Alok Kundu, Howrah V. ITO, Ward - 47(3), Kolkata, Kolkata

ITA 2036/KOL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1894 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 13-09-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ROBIN CHOUDHUR Y
• Assessee Lawyers: MIRAJ D. SHAH
• Section: 133A; 131

Judgement Text

ITA NO.2036/KOL/2017-ALOK KUNDU A.Y.2010-11 1 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENC H : KOLKATA [BEFORE HONBLE SRI N.V.VASUDEVAN, JM] I.T.A NO.2036/KOL/2017 ASSESSMENT YEAR : 2010-11 ALOK KUNDU . -VS.- I.T.O., WARD-47(3) HOWRAH KOLKATA [PAN : AGDPK 1716 G] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI MIRAJ D.SHAH, AR FOR THE RESPONDENT : SHRI ROBIN CHOUDHUR Y, ADDL. CIT DATE OF HEARING : 13.12.2017. DATE OF PRONOUNCEMENT : 03.01.2018. ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R DATED 29.05.2017 OF CIT(A)-14, KOLKATA RELATING TO A.Y.2010-11. 2. THE ONLY GRIEVANCE OF THE ASSESSEE AS PROJECTED IN THE GROUNDS OF APPEAL IS WITH REGARD TO ADDITION OF RS.3,00,000/- MADE TO THE ASS ESSEES TOTAL INCOME AS UNDISCLOSED INVESTMENT. 3. THE ASSESSEE IS AN INDIVIDUAL. HE CARRIES ON THE BUSINESS OF TRADING IN PIPE FITTINGS AND NON FERROUS METALS. THERE WAS A SURVEY CONDUCTED IN THE BUSINESS PREMISES OF THE ASSESSEE U/S 133A OF THE INCOME TA X ACT, 1961 (ACT) BY THE REVENUE ON 17.03.2010. IN THE COURSE OF SURVEY IT TRANSPIRE D THAT THE ASSESSEE HAD MADE AN INVESTMENT OF RS.3,00,000/- IN A COMPANY BY NAME M/ S. ALCHEMIST INFRA REALITY LTD. IN A STATEMENT RECORDED AT THE TIME OF SURVEY THE A SSESSEE ADMITTED THAT HE HAD INVESTED RS.3,00,000/- IN M/S. ALCHEMIST INFRA REAL ITY LTD IN CASH AND THAT THIS AMOUNT HAS NOT BEEN ACCOUNTED FOR IN HIS REGULAR BO OKS OF ACCOUNT. HE ALSO ADMITTED THAT HE WOULD OFFER RS.3,00,000/- AS UNDISCLOSED IN COME FOR A.Y.2010-11. IN A ITA NO.2036/KOL/2017-ALOK KUNDU A.Y.2010-11 2 SUBSEQUENT DEPOSITION RECORDED ON 16.04.2010 U/S 13 1 OF THE ACT, BY THE AO THE ASSESSEE AGAIN TOOK THE SAME STAND AS WAS TAKEN AT THE TIME OF SURVEY. 4. IN THE RETURN OF INCOME FILED, THE ASSESSEE DID NOT OFFER A SUM OF RS.3,00,000/- TO TAXATION. THE ASSESSEE TOOK A STAND BEFORE THE A O THAT THE INVESTMENTS IN M/S. ALCHEMIST INFRA REALITY LTD WAS MADE JOINTLY BY T HE ASSESSEE AND HIS WIFE IN EQUAL SHARES. AS FAR AS THE SOURCE OF THE ASSESSEES FUND S FOR MAKING HIS CONTRIBUTION OF HIS INVESTMENT THE ASSESSEE SUBMITTED THAT THE SAME WAS OUT OF DRAWINGS FROM ASSESSEES PROPRIETORSHIP BUSINESS AND PARTLY FROM WITHDRAWALS FROM THE BANK. THIS PLEA OF THE ASSESSEE WAS HOWEVER, REJECTED BY THE AO AND HE BRO UGHT TO TAX A SUM OF RS.3,00,000/- WITH THE OBSERVATION THAT THERE WAS N O DIRECT EVIDENCE TO PROVE THE CLAIM OF THE ASSESSEE. 5. ON APPEAL BY THE ASSESSEE THE CIT(A) UPHELD THE ORDER OF THE AO. THE CIT(A) FOUND THAT THE ASSESSEE HAD CLAIMED THAT THERE WAS SOME WITHDRAWALS MADE IN CASH FROM THE BANK AND OTHER SOURCES BUT THESE WITHDRAWA LS WERE TEN DAYS BEFORE THE DEPOSIT IN M/S ALCHEMIST INFRA REALITY LTD. MOREOV ER NO SUCH EVIDENCE OF WITHDRAWAL WAS FILED AT THE APPELLATE STAGE ALSO BEFORE CIT(A) . IN THESE CIRCUMSTANCES THE CIT(A) FOUND THAT THERE WAS NO MATERIAL FILED BY THE ASSES SEE TO CONTRADICT THE STATEMENT GIVEN AT THE TIME OF SURVEY WHICH WAS SUBSEQUENTLY CONFIR MED IN A STATEMENT RECORDED BY THE AO U/S 131 OF THE INCOME TAX ACT, 1961 (ACT). 6. AGGRIEVED BY THE ORDER OF CIT(A) THE ASSESSEE HA S PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 7. I HAVE HEARD THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE, WHO REITERATED THE SUBMISSIONS AS WERE MADE BEFORE THE REVENUE AUT HORITIES. THE LD. DR RELIED ON THE ORDER OF THE AO AND THE CIT(A). THE CERTIFICATE ISS UED BY M/S.. ALCHEMIST INFRA REALITY LTD EVIDENCING INVESTMENTS IS IN THE JOINT NAMES OF THE ASSESSEE AND HIS WIFE SMT. SANCHITA .KUNDU. SHE IS ASSESSED TO TAX AND HE R PAN NO.AGDPK 1726 A. THE ITA NO.2036/KOL/2017-ALOK KUNDU A.Y.2010-11 3 ASSESSEE HAS BEEN PLEADING BEFORE THE AO AS WELL AS CIT(A) THAT THE ASSESSEE CANNOT BE ASKED TO EXPLAIN 50% OF THE INVESTMENTS IN M/S ALCHEMIST INFRA REALITY LTD. THIS PLEA OF THE ASSESSEE HAS NOT BEEN ACCEPTED BY THE R EVENUE. NO VALID REASONS HAVE BEEN GIVEN TO REJECT THIS PLEA OF THE ASSESSEE. IT MAY B E TRUE THAT IN RESPECT OF 50% OF THE INVESTMENTS VIZ. A SUM OF RS.1,50,000/- THE ASSESSE E IS OBLIGED TO EXPLAIN THE SOURCES. THE ASSESSEE EXPLAINED THE SOURCE AS WITHDRAWAL FRO M PROPRIETORSHIP BUSINESS M/S. A.K ENTERPRISES AND WITHDRAWAL FROM SAVINGS BANK AC COUNT OF AXIS BANK ON 16.01.2010. HE ALSO PLACED RELIANCE ON THE CASH BOO K WHICH REFLECTS THE ABOVE WITHDRAWALS. HOWEVER, NO EVIDENCE WAS FILED TO DEMO NSTRATE THE PLEA OF THE ASSESSEE. THEREFORE I SUSTAIN THE ADDITION MADE BY CIT(A) TO THE EXTENT OF RS.1,50,000/- AND DELETE THE ADDITION MADE IN RESPECT OF THE REMAININ G SUM OF RS.1,50,000/-. THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 8. THE RESULT THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE COUR T ON 03.01.2018. SD/- [ N.V.VASUDEVAN ] JUDICIAL MEMBER DATED : 03.01.2018. [RG SR.PS] COPY OF THE ORDER FORWARDED TO: 1. ALOK KUNDU, 21, KALI PRASAD BANERJEE LANE, HOWRA H-711101. 2. I.T.O., WARD-47(3), KOLKATA 3. C.I.T.(A)-14, KOLKATA 4. C.I.T.-1 6, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE / D.D.O., ITAT KOLKATA BENCHES ITA NO.2036/KOL/2017-ALOK KUNDU A.Y.2010-11 4