Pradip Bardhan, Kolkata V. ITO, Ward - 33(3), Kolkata, Kolkata

ITA 2071/KOL/2009

• Counselvise Citation: [2013] 119 COUNSELVISE.COM (IT) 2939 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2013
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 07-12-2009
• Court: TRIBUNAL
• Section: 143(3); 133(6)

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE . . . . . . . . , /AND ! '! , ) [BEFORE SHRI P. K. BANSAL, AM & SHRI MAHAVIR SINGH, JM] # # # # / I.T.A NO. 2071/KOL/2009 '$% &' '$% &' '$% &' '$% &'/ // / ASSESSMENT YEAR: 200 6- 0 7 PRADIP BARDHAN VS. INCOME-TAX OFFICER, WD-33( 3), KOLKATA (PAN:ADXPB4496K) ()* /APPELLANT ) (+,)*/ RESPONDENT ) DATE OF HEARING: 20.03.2013 DATE OF PRONOUNCEMENT: 20.03.2013 FOR THE APPELLANT: SHRI SUBASH AGARWAL, ADVO CATE FOR THE RESPONDENT: SHRI SANJAY MUKHERJEE, SR. DR - / ORDER PER BENCH: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A) - XX, KOLKATA IN APPEAL NO. 387/CIT(A)-XX/WD.33(3)/08-09/KOL DATED 10.09.2009. ASSESSMENT WAS FRAMED BY ITO, WARD-33(3), KOLKATA U/S. 143(3) OF THE INCOME-TAX A CT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2006-07 VIDE HIS ORDER DA TED 29.12.2008. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AG AINST THE ASSESSMENT AND THEREAFTER CONFIRMATION BY CIT(A) OF ADDITION OF CONTRACTUAL R ECEIPT OF RS.52,67,280/- FROM SSKM HOSPITAL. FOR THIS, ASSESSEE HAS RAISED FOLLOWING GROUNDS: FOR THAT THE LD. CIT(A) IS NOT AT ALL JUSTIFIED FO R CONFIRMING THE ORDER OF THE ITO, WARD- 33(3). FOR THAT, THE ORDER OF ITO, WARD-33(3) FOR CLUBBING THE INCOME OF PRADIP BARDHAN HAVING PAN:ADXPB4496K THE RECEIPT OF M/S. BARDHAN ENTERPRI SE HAVING PAN:AAJFB0950D HAS NO BASIS AND WITHOUT ANY JUSTICE BUT THE SAME H AS BEEN UPHELD BY THE CIT(A) WHICH IS ILLEGAL AND UNJUSTIFIED IN THE FACTS AND CIRCUMSTAN CES OF THE CASE. FOR THAT THE ORDER OF THE CIT(A IS OTHERWISE BAD. FOR THAT THE DOUBTFUL ADDITION MAY BE DELETED OR AS SESSMENT MAY BE CANCELLED FOR FRESH ASSESSMENT FOR THE GOOD ADJUDICATION OF THE CASE AN D FAIR JUSTICE. 3. BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR 2006-07 ON 16.11.2006 DECLARING TOTAL INCOME AT RS.1,92,762/-. SUBSEQUENTLY, ASSESSMENT WAS FRAMED U/S. 143(3) OF THE ACT BY ISSUING NOTICE U/S. 143(2) OF THE ACT. THE ASSESSEE IS A PROPRIETOR OF M/S. BARDHAN ENTERPRISES AND DERIVES INCOME FROM CONTRACTUAL RECEIPTS. THE ASSESSEE HAS DISCLOSED T OTAL INCOME BY DEEMING THE PROFIT RATE @ 5% 2 ITA NO.2071/K/2009 PRADIP BARDHAN 2006-07 ON THE GROSS RECEIPTS. BUT ACCORDING TO AIR (INFOR MATION) RECEIVED BY THE AO, DURING THE PREVIOUS YEAR 2005-06 RELEVANT TO THIS ASSESSMENT Y EAR 2006-07, THE ASSESSEE, NAMELY, MR. PRADIP BARDHAN RECEIVED A SUM OF RS.34,84,131/- AS CONTRACTUAL RECEIPTS FROM SSKM HOSPITAL, BHAWANIPUR. BUT THIS RECEIPT WAS NOT DISCLOSED IN THE RETURN OF INCOME FOR AY UNDER CONSIDERATION OR IN THE COMPUTATION OF INCOME FILED . THE ASSESSEE FILED EXPLANATION THAT EVERY CHEQUE, DEMAND DRAFT, PAYMENT IS INCLUDED IN THE GR OSS RECEIPT BUT THE AO ISSUED NOTICE U/S. 133(6) OF THE ACT TO SSKM HOSPITAL, KOLKATA REGARDI NG THE DETAILS OF TRANSACTION/RECEIPTS DURING THE PREVIOUS YEAR 2005-06 BY THE ASSESSEE. IT WAS INFORMED BY SSKM HOSPITAL VIDE ITS MEMO NO. SSKM/ACCTT/2008/2607 DATED 16.12.2008 THAT THE TOTAL RECEIPTS WAS RS.52,67,280/-. AS THE ASSESSEE FAILED TO GIVE ANY EXPLANATION, THE AO INCLUDED THE CONTRACTUAL RECEIPT OF RS.52,67,280/- IN HIS TOTAL INCOME BY GI VING FOLLOWING FINDING: FROM THE AFORESAID FACTS AND DISCUSSION IT IS EVI DENT THAT THE ASSESSEE FAILED TO EXPLAIN THE REASONS OF NON-INCLUDING THE SAID CONTRACTUAL R ECEIPTS OF RS.52,67,280/- FROM SSKM HOSPITAL EVEN AFTER GIVING HIM SUFFICIENT OPPORTUNI TY. HENCE THE EXPLANATION OF THE ASSESSEE IS BEING REJECTED AND THE SAID AMOUNT OF R S.52,67,280/- IS BEING ADDED INTO THE COMPUTATION OF TOTAL INCOME OF THE ASSESSEE AS HIS UNDISCLOSED/UNRECORDED INCOME. 4. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT( A), WHO CONFIRMED THE ACTION OF AO VIDE PARA 3.3 OF HIS ORDER AS UNDER: 3.3. I HAVE PERUSED THE ASSESSMENT ORDER AND THE R EMAND REPORT. I HAVE ALSO CONSIDERED THE SUBMISSION OF THE APPELLANT. I FIND THAT THE AO HAS BROUGHT SUFFICIENT MATERIAL ON RECORD TO SHOW THAT CONTRACTUAL RECEIPT OF RS.52,67,280/- PERTAIN TO THE APPELLANT. THE AIR INFORMATION CLEARLY MENTIONS TH E PAN OF THE APPELLANT. SSKM HOSPITAL HAS ALSO CONFIRMED THAT THE CONTRACTUAL RE CEIPTS PERTAIN TO THE APPELLANT AND HIS PAN HAS ALSO BEEN MENTIONED. ON THE OTHER HAND, THE APPELLANT HAS FAILED TO BRING ANY MATERIAL OR EVIDENCE ON RECORD TO SUGGEST THAT THE CONTRACTUAL RECEIPTS OF RS.52,67,280/- WERE NOT RELATED TO THE APPELLANT AN D THAT THEY PERTAIN TO THE FIRM M/S. BARDHAN ENTERPRISES. EVEN DURING THE COURSE OF REM AND PROCEEDINGS, THE APPELLANT FAILED TO FILE ANY DOCUMENTARY EVIDENCE IN SUPPORT OF HIS CONTENTIONS. I FIND NO REASON TO INTERFERE WITH THE ORDER OF THE AO, WHICH IS UPHELD. THE GROUNDS RAISED BY THE APPELLANT ARE DISMISSED. AGGRIEVED, NOW ASSESSEE IS APPEAL BEFORE US. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT ADMITTED FACTS ARE ASSESSEE HAS RECEIV ED UNDISCLOSED CONTRACTUAL RECEIPTS OF RS.52,67,280/- FROM SSKM HOSPITAL AS INFORMED UNDER INTIMATION U/S. 133(6) OF THE ACT. THE LD. COUNSEL FOR THE ASSESSEE ADMITTED THIS FACT. H OWEVER, LD. COUNSEL FOR THE ASSESSEE STATED THAT IN DECIDING THE ADDITION BASED ON SUPPRESSION DETECTED, THE NATURE OF THE BUSINESS, THE SEASONS OF THE BUSINESS AND VARIOUS OTHER CIRCUMSTA NCES HAVE TO BE WEIGHED AND THEN PROFIT RATE SHOULD BE APPLIED. LD. COUNSEL STATED THAT THE PAS T HISTORY OF THE ASSESSEE IS THAT ONLY 4-5% OF NET PROFIT OF THE TOTAL TURNOVER IS DECLARED AND AC CEPTED BY REVENUE. LD. COUNSEL ALSO STATED 3 ITA NO.2071/K/2009 PRADIP BARDHAN 2006-07 THAT THERE INCLUDES IN THE TOTAL TURNOVER OF THE AS SESSEE THE COST OF SUPPLY OF STORES/MATERIALS AND THERE IS NOT EVEN A THEORETICAL POSSIBILITY OF ANY ELEMENT OF PROFIT BEING INVOLVED IN THE TURNOVER REPRESENTED BY THE COST OF SUCH STORES/MATERIALS. IN VIEW OF THIS, LD. COUNSEL STATED THAT A REASONABLE PROFIT BE ESTIMATED. WE ARE IN AGREEMEN T WITH THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE THAT COST OF STORES/MATERIALS CANNOT H AVE THE ELEMENT OF PROFIT AND ALSO THE NATURE OF BUSINESS AND OTHER CIRCUMSTANCES ARE TO BE CONSIDER ED WHILE APPLYING PROFIT RATES. IT IS A FACT THAT THE ASSESSEE IS IN THE BUSINESS OF SUPPLY OF M ATERIAL TO HOSPITALS. THE TOTAL UNDISCLOSED RECEIPTS IS TO THE TUNE OF RS.52,67,280/- AND ASSES SEE HAS NOT PAID ANY GOVERNMENT TAXES FOR PROCUREMENT OF SUPPLY AND EVEN ON SUPPLY OF THE MAT ERIALS. IT MEANS THAT THERE IS HIGHER NET PROFIT EARNED BY ASSESSEE AND IN SUCH CIRCUMSTANCES , WE ESTIMATE THE NET PROFIT AT 10% AND NOT AT 5% AS ARGUED BY LD. COUNSEL FOR THE ASSESSEE. W E DIRECT THE AO TO RECOMPUTE THE ADDITION BY APPLYING 10% OF UNDISCLOSED RECEIPTS AND DETERMI NE TOTAL INCOME ACCORDINGLY. 6. IN THE RESULT, APPEAL OF ASSESSEE IS PARTLY ALLO WED. 7. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- . . . . . . . . , ! ! ! ! '! '! '! '! , (P. K. BANSAL) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( . . . .) )) ) DATED : 20TH MARCH, 2013 /0 '$12 '3 JD.(SR.P.S.) 4 ITA NO.2071/K/2009 PRADIP BARDHAN 2006-07 - 4 +''5 65&7- COPY OF THE ORDER FORWARDED TO: 1 . )* / APPELLANT SHRI PRADIP BARDHAN,40, RAJANI GUPTA RO W, KOLKATA-700 009. 2 +,)* / RESPONDENT ITO, WARD-33(3), KOLKATA. 3 . '-$ ( )/ THE CIT(A), KOLKATA 4. 5. '-$ / CIT KOLKATA 5 <'= +'$ / DR, KOLKATA BENCHES, KOLKATA ,5 +'/ TRUE COPY, -$>/ BY ORDER, ! 2 /ASSTT. REGISTRAR .