ITO, Ward - 3(2), Malda V. Smt. Nanda Sen , Malda

ITA 2152/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9364 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 04-04-2019
• Assessment Year: 2007-2008
• Appeal Filed On: 11-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Audit objection; TDS

Judgement Text

ITA NO. 2152/KOL/2018 ASSESSMENT YEAR: 2007-2008 SMT. NANDA SEN, MALDA 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) I.T.A. NO. 2152/KOL/2018 ASSESSMENT YEAR: 2007-2008 INCOME TAX OFFICER,................................ .................................. APPELLANT WARD-3(2), MALDA, NETAJI COMMERCIAL MARKET, 1 ST FLOOR, MALDA-732101 -VS.- SMT. NANDA SEN, ................................... .................................... RESPONDENT PROP. OF SEN ENTERPRISES, NO.2 GOVERNMENT COLONY, MOKDUMPUR, MALDA-732 101 [PAN: AJCPS 6337 D] APPEARANCES BY: SHRI P.K. MONDAL, ADDL. CIT, SR. D.R. , FOR THE APPELLANT N O N E, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : APRIL 04, 2019 DATE OF PRONOUNCING THE ORDER : APRIL 04, 2019 O R D E R THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST TH E ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS), JALPAIGURI DA TED 04.07.2018 AND THE GROUNDS RAISED THEREIN BY THE REVENUE READ AS U NDER:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN RESTRICTING THE ADDITI ON TO GP RATE OF THE RELEVANT YEAR (14.6%) OF THE DIFFERENCE IN GROSS RECEIPTS OF RS.11,46,345/-. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN RESTRICTING THE ADDITI ON TO GP RATE OF THE RELEVANT YEAR (14.6%) OF THE DIFFERENCE IN GROSS RECEIPTS AS ASSESSEE HAS ALREADY CLAIMED EXPENDITUR E ON THE AMOUNT OF RS. 11,46,345/-, SHE IS NOT ELIGIBLE TO G ET ADDITIONAL BENEFIT OF EXPENDITURE BY CONSIDERING TH E GP OF ABOVE AMOUNT AS INCOME. ITA NO. 2152/KOL/2018 ASSESSMENT YEAR: 2007-2008 SMT. NANDA SEN, MALDA 2 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN APPRECIATING THE FACT THAT THE WHOLE AMOUNT OF RS.11,46,345/- WAS REFLECTED IN HIS 26AS STATEMENT AND THUS, IT BECOMES THE INCOME OF THE SA ID ASST. YEAR. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO IS ENGAGED IN CONTRACTING BUSINESS. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY HER ON 16.11.2007 DECLAR ING TOTAL INCOME OF RS.9,67,070/-. THE SAID RETURN WAS INITIALLY PROCES SED BY THE ASSESSING OFFICER UNDER SECTION 143(1). ON INSPECTION OF THE RELEVANT RECORD, THE AUDIT PARTY FOUND THAT GROSS RECEIPTS FROM CONTRACT AMOUNTING TO RS.11,46,345/- REFLECTED IN 26AS STATEMENT WERE NOT INCLUDED BY THE ASSESSEE IN THE CONTRACT RECEIPTS DECLARED IN THE R ETURN. ON THE BASIS OF THIS AUDIT OBJECTION, THE ASSESSMENT WAS REOPENED B Y THE ASSESSING OFFICER AND SINCE THE ASSESSEE COULD NOT OFFER ANY SATISFACTORY EXPLANATION IN THE MATTER, THE AMOUNT OF RS.11,46,345/- WAS ADD ED BY THE ASSESSING OFFICER TO THE TOTAL INCOME OF THE ASSESSEE IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3)/147 OF THE ACT VIDE AN ORDER D ATED 07.03.2014. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3)/147, AN APPEAL WAS FILED BY THE ASSESSEE BEF ORE THE LD. CIT(APPEALS) AND AFTER CONSIDERING THE SUBMISSIONS MADE BY THE ASSESSEE AS WELL AS THE MATERIAL AVAILABLE ON RECORD, THE LD . CIT(APPEALS) FOUND THAT THE ACTUAL AMOUNTS RECEIVED BY THE ASSESSEE IN SOME OF THE CASES WERE LESS THAN WHAT WAS SHOWN IN THE RELEVANT TDS C ERTIFICATE. HE ACCORDINGLY DIRECTED THE ASSESSING OFFICER TO VERIF Y THIS ASPECT AND ALLOW APPROPRIATE RELIEF TO THE ASSESSEE. THE APPEAL EFFE CT TO THE ORDER OF THE LD. CIT(APPEALS) WAS GIVEN BY THE ASSESSING OFFICER VID E AN ORDER DATED 30.06.2015, WHEREIN HE DID NOT ALLOW ANY RELIEF TO THE ASSESSEE ON THE GROUND THAT THERE WAS NO DOCUMENTARY EVIDENCE PRODU CED BY THE ASSESSEE TO SUPPORT AND SUBSTANTIATE HER CASE. ACCORDING TO THE ASSESSEE, THERE WAS A MISTAKE IN THE ORDER OF THE ASSESSING OFFICER DATED 30.06.2015 IN GIVING EFFECT TO THE ORDER OF THE LD. CIT(APPEALS). SHE, THEREFORE, MOVED ITA NO. 2152/KOL/2018 ASSESSMENT YEAR: 2007-2008 SMT. NANDA SEN, MALDA 3 AN APPLICATION FOR RECTIFICATION UNDER SECTION 154, WHICH WAS ALSO REJECTED BY THE ASSESSING OFFICER. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE AGAIN WENT IN APPEAL BEFORE T HE LD. CIT(APPEALS) AND AFTER CONSIDERING THE SUBMISSIONS MADE BY THE ASSES SEE AS WELL AS THE MATERIAL AVAILABLE ON RECORD, THE LD. CIT(APPEALS) RESTRICTED THE ADDITION OF RS.11,46,345/- TO RS.1,67,366/- BEING GROSS PROF IT @ 14.6% ON THE UNDISCLOSED/UN-RECONCILED CONTRACT RECEIPTS. AGGRIE VED BY THE ORDER OF THE LD. CIT(APPEALS), THE REVENUE HAS PREFERRED THI S APPEAL BEFORE THE TRIBUNAL. 4. AT THE TIME OF HEARING FIXED IN THIS CASE TODAY, NONE APPEARED ON BEHALF OF THE ASSESSEE. THIS APPEAL OF THE REVENUE, THEREFORE, IS BEING DISPOSED OF EX-PARTE QUA THE RESPONDENT-ASSESSEE AFTER HEARING THE ARGUMENTS OF LD. D.R. AND PERUSING THE RELEVANT MAT ERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT THE DIFFERENCE IN GROSS CONTRACT RECEIPTS AS REFLECTED IN THE RELEVANT TDS CERTIFICATES AND AS D ECLARED BY THE ASSESSEE WAS SOUGHT TO BE EXPLAINED BY THE ASSESSEE AS THE D EDUCTIONS MADE BY THE CONCERNED PARTIES FROM THE CONTRACT BILLS ON VARIOU S GROUNDS. WHEN THE LD. CIT(APPEALS) IN THE FIRST ROUND OF LITIGATION D IRECTED THE ASSESSING OFFICER TO VERIFY THE CLAIM OF THE ASSESSEE, THE AS SESSING OFFICER DID NOT ACCEPT THE SAME FOR WANT OF THE RELEVANT DETAILS AN D DOCUMENTS. WHEN THE MATTER WAS AGAIN CARRIED TO THE LD. CIT(APPEALS) BY THE ASSESSEE, THE LD. CIT(APPEALS) HELD BY HIS IMPUGNED ORDER THAT THE EN TIRE RECONCILED DIFFERENCE IN CONTRACT RECEIPTS COULD NOT BE TREATE D AS INCOME OF THE ASSESSEE AND IT WOULD BE FAIR AND REASONABLE TO MAK E THE ADDITION ONLY TO THE EXTENT OF GROSS PROFIT @ 14.6% ON SUCH GROSS RE CEIPTS. KEEPING IN VIEW ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, I FIND THAT A FAIR AND REASONABLE APPROACH HAS BEEN ADOPTED BY THE LD. CIT (APPEALS) WHILE DECIDING THIS ISSUE AND EVEN THE LD. D.R. HAS NOT B EEN ABLE TO POINT OUT ANY INFIRMITY IN THE SAID APPROACH ADOPTED BY THE L D. CIT(APPEALS) CALLING FOR ANY INTERFERENCE. I, THEREFORE, FIND NO JUSTIFI ABLE REASON TO INTERFERE ITA NO. 2152/KOL/2018 ASSESSMENT YEAR: 2007-2008 SMT. NANDA SEN, MALDA 4 WITH THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) AND UPHOLDING THE SAME, I DISMISS THIS APPEAL FILED BY THE REVENUE. 5. IN THE RESULT, THE APPEAL BY THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON APRIL 04, 201 9. SD/- (P.M. JAGTAP) VICE-PRESIDENT (KZ) KOLKATA, THE 4 TH DAY OF APRIL, 2019 COPIES TO : (1) INCOME TAX OFFICER, WARD-3(2), MALDA, NETAJI COMMERCIAL MARKET, 1 ST FLOOR, MALDA-732101 (2) SMT. NANDA SEN, PROP. OF SEN ENTERPRISES, NO.2 GOVERNMENT COLONY, MOKDUMPUR, MALDA-732 101 (3) COMMISSIONER OF INCOME TAX (APPEALS), JALPAIGUR I, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.