Anirban Roy, Kolkata V. ITO, Ward-48(1), Kolkata, Kolkata

ITA 2334/KOL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1057 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 09-12-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHARJEE
• Assessee Lawyers: ANIL KOCHER
• Keywords: Peak credit
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, KOLKATA BEFORE SRI N.V. VASUDEVAN, JUDICIAL MEMBER & SRI J . SUDHAKAR REDDY, ACCOUNTANT MEMBER I.T.A. NOS. 2333 & 2334/KOL/2016 ASSESSMENT YEARS: 2008-09 & 2009-10 ANIRBAN ROY, KOLKATA .....A PPELLANT [PAN : AIGPR 2729 H] ITO, WARD-48(1), KOLKATA................... ...RESPONDENT APPEARANCES BY: SHRI ANIL KOCHER APPEARING ON BEHALF OF THE ASSESSE E. SHRI ARINDAM BHATTACHARJEE APPEARING ON BEHALF OF T HE REVENUE. DATE OF CONCLUDING THE HEARING : SEPTEMBER 13, 2 017 DATE OF PRONOUNCING THE ORDER : NOVEMBER 10, 20 17 ORDER PER J. SUDHAKAR REDDY, ACCOUNTANT MEMBER :- BOTH THESE APPEALS BY THE ASSESSEE ARE DIRECTED AG AINST THE IDENTICAL ORDERS OF THE LD. COMMISSIONER OF INCOME TAX (APPEA LS)-14, KOLKATA FOR THE ASSESSMENT YEAR 2008-09 AND 2009-10 (HEREINAFTER TH E LD. CIT(A)) , BOTH DATED 28.10.2016. AS THE ISSUES ARISING IN BOTH THE APPEA LS ARE COMMON, FOR THE SAKE OF CONVENIENCE THEY ARE HEARD TOGETHER AND DISPOSED OF F BY WAY OF VARIOUS COMMON ORDER. 2. THE ASSESSEE HAD FILED HIS RETURN OF INCOME AT RS. 176540/- ON 03.11.2009. SUBSEQUENTLY, INFORMATION WAS RECEIVED FROM ITO(INV ), UNIT-2, KOLKATA ON 2 I.T.A. NOS. 2333&2334/KOL/2016 ASSESSMENT YEARS: 2008-09 & 2009-10 ANIRBAN ROY 15.02.2015 REGARDING VERY LARGE VALUE CHEQUE DEPOSI TS DURING THE PERIOD FROM 15.02.2007 TO 01.07.2008 FOLLOWED BY SIMILAR VERY L ARGE CASH WITHDRAWALS IN HIS SAVINGS BANK ACCOUNT NO. 033-269432-006, IN HSBC, H OWRAH BRANCH, 21,GT ROAD( SOUTH) HOWRAH. DURING THE PROCEEDINGS BEFORE THE ITO(INV) UNIT-2, KOLKATA, THE ASSESSEE HAD SUBMITTED AN IT RETURN, B ALANCE SHEET AND PROFIT AND LOSS ACCOUNT FOR THE FINANCIAL YEARS 2007-08 AND 20 08-09. AS PER THESE, THE ASSESSEE HAD DECLARED HIS INCOME FROM SHARE OF PROF IT FROM PARTNERSHIP FIRM, EASTERN PLY FILM AND NET PROFIT FROM HIS PROPRIETOR SHIP CONCERN WHICH IS IN THE BUSINESS OF IRON AND STEEL. THE NET PROFIT OF THE P ROPRIETORSHIP CONCERN FOR THE AY 2008-09 WAS THE SALE PROCEEDS OF THE REMAINING STOC K OF IRON AND STEEL FROM THE PREVIOUS YEAR. WHEN ASKED TO EXPLAIN THE TRANSACTIO NS OF THE SAID BANK ACCOUNT, THE ASSESSEE SUBMITTED THAT HE HAD ANOTHER PROPRIET ORSHIP CONCERN, BUT COULD NOT FURNISH ANY DOCUMENTS INCLUDING SALES VOUCHERS , BILLS ETC. IN SUPPORT OF HIS CLAIMS SAYING THAT HE DID NOT HAVE THE DOCUMENTS FO R THE ASSESSMENT YEARS 2008- 09 AND 2009-10. A NOTICE WAS ISSUED U/S 148 OF THE ACT ON 30 TH MARCH, 2015 AFTER OBTAINING PERMISSION FROM THE CONCERNED COMMISSIONE R. THE ASSESSEE IN RESPONSE FILED A RETURN OF INCOME ALONG WITH BALANC E SHEET, PROFIT AND LOSS ACCOUNT. THIS TIME THE RETURN WAS FILED AT AN INCOM E OF RS. 265770/- CLAIMING A REFUND OF RS. 26190/-, AGAINST THE ORIGINAL RETURNE D INCOME OF RS. 176540/- AND REFUND CLAIM OF RS. 35380/-. THE ASSESSEE DISCLOSED PURCHASES OF RS. 2830210/- AND SALES OF RS. 2958881//-. THE PURCHASES WERE ALL IN CASH. PAYMENTS WERE RECEIVED IN CHEQUE. 3 I.T.A. NOS. 2333&2334/KOL/2016 ASSESSMENT YEARS: 2008-09 & 2009-10 ANIRBAN ROY THE AO POINTED OUT CERTAIN DISCREPANCIES, SUCH AS, THE FACT THAT THE ASSESSEE HAD RECEIVED RS. 10LAKH FROM M/S FAIRDEAL CONCERN (5 LA KH ON 02.06.2008) BUT THE SALE DETAILS, DID NOT SHOW THE NAME OF THE SAID CON CERN. THE ASSESSEE, IN EXPLANATION, FILED A REPLY THAT HE DID NOT MAINTAIN BOOKS OF ACCOUNT AND THAT THE SAID TRANSACTIONS WERE FROM HIS UNDECLARED BUSINESS . THE AO FOUND FURTHER DISCREPANCY IN THE FACT THAT DESPITE ADMITTING THAT NO BOOKS WERE MAINTAINED, THE ASSESSEE HAD FILED A PROFIT AND LOSS ACCOUNT AND BA LANCE SHEET ALONG WITH A DETAILED LIST OF SALES AND PURCHASES, WHICH WERE UN SUPPORTED BY ANY MATERIAL. THE AO NOTED THAT THE ASSESSEE HAD KEPT SILENT ON T HE SOURCE OF THE CHEQUE DEPOSITS IN THE BANK FROM 01.04.2008 TO 01.07.2008. SINCE THE SOURCE OF THESE WAS NOT EXPLAINED BY THE ASSESSEE, THE SAID AMOUNT , WAS ADDED BACK TO THE INCOME OF THE ASSESSEE AS INCOME FROM UNDISCLOSED S OURCES. 3. THE LD. CIT(A) CONFIRMED THE ADDITION ON THE GRO UND THAT THE ASSESSEE HAS NOT PROVIDED ANY EXPLANATION REGARDING DEPOSITS. 4. THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT TH E AO HAS TAKEN INTO CONSIDERATION ONLY A PART OF TRANSACTION IN THE BAN K ACCOUNT WITH HSBC, HOWRAH BRANCH, I.E. FROM 15.02.2007 TO 01.07.2008. HIS CA SE IS THAT IT WAS NOT CORRECTED FOR THE REVENUE AUTHORITIES TO TAKE INTO CONSIDERAT ION ONLY THE TRANSACTION PERIOD FROM 15.02.2007 TO 31.03.2008 FOR THE ASSESSMENT YE AR 2008-09 AND 01.04.2008 TO 01.07.2008 FOR THE ASSESSMENT YEAR 2009-10 AND THAT THE TRANSACTION FOR THE 4 I.T.A. NOS. 2333&2334/KOL/2016 ASSESSMENT YEARS: 2008-09 & 2009-10 ANIRBAN ROY WHOLE YEAR HAS TO BE CONSIDERED. HE FILED A PAPER BOOK AND COPY OF BANK STATEMENT WITH HSBC DISCLOSING ALL THE TRANSACTIONS IN THE ASSESSMENT YEARS 2008-09 AND 2009-10 AND SUBMITTED THAT THE ENTIRE T RANSACTION SHOULD BE CONSIDERED AND NOT MERELY TRANSACTIONS FOR BROKEN P ERIOD. HE FILED EXPLANATION FOR THESE DEPOSITS AND WITHDRAWALS, BOTH BY CASH AN D CHEQUE FOR THE ASSESSMENT YEAR 2008-09 AND 2009-10 AND ARGUED THAT THE ADDITI ON CANNOT BE SUSTAINED. ALTERNATIVELY HE SUBMITTED THAT IN ANY CASE ONLY TH E PEAK CREDIT CAN BE ADDED. 5. THE LD. D/R REFERRED TO THE PROFIT AND LOSS ACC OUNT AND THE BALANCE SHEET OF THE ASSESSEE WHICH ARE AT PAGE 27 AND 28 OF THE PAPER B OOK AND SUBMITTED THAT THE BANK ACCOUNT WAS NOT DISCLOSED TO THE REVENUE AND T HE ASSESSEE HAS NOT COOPERATED EITHER BEFORE THE AO OR THE LD. CIT(A). HE RELIED ON THE ORDER OF THE FIRST APPELLATE AUTHORITY. 6. AFTER HEARING THE RIVAL CONTENTIONS PERUSING TH E PAPERS ON RECORD WE HOLD AS FOLLOWS. IN OUR OPINION, THE TRANSACTION IN THIS HSBC BANK ACCOUNT SHOULD BE CONSIDERED FOR THE ENTIRE YEAR I.E. 01.04.2007 TO 3 1.03.2008 FOR THE ASSESSMENT YEAR 2008-09 AND 01.04.2008 TO 31.03.2009 FOR THE A SSESSMENT YEAR 2009-10. THE AO HAS TAKEN ONLY INTO CONSIDERATION TRANSACTIO N FROM 15.02.2007 FORM 31.03,2008 FOR THE ASSESSMENT YEAR 2008-09 AND 01.0 4.2008 TO 01.07.2008 ONLY FOR THE ASSESSMENT YEAR 2009-10. THIS IS NOT CORREC T. UNDER THESE CIRCUMSTANCES WE SET ASIDE THE MATTER TO THE FILE OF THE AO WITH THE DIRECTION TO TAKE INTO 5 I.T.A. NOS. 2333&2334/KOL/2016 ASSESSMENT YEARS: 2008-09 & 2009-10 ANIRBAN ROY CONSIDERATION ALL THE TRANSACTIONS IN THIS UNACCOUN TED HSBC ACCOUNT FOR THE RELEVANT PREVIOUS YEARS ARE READJUDICATED THE MATTE R, DE NOVO, IN ACCORDANCE WITH LAW. THE EXPLANATION FILED BY THE ASSESSEE SH ALL BE CONSIDERED BY THE LD. AO. 7. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSES. KOLKATA, THE 10 TH DAY OF NOVEMBER, 2017. SD/- SD/- [ N.V. VASUDEVAN ] [J. SUDHAKAR REDDY] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : .11.2017 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1 . ANIRBAN ROY, C/O, S.L. KOCHER, ADVOCATE 86, CANNING STREET, KOLKATA-1 2 . ITO, WARD-48(1), KOLKATA 3, GOVT. PLACE, WEST , KOLKATA-700001 3. CIT(A)- 4. CIT- , 5. CIT(DR), TRUE COPY BY ORDER SENIOR PRIV ATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES 6 I.T.A. NOS. 2333&2334/KOL/2016 ASSESSMENT YEARS: 2008-09 & 2009-10 ANIRBAN ROY