Rajendra Prasad Bothra, Kolkata V. ACIT, Circle - 43, , Kolkata

ITA 2025/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5704 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 24-09-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S VENKATRAMANI ACIT SRDR
• Assessee Lawyers: N M BHANSALI
• Keywords: Depreciation; Business expenditure; Corroborative evidences
• Section: 40A(3); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.2025/KOL/2018 ASSESSMENT YEAR:2012-13 RAJENDRA PRASAD BOTHRA, 134/4, MAHATMA GANDHI ROAD, 3 RD , FLOOR, JOROSANKO, KOLKATA-700007 [ PAN NO.ADIPB 8942 M ] / V/S . ACIT, CIRCLE-43 3, GOVT. PLACE, 2 ND FLOOR, ROOM NO.2/34A, KOLKATA-700 001 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI N.M. BHANSALI, ADVOCATE /BY RESPONDENT SHRI S. VENKATRAMANI, ACIT- SR-DR /DATE OF HEARING 22-01-2019 /DATE OF PRONOUNCEMENT 31-01-2019 /O R D E R THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2012-14 , ARISES AGAINST THE COMMISSIONER OF INCOME-TAX (APPEALS)-13, KOLKATAS ORDER DATED 04.06.2018 PASSED IN CASE NO.18/CIT(A)-13/CIR-43/KOL/2015-16 INVOLVIN G PROCEEDINGS U/S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEES FORMER SUBSTANTIVE GRIEVANCE CHAL LENGES CORRECTNESS OF BOTH THE LOWER AUTHORITIES ACTION INVOKING SEC. 40A(3) DISAL LOWANCE AMOUNTING TO 1,18,118/- ALLEGING CASH PAYMENT OF BUSINESS EXPENDITURE. SUFF ICE TO SAY, AT THE OUTSET, THERE IS NO DISPUTE THAT THE ASSESSEE HAS MADE THE IMPUGNED CAS H PAYMENTS. HIS ONLY CASE DURING THE COURSE OF HEARING IS THAT THE SAID CASH PAYMENT DO NOT EXCEED THE STATUTORY PRESCRIBED LIMIT OF 20,000/- AS APPLICABLE IN THE IMPUGNED ASSESSMENT Y EAR. LEARNED ITA NO.2025/KOL/2018 A.Y. 2012-1 3 RAJENDRA PRASAD BOTHRA VS. ACIT, CIR-43,KO L. PAGE 2 COUNSEL INVITES MY ATTENTION TO THE PAPER BOOK COMP RISING DETAILS OF ALL SUCH PAYMENT FIGURES. THE REVENUE FAILS TO DISPUTE THAT SEC. 40A (3) DISALLOWANCE PROVISION COMES INTO PLAY WHEN THE ASSESSEE INCURS ANY EXPENDITURE IN RESPECT OF HIS PAYMENT OR AGGREGATE OF PAYMENT MADE TO A PERSON EXCEEDING OF 20,000/- IN CASH. NEITHER THE ASSESSING OFFICER NOR CIT(A) HAVE DEALT WITH THIS C LINCHING ASPECT FOR COMING TO THE CONCLUSION THAT THE ASSESSEE HAS MADE HIS CASH PAYM ENT EXCEEDING TO 20,000/- IN A DAY . I THEREFORE RESTORE THE INSTANT FORMER ISSUE BAC K TO THE ASSESSING OFFICER TO FINALIZE NECESSARY VERIFICATION EXERCISE AND RE-COM PUTE THE IMPUGNED DISALLOWANCE ONLY QUA PAYMENT OR AGGREGATE OF PAYMENTS MADE TO A PAYEE EXCEEDING 20,000/- IN A DAY. NEEDLESS TO SAY, ASSESSEE SHALL BE AFFORDED AD EQUATE OPPORTUNITY OF HEARING. THIS FORMER SUBSTANTIVE GROUND IS TAKEN AS ACCEPTED FOR STATISTICAL PURPOSES. 3. THE ASSESSEES LATTER SUBSTANTIVE GROUND PLEADED IN THE INSTANT APPEAL CHALLENGES CORRECTNESS OF BOTH THE LOWER AUTHORITIE S ACTION MAKING THE ESTIMATED DISALLOWANCE @ 10% VARIOUS EXPENSES CLAIM IN THE NA TURE OF TRAVELLING AND CONVEYANCE, MOTOR CAR, DEPRECIATION ON MOTOR CAR, O FFICE EXPENSES, COLLECTION CHARGES, TELEPHONE, MOBILE & FAX, GENERAL EXPENDITURE AND SA LES PROMOTION INVOLVING VARYING SUMS. I FIND THAT NEITHER THE LOWER AUTHORITIES HAV E DOUBTED GENUINENESS THEREOF IN PRINCIPLE NOR THEY HAVE DRAWN ANY COMPARISON OF THE CORRESPONDING HEADS IN ANY PRECEDING OR SUCCEEDING ASSESSMENT YEARS. THE FACT ALSO REMAINS THAT ASSESSEE HAS NOT BEEN ABLE TO PROVE ALL HEAD OF EXPENDITURE BY WAY O F COGENT SUPPORTING EVIDENCES. I THEREFORE HOLD THAT THE IMPUGNED ESTIMATED DISALLOW ANCE(S) @ 5% ONLY THAN 10% UNDER CHALLENGE WOULD MEET ENDS OF JUSTICE WITH A R IDER THAT SAME SHALL NOT BE TREATED AS A PRECEDENT. THIS SECOND SUBSTANTIVE GRIEVANCES IS PARTLY ACCEPTED. 4. THIS ASSESSEES APPEAL IS PARTLY ALLOWED IN AB OVE TERMS. ORDER PRONOUNCED IN OPEN COURT ON 31/01/2019 SD/- (S.S. GODARA) JUD ICIAL MEMBER KOLKATA, *DKP/SR.PS - 31/01/2019 ITA NO.2025/KOL/2018 A.Y. 2012-1 3 RAJENDRA PRASAD BOTHRA VS. ACIT, CIR-43,KO L. PAGE 3 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-RAJENDRA PRASAD BOTHRA, 134/4, MAHATMA G ANDHI ROAD, 3 RD FLOOR, JORASAKO, KOLKATA-700 007 2. /RESPONDENT-ACIT, CIR-43, 3 GOVT. PLACE, 2 ND FL, R.NO.2/34A, KOLKATA-001 3. ' % / CONCERNED CIT 4. % - / CIT (A) 5. & ))' , ' / DR, ITAT, KOLKATA 6. + / GUARD FILE. BY ORDER/ , /TRUE COPY/ / ',