Subrata Dey, Burdwan V. ITO, Ward-1(3), Burdwan, Burdwan

ITA 2117/KOL/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6496 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 03-11-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Bogus loan
• Section: 142(1); 131; 144

Judgement Text

1 ITA NO.2117/KOL/2016 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, KOLKATA BEFORE: SHRI M. BALAGANESH, ACCOUNTANT MEMBER, AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO. 2117/KOL/2016 A.Y 2011-12 SUBRATA DEY VS. I.T.O., WARD 1 (3) PAN: ACTPD5143J BURDWAN (APPELLANT) (RESPONDENT) APPEARANCES BY : SHRI SOUMITRA CHOUDHURY, ADVOCATE, LD.AR SHRI SALLONG YADEN, ADDL. CIT, LD.DR DATE OF HEARING : 06-02-2018 DATE OF PRONOUNCEMENT : 25-04-2018 O R D E R SHRI S.S. VISWANETHRA RAVI, JM :- THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS), BURDW AN DATED 30-08- 2016 FOR THE ASSESSMENT YEAR 2011-12. 2. THE LD. AR SUBMITS THAT THE AO COMPLETED THE AS SESSMENT TO THE BEST OF HIS JUDGMENT U/S. 144 OF THE ACT AND REFERR ED TO PARAS 4,6,7,8,9,10 & 11 OF ORDER AND ARGUED THAT NO OPPOR TUNITY WAS GIVEN TO ASSESSEE TO PARTICIPATE IN ASSESSMENT PROCEEDINGS. THE AO MADE THE ADDITIONS FOR NON SUBMISSION OF EXPLANATION AND NON FILING OF DOCUMENTARY EVIDENCE, BESIDES, ESTIMATED THE PROFIT ON PRESUMPTIVE BASIS. 2 ITA NO.2117/KOL/2016 3. THE CIT-A CONFIRMED ALL THE ADDITIONS MADE BY T HE AO WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE . THE LD. AR PRAYED TO REMAND THE MATTER TO THE FILE OF THE AO FOR HIS FRESH CONSIDERATION. 4. THE LD. DR SUBMITS THAT THE AO HAS GIVEN MANY OP PORTUNITIES TO THE ASSESSEE TO SUBSTANTIATE HIS CLAIM AND HE FAIL ED TO APPEAR BEFORE THE AO WITH ALL DETAILS AS REQUIRED BY THE AO. THE ASSESSEE DID NOT EVEN APPEAR IN RESPONSE TO NOTICE ISSUED U/S. 274 AND 13 1 OF THE ACT. THE AO RIGHTLY MADE THE IMPUGNED ADDITIONS BASING ON MA TERIAL ON RECORD AND COMPLETED THE IMPUGNED ASSESSMENT U/S. 144 OF T HE ACT. THE CIT-A WAS FULLY JUSTIFIED IN CONFIRMING ALL THE ADDITIONS MADE BY THE AO AS THE ASSESSEE FAILED TO BRING ON RECORD ANY EVIDENCE IN SUPPORT OF HIS CONTENTION EITHER IN APPELLATE PROCEEDINGS OR REMAN D PROCEEDINGS. HE REFERRED TO PAGE 4 OF THE ORDER OF THE CIT-A AND RE LIED ON THE ORDERS OF THE AO & CIT-A. HE OBJECTED TO THE SUBMISSIONS OF T HE LD.AR IN REMANDING THE MATTER TO THE FILE OF AO FOR HIS VERI FICATION. 5. HEARD RIVAL SUBMISSIONS AND PERUSED THE RECORD. WE FIND THAT GROUND NO. 1 RAISED BEFORE US IS IN RESPECT OF CONF IRMATION BY THE CIT-A OF ADDITION MADE ON ACCOUNT OF TRADE CREDITORS AND ESTIMATION OF PROFIT AT 8%. GROUND NO. 2 IN RESPECT OF CONFIRMATION OF A DDITION ON ACCOUNT OF LOAN, WHICH SAID TO HAVE BEEN AVAILED BY THE ASSESS EE. GROUND NO. 3 IS RELATING TO CONFIRMATION OF ADDITION ON ACCOUNT OF INVESTMENTS MADE FROM UNDISCLOSED SOURCES WITHOUT REJECTING THE BOOK S OF ACCOUNT. ON PERUSAL OF THE ORDER OF THE AO, IT IS CLEAR THAT TH ERE WAS NO ASSISTANCE WHATSOEVER OF ASSESSEE IN THE ASSESSMENT PROCEEDING S, THEREBY RESULTED THE ADDITIONS. ON PERUSAL OF ORDER OF CI T-A, WE FIND THAT THE ASSESSEE COULD NOT PARTICIPATE IN THE FIRST APPELL ATE PROCEEDINGS. WE NOTE THAT THE AO ISSUED NOTICES U/S. 143(2) & 142(1 ) OF THE ACT DT. 1-8- 3 ITA NO.2117/KOL/2016 2012 & 6-12-2013 RESPECTIVELY TO ASSESSEE. ACCORDIN G TO AO, HE SOUGHT CERTAIN DETAILS I.E PURCHASE AND SALE REGISTER, CAS H BOOK, STOCK REGISTER AND NAMES AND COMPLETE ADDRESSES OF TRADE CREDITORS AND DETAILS OF LOANS AND ADVANCES. THE AR REPRESENTING THE ASSESS EE APPEARED, BUT FILED NOTHING EXCEPT POWER OF ATTORNEY/POWER OF AUT HORIZATION. THEREAFTER, THE AO ISSUED TWO LETTERS DT. 03-02-201 4 & 26-02-2014 TO ASSESSEE REGARDING THE SUBMISSIONS OF DETAILS AS R EQUIRED BY HIM UNDER NOTICES ISSUED U/S. 143(2) & 142(1) OF THE ACT. IT IS CLEAR FROM ASSESSMENT ORDER THAT THE ASSESSEE DID NOT APPEAR B EFORE THE AO, EVEN IN RESPONSE TO SHOW CAUSED DT. 11-02-2014 FIXING TH E DATE OF HEARING ON 18-03-2014. THE AO MADE THE FOLLOWING ADDITIONS IN ABSENCE OF ASSESSEE:- 1. TRADE CREDITORS AMOUNTING TO RS.13,55,000/- ON ACCOUNT OF THERE BEING NO EVIDENCE PROVIDED BY THE APPELLANT AND HENCE UNCONF IRMED. 2. BUSINESS PROFIT ESTIMATED ON PRESUMPTIVE BASIS U PON A TURNOVER OF RS.1,32,56,430/- COMING TO RS.10,60,514/- 3. CASH DEPOSITS IN THE UNDISCLOSED C/A ACCOUNT WIT H SBBI SUREKALNA BRANCH AMOUNTED TO RS.82,55,660/-. UPON THIS AMOUNT, THE P RESUMPTIVE RATE OF 1% WAS APPLIED LEADING TO AN ADDITION OF RS.6,60,453/- . 4. CLOSING BALANCE IN TWO OF THE APPELLANTS ACCOUN TS AMOUNTED TO RS.31,431/-. THE AMOUNT SHOWN BY THE APPELLANT IN HIS AUDITED BA LANCE SHEET, HOWEVER, WAS RS.13,632/-. THE DIFFERENCE OF THE TWO AMOUNTS RS.1 7,799/- WAS ADDED BACK. 5. A LOAN OF RS.9,50,000/-, PURPORTED TO HAVE BEEN RECEIVED FROM THE APPELLANTS WIFE WAS NOT SUBSTANTIATED WITH ANY MATERIAL. THIS AMOUNT WAS ADDED BACK AS BOGUS LOAN. 6. INVESTMENTS TO THE TUNE OF RS.23,91,06/- PURPORT ED TO HAVE BEEN MADE IN BHOLA SHANKAR COLD STORAGE AND MUKTAKESHI WERE NOT SUPPORTED BY ANY MATERIAL TO SHOW THEIR SOURCE. THE SAME WERE THEREF ORE ADDED BACK TO THE INCOME OF THE APPELLANT. THE ABOVE ADDITIONS MADE BY THE AO SUGGESTS THAT T HERE WAS NO OPPORTUNITY TO THE ASSESSEE DURING THE COURSE OF AS SESSMENT PROCEEDINGS AND THE ESTIMATED THE NET PROFIT AND MADE THE ADDITIONS OF PRESUMPTIVE BASIS. 6. ON PERUSAL OF THE ORDER OF THE CIT-A, WHICH IS I MPUGNED BEFORE US AND WHICH GOES TO SHOW THAT THE ASSESSEE COULD NOT ESTABLISH THE GENUINENESS OF THE CREDITORS AND CREDITWORTHINESS O F LOAN CREDITOR I.E. WIFE OF ASSESSEE AND FOR NON PRODUCTION OF COGENT M ATERIAL IN RESPECT OF 4 ITA NO.2117/KOL/2016 OF INVESTMENT. BEFORE US THE LD.AR UNDERTAKES THAT THE ASSESSEE MAY BE GRANTED AN OPPORTUNITY. IN VIEW OF THE FACT THAT TH E AO DETERMINED THE PROFIT ON PRESUMPTIVE BASIS AND THE ADDITIONS MADE ON DIFFERENT HEADS, WHICH ARE NOT AT ALL MAINTAINABLE IN THE EYE OF LAW . WE FIND FORCE IN THE SUBMISSIONS OF THE LD.AR. WE FIND THAT THE PROFITS ARE DETERMINED ON PRESUMPTIVE BASIS AND ADDITIONS MADE ON DIFFERENT H EADS ON PRESUMPTIVE BASIS, WHICH TANTAMOUNT THE DOUBLE ADDI TIONS/TAXATION ON SAME RECEIPTS. THEREFORE, TAKING INTO CONSIDERATIO N THE FACTS AND CIRCUMSTANCES OF THE CASE, SUBMISSIONS OF ASSESSEE AND IN THE INTEREST OF JUSTICE, WE DEEM IT FIT AND PROPER TO REMAND THE ISSUES INVOLVED IN THE APPEAL OF ASSESSEE TO THE FILE OF AO FOR HIS FR ESH CONSIDERATION AND TO MAKE ASSESSMENT DENOVO, AFTER TAKING INTO CONSID ERATIONS THE SUBMISSIONS OF ASSESSEE. THE ASSESSEE IS AT LIBERTY TO FILE NECESSARY EVIDENCES, IN SUPPORT OF HIS CLAIM AND CONTENTIONS. THE ASSESSEE IS ALSO DIRECTED NOT TO SEEK ANY ADJOURNMENT BEFORE THE AO. HE SHALL COOPERATE THE AO IN THE ASSESSMENT PROCEEDINGS BY FILING REQU IRED EVIDENCES IN SUPPORT OF HIS CLAIM AND SUBMISSION. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 25-04- 2018 SD/- SD/- M. BALAGANESH S.S.VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:25-04-2018 5 ITA NO.2117/KOL/2016 1. THE APPELLANT/ ASSESSEE: SHRI SUBRATA DEY, NANDARAMBATI, P.O SUREKALNA, BURDWAN-713408. 2 . THE RESPONDENT/DEPARTMENT: THE INCOME TAX OFFICER, WARD 1(3), BURDWAN, AAYKAR BHAWAN, COURT COMPOUND, BURDWAN- 713101. 3. CIT 4. CIT(A) 5. THE DEPARTMENTAL REPRESENTATIVE 6. GUARD FILE TRUE COPY BY ORDER SR.PS/H.O.O,IT AT,KOLKATA ITAT KOLKATA * PRADIP SPS COPY OF THE ORDER FORWARDED TO:-