ITO, Puri V. Sanjeeb Kumar Sahoo, Puri

ITA 218/CTK/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3759 (ITAT-CUTTACK)
• Duration Of Justice: 2 year(s) 1 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-07-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 07-05-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: B R PANDA
• Keywords: Unexplained investment; Business income
• Section: 142(1)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PAV AN KUMAR GADALE, JM ./ ITA NO. 204 / CTK /20 1 5 ( / ASSESSMENT YEAR : 20 09 - 20 1 0 ) SRI SANJEEB KUMAR SAH OO, PROP.PUSPANJALI TRADERS, AT - KUMBHARPADA, PO/DIST. PURI - 752002 VS. ITO, PURI WARD, PURI ./ ./ PAN/GIR NO. : B FJPS 8042 F ( / APPELLANT ) .. ( / RESPONDENT ) AND ./ ITA NO. 218/CTK /20 15 ( / ASSESSMENT YEAR :2009 - 2010 ) ITO, PURI WARD, PURI VS. SRI SANJEEB KUMAR SAHOO, PROP.PUSPANJALI TRADERS, AT - KUMBHARPADA, PO/DIST. PURI - 752002 ./ ./ PAN/GIR NO. : BFJPS 8042 F ( / APPELLANT ) .. ( / RESPONDENT ) AND CR OSS OBJECTION NO. 33 /CTK /20 15 ( / ASSESSMENT YEAR :2009 - 2010 ) SRI SANJEEB KUMAR SAHOO, PROP.PUSPANJALI TRADERS, AT - KUMBHARPADA, PO/DIST. PURI - 752002 VS. ITO, PURI WARD, PURI ./ ./ PAN/GIR NO. : BFJPS 8042 F ( / A PPELLANT ) .. ( / RESPONDENT ) /AS SESSEE BY : SHRI B.R.PANDA , AR /REVENUE BY : SHRI D.K.PRADHAN , DR / DATE OF HEARING : 0 4 / 0 7 /201 7 / DATE OF PRONOUNCEMENT 06 / 0 7 /201 7 / O R D E R PER SHRI PAV AN KUMAR GADALE, JM : TH E SE ARE THE CROSS APPEALS FILED BY THE ASSESSEE AND REVENUE AND THE CROSS OBJECTION BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - II , BHUBANESWAR , PASSED IN IT.APPEAL NO. 0308 /201 4 - 1 5 , DATED 20.02.2015 . ITA NO. 204 &214 /201 5 & CO NO. 33/2015 2 2. SINCE THE ISSUES INVOLVED IN THE APPEALS AND CROSS OBJECTION ARE COMMON , THEREFORE, THE CASES ARE HEARD AND DISPOSED OFF BY COMMON ORDER . 3 . FOR THE SAKE OF CONVENIENCE, WE SHALL TAKE UP THE GROUNDS AND FACTS NARRATED IN THE ASSESSEES APPEAL I.E. ITA NO. 204 /CTK/2015 (AY 20 09 - 201 0 ). 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRADING IN CEMENT AND MS. RODS AND FILED THE R ETURN OF INCOME FOR THE ASSESSMENT YEAR 20 09 - 2010 ON 18 .09.2009 DECLARING TOTAL INCOME OF RS. 1,73 , 560 / - AND THE R ETURN OF INCOME WAS PROCESSED U/S. 143( 1 ) OF THE ACT. SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY UNDER THE CASS AND NOTICES U/S.143(2) & 142(1) WERE ISSUED . I N COMPLIANCE TO THE SAME, LD. AR OF THE ASSESSEE APPEARED FROM TIME TO TIME AN D FILED THE DETAILS AS CALLED FOR . O N PERUSAL OF FINANCIAL STATEMENTS THE AO FOUND THAT THE ASSESSEE HAD DISCLOSED THE B ANK ACCOUNT OF UNITED BANK OF INDIA IN THE BALANCE SHEET AND THE LD. AO I SSUED NOTICE U/S.1 33(6) CALLING FOR INFORMATION AND STATEMENT O F BANK ACCOUNTS. LD. AO FOUND THAT THE ASSESSEE HAS MAINTAINED OTHER TWO ACCOUNTS WHICH W ERE NOT DISCLOSED IN THE BALANCE SHEET AND THE LD. AO CALLED FOR THE EXPLANATION S . THE L D. AR FILED THE CASH FLOW STATEMENTS BUT COULD NOT EXPLAIN WHY THESE BANK ACCOUN TS WERE SUPPRESSED AND DEPOSIT S IN THE BANK ACCOUNTS WERE ALSO NOT EXPLAINED . HENCE , THE AO MADE ADDITION OF DEPOSITS TO THE RETURNED ITA NO. 204 &214 /201 5 & CO NO. 33/2015 3 INCOME AND ASSESSE D INCOME OF RS. 81,10,620/ - AND PASSED THE ORDER U/S.143(3) OF THE ACT, DATED 29.12.2011 . 5. AGGRIEVED B Y THE ORDER OF AO , THE ASSESSEE HAS FILED AN APPEAL WITH THE CIT(A). IN THE APPELLATE PROCEEDINGS, LD. AR OF THE ASSESSEE ARGUED THE GROUNDS AND REITERATED THE SUBMISSIONS MADE IN THE ASSESSMENT PROCEEDINGS AND ALSO SUBMITTED THE INFORMATION WITH RESPECT T O THE BANK ACCOUNTS. THE CONTENTION OF THE ASSESSEE THAT THESE BANK ACCOUNTS DEPOSITS ARE FROM THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE . THE LD. CIT(A) HAS CONSIDERED EACH DISPUTED ISSUE S AND PERUSED THE B ANK STATEMENTS AND RECONCILED THE AMOUNTS A ND OBSERVED THAT GROSS PROFIT PERCENTAGE SHALL BE APPLIED ON THE DIFFERENTIAL AMOUNT AND DEALT EXHAUSTIVELY AT PAGE 11 TO 17 OF THE ORDER ON VARIOUS DIFFERENT ISSUES AND COMPUTED TAXABLE INCOME OF THE ASSESSEE CONSISTING OF B USINESS PROFITS, UNEXPLAINED IN VESTMENTS, CASH CREDITS, INTEREST INCOME ACCRUALS AND PARTLY ALLOWED THE APPEAL. 6 . AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE HAS FILED AN APPEAL BEFORE THE TRIBUNAL. 7 . THE CONTENTION OF LD. AR BEFORE US THAT THE CIT(A) HAS ERRED IN MAKING ADDITION IN RESPECT OF INVESTMENTS U/S.69, CASH CREDITS AND OTHER INCOME. SINCE THE BUSINESS INCOME HAS BEEN ESTIMATED BY THE CIT(A), IT IS NOT CORRECT TO MAKE FURTHER ADDITION U/S.69 OF THE ACT , INTEREST INCOME AND OTHER INCOME AND PRAYED FOR DELETION AND ALLOW TH E APPEAL. 8 . CONTRA, LD. DR SUPPORTED THE ORDER OF CIT(A) ON THE DISPUTED ISSUE. ITA NO. 204 &214 /201 5 & CO NO. 33/2015 4 9 . WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE FINDING S OF LOWER AUTHORITIES AND MATERIAL ON RECORD. LD. A RS CONTENTION THAT THE INCOME HAS BEEN ESTIMATED BUT, PRIMA FACI E , WE FIND THAT THE AO HAS MADE ADDITION IN RESPECT OF BANK DEPOSITS BUT WHEREAS THE LD. CIT(A) HAS DISTINGUISHED THE SALES AND PURCHASES AND OTHER CREDITS AND COMPUTED THE TAXABLE INCOME. WE ARE OF THE OPINION THAT THE ASSESSEE HAS NOT DISCUSSED THE DISPU TED INCOME BEFORE THE AO AND ON PERUSAL OF THE ORDER S OF AO, THERE IS NO FINDING ON ESTIMATION OF INCOME OR ON THE CASH CREDIT OR ON UNEXPLAINED INVESTMENTS. THEREFORE, WE ARE OF THE OPINION THAT THIS DISPUTED MATTER S HAS TO BE RE - EXAMINED BY THE AO . A CCOR DINGLY IN THE INTEREST OF JUSTICE, WE PROVIDE ONE MORE OPPORTUNITY TO THE ASSESSEE TO REPRESENT ITS CASE BEFORE THE AO ALONG WITH THE SUBMISSIONS AND CLAIMS AND THE ORDER OF CIT(A) IS SET ASIDE AND ENTIRE DISPUTED ISSUE IS REMITTED TO THE FILE OF AO, WHO SH ALL VERIFY , EXAMINE AND TAKE AN APPROPRIATE DECISION AND PASS THE ORDER AND SHALL PROVIDE ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. 10 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 11 . NOW, WE SHALL TAKE A PPEAL FILED B Y THE REVENUE IN ITA NO. 218/CTK/2015, WHEREIN THE REVENUES SOLE CONTENTION THAT LD. CIT(A) HAS ERRED IN RESTRICTING THE ADDITION TO RS. 9,64,177/ - AS AGAINST RS.79,37,062/ - MADE BY THE AO TOWARDS UNEXPLAINED DEPOSIT S IN THE BANK ACCOUNT AND THE EXPLANATION S PROVIDED BY THE ASSESSEE ARE NOT ITA NO. 204 &214 /201 5 & CO NO. 33/2015 5 SATISFACTORY FURTHER THE CIT( A ) HAS OVERLOOKED THE FINDINGS BY THE AO. SINCE, WE HAVE SET ASIDE THE ORDER OF CIT(A) AND REMITTED THE ENTIRE ISSUE TO THE FILE OF AO WHILE CONSIDERING THE ASSESSEES APPEAL ON THE SAME ISSUE , WE CONSIDER IT APPROPRIATE ALSO TO REMIT THE REVENUES APPEAL TO THE FILE OF AO. ACCORDINGLY, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 1 2 . ASSESSEE HAS FILED CROSS OBJECTION I.E. CO NO. 33/CTK/2015 . AS WE HAVE ALREADY SET ASIDE THE ORDER OF CIT(A) AND REMITTED THE ENTIRE ISSUE TO THE FILE OF AO, THEREFORE, THE CROSS OBJECTION FILED BY THE ASSESSEE HAS BECOME INFRUCTUOUS AND THE SAME IS DISMISSED. 1 3 . IN THE RESULT, APPEAL OF THE ASSESSEE AND REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES, WHEREAS CROSS OBJECTION FILED BY THE ASSESSEE IS DISMISSED. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 06/07 / 201 7 . SD/ - ( N. S. SAINI ) SD/ - ( PA V AN KUMAR GADALE ) / ACCOUNTAN T MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 06 / 0 7 /201 7 . . / PKM , SENIOR PRIVATE SECRETARY / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - SRI SANJEEB KUMAR SAHOO, PROP.PU SPANJALI TRADERS, AT - KUMBHARPADA, PO/DIST. PURI - 752002 2. / THE RESPONDENT - ITO, PURI, WARD PURI 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / G UARD FILE. //TRUE COPY//