ITO,Ward-40(3),Kolkata, Kolkata V. Sri Pradip Bhattacharjee, Kolkata

ITA 2191/KOL/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6362 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 11-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A BHATTACHERJEE
• Keywords: Unexplained investment
• Section: 143(3); 69

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI, M. BALAGANESH, ACCOUNTANT MEMBER ITA NO. 2191 / KOL / 20 16 ASSESSMENT YEAR :2013-14 INCOME TAX OFFICER, WARD-40(3), 3 GOVT. PLACE (WEST), KOLKATA-001 V/S . SRI PRADIP BHATTACHARJEE 16/1C, K.B. BASU ROAD, BARASAT, KOLKATA-124 [ PAN NO.ADJPB 5749 H ] /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI A. BHATTACHERJEE, ADDL CIT-DR /BY RESPONDENT NONE /DATE OF HEARING 11-06-2018 /DATE OF PRONOUNCEMENT 15-06-2018 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS REVENUES APPEAL FOR ASSESSMENT YEAR 2013-14 C HALLENGES CORRECTNESS OF COMMISSIONER OF INCOME TAX (APPEALS) -12, KOLKATAS ORDER DATED 17.08.2016,PASSED IN CASE NO.137/CIT(A)-12/KO L/WARD-40(3)/2015-16, REVERSING ASSESSING OFFICERS ACTION MAKING UNEXPLA INED INVESTMENT ADDITION OF 49,01,890/- IN ASSESSMENT ORDER DATED 11.01.2016, INVOLVING PROCEEDINGS U/S 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT T HE ACT. 2. LEARNED DEPARTMENTAL REPRESENTATIVE FIRST OF ALL TAKES US TO CIT(A)S DISCUSSION ON THE ABOVE SOLE ISSUE DELETING THE IMP UGNED ADDITION AS UNDER:- 3.3 I HAVE CONSIDERED THE FACTS OF THE CASE AND TH E SUBMISSIONS OF THE APPELLANT. THE AO ADDED A SUM OF RS.49,01,890/- WIT H THE REMARKS UNDISCLOSED INVESTMENT IN THE HANDS OF THE APPELLANT ALTHOUGH THE ITA NO.2191/KOL/2016 A.Y. 2013-14 ITO WD-40(3) KOL. VS. SH. PRADIP BH ATTACHARJEE P AGE 2 SAME HAS DULY INCORPORATED IN THE FINANCIAL BOOKS O F ACCOUNT OF SHREEDHAR CONSTRUCTION WHEREIN THE APPELLANT IS ONE OF THE PARTNER. THE APPELLANT HAS ALL ALONG MAINTAINED THAT THIS ACCOUN T BELONGED TO A PARTNERSHIP FIRM M/S SREEDHAR CONSTRUCTION WHERE THE APPELLANT WAS PARTNER. THE ASSESSEE CATEGORICALLY STATED THAT THE AFORESAID BANK ACCOUNT, ALTHOUGH HELD IN THE NAME OF APPELLANT BUT THE SAME BELONGED TO A FIRM CALLED SHREEDHAR CONSTRUCTION HAVING PAN NO. ACOFS0370F AND THE SAME WAS DULY INCORPORATED IN ITS BOOKS OF ACCOUNT. THE ASSESSEE ALSO FILED THE ACCOUNTS AND COPY OF ACKNOW LEDGEMENT OF INCOME TAX RETURN FILED BY THE SAID SHREEDHAR CONST RUCTION DURING THE COURSE OF HEARING BEFORE ASSESSING OFFICER. FURTHER , IT IS STATED IN THE ASSESSMENT ORDER IN PAGE 4 IN FOURTH PARAGRAPH THAT .. THE ASSESSEE FAILED TO PRODUCE ANY PARTNERSHIP DEED EXECUTED AMO NG THE PARTNERS OF M/S SHREEDHAR CONSTRUCTION WHICH IS NOT CORRECT AS HE WAS NEVER ASKED TO PRODUCE THE SAID PARTNERSHIP DEED. HOWEVER , A COPY OF PARTNERSHIP DEED OF SHREEDHAR CONSTRUCTION DULY REG ISTERED WITH DISTRICT SUB-REGISTRAR-II DATED 26-11-2012, IS ENCL OSED FOR YOUR GOODSELFS REFERENCE AND RECORD. IT IS WORTH MENTIO NING IN THIS CONNECTION THAT A PARTNERSHIP FIRM CANNOT OPEN A SA VING BANK ACCOUNT BUT THE SAME CAN ALWAYS BE OPENED IN IT PARTNER OR PARTNER NAME WHICH IS NOT AGAINST ANY LAW. FURTHER IT IS TO BE NOTED T HAT ALL THE CASH TRANSACTIONS IN THE SAID SAVINGS BANK ACCOUNT ARE D ULY RECORDED IN THE BOOKS OF ACCOUNT OF SHREEDHAR CONSTRUCTIONS. AN IN SPECTION OF THE DOCUMENTS REVEALED THAT THE BALANCE IN THE BANK ACC OUNT WAS CLEARLY MENTIONED IN ITS BALANCE SHEET WHICH CONFIRMS THAT THE WHOLE BANK ACCOUNT BELONGED TO M/S SREEDHAR CONSTRUCTION. IT W AS WRONG ON THE APART OF THE AO TO ASSUME THAT IT WAS AN UNDISCLOSE D ACCOUNT OF THE APPELLANT AFTER ALL DOCUMENTS CLEARLY REAL ITS TRUE OWNER. HENCE, THE ADDITION ON THIS GROUND IS DELETED. 3. LEARNED DEPARTMENTAL REPRESENTATIVES SOLE CONTE NTION BEFORE US IS THAT CIT(A) OUGHT TO HAVE SOUGHT A REMAND REPORT FR OM THE ASSESSING OFFICER QUA ASSESSEES ADDITIONAL SUBMISSIONS FILED DURING THE COURSE OF LOWER APPELLATE PROCEEDINGS THAT THE IMPUGNED SUM REPRESE NTED HIS PARTNERSHIP FIRM BALANCE ONLY. WE SEE NO MERIT IN REVENUES INSTANT GRIEVANCE. IT HAS COME ON RECORD THAT ASSESSEE HAD FILED RELEVANT ACCOUNTS AS WELL AS HIS PARTNERSHIP FIRMS INCOME TAX RETURNS ACKNOWLEDGEMENT BEFORE T HE ASSESSING OFFICER SUFFICIENTLY INDICATING THAT THE AMOUNT IN QUESTION BELONGED TO THE FIRM ONLY AS IT COULD NOT HAVE ITSELF OPENED THE TWO BANK ACCOUN TS IN QUESTION. SUFFICE TO SAY, THE AMOUNT IN QUESTION STANDS EXPLAINED AND VE RIFIED FROM THE PARTNERSHIP FIRM BOOKS OF ACCOUNT AS WELL. THE SAME THEREFORE CANNOT BE HELD TO BE A ITA NO.2191/KOL/2016 A.Y. 2013-14 ITO WD-40(3) KOL. VS. SH. PRADIP BH ATTACHARJEE P AGE 3 CASE OF UNEXPLAINED INVESTMENT WITHIN THE MEANING O F SECTION 69 OF THE ACT. THE REVENUES SOLE SUBSTANTIVE GROUND FAILS ACCORDI NGLY. 4. THIS REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 15/ 06/2018 SD/- SD/- ( %) (' %) (M.BALAGANESH) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP, SR.P.S (- 15 / 06 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ITO WARD-40(3), 3 GOVT. PLACE (WEST), KO LKATA-001 2. /RESPONDENT-SRI PRADIP BHATTACHARJEE 16/1C, K.B.BAS U RD, BARASAT, KOLKATA-124 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA 5. 7 ''3, 3, / DR, ITAT, KOLKATA 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO 3,