENT IN LAND MADE BY THE ASSESSEE MU ST BE OUT OF UNDISCLOSED INCOME WHICH HAS BEEN TAXED BY DEPARTMENT. THEREFOR E, IF THE ADDITION IS SUSTAINED ON ACCOUNT OF UNDISCLOSED INVESTMENT, THE N THE SAME WILL AMOUNT TO DOUBLE ADDITION. HENCE, WE FIND NO REASON TO INTERF ERE IN THE ORDER OF LD. CIT(A). HENCE, THIS GROUND OF REVENUE IS DISMISSED. ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 24 67. THE NEXT DELETION OF RS. 2,38,402.00 ON ACCOUNT OF UNDISCLOSED BANK ACCOUNT HAS BEEN CHALLENGED BY THE REVENUE ON THE G ROUND THAT LD. CIT(A) ERRED IN DOING SO. 68. DURING THE COURSE OF SURVEY OPERATION, IT WAS F OUND THAT S.B ACCOUNT BEARING NO.01150 / 060309 MAINTAINED WITH SBI TAKUR GARH BRANCH WAS NOT DISCLOSED IN ITS IT RETURN. ACCORDINGLY, AO DETERMI NED THE BALANCE AS ON 18.06.2004 FOR 2,38,402/- WHICH WAS ADDED TO THE TOTAL INCOME OF A SSESSEE AS UNDISCLOSED INVESTMENT. 69. THE ASSESSEE BEFORE LD. CIT(A) SUBMITTED THAT T HE UNDISCLOSED INCOME TAXED BY THE AO IS SUFFICIENT ENOUGH TO COVER THE I NVESTMENT IN THE BANK ACCOUNT. LD. CIT(A) AFTER CONSIDERING THE SUBMISSIO N OF ASSESSEE DELETED THE ADDITION MADE BY THE AO BY OBSERVING AS UNDER:- 11.2 THE APPELLANT HAS NOT DISPUTED THAT THE BANK ACCOUNT UNDER CONSIDERATION WAS UNDISCLOSED. HE HAS ACCEPTED THAT THE PEAK OF THE DEPOSITS AND WITHDRAWALS SHOULD HAVE BEEN ADDED. HO WEVER, THE ASSESSING OFFICER HAS MENTIONED IN HIS ORDER THAT T HE AMOUNT ADDED WAS PEAK CREDIT ONLY. THEREFORE, I FIND NO REASON T O INTERFERE WITH THE ADDITION AS SUCH. HOWEVER, THERE IS FORCE IN THE AL TERNATIVE SUBMISSION MADE BY THE APPELLANT. FOR THE REASONS DISCUSSED IN PARA 9.2 IT IS REASONABLE TO ALLOW BENEFIT OF TELESCOPING BETWEEN THE ADDITION FOR PROFIT FROM UNACCOUNTED TRANSACTIONS AND UNEXPLAINED INVES TMENT IN BANK ACCOUNT. THEREFORE NO SEPARATE ADDITION IS REQUIRED TO BE MADE FOR THE LATTE. SUBJECT TO THE REMARK IN PARA 9.2,THE APPELL ANT GETS RELIEF IN RESPECT OF THE ADDITION. THE REVENUE, BEING AGGRIEVED, IS IN APPEAL BEFORE U S. 70. BEFORE US BOTH PARTIES RELIED ON THE ORDER OF A UTHORITIES BELOW AS FAVOURABLE TO THEM. 71. WE HAVE HEARD RIVAL CONTENTIONS OF BOTH THE PAR TIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT ASSESSEE HAS ALREADY BEEN TAXED FOR THE INCOME EARNED FROM UNDISCLOSED SOURCE. THER EFORE, IT CAN BE INFERRED THAT THE BANK BALANCE IS OUT OF SUCH UNDISCLOSED IN COME WHICH HAS BEEN TAXED BY DEPARTMENT. THEREFORE, IF THE ADDITION IS SUSTAINED ON ACCOUNT OF LOW DRAWING THEN IT WILL AMOUNT TO DOUBLE ADDITION. HEN CE, WE FIND NO REASON TO ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 25 INTERFERE IN THE ORDER OF LD. CIT(A). HENCE, THIS G ROUND OF REVENUE IS DISMISSED. 72. THE NEXT DELETION OF RS. 1,81,848.00 ON ACCOUNT OF UNDISCLOSED FIXED DEPOSIT HAS BEEN CHALLENGED BY THE REVENUE ON THE G ROUND THAT LD. CIT-A ERRED IN DOING SO. 73. THE ASSESSEE HAD FIXED DEPOSIT WITH SBI KALYNPU R BRANCH FOR 3,16,848/- AS ON 31.03.2005. BUT THE ASSESSEE HAS S HOWN FIXED DEPOSITED OF 1.35 LAKH IN ITS BALANCE-SHEET. THEREFORE THE DIFFE RENCE OF 1,81,848/- (316848- 1.35 LAKH) WAS ADDED TO THE TOTAL INCOME O F ASSESSEE. ASSESSEE BEFORE LD. CIT(A) SUBMITTED THAT THE AMOUN T OF FIXED DEPOSIT FOR 1,03,003/- HAS ALREADY BEEN CONSIDERED BY THE AO IN THE A.Y 2004-05. FURTHER THE ADDITION OF RS.1,03,003/- WILL AMOUNT T O DOUBLE ADDITION TO THE INCOME OF THE ASSESSEE. BESIDES THE ABOVE, ASSESSEE SUBMITTED THAT THE UNDISCLOSED INCOME IS SUFFICIENT ENOUGH TO COVER TH E AMOUNT OF FIXED DEPOSIT SHOWN BY THE ASSESSEE. LD. CIT(A) AFTER CONSIDERING THE SUBMISSION OF ASSESSEE HAS DELETED THE ADDITION MADE BY AO BY OBS ERVING AS UNDER:- 12.2 I HAVE CAREFULLY CONSIDERED THE FACTS. IT IS SEEN THAT IN THEISM ORDER DATED 26.06.2008 FOR AY 2004-05, THE ASSESSING OFFI CER HAS MADE AN ADDITION. RS.1,03,003/- IN RESPECT OF UNDISCLOSED FIXED DEPOS ITS. WHILE MAKING THE ADDITION THE ASSESSING OFFICER HAD OBSERVED THAT TH E FIXED DEPOSITS AS ON 31.3.20004 WERE OF RS.2,38,003/-. THEREFORE, THE RE IS INDEED SOME DUPLICATION IN THE ADDITIONS MADE ON THAT COUNT IN THE YEAR UNDER APPEAL. SINCE THE FIXED DEPOSITS AS ON 31.-3.2004 W ERE RS.2,38,003/- THE ACCRETION DURING THE YEAR WAS OF RS.78,845/ ONL Y. THE APPELLANT HAS NOT GIVEN ANY EXPLANATION IN RESPECT OF THE SAME. T HEREFORE THE ADDITION IS CONFIRMED TO THAT EXTENT. HOWEVER, THERE IS FORC E IN THE ALTERNATE SUBMISSION MADE BY THE APPELLANT ALSO. FOR THE REAS ONS DISCUSSED IN PARA 9.2 IT IS REASONABLE TO ALLOW BENEFIT OF TELES COPING BETWEEN THE ADDITION FOR PROFIT FROM UNACCOUNTED TRANSACTIONS A ND UNEXPLAINED INVESTMENT IN FDS. THEREFORE NO SEPARATE ADDITION I S REQUIRED TO BE MADE FOR THE LATTER. SUBJECT TO THE REMARK IN PARA 9.2 THE APPELLANT GETS RELIEF IN RESPECT OF THE ADDITION. THE REVENUE, BEING AGGRIEVED, IS IN APPEAL BEFORE U S. 74. BEFORE US BOTH THE PARTIES RELIED ON THE ORDER OF AUTHORITIES BELOW AS FAVOURABLE TO THEM. ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 26 75. WE HAVE HEARD RIVAL CONTENTIONS OF BOTH THE PAR TIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT ASSESSEE HAS ALREADY BEEN TAXED FOR THE INCOME EARNED FROM UNDISCLOSED SOURCE. THER EFORE, IT CAN BE INFERRED THAT THE FIXED DEPOSIT IS OUT OF SUCH UNDISCLOSED I NCOME WHICH HAS BEEN TAXED BY DEPARTMENT. THEREFORE, IF THE ADDITION IS SUSTAINED ON ACCOUNT OF LOW DRAWING THEN IT WILL AMOUNT TO DOUBLE ADDITION. HEN CE, WE FIND NO REASON TO INTERFERE IN THE ORDER OF LD. CIT(A). HENCE, THIS G ROUND OF REVENUE IS DISMISSED. 76. IN THE RESULT, REVENUES APPEAL IS DISMISSED. COMING TO ASSESSEEA APPEAL IN ITA NO.1928/KOL/2013 FOR A.Y 01-02 . 77. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSE SSEE HAS NOT PRESSED THE GROUND NOS. 1,2,3,& 5 OF APPEAL. HENCE, SAME ARE DI SMISSED AS NOT PRESSED. 78. THE EFFECTIVE GROUND NO.4 RAISED BY ASSESSEE IS REPRODUCED BELOW:- 4. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE THE CIT(A) ERRED IN ESTIMATING THE GROSS TURNOVER 2 CRORE IN PLACE O F 92.12 LACK AS PER PROFIT & LOSS ACCOUNT SUBMITTED BEFORE THE LD. CIT( A) SO THE GROSS TURNOVER SHOULD BE ACCEPTED RS.92.12 LACK IN PLACE OF 2 CRORE. AS THERE WAS NO IMPOUNDED BOOKS OF ACCOUNT. 79. AS STATED EARLIER, THE ISSUE IN THIS YEAR IS SA ME AS THAT OF THE LAST YEAR IN ITA 1927/KOL/2013 . THE ONLY DIFFERENCE IS THE AMOUNT INVOLVED. SINCE THE FACTS ARE EXACTLY IDENTICAL, BOTH PARTIES ARE AGREE D WHATEVER VIEW TAKEN IN THE ABOVE APPEAL OF THE ASSESSEE MAY BE TAKEN IN THIS A PPEAL OF ASSESSEE ALSO. WE HOLD ACCORDINGLY. 80. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED A S INFRUCTUOUS. COMING TO ASSESSEES APPEAL IN ITA NO.1929/KOL/2013 FOR A.Y. 02-03 . 81. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSE SSEE HAS NOT PRESSED THE GROUND NOS. 1,2,3,4, & 6 OF APPEAL. HENCE, SAME ARE DISMISSED AS NOT PRESSED. 82. THE EFFECTIVE GROUND NO.5 RAISED BY ASSESSEE IS REPRODUCED BELOW:- 5. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE THE CIT(A) ERRED IN ESTIMATING THE GROSS TURNOVER 2.16 CRORES IN PLA CE OF 76.82 LACK AS PER PROFIT & LOSS ACCOUNT SUBMITTED BEFORE THE LD. CIT(A) ORDER PAGE NO. ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 27 9 SO THE GROSS TURNOVER SHOULD BE ACCEPTED RS.76.82 LACK IN PLACE OF 2.16 CRORE. 83. AS STATED EARLIER, THE ISSUE IN THIS YEAR IS SA ME AS THAT OF THE LAST YEAR IN ITA 1927/KOL/2013 . THE ONLY DIFFERENCE IS THE AMOUNT INVOLVED. SINCE THE FACTS ARE EXACTLY IDENTICAL, BOTH PARTIES ARE AGREE D WHATEVER VIEW TAKEN IN THE ABOVE APPEAL OF THE ASSESSEE MAY BE TAKEN IN THIS A PPEAL OF ASSESSEE ALSO. WE HOLD ACCORDINGLY. 84. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED A S INFRUCTUOUS. COMING TO ASSESSEES APPEAL IN ITA NO.1930/KOL/2013 FOR A.Y. 03-04 . 85. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSE SSEE HAS NOT PRESSED THE GROUND NOS. 1,2,3,4 & 6 OF APPEAL. HENCE, SAME ARE DISMISSED AS NOT PRESSED. 86. THE EFFECTIVE GROUND NO.5 RAISED BY ASSESSEE IS REPRODUCED BELOW:- 5. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE THE CIT(A) ERRED IN ESTIMATING THE GROSS TURNOVER 4.45 CRORES IN PLA CE OF 76.82 LACK AS PER PROFIT & LOSS ACCOUNT SUBMITTED BEFORE THE LD. CIT(A) SO THE GROSS TURNOVER SHOULD BE ACCEPTED RS.76.82 LACK IN PLACE OF 4.45 CRORE. 87. AS STATED EARLIER, THE ISSUE IN THIS YEAR IS SA ME AS THAT OF THE LAST YEAR IN ITA 1927/KOL/2013 . THE ONLY DIFFERENCE IS THE AMOUNT INVOLVED. SINCE THE FACTS ARE EXACTLY IDENTICAL, BOTH PARTIES ARE AGREE D WHATEVER VIEW TAKEN IN THE ABOVE APPEAL OF THE ASSESSEE MAY BE TAKEN IN THIS A PPEAL OF ASSESSEE ALSO. WE HOLD ACCORDINGLY. 89. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED A S INFRUCTUOUS. COMING TO ASSESSEES APPEAL IN ITA NO.1931/KOL/2013 FOR A.Y. 04-05 . 90. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSE SSEE HAS NOT PRESSED THE GROUND NOS. 1,2,3,4 & 6 OF APPEAL. HENCE, SAME ARE DISMISSED AS NOT PRESSED. 91. THE EFFECTIVE GROUND NO.5 RAISED BY ASSESSEE IS REPRODUCED BELOW:- 5. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE THE CIT(A) ERRED IN ESTIMATING THE GROSS TURNOVER 3.61 CRORES IN PLA CE OF 61.58 LACK AS PER PROFIT & LOSS ACCOUNT SUBMITTED BEFORE THE LD. CIT(A) SO THE GROSS TURNOVER SHOULD BE ACCEPTED RS.61.58 LACK IN PLACE OF 3.61 CRORE. ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 28 92. AS STATED EARLIER, THE ISSUE IN THIS YEAR IS SA ME AS THAT OF THE LAST YEAR IN ITA 1927/KOL/2013 . THE ONLY DIFFERENCE IS THE AMOUNT INVOLVED. SINCE THE FACTS ARE EXACTLY IDENTICAL, BOTH PARTIES ARE AGREE D WHATEVER VIEW TAKEN IN THE ABOVE APPEAL OF THE ASSESSEE MAY BE TAKEN IN THIS A PPEAL OF ASSESSEE ALSO. WE HOLD ACCORDINGLY. 93. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED A S INFRUCTUOUS. COMING TO ASSESSEES APPEAL IN ITA NO.1932/KOL/2013 FOR A.Y. 05-06. 94. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSE SSEE HAS NOT PRESSED THE GROUND NOS. 1,2,3 & 5 OF APPEAL. HENCE, SAME ARE DI SMISSED AS NOT PRESSED. 95. THE EFFECTIVE GROUND NO.4 RAISED BY ASSESSEE IS REPRODUCED BELOW:- 4. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE THE CIT(A) ERRED IN ESTIMATING THE GROSS TURNOVER 5.31 CRORES IN PLA CE OF 2.30 CRORE AS PER PROFIT & LOSS ACCOUNT SUBMITTED BEFORE THE LD. CIT( A) SO THE GROSS TURNOVER SHOULD BE ACCEPTED RS.2.30 CRORE IN PLACE OF 5.31 CRORE. 96. AS STATED EARLIER, THE ISSUE IN THIS YEAR IS SA ME AS THAT OF THE LAST YEAR IN ITA 1927/KOL/2013 . THE ONLY DIFFERENCE IS THE AMOUNT INVOLVED. SINCE THE FACTS ARE EXACTLY IDENTICAL, BOTH PARTIES ARE AGREE D WHATEVER VIEW TAKEN IN THE ABOVE APPEAL OF THE ASSESSEE MAY BE TAKEN IN THIS A PPEAL OF ASSESSEE ALSO. WE HOLD ACCORDINGLY. 97. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED A S INFRUCTUOUS. 98. IN COMBINE RESULT, APPEALS OF ASSESSEE STAND DISMIS SED AS INFRUCTUOUS AS NOT PRESSED AND REVENUES APPEAL IN ITA NO.1876/KOL/2013 IS PARTLY ALLOWED AND REMAINING APPEALS STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 23/ 08/2017 SD/- SD/- (ABY. T. VARKEY) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP $!%&- 23 / 08 /201 7 ITA NO.1731, 1873-76, 1923-32/KOL/2013 A.YS 01-02 TO 05-06 ITO WD-3 HLD VS. NARAYAN CH BERA PAGE 29 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-NARAYAN CH. BERA, NANDAKUMAR, TAMLUK, PUR BA MEDINIPUR PIN.721632 2. /REVENUE-ITO WARD-3, VILL. BASUDEVPUR, P.O. KHANJAN CHAK, HALDIA, PURBA MEDINIPUR, PIN 721602 3.%.%/ 0 / CONCERNED CIT KOLKATA 4. 0- / CIT (A) KOLKATA 5.34566!/ , / , / DR, ITAT, KOLKATA 6.589:; / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO / ,