KAMENDRA MISHRA , RAMGARH V. ITO WD-2(3), RAMGARH

ITA 203/RAN/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0610 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 24-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MOHANTY
• Assessee Lawyers: M K CHOUDHARYMANAV PODDAR
• Section: 12

Judgement Text

P A G E 1 | 7 IN THE INCOME TAX APPELLATE TRIBUNAL, RANCHI BENCH, RANCHI BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO S . 203 & 204 / RAN /201 7 ASSESSMENT YEAR S : 2011 - 12 TO 2012 - 13 KAMENDRA MISHRA, RAMGARH GYMKHANA CLUB, RANCHI ROAD, MARAR, RAMGARH VS. ITO, WARD 2(3), RAMGARH. PAN/GIR NO. (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI M.K.CHOUDHARY/MANAV PODDAR, ADV REVENUE BY : SHRI A.K.MOHANTY, JCIT DATE OF HEARING : 27 / 11 / 2018 DATE OF PRONOUNCEMENT : 30 / 11 / 2018 O R D E R PER N.S.SAINI, AM THESE ARE APPEAL S FILED BY THE ASSESSEE AGAINST THE SEPARATE ORDER S OF THE CIT(A), HAZARIBAG, BOTH D ATED 27.6.2017 FOR THE ASSESSMENT YEAR S 2011 - 12 AND 2012 - 13 , RESPECTIVELY. 2. IN BOTH THE ASSESSMENT YEARS, THE ASSESSEE HAS RAISED FOLLOWING COMMON GROUNDS OF APPEAL: 1. THE ORDER OF THE LOWER AUTHORITIES ARE BAD IN LAW AND FACTS. 2. THE CIT(A) ERRED IN CONFIRMING REOPENING OF THE CASE WITHOUT COMPLYING WITH THE D IRECTION OF SUPREME COURT AND SECTION 147. ITA NOS.201 TO 204/RAN/2017 ASSESSMENT YEARS : 2009 - 10 TO 2012 - 13 P A G E 2 | 7 3. THE CIT(A) ERRED IN CONFIRMING THE ESTIMATE OF THE INCOME ON THE GROSS RECEIPT AT THE RATE OF 8% WITHOUT ANY BASIS. 4. THE CIT(A) ERRED IN CONFIRMING CHARGING INTEREST U/S.234B, CONTRARY TO THE BINDING DECISION OF JURISDICTIONAL HIGH COURT. 5. FOR THAT, ORDER GROUNDS IF ANY, WOULD BE URGED AT THE TIME OF HEARING. 3 . GROUND NOS.1 AND 5 OF APPEAL ARE GENERAL IN NATURE, HENCE REQUIRES NO SEPARATE ADJUDICATION BY US. 4 . AT THE TIME OF HEARING, LD AUTHORISED REPRESENT ATIVE DID NOT PRESS GROUND NOS.2 AND 4 OF THE APPEAL FOR BOTH THE ASSESSMENT YEARS UNDER APPEAL AND HAS ALSO MADE ENDORSEMEN T TO THIS EFFECT IN THE GROUNDS OF APPEAL APPENDED TO FORM NO.36 FILED BEFORE THE TRIBUNAL. THEREFORE, GROUND NOS. 2 AND 4 ARE DISMISSED AS NOT PRESSED. 5. IN GROUND NO.3 OF APPEAL FOR BOTH THE ASSESSMENT YEARS, THE GRIEVANCE OF THE ASSESSEE IS THAT THE CIT(A) ERRED IN ESTIMATING OF THE INCOME ON THE GROSS RECEIPT AT THE RATE OF 8% WITHOUT ANY BASIS. 6. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFI CER OBSERVED THAT IN THE ASSESSMENT YEAR 2011 - 12, THE ASSESSEE HAS SHOWN SALE IN THE AUDITED PROFIT AND LOSS ACCOUNT OF M/S JAI MATADI TRADING COMPANY OF 3,63,89,538.85 BUT AS PER BANK STATEMENT OF ITA NOS.201 TO 204/RAN/2017 ASSESSMENT YEARS : 2009 - 10 TO 2012 - 13 P A G E 3 | 7 UNION BANK OF INDIA, RAMGARH AND UNION BANK OF INDIA, BAR BIL, THE ASSESSEE HAD MADE DEPOSITS DURING THE FINANCIAL YEAR OF 1,44,75,295/ - AND 3,65,43,090/ - AGGREGATING TO 5,10,18,385/ - . THUS, THERE WAS EXCESS DEPOSIT IN BANK OF 1,46,28,846.15 FOR WHICH NO SATISFACTORY EXPLANATION WAS OFFERED BY THE ASSESSEE. 7. SIMILARLY, IN THE AUDITED PROFIT AND LOSS ACCOUNT OF M/S. JAI MANGALA TRADERS, THE ASSESSEE HAD SHOWN 1,85,11,818/ - AND THE ASSESSEE HAD MADE DEPOSITS DURING THE FINANCIAL YEAR IN ICICI BANK, RAMGARH AND ORIENTAL BANK OF COMMERCE, RAMGARH OF 1,92,06,0 40/ - AND 2,02,79,000/ - AGGREGATING TO 3,94,85,040/ - . THUS, THERE WAS EXCESS DEPOSIT IN THE BANK AMOUNTING TO 2,09,73,222/ - AND NO SATISFACTORY EXPLANATION WAS OFFERED BY THE ASSESSEE. THEREFORE, THE ASSESSING OFFICER REJECTED THE AUDITED ACCOUNTS OF THE ASSESSEE UNDER SECTION 145(3) OF THE ACT AND ESTIMATED THE INCOME ON THE BASIS OF DEPOSIT S MADE IN THE FOLLOWING BANK ACCOUNTS: SR. NO FIRM NAME BANK NAME & A/C. AMOUNT ( ) 1. M/S. JAI MATADI TRADING CO. UNION BANK OF INDIA, RAMGARH A/C NO.542001010000459 1,44,75,295 2. M/S. JAI MATADI TRADING CO UNION BANK OF INDIA, RAMGARH A/C NO.554101010050096 3,65,43,090 ITA NOS.201 TO 204/RAN/2017 ASSESSMENT YEARS : 2009 - 10 TO 2012 - 13 P A G E 4 | 7 3. M/S. JAI MANGALA TRADERS ICICI BANK, RAMGARH A/C 043305000632 1,92,06,040 4. M/S. JAI MANGALA TRADERS ORIENTAL BANK OF COMMERCE, RAMGARH, A/C.NO.09401131000845 2,02,79,000 TOTAL: 9,05,03,425 8. THE ASSESSING OFFICER APPLIED RATE OF 8% ON THE GROSS RECEIPTS /TURNOVER OF 9,05,03,425/ - AND ARRIVED AT THE INCOME OF 72,40,274/ - , WHICH WAS TAKEN AS INCOME FROM BUSINESS AND PROFESSION OAS AGAINST 26,020/ - SHOWN BY THE ASSESSEE. 9. FOR THE ASSESSMENT YEAR 2012 - 13, IN THE AUDITED PROFIT AND LOSS ACCOUNT OF M/S. JAI MATADI TRADING COMPANY, THE ASSESSEE HAD SHOWN 72,18,962/ - , BUT AS PER BANK STATEMENT OF UNION BANK OF INDIA, BARBIL IN A/C. NO.554101010050096, THE ASSESSEE HAD MADE DEPOSITS DURING THE FINANCIAL YEAR OF 81,22,420/ - . THUS, THERE WAS EXCESS DEPOSIT IN BANK OF 9,03,458/ - FOR WHICH NO SATISFACTORY EXPLANATION WAS OFFERED BY THE ASSESSEE. THEREFORE, THE ASSESSING OFFICER REJECTED THE AUDITED ACCOUNTS OF THE ASSESSEE UNDER SECTION 145(3) OF THE ACT AND ESTIMATED THE INCOME ON THE BASIS OF DEPOSIT IN THE BANK ACCOUNT OF UNION BANK OF INDIA, BARBIL. THEREFORE, THE ASSESSING O FFICER APPLIED RATE OF 8% ON THE GROSS RECEIPTS /TURNOVER OF 81,22,420/ - AND ARRIVED AT THE INCOME OF 6,49,793 / - , WHICH ITA NOS.201 TO 204/RAN/2017 ASSESSMENT YEARS : 2009 - 10 TO 2012 - 13 P A G E 5 | 7 WAS TAKEN AS INCOM E FROM BUSINESS AND PROFESSION AS AGAINST 23,308 / - SHOWN BY THE ASSESSEE . 1 0. ON APPEAL, THE CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER OBSERVING THAT THE ASSESSEE SUBMITTED THAT THE DIFFERENCE/EXCESS DEPOSIT IN THE BANK ACCOUNT IS DUE TO WITHDRAWAL OF AMOUNTS AND REDEPOSIT OF THE SAME BACK TO THE BANK ACCOUNT. THE ASSESSING OFFICER HAS HELD THAT NO DETAILS WERE PROVIDED REGARDING THE PURPOSE OF WITHDRAWING THE CASH . 1 1. BEFORE US, LD AUTHORISED REPRESENTATIVE SUBMITTED THAT ESTIMATION OF INCOME @ 8% ON THE DEPOSITS MADE IN THE BANK ACCOUNTS WAS AT HIGHER AS THE ASSESSEE WAS A TRADER OF REJECT ED IRON ORE/SCRAP. HE SUBMITTED THAT THE ASSESSEE HAD BEEN SHOWING INCOME @ 0.3% OF THE TOTAL RECEIPTS AND, THEREFORE, FOLLOWING THE PAST PRACTICE, INCOME OF EXCESS DEPOSITS IN THE BANK SHOULD BE COMPUTED BY APPLYING 0.3%. IN THE ALTERNATIVE, IT WAS HIS SUBMISSION THAT THE ASSESSING OFFICER AND THE CIT(A) HAS NOT CONSIDERED THE SUBMISSION OF THE ASSESSEE THAT DEPOSITS WERE MADE IN THE BANK OUT OF EARLIER WITHDRAWALS MADE FROM THE BANK BY THE ASSESSEE AND, THEREFORE, MATTER MAY BE REMANDED BACK TO THE FIL E OF THE ASSESSING OFFICER FOR ADJUDICATING THE ISSUE AFRESH AFTER ITA NOS.201 TO 204/RAN/2017 ASSESSMENT YEARS : 2009 - 10 TO 2012 - 13 P A G E 6 | 7 CONSIDERING THE WITHDRAWALS FROM THE BANK BY THE ASSESSEE AS THE SOURCE OF SUBSEQUENT DEPOSITS IN THE BANK ACCOUNT. 1 2. LD DEPARTMENTAL REPRESENTATIVE OPPOSED THE SUBMISSION OF LD AUTHORISE D REPRESENTATIVE OF THE ASSESSEE ON THE GROUND THAT BEFORE THE ASSESSING OFFICER AS WELL AS THE CIT(A), THE ASSESSEE DID NOT FURNISH BANK DETAILS TO SHOW THAT DEPOSITS MADE IN THE BANK WERE OUT OF EARLIER WITHDRAWALS FROM THE BANK BY THE ASSESSEE. 1 3. AFTE R CONSIDERING THE RIVAL SUBMISSIONS AND PERUSING THE MATERIALS ON RECORD, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE CONTENDED BEFORE THE ASSESSING OFFICER AS WELL AS THE CIT(A) THAT EXCESS DEPOSITS IN THE BANK ACCOUNTS WERE OUT OF EARLIER WITHDRAW ALS MADE BY THE ASSESSEE FROM THE BANK. THESE SUBMISSIONS CAME TO BE REJECTED AS THE ASSESSEE DID NOT FILE ANY EVIDENCES FOR THE SAME. IN OUR CONSIDERED OPINION, IN ORDER TO ADJUDICATE THE ISSUE COMPLETELY, THE BANK ACCOUNTS HAVE TO BE EXAMINED WITH REG ARD TO THE FACT WHETHER THE ASSESSEE HAD SUFFICIENT WITHDRAWALS PRIOR TO THE DEPOSITS MADE IN THE BANK ACCOUNTS AND WHETHER THE AMOUNTS WERE AVAILABLE WITH THE ASSESSEE FOR RE - DEPOSITING THE SAME IN THE BANK ACCOUNTS. THEREFORE, IN OUR TO RENDER SUBSTANTI AL JUSTICE, WE ARE OF THE OPINION THAT MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE ASSESSING ITA NOS.201 TO 204/RAN/2017 ASSESSMENT YEARS : 2009 - 10 TO 2012 - 13 P A G E 7 | 7 OFFICER FOR ADJUDICATING THE ISSUE AFRESH IN THE LIGHT OF DISCUSSION MADE HEREINABOVE AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. WE ORDER ACCORDINGLY. THE ASSESSEE IS DIRECTED TO CO - OPERATE WITH THE ASSESSING OFFICER AND FILE ALL DETAILS AND EVIDENCES AS AND WHEN REQUIRED TO DO SO. WITH THESE DIRECTIONS, THE APPEALS ARE RESTORED TO THE FILE OF THE ASSESSING OFFICER. 1 4. IN THE RESULT , BOTH THE APPEALS ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 30 / 11 /2018. SD/ - SD/ - ( PAVAN KUMAR GADALE) ( N.S SAINI) JUDICIALMEMBER A CCOUNTANT MEMBER RANCHI ; DATED 30 / 11 /2018 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER SR.PVT.SECRETARY, ITAT, RANCHI ON TOUR 1. THE APPELLANT : KAMENDRA MISHRA, RAMGARH GYMKHANA CLUB, RANCHI ROAD, MARAR, RAMGARH 2. THE RESPONDENT. ITO, WARD 2(3), RAMGARH. 3. THE CIT(A) - HAZARIBAG 4. PR.CIT - HAZARIBAG 5. DR, ITAT, RANCHI 6. GUARD FILE. //TRUE COPY//