Sri Siddhartha Protim Majumder, Kolkata V. I.T.O., Ward-21(4), Kolkata, Kolkata

ITA 1981/KOL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9453 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 07-12-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 24-10-2014
• Court: TRIBUNAL
• Keywords: Business expenditure; Salary income; Corroborative evidences
• Section: 143(3); 142(1)

Judgement Text

ITA NO. 1981/KOL/14 SIDDHARTHA PROTIM MAJUMDER 1 IN THE INCOME TAX APPELLATE TRIBUNAL,DBENCH, KOLKATA BEFORE: SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 1981/KOL/2014 A.Y: 2009-10 SHRI SIDDHARTHA PROTIM VS. INCOME TAX OFFICER MAJUMDER W ARD 21(4), KOLKATA PAN: AEZPM 7222B (APPELLANT) (RESPONDENT) APPEARANCES BY : SHRI SOUMITRA CHOUDHURY, ADVOCATE, LD.AR FOR TH E ASSESSEE SHRI H.R SINGH, ADDL.CIT, SR. D.R FOR THE REVEN UE DATE OF HEARING : 19-01-2017 DATE OF PRONOUNCEMENT : 08-02-2017 O R D E R SHRI S.S. VISWANETHRA RAVI, JM :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS),X XIV, KOLKATA DATED 29-08-2014 FOR THE ASSESSMENT YEAR 2 009-10. 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLL OWING GROUNDS OF APPEAL:- 1. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT(A) HAS ACTED ARBITRARILY AND ILLEGALLY BY D ISMISSING THE APPEAL, ON MERE PRESUMPTION AND CONJECTURE SUSTAINED THE AD DITION OF DEPOSIT IN BANK RS.22,97,710/- IS UNWARRANTED AND ILLEGAL. 2. FOR THAT THE EXPLANATION AS TO CASH DEPOSIT IN B ANK RS.22,97,710/- IS WITHIN THE MONETARY CAPACITY OF T HE APPELLANT, SO THE LD. CIT(A) OUGHT TO HAVE CONSIDERED THE EXPLANATION AND ALLOW THE APPEAL. 3. FOR THAT THE APPELLANT BEING A SALARIED PERSON I S COVERED BY SEC. 44AB OF THE I.T ACT, AS SUCH THERE IS NO BOOKS OF A CCOUNTS TO BE MAINTAINED BY THE APPELLANT, BUT IT DOES EMPOWER TH E AO TO MAKE ADDITION OF RS.22,97,710/- AS UNEXPLAINED INVESTMEN T IN BANK. ITA NO. 1981/KOL/14 SIDDHARTHA PROTIM MAJUMDER 2 4. FOR THAT ON THE FACTS OF THE CASE THE APPELLANT RESERVE THE RIGHT TO ADDUCE ANY FURTHER GROUND OR GROUNDS IF NECESSA RY, ON OR BEFORE THE HEARING OF THE APPEAL. 3. SUBSEQUENTLY, THE ASSESSEE HAS ALSO RAISED THE F OLLOWING ADDITIONAL GROUND OF APPEAL BY RELYING ON THE DECIS ION OF THE HONBLE SUPREME COURT IN THE CASE OF NTPC VS. CIT R EPORTED IN 229 ITR 383(SC):- 1. FOR THAT ON THE FACTS OF THE CASE, THE ADDITION OF DEPOSIT IN CASH RS.22,97,710/- WITH ICICI BANK IS WRONG, INSTEAD IT SHOULD HAVE BEEN ASSESSED ON PEAK BASIS. 4. THEREFORE, WE PROCEED TO HEAR THE ADDITIONAL GRO UND TREATING THE SAME AS ONLY EFFECTIVE GROUND IS TO BE DECIDED IN THIS APPEAL OF ASSESSEE. 5. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL AND DERIVES INCOME FROM SALARY FILED HIS RETURN OF INCOME THROUGH ONLINE DECLARING TOTAL INCOME OF RS. 95,287/- FOR THE A.Y UNDER CONSIDERATION ON 20-03-2010. UNDER SC RUTINY NOTICES U/S. 143(2) & 142(1) OF THE ACT WERE ISSUED . AGAINST WHICH THE ASSESSEE APPEARED AND FURNISHED BEFORE TH E AO VARIOUS PAPERS, BANK STATEMENT AND WRITTEN SUBMISSI ON IN SUPPORT OF SAID RETURN FILED. ON AN INFORMATION FRO M AIR THE AO FOUND THAT THE ASSESSEE HAD DEPOSITED CASH AMOUNTIN G TO RS.22,99,710/- IN DIFFERENT DATES IN ICICI BANK, R. N. MUKHERJEE BRANCH, KOLKATA I.E 04-04-08 TO 31-03-09. IN EXPLAN ATION THROUGH A WRITTEN SUBMISSION THE ASSESSEE STATED TH AT HE WAS EXTENDING HIS FINANCIAL HELP WITHIN HIS LIMITATION TO HIS RELATIVES AND FRIENDS, WHO WERE IN NEED UNDER BONAFIDE CAUSES I.E. FOR THE HELP OF DAUGHTERS MARRIAGE, MEDICAL TREATMENT. THE ASSESSEE ALSO SUBMITTED THAT ALL THE AMOUNTS TOTALL ING TO RS.22,99,710/- WERE REPAID IN THE FY 2008-09. BASIN G ON HIS ITA NO. 1981/KOL/14 SIDDHARTHA PROTIM MAJUMDER 3 WRITTEN SUBMISSION, THE AO HAS ASKED THE ASSESSEE T O FURNISH THE NAMES AND ADDRESSES ALONG WITH THEIR RESPECTIVE PAN OF SUCH RELATIVES AND FRIENDS, WHO GOT THE HELP FROM T HE ASSESSEE. BUT, HOWEVER, THE ASSESSEE COULD NOT FURNISH SUCH I NFORMATION AS SOUGHT BY THE AO. ACCORDINGLY, THE AO TREATED TH E WHOLE AMOUNT AS UNDISCLOSED SOURCE OF INCOME OF ASSESSEE AND ADDED THE SAME TO THE TOTAL INCOME AND TO THAT EFFECT AN ORDER U/S. 143(3) OF THE ACT WAS PASSED ON 30-11-2011. 6. BEFORE THE CIT-A THE ASSESSEE CHALLENGED THE IMP UGNED ORDER OF THE AO IN DOING SO BY CONTENDING THROUGH H IS WRITTEN SUBMISSION THAT THIS AMOUNT WAS PART OF HIS PAST SA VINGS AND WAS KEPT IN THE CUSTODY OF HIS SPOUSE. THE SAME WAS SUBJECTED TO TAX BEING PART OF HIS PAST SAVINGS. THE SPOUSE O F ASSESSEE BEING CUSTODIAN OF PAST SAVINGS GAVE THE SAME TO A SSESSEE FOR DEPOSIT IN THE SAVING BANK ACCOUNT ON DIFFERENT DAT ES IN THE FY 2008-09 RELEVANT TO AY 2009-10. HE ALSO SUBMITTED B EFORE HIM THAT THE IMPUGNED AMOUNT BEING PART OF PAST SAVINGS OF ASSESSEE NEEDS NO CONFIRMATION. BEFORE HIM THE ASSE SSEE SUBMITTED THAT THE ASSESSEE BEING A SALARIED PERSON NEEDS NO COMPULSION TO MAINTAIN ANY BOOKS OF ACCOUNT, WHICH IS MANDATORY U/S. 44AA OF THE ACT AND SAVING BANK STAT EMENT CANNOT BE REGARDED AS BOOKS OF THE SAME. 7. HOWEVER, THE CIT-A HAS NOT ACCEPTED SUCH CONTENT IONS OF ASSESSEE AND CONFIRMED THE IMPUGNED ORDER OF THE AO BY OBSERVING THAT THE ASSESSEE COULD NOT FURNISH THE D ETAILS IN RESPECT OF HIS RELATIVES AND FRIENDS AS WAS ASKED B Y THE AO IN THE ASSESSMENT PROCEEDINGS. THE CIT-A FOUND THAT TH E ITA NO. 1981/KOL/14 SIDDHARTHA PROTIM MAJUMDER 4 SUBMISSION BEFORE HIM WAS THAT THE AMOUNT INVOLVED IN QUESTION BEING PART OF HIS PAST SAVINGS AND THE ASSESSEES S UBMISSIONS BEFORE AO WERE QUITE DIFFERENT. RELEVANT FINDING OF THE CIT-A IN CONFIRMING THE ACTION OF THE AO IS REPRODUCED HERE IN BELOW:- BUT THE APPELLANT FAILED LO FILE ANY NAME AND ADDR ESS OF HIS RELATIVES AND FRIENDS. IN THE APPELLATE PROCEEDINGS, THE A/R OF THE APPELLANT TAKEN NEW ARGUMENT 'THE CASH ARE OUT OF MY PAST SAV ING WHICH WAS KEPT IN THE CUSTODY OF MY SPOUSE.' BUT THE APPELLAN T NOT FILE ANY SUPPORTING EVIDENCE WHICH ESTABLISHED THAT THE CASH DEPOSITS ARE OUT OF HIS PAST SAVING AND HIS WIFE IS HAVING THE CASH. TH E APPELLANT FREQUENTLY CHANGE HIS STAND ABOUT THE SOURCE OF CAS H DEPOSIT IN BANK ACCOUNT, HE TAKEN THE ARGUMENT AT THE TIME OF ASSES SMENT PROCEEDING THAT THE CASH DEPOSITS ARE RECEIVED FROM HIS FRIEND S AND RELATIVES OUT OF HIS PAST SAVING BUT IN THE APPELLATE PROCEEDINGS HE CHANGE HIS STAND AND TAKEN THE PLEA THAT THE CASH DEPOSIT IN BANK AC COUNTS OUT OF HIS PAST SAVING WHICH WAS KEPT WITH HIS WIFE. THE APPEL LANT FAILED TO PROVE HIS CLAIM THAT THE CASH DEPOSIT IN BANK ACCOUNT OUT OF HIS PAST SAVING. I HAVE GONE THROUGH THE RETURN OF INCOME THE APPELLAN T SHOWN GROSS SALARY FOR THE A. Y. 2009-10 OF RS.1,95,287/-. THE APPELLANT NOT HAVING ANY FINANCIAL STATEMENT. THE APPELLANT WHO EARNED R S.1 ,95,287 /-. HOW HE MADE THE SAVINGS OF HUGE AMOUNT OF RS.22,97, 710/-. THIS IS GENERAL PRINCIPAL THAT NOBODY KEPT HIS MONEY IDLE. EVERY PERSON WANT TO EARN FROM THEIR SAVING. SO THE ARGUMENT OF THE A PPELLANT THAT HE KEPT HIS SAVING WITH HIS WIFE IS NOT TENABLE. FURTH ER, THE APPELLANT DID NOT PRODUCE ANY EVIDENCE WHICH ESTABLISHED THAT HE MADE THE SAVING AND HE DEPOSITED RS.22,99,710/- OUT OF HIS PAST SAV ING. IN THIS WAY THE APPELLANT FAILED TO PROVE THE SOURCE OF THE SAID CA SH DEPOSIT OF RS.22,99,710/- IN THE BANK ACCOUNTS. THEREFORE, I A M FULLY AGREE WITH THE ACTION OF THE A.O. TO TREAT RS.22,99,710/- AS U NEXPLAINED CASH DEPOSIT IN BANK ACCOUNT. HENCE, I CONFIRM THE ADDIT ION MADE BY THE A.O. OF RS.22,97,710/- AS UNEXPLAINED CASH DEPOSIT IN BANK ACCOUNT. THESE GROUNDS ARE NOT ALLOWED. 8. BEFORE US THE LD.AR OF THE ASSESSEE IN SUPPORT O F HIS CONTENTION FILED THE DETAILS OF CASH DEPOSIT FOR TH E PERIOD 04- 04-2008 TO 31-03-2009 OF RS.22,99,710/- AND THE BAN K STATEMENT OF ICICI BANK FOR THE PERIOD APRIL 01, 08 TO MARCH 31, 09 AT PAGES 1 TO 6 IN PAPER BOOK AND ARGUED THAT TH E AO MADE THE ADDITION BEING UNDISCLOSED INCOME OF ASSESSEE A ND THE CIT- A CONFIRMED THE SAME ON THE GROUND THAT THE ASSES SEE FAILED TO FILE THE DETAILS OF NAME AND ADDRESS OF ASSESSEE S RELATIVES AND FRIENDS, WHO GOT THE FINANCIAL HELP FROM ASSESS EE OF RS. 22,99,710/-. IN SUPPORT OF ASSESSEES CONTENTION T HE LD.AR OF THE ASSESSEE HAS ALSO RELIED ON THE ORDER DATED 18- 06-2013 OF THE CO-ORDINATE BENCH, ITAT, KOLKATA IN THE CASE OF ITO, ITA NO. 1981/KOL/14 SIDDHARTHA PROTIM MAJUMDER 5 KOLKATA VS. DEB KUMAR JANA AND ARGUED THAT WHEREIN AMOUNT WAS WITHDRAWN FROM BANK FOR PURCHASE OF GOODS AND F OR BUSINESS EXPENSES AND BALANCE AMOUNT AGAIN WAS DEPO SITED WITH THE BANK. THE TRIBUNAL DISPOSED OF THE ISSUE I N FAVOUR ASSESSEE BY DISMISSING THE REVENUES APPEAL. THE LD .AR OF THE ASSESSEE HAS ALSO RELIED ON THE ORDER DATED 24-08-2 016 OF THE CO-ORDINATE BENCH, ITAT, KOLKATA IN THE CASE OF SRI BISWAJIT SAHA VS. ITO, W 49(4), KOLKATA. 9. IN REPLY, THE LD.DR RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. HE ALSO SUBMITS THAT THE ASSESSEES SUBMISSI ONS BEFORE THE AO AND CIT-A WERE DIFFERENT IN SUPPORT OF THE C ONTENTION. BEFORE THE AO THE ASSESSEE SUBMITTED THAT CASH DEPO SITS IN THE BANK WERE REPAYMENTS OF HIS RELATIVES AND FRIENDS B Y WAY OF RECEIPTS BY THE ASSESSEE IN NEED OF FINANCIAL HELP. BEFORE THE CIT-A THE ASSESSEE CONTENDED THAT THE AMOUNT INVOLV ED IN QUESTION WAS PART OF HIS PAST SAVINGS KEPT UNDER TH E CUSTODY OF HIS WIFE AND USED TO DEPOSIT THE SAME ON DIRECTION OF HIS WIFE. THUS, HE ARGUED THAT THE CONTENTIONS OF ASSESSEE WE RE NOT CLEAR IN RESPECT OF ISSUE INVOLVED IN THIS APPEAL. HE REL IED ON THE ORDER OF THE CO-ORDINATE BENCH, ITAT, AHMADABAD IN THE CASE OF VIKAS JAIN 10 HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT THE LD.DR BEFORE US HAS RIGHTLY POINTED OUT THAT THE CONTENTIONS OF ASSESSEE BEFORE THE AO AND THE CIT-A ARE FULLY DIFFERENT AND DISTINCT TO EACH OTHER. IT IS ALSO NOTICED THAT ON THE BASIS OF WRITTEN SUBMISSIO NS AS FILED BEFORE THE AO THE ASSESSEE WAS ASKED BY HIM TO FURN ISH THE DETAILS OF SUCH PERSONS I.E. RELATIVES AND FRIENDS THOSE WHO HAVE ITA NO. 1981/KOL/14 SIDDHARTHA PROTIM MAJUMDER 6 BEEN GIVEN FINANCIAL HELP BY THE ASSESSEE. WE FIND THAT THE ASSESSEE COULD NOT SUBMIT SUCH DETAILS BEFORE THE A O IN SUPPORT OF HIS CONTENTIONS. WE FURTHER FIND THAT BEFORE THE CIT-A THE CONTENTION OF ASSESSEE WAS THAT THE AMOUNT INVOLVED IN QUESTION WAS BEING HIS PAST SAVINGS KEPT UNDER THE CUSTODY OF HIS WIFE AND THUS, THE SUBMISSION OF ASSESSEE IS DI FFERENT AS FOUND BY CIT-A. WE FURTHER FIND THAT BEFORE US THE LD.AR OF THE ASSESSEE HAS ALSO FILED THE DETAILS OF CASH DEPOSIT OF RS.22,99,710/- FOR THE PERIOD OF 04-04-08 TO 31-03- 09 AND THE COPIES OF ICICI BANK STATEMENT FOR THE PERIOD OF AP RIL 01, 08 TO MARCH 31, 2009. ADMITTEDLY, THESE DETAILS WERE NOT FILED BEFORE THE AO FOR HIS CONSIDERATION AT THE TIME OF ASSESSM ENT PROCEEDINGS. THE CASE LAWS AS RELIED ON BY THE ASSE SSEE BEFORE US ARE NOT APPLICABLE TO THE PRESENT CASE ONLY FOR THE REASON AS DISCUSSED ABOVE THAT THE MATERIAL EVIDENCE AS FILED BEFORE US CONTAINING PAGES 1 TO 6 IN PAPER BOOK COVERING THE ADDITIONAL GROUND SEEKING TO ASSESS THE ISSUE IN HAND ON PEAK BASIS AND WE FIND THAT THE SAME AS RAISED BY THE ASSESSEE FOR THE FIRST TIME BEFORE US. IN SUCH CIRCUMSTANCES, TAKING INTO CONSIDERATION THE SUBMISSIONS BEFORE US AND IN THE INTEREST OF JU STICE, WE DEEM IT FIT AND PROPER TO REMAND THE ISSUE TO THE F ILE OF THE AO FOR HIS CONSIDERATION AND TO PASS AN ORDER IN ACCOR DANCE WITH LAW AFTER GIVING THE ASSESSEE ADEQUATE OPPORTUNITY OF HEARING. THE ASSESSEE SHALL BE AT LIBERTY TO FILE REQUISITE EVIDENCES, IF ANY, TO SUBSTANTIATE HIS CLAIM/CONTENTION. ITA NO. 1981/KOL/14 SIDDHARTHA PROTIM MAJUMDER 7 11. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 08 /02 /2017 SD/- SD/- WASEEM AHMED S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 08 - 02-2017 *PP/SPS: COPY OF THE ORDER FORWARDED TO: 1 . THE APPELLANT/ASSESSEE : SRI SIDDHARTHA PROTIM MAJ UMDER P-55 SENHATI CO-OP. COLONY, BEHALA, KOLKATA-34. 2 THE RESPONDENT/DEPARTMENT- THE INCOME TAX OFFICER WARD 21(4), 169 AJC BOSE ROAD, KOLKATA-14. 3 4. THE CIT(A) THE CIT 5 . DR, KOLKATA BENCH 6 . GUARD FILE . BY ORDER, ASSTT. REGISTRAR