M/s Mohanlal Madhawjee Jewellers Pvt Ltd., Kolkata V. I.T.O Wd - 9(1),kolkata., Kolkata

ITA 1929/KOL/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4824 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 10-03-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 31-12-2012
• Court: TRIBUNAL
• Department Lawyers: RAJAT KR KUREEL
• Assessee Lawyers: PRABHAT KUMAR SINGH CA LD
• Keywords: Opportunity of being heard
• Section: 69C; 143(3)

Judgement Text

ITA NO.1929/KOL/2012-C-JM M/S. MOHANLAL MAD HAWJEE JEWELLERS PVT. LTD 1 IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, KOLKATA BEFORE : SHRI P.M. JAGTAP , ACCOUNTANT MEMBER AND SHRI S.S VISWANETHRA RAVI, JUDICIAL MEMBER, I.T.A NO. 1929/KOL/2012 A.Y: 2006-07 M/S. MOHANLAL MADHAWJEE VS. I.T.O WARD 9(1), KOLK ATA JEWELLERS PVT. LTD PAN: AAFCM2739F (APPELLANT) (RESPON DENT) FOR THE APPELLANT/ASSESSEE : SHRI PRABHAT KUMAR SINGH, CA, LD.AR FOR THE RESPONDENT/DEPARTMENT: SHRI RAJAT KR. KUREEL, JCIT, LD.SR.DR DATE OF HEARING: 10-03-2016 DATE OF PRONOUNCEMENT: 27 -05- 2015 ORDER SHRI S.S VISWANETHRA RAVI, JM THIS APPEAL OF THE ASSESSEE IS ARISING OUT OF TH E ORDER OF THE CIT-(A),VIII, KOLKATA IN APPEAL NO. 564/CIT(A)-VIII/KOL/08-09 DAT ED 09-07-2012 FOR THE ASSESSMENT YEAR 2006-07 AGAINST THE ORDER OF ASSESS MENT FRAMED U/S. 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO A S THE ACT). 2. THOUGH THE ASSESSEE HAS RAISED AS MANY AS GROUND S OF APPEAL, BUT IT FILED THE FOLLOWING CONCISE GROUNDS OF APPEAL:- 1. THAT THE LD. CIT(APPEALS) ERRED IN LAW AS WELL AS IN FACT IN CONFIRMING ADDITION OF RS.1,54,015/- AS UNDISCLOSED ITA NO.1929/KOL/2012-C-JM M/S. MOHANLAL MAD HAWJEE JEWELLERS PVT. LTD 2 INVESTMENT/PURCHASE OF THE ASSESSEE/APPELLANT UNDER SECTION 69C OF THE I.T ACT PURPORTEDLY BEING AMOUNT OF UNRECORDED PURCHASE FROM M/S. MAGNA PROJECTS (P) LTD. 2. THAT THE LD. CIT(A) ERRED IN LAW AS WELL AS IN F ACT IN CONFIRMING ADDITION OF RS.9,133/- TO THE TOTAL INCO ME OF THE ASSESSEE PURPORTEDLY BEING GROSS PROFIT @5.93% ON THE ALLEGE D UNRECORDED PURCHASE OF RS.1,54,015/-. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEEA IS A COMPANY ENGAGED IN TRADING AND JOB WORK IN JEWELRIES. THE ASSESSEE FI LED ITS RETURN FOR THE ASSESSMENT YEAR UNDER CONSIDERATION DECLARING TOTAL INCOME OF RS.4,01,417/- ON 30-09-2007. THE CASE WAS SELECTED FOR SCRUTINY AND ISSUED NOTICES U/S. 143(2)/142(1) OF THE ACT. IN RESPONSE TO SAID NOTIC ES THE LD.AR OF THE ASSESSEE APPEARED AND SUBMITTED ALL THE DETAILS RELATING TO THE CASE. DURING THE ASSESSMENT PROCEEDINGS U/S. 143(3) THE AO FOUND THAT THE ASSE SSEE PURCHASED GOLD BAR WEIGHING ONE KG FOR RS.1,54,015/- FROM M/S. MAGNA P ROJECTS P.LTD VIDE INVOICE NO. 253 DATED 13/05/2005 AND SAID TRANSACTION WAS NOT RECORDED IN THE BOOKS OF THE ASSESSEE. THE AO CALLED UPON M/S. MAGNA PRO JECTS P.LTD FOR VERIFICATION OF THE SAME, WHEREIN HE FOUND THAT THE ASSESSEE PUR CHASED THE SAID GOLD BAR IN CASH IN ITS RECORDS. SINCE NO EVIDENCE WAS PRODUCE D AND FOR NOT RECORDING IN THE BOOKS OF ACCOUNT, THE AO ADDED THE SAID AMOUNT OF RS.1,54,015/- TO THE TOTAL INCOME OF THE ASSESSEE U/S. 69C OF THE ACT. 4. BEFORE THE CIT-(A) THE CONTENTION OF THE ASSSSEE WAS THAT ALL THEIR BUSINESS PAYMENTS MADE THROUGH ACCOUNT PAYEE CHEQUE S. IT DID NOT PURCHASE ANY MATERIAL IN CASH AND THE OBSERVATION OF THE AO IS A MISTAKE. THE CIT-(A) FOUND THAT THE ASSESSEE COULD NOT PRODUCE ANY CONVINCING EVIDENCE TO SUBSTANTIATE ITS CLAIM. FINALLY, HE CONFIRMED THE ORDER OF THE AO IN MAKING ADDITION U/S. 69C OF THE ACT. ITA NO.1929/KOL/2012-C-JM M/S. MOHANLAL MAD HAWJEE JEWELLERS PVT. LTD 3 5. AGGRIEVED, NOW THE ASSESSEE IS IN APPEAL BEFORE US. 6. REGARDING GROUND NO-1THE LD.AR CONTENDED THAT T HE CASH MEMO AS SUBMITTED BEFORE THE AO WAS NOT SIGNED BY ITS STAFF NOR ANYONE REPRESENTING THE ASSESSEE. DURING THE ASSESSMENT PROCEEDINGS THE AO COULD NOT CONFRONT WITH THE SAID CASH MEMO WITH THE ASSESSEE AND SUCH EVIDENCE CANNOT BE SUFFICIENT TO MAKE ANY ADDITION U/S. 69C OF THE ACT. THE CIT-(A) WAS ALSO NOT JUSTIFIED IN CONFIRMING THE IMPUGNED ADDITION MADE U/S. 69C OF T HE ACT. HOWEVER, THE LD. COUNSEL FOR THE ASSESSEE PRAYED TO REMAND THE MATTE R TO THE FILE OF THE AO TO SUBSTANTIATE ITS CLAIM. 7. ON THE OTHER HAND, THE LD. DR SUBMITS THAT THE B USINESS OF THE ASSESSEE WAS GOING ON 5 YEARS. THE ASSESSEE HAS ESCAPED ASSE SSMENT FOR ALL THESE YEARS. 8. HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE QUESTION BEFORE US AS TO WHETHER THE ADDITION U/S. 69C OF THE ACT COULD BE MADE ON SUCH CASH MEMO OR NOT. IT IS OBSERVED FROM THE O RDER OF CIT-A THAT THE ASSESSEE HAS PRODUCED ALL THE DETAILS SHOWING ITS B USINESS TRANSACTIONS WERE MADE THROUGH ACCOUNT PAYEE CHEQUES AND THE SAME HAV E BEEN RECORDED IN ITS STOCK LEDGER. IT IS ALSO NOTICED FROM THE RECORD TH AT THE ASSESSEE PAID SUCH CONSIDERATION OF GOLD BAR ON THE DAY OF PURCHASE IT SELF IN CASH. IT WAS ALSO RECORDED BY THE AO THAT THE SAME TRANSACTION HAS AL SO BEEN REFLECTED IN THE SALES TAX RETURN OF SAID M/S. MAGNA PROJECTS PVT. LTD. T HE AO DID NOT CONFRONT WITH THE SAID CASH MEMO TO THE ASSESSEE IN ASSESSMENT PR OCEEDINGS. IN VIEW OF THE ABOVE AND AS PER SUBMISSION OF THE ASSESSEE, IN THE INTEREST OF JUSTICE, WE DEEM IT FIT AND APPROPRIATE TO REMAND THE MATTER TO THE FIL E OF THE AO TO DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD ITA NO.1929/KOL/2012-C-JM M/S. MOHANLAL MAD HAWJEE JEWELLERS PVT. LTD 4 TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO C O-OPERATE WITH THE AO IN ASSESSMENT PROCEEDINGS. GROUND OF ASESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 9. THE LD.AR SUBMITS THAT THE GROUND NO-2 IS DEPEND S ON THE RESULT OF GROUND NO-1, THEREFORE, SINCE WE HAVE REMITTED THE GROUND NO-1 TO THE FILE OF THE AO, THE GROUND NO.2 OF CONCISE GROUNDS OF APPEAL IS CONSEQUENTIAL IN NATURE AND REQUIRES NO ADJUDICATION. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSE AS STATED ABOVE. THIS ORDER IS PRONOUNCED IN OPEN COURT ON 27 -05- 2016 COPY OF THE ORDER FORWARDED TO: 1.. THE APPELLANT/ASSESSEE: M/S. MOHANLAL MADHAWJE E JEWELLERS PVT. LTD 59 COTTON STREET, KOLKATA-700 007. 2 THE RESPONDENT/DEPARTMENT: THE INCOME TAX OFFICE R, WARD 9(1), KOLKATA AAYKAR BHAWAN P - 7 CHOWRINGHEE SQ., KOLKATA - 700069. 3 4.. /THE CIT, /THE CIT(A) 5. DR, KOLKATA BENCH 6. GUARD FILE. TRUE COPY, BY ORDER, ASSTT REGISTRAR ** PRADIP SPS SD/- P.M. JAGTAP, ACCOUNTANT MEMBER SD/- S.S VISWANETHRA RAVI, J JUDICIAL MEMBER DATE 27 /05 /2016