ITO, Ward - 35(3), Kolkata, Kolkata V. Kamal Kumar Bansal, Kolkata

ITA 2299/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48232 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2011
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 29-06-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 30-12-2010
• Court: TRIBUNAL
• Department Lawyers: D J MEHTA
• Assessee Lawyers: SUBASH AGARWAL
• Section: 68

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH B, KOLKATA () BEFORE . .. . . .. . , , , , , SHRI B.R.MITTAL, JUDICIAL MEMBER. /AND . .. .!' !'!' !'. .. . , #$ SHRI C.D.RAO, ACCOUNTANT MEMBER %& %& %& %& ' ' ' ' / ITA NO . 2299/KOL/2010 () *+/ ASSESSMENT YEAR : 2005-06 (-. / APPELLANT ) I.T.O., WARD-35(3), KOLKATA - ( - - VERSUS - . (01-./ RESPONDENT ) SHRI KAMAL KUMAR BANSAL, KOLKATA (PAN: AECPB 6322 E ) -. 2 3 #/ FOR THE APPELLANT: SHRI D.J.MEHTA 01-. 2 3 #/ FOR THE RESPONDENT: SHRI SUBASH AGARWAL #4 / ORDER ( (( ( . .. .!' !'!' !'. .. . ) )) ), , , , #$ PER SHRI C.D.RAO, AM THIS APPEAL IS FILED BY THE REVENUE AGAINST THE OR DER DATED 15.09.2010 OF THE CIT(A)-XX, KOLKATA PERTAINING TO A.YR. 2005-06. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. FOR THAT THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITIONS OF RS.9,00,000/- LOAN TO ELEMENT DEALER PVT. LTD. BY R.D.BANSAL IN T HE FACT AND CIRCUMSTANCES OF THE CASE OF THE DEPARTMENT. 2. FOR THAT THE LD. CIT(A) HAS ERRED IN DELETING TH E ADDITIONS OF RS.5,00,000/- THE EVIDENCE OF ROC IN RESPECT OF EXISTENCE OF THE LOAN CREDITOR EXQUISITES APARTMENT PVT. LTD., AS THIS EVIDENCE DID NOT ESTAB LISH THE EXISTENCE OF THE LOAN CREDITOR. 3. THE BRIEF FACTS OF THIS ISSUE ARE THAT THE AO W HILE DOING THE SCRUTINY ASSESSMENT ADDED AN AMOUNT OF RS.9,00,000/- AND RS.5,00,000/- WHICH THE ASSESSEE HAS OUTSTANDING LIABILITIES PAYABLE TO M/S. ELEMENT DEA LERS PVT. LTD. AND M/S. EXQUISITE 2 APARTMENT PVT. LTD. RESPECTIVELY BY APPLYING THE PR OVISIONS OF SECTION 41(1) OF THE ACT BASED ON THE INSPECTORS REPORT BY STATING THAT M/S. ELEMENTS DEALERS (P) LTD. HAD ALREADY RECEIVED BACK THE ADVANCE AND THE NAME OF T HE ASSESSEE DOES NOT APPEAR IN THE BALANCE SHEET OF THE SAID PARTY. HE FURTHER POINTED OUT THAT THE PAYMENT WAS NOT MADE BY THE ASSESSEE BUT BY SHRI R.D.BANSAL. 3.1. AS REGARDING LOAN FROM M/S. EXQUISITE APARTMEN TS (P) LTD. THE AO OBSERVED THAT NO SUCH CONCERN AS FOUND BY THE INSPECTOR AT T HE GIVEN ADDRESS WHICH WAS CONFIRMED BY THE LD. AR FROM THE RECORDS OF ROC. TH E TELEPHONE NUMBER OF THE COMPANY OR ITS DIRECTORS. 3.2. ON APPEAL THE LD. CIT(A) HAS DELETED THE SAME BY OBSERVING THAT THERE IS NO FINDING OF THE AO THAT THE AMOUNT WAS ALLOWED AS DE DUCTION IN ANY EARLIER YEAR AND THAT SOME BENEFIT WAS DERIVED BY WAY OF REMISSION O R CESSATION OF LIABILITY. 3.3. AGGRIEVED BY THIS THE REVENUE IS IN APPEAL BEF ORE US. 4. AT THE TIME OF HEARING THE LD. DR APPEARING ON B EHALF OF THE REVENUE HAS POINTED OUT THE OBSERVATIONS MADE BY THE AO AND FUR THER CONTENDED THAT THE AO BY MISTAKE HAS MENTIONED THE WRONG SECTION OF 41(1) BU T IN FACT THE ADDITION SHOULD BE MADE U/S 68 OF THE ACT. THEREFORE, HE REQUESTED TO SET ASIDE THE ORDERS OF THE LD. CIT(A) AND RESTORE THAT OF THE AO. 5. THE LD. AR APPEARING ON BEHALF OF THE ASSESSEE H EAVILY RELIED ON THE ORDERS OF THE LD. CIT(A) AND FURTHER CONTENDED THAT THE AO HI MSELF HAS ADMITTED THAT THE SAID ADVANCES/LOAN ARE BROUGHT FORWARD FROM THE EARLIER YEARS. HE SUBMITTED THAT EVEN THE PROVISION OF SECTION 68 IS NOT APPLICABLE TO THE PR ESENT FACTS OF THE CASE. THEREFORE HE REQUESTED TO CONFIRM THE ORDERS OF THE LD. CIT(A). 6. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF MATERIALS AVAILABLE ON RECORD, WE ARE OF THE CONSIDERED VIEW THAT IN THIS CASE NEITHER THE 3 PROVISION OF SECTION 68 OF THE ACT IS APPLICABLE AS IT IS AN ADMITTED FACT THAT THE ASSESSEE HAS BROUGHT FORWARD THESE LOANS/ADVANCES F ROM THE EARLIER YEARS. AS REGARDING THE APPLICABILITY OF SECTION 41(1) OF THE ACT THE LD. CIT(A) HAS CLEARLY MENTIONED THAT THERE IS NO FINDING BY THE AO THAT A BOVE AMOUNTS WERE ALLOWED AS DEDUCTION IN THE EARLIER YEARS. THEREFORE, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A). WE CONFIRM THE SAME AND DISMISS THE APPEAL OF THE REVENUE. 7. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMI SSED. ORDER PRONOUNCED IN THE COURT ON 30.06.2011. SD/- SD/- . .. . . .. . , , , , B.R.MITTAL, JUDICIAL MEMBER . .. .!' !'!' !'. .. . , ,, , #$ #$ #$ #$ , C.D.RAO, ACCOUNTANT MEMBER. ( (( ('$ '$ '$ '$) )) ) DATE: 30.06.2011. #4 2 0& 5#&*6- COPY OF THE ORDER FORWARDED TO: 1. SHRI KAMAL KUMAR BANSAL, 45, LENIN SARANI, KOLKATA- 700001. 2 THE I.T.O., WARD-35(3), KOLKATA 3. THE CIT, 4. THE CIT(A)-XX , KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA 1& 0/ TRUE COPY, #4(;/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES R.G.(.P.S.)