I.T.O Wd - 54(1),kolkata, Kolkata V. Bijaya Kumar Sahoo, Kolkata

ITA 1990/KOL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4437 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2016
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 28-07-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 21-06-2013
• Court: TRIBUNAL
• Department Lawyers: DEBASISH LAHIRI
• Keywords: Unexplained cash credit; Business income; Corroborative evidences
• Section: 143(3); 142(1); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO. 1990 /KOL/ 2013 & C.O. 47/KOL/2014 ASSESSMENT YEARS:2009-10 INCOME TAX OFFICER, WARD-54(1), GOVT. PLACE, WEST, 1 ST FLOOR, KOLKATA- 01 BIJAYA KUMAR SAHOO 16/2, K.M. NASKAR ROAD, KOLKATA-700 069 [ PAN NO.AKRPS 9342 J ] / V/S . / V/S . BIJAYA KUMAR SAHOO 16/2, K.M. NASKAR ROAD, KOLKATA-700 069 ITO WARD-54(1), GOVT. PLACE, WEST, 1 ST FLOOR, KOLKATA-01 /APPELLANT/CROSS OBJECTOR .. /RESPONDENT /BY ASSESSEE SHRI MIRAJ D SHA, ADVOCATE /BY DEPARTMENT SHRI DEBASISH LAHIRI, ADDL. CIT-DR /DATE OF HEARING 10-08-2016 /DATE OF PRONOUNCEMENT 09-09-2016 /O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL IS PREFERRED BY REVENUE AGAINST THE ORD ER OF COMMISSIONER OF INCOME TAX (APPEALS)-XXXVI, KOLKATA DATED 25.04.201 3 FOR THE ASSESSMENT YEAR (AY) 2009-10 AND THE SAME IS BEING DISPOSED OF ALON G WITH CROSS OBJECTION (CO) FILED BY THE ASSESSEE BEING C.O. NO.47/KOL/2014. AS SESSMENT WAS FRAMED BY ITO WARD-54(1), KOLKATA U/S 143(3) OF THE INCOME TAX AC T, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 28.12.2011. ITA NO.1990/KOL/2013 & CO 47/KOL/2014 A.Y. 2009-10 ITO WD-54(1), KOL. VS. BIJAYA KR. SAHOO PAGE 2 SHRI MIRAJ D SHAH, LD. AUTHORIZED REPRESENTATIVE AP PEARED ON BEHALF OF ASSESSEE AND SHRI DEBASISH LAHIRI, LD. DEPARTMENTAL REPRESENTATI VE APPEARED ON BEHALF OF REVENUE. FIRST WE TAKE UP REVENUES APPEAL IN ITA NO.1990/KO L/2013 2. THE GROUNDS RAISED BY THE REVENUE PER ITS APPEAL ARE AS UNDER:- 1. THE LD. CIT(A)-XXXVI, KOLKATA ERRED IN HIS DECI SION THAT THE ASSESSING OFFICER WAS PARTLY BELIEVING THE BUSINESS ACTIVITY OF THE ASSESSEE, AS THE ASSESSING OFFICER WANTED TO ESTABLISH THE ACT IN AL L RESPECT THAT NO BUSINESS COULD BE RUN BY THE MANNER, THE ASSESSEE HAS STATED IN THE RECORDS. DISCREPANCIES AND CONTRADICTIONS IN ALL RESPECTS WE RE OCCURRED IN THE STATEMENTS OF THE ASSESSEE REGARDING LAND USED, QUA NTIFICATION AND CONVERSION RATIO OF THE RAW MATERIAL AND FINAL PRODUCT, WORKME N ENGAGED IN THE BUSINESS AS WELL AS THE STATEMENTS AND CERTIFICATES MADE BY THE SARPANCH OF THAT TIME AND HIS FATHER ALSO. 2. THAT ON THE FATS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A)-XXXVI, KOLKATA WAS NOT JUSTIFIED IN HIS DECISION TO DISMIS S THE ADDITION OF THE AO WITHOUT VERIFYING THE GENUINENESS OF THE BUSINESS. 3. THAT THE LD. CIT(A)-XXXVI, KOLKATA ERRED IN DIS MISSING THE ADDITION OF THE AO WITHOUT TAKING INTO CONSIDERATION OF THE FACT TH AT THE CLAIM OF THE ASSESSEE OF RUNNING A BUSINESS, BEING A CHARTERED ACCOUNTANT IN PROFESSION, IS TOTALLY UNETHICAL ACCORDING TO THE LAW & ETHICS OF THE INST ITUTE OF CHARTERED ACCOUNT. 4. THAT THE LD. CIT(A)-XXXVI, KOLKATA ERRED IN DISM ISSING THE ADDITION OF THE AO WITHOUT TAKING INTO CONSIDERATION OF THE FACT TH AT THE ASSESSING OFFICER MADE THIS ADDITION AS UNEXPLAINED CASH CREDIT AND N OT AS BUSINESS INCOME. 3. ISSUES RAISED BY THE REVENUE IN GROUND NO. 1 TO 3 ARE INTER RELATED AND THEREFORE BEING TAKEN UP TOGETHER AGAINST THE ORDER OF LD. CI T(A) REGARDING THE ALLOWANCE OF DEDUCTION OF RS. 27,57,452 U/S 80JJA OF THE ACT. AS THE ISSUE IS COMMON SO WE DECIDED TO ADJUDICATE ALL THREE GROUNDS SIMULTANEOU SLY. 4. ASSESSEE IN THE PRESENT CASE IS A PRACTISING CHA RTERED ACCOUNTANT AND ALSO ENGAGED IN THE BUSINESS OF BIO-DEGRADABLE WASTE. AS SESSEE FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 30.03.2010 SHOW ING INCOME FROM REMUNERATION RS. 1.20 LAKHS, INCOME FROM THE BUSINESS OF BIO- DE GRADABLE WASTE RS. 27,57,452 AND INCOME FROM OTHER SOURCES RS. 47,690/- THE ASSESSEE HAS CLAIMED THE DEDUCTION U/S 80 JJA OF THE ACT AGAINST THE INCOME FROM THE SALE OF BIO DEGRADABLE WASTE. THEREAFTER ITA NO.1990/KOL/2013 & CO 47/KOL/2014 A.Y. 2009-10 ITO WD-54(1), KOL. VS. BIJAYA KR. SAHOO PAGE 3 THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS AND N OTICES UNDER SECTION 143(2) R.W.S 142(1) OF THE ACT WERE ISSUED RESPECTIVELY. ASSESSEE IN THE PRESENT CASE IS THE NATIVE OF CUTTA CK, IN THE STATE OF ODISSA AND HE IS PROVIDING HIS PROFESSIONAL SERVICES IN KOLKATA. ASS ESSEE WAS HAVING AN ANCESTRAL PROPERTY IN NARAYANPRASAD, POST OFFICE GOPAPUR, POL ICE STATION BARAMBA, DISTRICT CUTTACK, ODISSA WHERE HE WAS RUNNING THE BUSINESS O F PROCESSING OF BIODEGRADABLE WASTE. HIS BIODEGRADABLE WASTE BUSINESS WAS LOOKED AFTER SHRI BEHERA (NICK NAME BULU) WHO RESIDES NEXT DOOR TO HIS NATIVE VILLAGE H OUSE. DURING ASSESSMENT PROCEEDINGS, IT WAS OBSERVED BY T HE ASSESSING OFFICER THAT THERE WAS NO BUSINESS CARRIED BY THE ASSESSEE IN THE YEAR UNDER CONSIDERATION. THE NECESSARY FACTS OF THE CASE ARE REPRODUCED BELOW. 1. THE ASSESSEE BEING A CHARTERED ACCOUNTANT SHOULD HA VE TAKEN PRIOR PERMISSION FROM ICAI TO ENGAGE HIMSELF IN ANY OTHER BUSINESS O THER THAN PROFESSIONAL SERVICES. BUT THE ASSESSEE WAS FAILED TO PRODUCE TH E EVIDENCE OF PERMISSION TAKEN BY THE ICAI. 2. THE ASSESSEE RESIDING IN KOLKATA AND HIS BUSINESS I S IN NATIVE PLACE I.E. ORISSA BUT TRAVELLING/ CONVEYANCE EXPENSES IS JUST OF RS. 23060.00. SO IT APPEARS A FRAMED STORY OF RUNNING A BUSINESS. 3. THE BUSINESS WAS CARRIED ON IN ANCESTRAL PROPERTY A ND THE ASSESSEE HAS SIX MORE BROTHERS AND SISTERS. THEY ARE ALSO THE CO OWNER OF THE PROPERTY BUT THE ASSESSEE WAS NOT ABLE TO PRODUCE ANY NO OBJECTION CERTIFICA TE FROM OTHER CO-OWNERS. FURTHER IF THEY ALL ARE CO-OWNERS THEN THE INCOME S HOULD BE SHARED BY ALL OF THEM. 4. THE CLAIM OF THE ASSESSEE THAT HE HAS ALSO USED THE COMMON AREA OF THE VILLAGE FOR HIS BUSINESS IS NOT TENABLE. 5. THE REPORT OF INSPECTOR FROM BHUBANESWAR INCOME TAX OFFICE STATES THAT 1) THERE WAS NO FACTORY 2) THREE SMALL PITS NEAR TO TH E VILLAGE POND WERE FOUND. 3) AT THE BEST THE ASSESSEE CAN SELL 200-300 BAMBOO FE RRIES/ BASKET PER ANNUM. 4) THE FATHER OF THE ASSESSEE OWNS 10 ACRES OF LAND. 6. HOWEVER THE REPORT OF THE INSPECTOR ATTACHED TO THE WARD NO. 54(1) KOLKATA HAS REPORTED CONTRARY FACTS TO THE REPORT OF THE INSPEC TOR OF INCOME OFFICE OF ITA NO.1990/KOL/2013 & CO 47/KOL/2014 A.Y. 2009-10 ITO WD-54(1), KOL. VS. BIJAYA KR. SAHOO PAGE 4 BHUBANESWAR. THE INSPECTOR ALSO SUBMITS THE REPORT OF THE SARPANCH OF THE VILLAGE IN WRITING THAT THERE IS SO SUCH BUSINESS S INCE LAST 10 YEARS. 7. THE FATHER OF THE ASSESSEE MAGUNI SAHOO WHO HIMSELF IS THE TEACHER ALSO DENIED EXISTENCE OF ANY SUCH BUSINESS IN THAT AREA. 8. NO DETAILS WITH REGARD TO THE BUSINESS WERE SUBMITT ED SUCH AS SALE/ PURCHASE, REGISTRATION, QUANTITY PRODUCED, MACHINERY USED ETC . 9. THERE WAS NO NEIGHBOUR OF THE ASSESSEE WITH THE NAM E OF THE SHRI BEHERA (NICK NAME BULU) WORKING AS EMPLOYEE. 10. ASSESSEE WAS GIVEN AN OPPORTUNITY UNDER SECTION 142 (3) WHERE HE SUBMITS TWO LETTERS ONE FROM MRS.PRATIMA SWAIN AND OTHER HIS FA THER MR. MAGUNI SAHOO STATING THAT THE ASSESSEE WAS CONDUCTING THE BUSINE SS OF PROCESSING OF BIODEGRADABLE WASTE. 11. ON DEMAND OF THE AO THE ASSESSEE WAS UNABLE TO PROD UCE THE DETAILS OF THE LABOURERS ENGAGED IN THIS BUSINESS. SO CHARGING OF LABOUR EXPENSES WERE JUST A BOOK ENTRY. 12. THE ALL TRANSACTION SHOWN IN THE ACCOUNTS WERE IN R OUND FIGURES. ASSESSEE WAS NOT ABLE TO PROVIDE ANY LIST OF THE PURCHASES AND S ALES. 13. IT WAS ALSO OBSERVED BY THE AO THAT THE ASSESSEE HI MSELF CLAIMED THAT IT IS A SEASONAL INCOME WHILE THE TRANSACTIONS WERE SHOWN T HROUGHOUT THE YEAR. BASED ON THE ABOVE OBSERVATIONS AO HAS ADDED BACK R S.27,57,452/- AS CASH UNEXPLAINED CREDITS U/S 68 OF THE ACT. 5. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE C IT(A) WHEREAS ASSESSEE SUBMITTED THAT DURING THE COURSE OF ASSESSMENT PROC EEDINGS, AO HAS ERRED IN DISBELIEVING THE BUSINESS ACTIVITY AND HE RELIED ON THE REPORTS OF INSPECTOR TO HIS CHARGE BUT REJECTED THE REPORTS SUBMITTED BY THE IN VESTIGATION WING , BHUBANESHWAR, FRESH AFFIDAVIT BY THE SARPANCH AND HIS FATHER AS W ELL AS REPORTS OF ASSISTANT AGRICULTURE OFFICER, BARAMBA BLOCK,CUTTACK, ODISSA WHERE IT WAS CERTIFIED BY THEM THAT THE ASSESSEE HAS CARRIED OUT THE BUSINESS OF P ROCESSING OF BIO DEGRADABLE WASTE AND SELLING OF FERTILIZERS. FURTHER, ASSESSEE ALSO SUBMITS THAT THE INSPECTOR ATTACHED TO THE AO HAS TAKEN THE STATEMENT OF THE SARPANCH AND HIS FATHER UNDER COERCION ON THE DATE OF ISSUE OF NOTICE TO THEM. CONSIDERING THE SU BMISSION OF ASSESSEE LD.CIT(A) ITA NO.1990/KOL/2013 & CO 47/KOL/2014 A.Y. 2009-10 ITO WD-54(1), KOL. VS. BIJAYA KR. SAHOO PAGE 5 INITIATED TO CALL A REPORT U/S 250(4) OF THE ACT. THE ENQUIRY REPORT OF LD. JCIT REITERATED THAT THE ASSESSEE WAS NOT ENGAGED IN THE BUSINESS OF PROCESSING OF BIO DEGRADABLE WASTE. IN REPLY THE ASSESSEE SUBMITS THA T IN THIS LINE OF BUSINESS THERE IS NO ANY REQUIREMENT OF TRADE LICENSE. LD.CIT(A) CONSIDE RING THE SAME ALLOWED THE DEDUCTION TO THE ASSESSEE U/S 80JJA OF THE ACT BY O BSERVING AS UNDER:- 7.3 I HAVE ALSO NOTED THE FACTS THAT NO ATTEMPT WA S MADE TO CONTROVERT THE AFFIDAVIT, WHEREIN IT IS A WELL SETTLED LAW THAT WH EN AN AFFIDAVIT IS FILED, THE AVERMENT THEREIN ARE ASSUMED TO BE CORRECT UNLESS T HE SAME IS PROVED OTHERWISE AS HELD BY THE HONORABLE SUPREME COURT IN CASE OF M/S MEHTA PARIKH & CO. VS. COMMISSIONER OF INCOME TAX, BOMBAY , 30 ITR 181. 7.4 I HAVE ALSO GONE THROUGH THE FACT THAT THE ASSE SSING OFFICER IN HER REMAND REPORT MENTIONS THAT THE COMMISSION REPORTS OF THE INVESTIGATION WING, BHUBANESWAR FOUND 3 SMALL PITS OF SUCH BIO-FERTILIZ ERS, I.E. TOO AFTER 6-7 MONTHS AFTER THE CLOSURE OF THE SAID BUSINESS. SHE HAS ALS O CALCULATED THE QUANTITATIVE DETAILS AND HAS THEREAFTER OPINED THAT ONLY 300 BAM BOO FERRIES OF BIO-FERTILIZER COULD HAVE BEEN SOLD AGAINST 30000 BAMBOO FERRIES C LAIMED BY THE SE, I FIND SUCH ACTION OF ASSESSING OFFICER IN PARTLY BELIEVIN G THE BUSINESS ACTIVITY OF THE ASSESSEE OF PROCESSING OF BIO-DEGRADABLE WASTE AND PRODUCING & SELLING BIO- FERTILIZERS IS BAD IN LAW, SINCE THE ASSESSING OFFI CER HAS BELIEVED THOUGH PARTICULARLY THE BUSINESS ACTIVITY OF THE ASSESSEE, STILL HAS RULED OUT ANY EXISTENCE OF BUSINESS WHICH ARE TWO CONTRARY OPINIO NS OF THE ASSESSING OFFICER, WHEREIN THE HONORABLE SUPREME COURT IN ITS LANDMARK JUDGMENT IN CASE OF COMMISSIONER INCOME TAX VS. VEGETABLES PRODUCTS LIM ITED, 88 ITR 192 HAS HELD THAT IF TWO REASONABLE VIEWS ARE POSSIBLE THEN VIEW FAVOURING TO THE ASSESSEE MUST BE ADOPTED, IDENTICAL VIEWS WAS TAKEN BY HONABLE SUPREME COURT IN CASE OF BIRLA CEMENT WORKS VS. THE CENTRAL BOARD OF DIRECT TAXES & OTHERS, 248 ITR 216, WHEREIN YOUR LORDSHIP HELD: TWO INTERPRETATIONS ARE REASONABLY POSSIBLE ON THE QUESTION WHETHER THE CONTRACT FOR CARRYING OF GOODS WOULD COME OR NOT WI THIN THE AMBIT OF THE EXPRESSION CARRYING OUT ANY WORK: ONE OF THE TWO POSSIBLE INTERPRETATIONS OF A TAXING STATUTE, WHICH FAVOURS THE ASSESSEE AND WHICH HAS BEEN ACTED UPON AND ACCEPTED BY THE REVENUE FOR A LONG PERIOD SHOULD NOT BE DISTURBED EXCEPT FOR COMPELLING REASO NS. IN THE PRESENT CASE ALSO, THE AO HIMSELF/HERSELF BE LIEVED THOUGH PARTIALLY, THE EXISTENCE OF BUSINESS OF PROCESSING OF BIO-DEGRADAB LE WASTE AND PRODUCING & SELLING OF BIO-FERTILIZERS, WHILE CALCULATING THE Q UANTITATIVE DETAILS AND OBSERVING THE COMMISSION REPORTS OF THE INVESTIGATI ON WING, BHUBANESWAR, STILL HE/SHE DISBELIEVED THE EXISTENCE OF SUCH BUSI NESS ONLY ON THE BASIS OF REPORTS OF THE INSPECTOR ATTACHED TO HIS/HER OFFICE ON MERE SUSPICION. SUCH ACTION OF THE ASSESSING OFFICER IS NOT JUSTIFIED IN VIEW OF THE ABOVE JUDGEMENT. ITA NO.1990/KOL/2013 & CO 47/KOL/2014 A.Y. 2009-10 ITO WD-54(1), KOL. VS. BIJAYA KR. SAHOO PAGE 6 7.5 I HAVE ALSO CONSIDERED THE FACT THAT BARRING TH E INSPECTORS REPORT ATTACHED TO THE ASSESSING OFFICER, NONE OF THE REPORTS I.E., TWO COMMISSION REPORTS OF THE INVESTIGATION WING, BHUBANESWAR, REPORT OF THE ASSI STANT AGRICULTURE OFFICER, BARAMBA BLOCK, CUTTACK, ORISSA, V.A.W. BARAMBA BLOC K, CUTTACK, ORISSA, SARPANCH OF LOCAL GRAMA PANCHAYATA & CHAIRMAN OF BA RAMBA BLOCK, CUTTACK, ORISSA, DELEGATES / ENDORSES THE VIEW ADOP TED BY THE ASSESSING OFFICER, RATHER ALL THE ABOVE REPORTS / CERTIFICATES AFFIRM THE CONTENTION OF THE ASSESSEE AS TO HAVE CARRIED OUT THE BUSINESS OF PROCESSING O F BIO-DEGRADABLE WASTE AND PRODUCING & SELLING THE BIO-FERTILIZERS. 8. I, THEREFORE, HOLD THAT THE ASSESSING OFFICER WA S NOT JUSTIFIED IN DISBELIEVING THE BUSINESS ACTIVITY OF PROCESSING OF BIO-DEGRADAB LE WASTE AND PRODUCING & SELLING THE BIO-FERTILIZERS BY THE ASSESSEE AND THE REAFTER CONSIDERING THE SAME AS UNEXPLAINED CASH CREDIT U/S 68 AND THEREAFTER RE JECTING THE CONSEQUENTIAL DEDUCTION U/S 80JJA. I SET ASIDE SUCH ORDER OF THE ASSESSING OFFICER, IN DISBELIEVING THE CLAIM OF THE ASSESSEE OF HAVING CA RRIED OUT THE BUSINESS ACTIVITY OF PROCESSIONS OF BIO-DEGRADABLE WASTE AND PRODUCIN G & SELLING BIO-FERTILIZERS AND ACCORDINGLY ALLOW THE APPEAL IN THIS REGARD & D IRECT THE ASSESSING OFFICER TO ALLOW THE DEDUCTIONS U/S 80JJA ON SUCH INCOME T O THE ASSESSEE. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A), REVENU E IS IN APPEAL BEFORE US. 6. BEFORE US LD. DR SUBMITTED THAT AS PER THE REPOR T OF THE INSPECTORS THERE WAS NO BUSINESS. THE ASSESSEE HAS CLOSED DOWN ITS BUSINESS IMMEDIATELY AFTER THE YEAR UNDER CONSIDERATION. THE MAIN REASON FOR THE CLOSING DOWN OF THE BUSINESS IS THAT THE AO HAS CAUGHT HIM UNDER THE SCRUTINY ASSESSMENT FOR CONVER TING HIS UNACCOUNTED MONEY INTO ACCOUNTING FORM IN THE GUISE OF BUSINESS ACTIVITY. WHATEVER PROFIT SHOWN BY THE ASSESSEE WAS CLAIMED DEDUCTION UNDER SECTION 80JJA OF THE ACT. THE ASSESSEE COULD NOT SUBSTANTIATE THE SALE/ PURCHASE OF THE BUSINESS WITH THE SUPPORTING EVIDENCE. THE LD. DR VEHEMENTLY SUPPORTED THE ORDER OF THE AO. 7. ON THE OTHER HAND THE LD. AR SUBMITTED THAT THE JOURNEY FROM KOLKATA TO THE VILLAGE OF THE ASSESSEE IS OF 6 HOURS. THE INVESTIG ATION AGENCY OF INCOME TAX DEPARTMENT BASED IN BHUBNESHWAR HAS NOT DENIED THE BUSINESS EXISTENCE OF THE ASSESSEE. THE INSPECTOR ATTACHED TO THE WARD OF THE AO WAS INFLUENCED BY THE AO SO HE HAS GIVEN ADVERSE REPORTS. THE ASSESSEE WAS DOIN G THE BUSINESS IN THE OPEN AREA BECAUSE THE BIO DEGRADABLE WASTE BUSINESS DOES NOT REQUIRE FACTORY BUILDING. THE BIO DEGRADABLE WASTE BUSINESS REQUIRES SUN, EARTH AND R AIN ETC. THE ALLEGATION OF THE AO THAT THE ASSESSEE DID NOT SHARE THE BUSINESS PROFIT WITH HIS FATHER, BROTHERS AND SISTERS ITA NO.1990/KOL/2013 & CO 47/KOL/2014 A.Y. 2009-10 ITO WD-54(1), KOL. VS. BIJAYA KR. SAHOO PAGE 7 AS THE LAND WAS ON WHICH THE ASSESSEE WAS DOING THE BUSINESS WAS BELONGING TO ALL OF THEM IS BASELESS. IT IS BECAUSE THE FATHER OF THE A SSESSEE WAS ALIVE AND HE WAS THE OWNER OF THE ANCESTRAL LAND. SO THE QUESTION OF SHA RING THE PROFIT DOES NOT ARISE. BESIDES THE LD. AR SUBMITTED THAT THE FATHER OF THE ASSESSEE HAS FOUR SONS AND THREE DAUGHTERS. THE FIRST SON IS THE ASSESSEE WHO IS A Q UALIFIED CHARTERED ACCOUNTANT. THE SECOND SON IS EMPLOYED WITH NORTH COAL INDIA LTD. A S FINANCE MANAGER. THE THIRD SON IS THE COMPUTER ENGINEER SETTLED IN BANGALORE AND T HE FOURTH SON IS EMPLOYED AS DESIGN ENGINEER IN BHEL. ALL THE DAUGHTERS ARE MARRIED. TH E LD. AR AS SUCH SUBMITTED THAT ALL THE MEMBERS OF THE FAMILY WERE EMPLOYED AND DO NOT REQUIRE SHARE THE PROFIT OF THE ASSESSEE BUSINESS. THE LD. AR VEHEMENTLY SUPPORTED THE ORDER OF THE LD. CIT(A). 8. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. FROM THE FOREGOING DISCUSSION WE FIND THAT THE ASSESSEE HAS CLAIMED THE DEDUCTION UNDER SECTION 80JJA OF THE AC T FOR ITS BIO-FERTILIZER BUSINESS. BUT THE AO HAS HELD THAT THERE WAS NO SUCH BUSINESS ACTIVITY AND ENTIRE SALES PROCEEDS FOR RS. 37,05,680.00 WAS TREATED AS INCOME UNDER SE CTION 68 OF THE ACT. HOWEVER THE LD. CIT(A) ON APPEAL ALLOWED THE RELIEF TO THE ASSE SSEE. FROM THE PERUSAL OF THE ORDERS OF LOWER AUTHORITIES WE FIND THAT VARIOUS REPORTS W ERE CALLED FOR BY THE AO TO CHECK WHETHER THE BUSINESS OF THE ASSESSEE WAS INTO EXIST ENCE OR NOT. WE FIND THAT THE CONTRADICTORY REPORTS WERE SUBMITTED FROM THE INSPE CTOR OF THE WARD OF THE ITO HAVING JURISDICTION ON THE ASSESSEE AND THE INSPECTOR FROM BHUBANESWAR INCOME TAX OFFICE. AS PER THE REPORT OF INSPECTOR OF THE ITO THERE WAS NOT BUSINESS BUT AS PER THE INSPECTOR FROM BHUBANESWAR INCOME TAX OFFICE, THE B USINESS WAS THERE BUT IT WAS NEGLIGIBLE IN VOLUME. THE AR IN SUPPORT OF HIS CLAI M HAS SUBMITTED VARIOUS REPORTS AND CERTIFICATES ABOUT THE EXISTENCE OF THE BUSINES S WHICH ARE PLACED ON RECORD. FROM THE ABOVE FACT WE ARE INCLINED TO HOLD THAT THERE W AS BUSINESS IN THE EXISTENCE. WE ALSO FIND SUPPORT FROM THE CONSISTENT CLAIM OF DEDUCTION UNDER SECTION 80JJA OF THE ACT FROM THE LAST SEVERAL YEARS. THE QUESTION OF THE DI SALLOWANCE OF DEDUCTION OR NON- EXISTENCE OF THE BUSINESS HAS NEVER BEEN RAISED IN THE EARLIER YEARS. THE ALLEGATION OF THE AO THAT THE ASSESSEE BEING CHARTERED ACCOUNTANT HAS NOT TAKEN PERMISSION FROM THE INSTITUTE OF CHARTERED ACCOUNTANT HAS NO CONNECTION IN THE INCOME TAX PROCEEDINGS. SIMILARLY THE ALLEGATION OF THE AO THAT THE ASSESSE E IS DOING THE BUSINESS IN THE LAND ITA NO.1990/KOL/2013 & CO 47/KOL/2014 A.Y. 2009-10 ITO WD-54(1), KOL. VS. BIJAYA KR. SAHOO PAGE 8 BELONGING TO HIS FATHER WITHOUT SHARING THE PROFIT WITH HIS OTHER BROTHER AND SISTERS HAS NO BASE. THE REASONS FOR HOLDING THAT THERE WAS NO BUSINESS WERE NOT CORRECT. IN VIEW OF ABOVE WE ARE INCLINED NOT TO INTERFERE IN THE OR DER OF LD. CIT(A). HENCE THIS GROUND OF APPEAL OF THE REVENUE IS DISMISSED. COMING TO ASSESSEES CO NO. 47/KOL/2014 9. AT THE OUTSET WE FIND THAT THE GROUNDS RAIS ED BY THE ASSESSEE IN THE CROSS OBJECTION ARE SUPPORTIVE TO THE ORDER OF LD. CIT(A) . HENCE IN OUR CONSIDERED VIEW THESE GROUNDS OF CROSS OBJECTIONS DO NOT REQUIRE AN Y ADJUDICATION. THEREFORE WE DISMISS THE SAME AS INFRUCTOUS. IN THE RESULT, THE APPEAL OF THE REVENUE AS WELL AS THE CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 09 /09/2016 SD/- SD/- (S.S.VISWANETHRA RAVI) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER *DKP ' - 09 /09/2016 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-BIJAYA KUMAR SAHOO, 16/2 K.M..NASKAR ROAD , KOLKATA-69 2. /RESPONDENT- ITO WARD-54(1), 3, GOVT. PLACE, WEST, 1 ST FLOOR, KOLKATA-01 3. % ' / CONCERNED CIT 4. ' - / CIT (A) 5. ( ++% , % / DR, ITAT, KOLKATA 6. - / GUARD FILE. BY ORDER/ , / %, ITA NO.1990/KOL/2013 & CO 47/KOL/2014 A.Y. 2009-10 ITO WD-54(1), KOL. VS. BIJAYA KR. SAHOO PAGE 9