Dr. Pranab Kumar Das, Kolkata V. ACIT, Circle - 55, Kolkata, Kolkata

ITA 2040/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48113 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2011
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 12-11-2010
• Court: TRIBUNAL
• Department Lawyers: PURKAYASTHA
• Assessee Lawyers: MANOJ KR PAUL
• Keywords: Unexplained expenditure
• Section: 69

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH C, KOLKATA () BEFORE , , , , , SHRI MAHAVIR SINGH, JUDICIAL MEMBER. /AND ! ! ! ! , '# SHRI AKBER BASHA, ACCOUNTANT MEMBER $ $ $ $ / ITA NO S. 2040-2042 /KOL/2010 %& '(/ ASSESSMENT YEARS : 2004-05, 2005-06 & 2006-07 (*+ / APPELLANT ) DR.PRANAB KUMAR DAS (PAN: ADIPD 8254 C) - % - - VERSUS - . (-.*+/ RESPONDENT ) THE A.C.I.T., CIRCLE-55, KOLKATA *+ / 0 '/ FOR THE APPELLANT: SHRI MANOJ KR.PAUL -.*+ / 0 '/ FOR THE RESPONDENT: SHRI PURKAYASTHA '! / ORDER 12 12 12 12 PER BENCH THESE APPEALS BY THE ASSESSEE ARE AGAINST SEPARATE ORDERS DATED 22.10.2010 OF THE CIT (A)-XXXVI, KOLKATA PERTAINING TO ASSESSMENT YEARS 2004-05, 2005-06 AND 2006-07. ITA NO.2040/KOL/2010 (A.YR.2004-05): 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS UNDER :- THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED C.I.T.(APPEALS)-XXXVI, KOLKATA GROSSLY ERRED IN LAW IN HOLDING THAT THE FACTS AND CONTENTS OF THE JUDGEMENTS IN THE CASE OF I.T.O .B.WARD, VIJAYAWADA VS. VIJAY BEER & WINES (ITAT) AND ADDL. C.I.T. VS. RAM KRIPAL TRIPATHI LUCKNOW REPORTED IN 125 ITR 408 WERE CLEARLY APPLICABLE IN THE APPELLANTS CASE AND IN THAT VIEW CONFIRMING THE ADDITION OF RS.70,000/- U/ S 28 (IV). 2. THAT YOUR APPELLANT RESERVES THE RIGHT TO RAISE/ PLACE ANY OTHER GROUND IN COURSE OF HEARING. 2 3 . FIRST WE WILL TAKE UP THE APPEAL OF THE ASSESSE E IN ITA NO.2040/KOL/2010 FOR ASSESSMENT YEAR 2004-05. 4 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE FILED RETURN OF INCOME FOR ASSESSMENT YEAR 2004-05 DISCLOSING TOTAL INCOME OF RS.4,81,341/-. THE ASSESSEE BY PROFESSION IS A MEDICAL PRACTITIONER. THE ASSESSMEN T WAS COMPLETED UNDER SECTION 143(3)/147 OF THE ACT. THE ASSESSING OFFICER MADE T HE ADDITIONS AS UNEXPLAINED EXPENDITURE RS.1,76,500/- TOWARDS PAYMENT TO THE ME DICAL COLLEGE FOR EDUCATION OF HIS SON AND RS.70,000/- TOWARDS ESTIMATION OF INCOM E TOWARDS HIS FOREIGN TOUR TO EGYPT IN DELIVERING LECTURES AS HIS INCOME UNDER S ECTION 28(IV) OF THE ACT. AGGRIEVED BY ORDER OF THE ASSESSING OFFICER THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A). THE CIT(A) DELETED THE ADDITION MADE ON ACCOUNT OF SON S EDUCATION OF RS.1,76,500/-. HOWEVER, HE CONFIRMED THE ADDITION OF RS.70,000/- M ADE BY THE ASSESSING OFFICER UNDER THE PROVISION OF SECTION 28(IV) OF THE ACT. A GGRIEVED FURTHER THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE TRAVELED TO EGYPT ON BEHALF OF M/S. CADILA HEALTHCARE LTD. FROM 25.08.2004 TO 29.08.2004. THE ASSESSING OFFICER MADE THE ADDITION OF RS.70,000/- AS PER THE PROVISION OF SECTION 28(IV) OF THE ACT. IT IS SUBMITTED THAT SINCE THE A SSESSEE TRAVELED TO EGYPT FROM 25.08.2004 TO 29.08.2004 WHICH WAS INCURRED IN THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 2005-06 AND NOT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. HENCE, IT IS PRAYED FOR DELETION OF SUCH ADDITION IN THE H ANDS OF THE ASSESSEE. THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDERS OF LOWER AUTHORITIES. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ASSESSEE HAS ACTUALLY T RAVELED TO EGYPT ONLY FROM 25.08.2004 TO 29.08.2004 AND THE SAME WAS INCURRED IN THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 2005-06 AND NOT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. IF AT ALL ANY ADDITION IS TO BE MADE THE SAME SHOULD BE MADE ONLY FOR THE ASSESSMENT YEAR 2005-06. UNDER THE CIRCUMSTANCES, WE FIND THAT THE LOWER AUTHORITIES IS NOT CORRECT IN 3 BRINGING THE SAID INCOME UNDER THE PROVISIONS OF SE CTION 28(IV) OF THE ACT IN THE ASSESSMENT YEAR UNDER CONSIDERATION. HENCE, WE REVE RSE THE ORDERS OF THE LOWER AUTHORITIES ON THIS ISSUE AND ALLOW THE APPEAL OF T HE ASSESSEE. 7. NOW WE WILL TAKE UP ITA NO.2041/KOL/2010 OF THE ASSESSEE. 8. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS UNDER :- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE LEARNED CIT(APPEALS)-XXXVI, KOLKATA GROSSLY ERRED IN CONFIR MING ADDITION OF RS.1,96,750/- U/S 69 OF THE IT ACT, 1961 REPRESENTI NG PART OF TOTAL TUITION FEES PAID TO BHARATI VIDYAPEETH, A DEEMED UNIVERSITY AT PUNE TOWARDS EDUCATIONAL EXPENSES OF HIS SON. THAT YOUR APPELLANT RESERVES THE RIGHT TO RAISE/PLA CE ANY OTHER GROUND IN COURSE OF HEARING. 9. AT THE OUTSET, WE FIND THAT SIMILAR KIND OF ADDI TION WAS DELETED BY THE CIT(A) FOR THE ASSESSMENT YEAR 2004-05 AND WHEREAS FOR ASS ESSMENT YEAR 2005-06 SIMILAR ADDITION HAS BEEN CONFIRMED. IT IS A CASE OF THE DE PARTMENT THAT THE ASSESSEE HAS WITHDRAWN A SUM OF RS.17,15,831/- FOR HIS PERSONAL EXPENSES. HOWEVER, AFTER CONSIDERING OF THE EXPENSES RELATED TO THE DAUGHTER S MARRIAGE AND INVESTMENT IN LIC AND HOUSE PROPERTY AND PERSONAL EXPENDITURE ETC., T HE ASSESSEE IS NOT HAVING ANY SOURCE FOR THE PAYMENT OF TUITION FEES TO HIS SON. HENCE, THE TUITION FEES PAID BY THE ASSESSEE FOR HIS SON TO THE TUNE OF 1,96,750/-FROM HIS UNDISCLOSED SOURCES. IT IS A CASE OF THE ASSESSEE THAT AS PER HIS RECONCILIATION STAT EMENT FILED ON 21.10.2010 THE ASSESSEE HAS GOT SUFFICIENT SOURCES FOR THE PAYMENT OF TUITI ON FEES. HENCE, THE ADDITION OF RS.96,750/- MADE BY THE LOWER AUTHORITIES UNDER SEC TION 69 OF THE ACT IS NOT TENABLE. 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIALS AVAILABLE ON RECORD. AFTER CONSIDERING THE TOTALITY OF THE FA CTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE ASSESSEE HAS FILED ONE BREAK-UP STATE MENT ON 13.10.2010 AND 21.10.2010 THE ASSESSEE COULD NOT EXPLAIN WHY THEY HAVE BEEN S HOWN DIFFERENT FIGURES AT DIFFERENT TIMES. HOWEVER, WE ALSO FIND THAT THE DEP ARTMENT HAS BROUGHT NOTHING ON RECORD CLEARLY TO SHOW THAT THE ASSESSEE HAS PAID T HE TUITION FEES FOR HIS SON OF 4 RS.1,96,750/- FROM HIS UNDISCLOSED SOURCES. IN VIEW OF THE ABOVE, ENDS OF JUSTICE WOULD BE MET, IF WE RESTRICT THE DISALLOWANCE TO 50 % OF THE ADDITION MADE BY THE ASSESSING OFFICER. WE DO ACCORDINGLY. 11. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ITA NO.2042/KOL/2010 (A.YR.2006-07): 12. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE AR E AS UNDER :- THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED C.I.T.(APPEALS)-XXXVI, KOLKATA GROSSLY ERRED IN LAW IN HOLDING THAT THE FACTS AND CONTENTS OF THE JUDGEMENTS IN THE CASE OF I.T.O .B.WARD, VIJAYAWADA VS. VIJAY BEER & WINES (ITAT) AND ADDL. C.I.T. VS. RAM KRIPAL TRIPATHI LUCKNOW REPORTED IN 125 ITR 408 WERE CLEARLY APPLICABLE IN THE APPELLANTS CASE AND IN THAT VIEW CONFIRMING THE ADDITION OF RS.1,30,000/- U/S 28 (IV). 2. THAT YOUR APPELLANT RESERVES THE RIGHT TO RAISE/ PLACE ANY OTHER GROUND IN COURSE OF HEARING. 13. SIMILAR IDENTICAL ISSUES WERE RAISED IN ITA NO. 2040/KOL/2010 FOR ASSESSMENT YEAR 2004-05. THE ONLY DIFFERENCE HERE IS THAT WHET HER THE PAYMENT IS RELATED TO THE PREVIOUS YEAR OR NOT. WE FIND THAT THE ASSESSING OF FICER HAS MADE ADDITION OF RS.70,000/- WHICH WAS SPENT BY M/S.SUPIN LTD. TOWAR DS ARRANGEMENT OF TICKETS, CONVEYANCE, STAY AND HOSPITALITY FOR TRIP TO SINGAP ORE. AGAIN AN AMOUNT OF RS.60,000/- WAS ESTIMATED AND MADE ADDITION AS INCO ME OF THE ASSESSEE UNDER SECTION 28(IV) OF THE ACT OF RS.60,000/- FOR HIS TRAVEL TO EGYPT AS THE COMPANY HAD NOT DISCLOSED THE EXACT FIGURES. SINCE WE FIND THE AMOU NT BEING A MEAGER AMOUNT AND ALSO CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTA NCES OF THE CASE, ENDS OF JUSTICE WOULD BE MADE, IF WE RESTRICT THE ADDITION TO 50% O F RS.1,30,000/- MADE BY THE ASSESSING OFFICER. THE ASSESSEE WILL GET RELIEF A S UM OF RS.65,000/-. 14. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. 5 15. IN THE RESULT ITA NO.2040/KOL/2010 OF THE ASSES SEE IS ALLOWED, ITA NO.2041/KOL/2010 AND ITA NO.2042/KOL/2010 ARE PARTL Y ALLOWED ORDER PRONOUNCED IN THE OPEN COURT ON 03.05.2011. SD/- SD/- , , , , MAHAVIR SINGH, JUDICIAL MEMBER ! ! ! !, ,, , '# '# '# '# , AKBER BASHA, ACCOUNTANT MEMBER. ( (( (3# 3# 3# 3#) )) ) DATE: 03.05 .2011. '! / -8 9'8':- COPY OF THE ORDER FORWARDED TO: 1. DR.PRANAB KUMAR DAS, 115, INDRA BISWAS ROAD, KOLKA TA-700037. 2 THE A.C.I.T., CIRCLE-55, KOLKATA 3. THE CIT, 4. THE CIT(A)-XXXVI, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA .8 -/ TRUE COPY, '!%=/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES R.G.(.P.S.)