Neel Kamal Agarwal, Kolkata V. ITO, Ward-35(2), Kolkata, Kolkata

ITA 2350/KOL/2016

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6748 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 14-12-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MIRAJ D SHAH SH
• Assessee Lawyers: PASS KOLAKTATA
• Keywords: Unexplained cash credit; Capital asset; Business income; Capital Gains
• Section: 68; 27; 144

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 2350 / KOL / 20 16 ASSESSMENT YEAR :2012-13 NEEL KAMAL AGARWAL MR. M.L. JAIN, & ASSOCIATES, 9/12 LAL BAZAR STRET, BLOCK-E, 4 TH FLOOR, KOLKATA-700001 [ PAN NO.ACIPA 1982 B ] V/S . INCOME TAX OFFICER, WARD-35(2), AAYAKAR BHAWAN, POORVA, 110, SHANTI PALLY, E.M. BYPASS, KOLAKTATA-107 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI MIRAJ D SHAH, ADVOCATE /BY RESPONDENT SHRI ROBIN CHOUDHURY, ADDL. CIT-DR /DATE OF HEARING 06-02-2019 /DATE OF PRONOUNCEMENT 28-02-2019 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2012-13 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-10 KOLKATAS O RDER DATED 29.09.2016 PASSED IN CASE NO.49/CIT(A)-10/W-35(2)/15-16/KOL, I NVOLVING PROCEEDINGS U/S 144 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEES FORMER SUBSTANTIVE GROUND CHALLEN GES CORRECTNESS OF BOTH THE LOWER AUTHORITIES ACTION ADDING HIS SUNDR Y CREDITS OF 1,10,17,324/- AS UNEXPLAINED IN THE COURSE OF ASSESSMENT AS UPHE LD IN THE LOWER APPELLATE DISCUSSION AS FOLLOWS:- 05. GROUNDS NO. 3 RELATES TO THE ACTION OF THE LD. AO IN ADDING RS. 1,10,17,324/- UNDER HEAD 'UNEXPLAINED CREDIT-SUNDRY CREDITOR'. THE MATTER HAS BEEN DEALT BY THE LD. A.O AS UNDER: ITA NO.2350/KOL/2016 A.Y. 2012- 13 NEEL KAMAL AGARWAL VS. ITO WD-35(2), KOL. PAGE 2 THERE HAD BEEN CLAIM OF SUNDRY CREDITORS FOR THE SU M OF RS.1,10,17,324/- AND EXPENSES PAYABLE (AUDIT FEES, TELEPHONE EXPENSES & MOBILE EXPENSES) OF RS.9,350/- IN THE BALANCE SHEET OF THE ASSESSEE FOR THE A.Y 2012-13. ACCORDINGLY, SUCH SUNDRY CREDITORS OF RS.11,10,17,3 24/- WERE CREDITS IN THE ACCOUNTS OF THE ASSESSEE DURING THE F.YR. 2011-12 R ELEVANT TO THE A. Y 2012- 13. THE ASSESSEE DID NOT EXPLAIN THE ABOVE CREDITS IN HIS ACCOUNTS BY FURNISHING ACCOUNTS, CONFIRMATION OF SUCH BALANCES FROM THE RESPECTIVE PARTIES AND BILLS AND VOUCHERS IN SUPPORT OF SUCH CLAIM OF SUNDRY CREDITORS BALANCES. ACCORDINGLY, THE ASSESSEE WAS DIRECTED TO SHOW CAUS E AS TO WHY THE ABOVE CREDITS IN HIS ACCOUNTS SHOULD NOT BE TREATED AS UN EXPLAINED CREDIT IN HIS ACCOUNT DURING THE FINANCIAL YEAR 2011-12 AND THE S AME SHOULD NOT BE ADDED TO HIS TOTAL INCOME FOR THE A. Y 2012-13 THE ASSESSEE DID NOT OFFER ANY EXPLANATION AGAINST THE ABOVE SHOW CAUSE AND ALSO DID NOT FURNISH ANY DOCUMENTARY EVIDENCE I N SUPPORT OF HIS CLAIM. ACCORDINGLY, THE SUM OF RS.1,10,17,324/- IS TREATED AS UNEXPLAINED CREDIT IN HIS ACCOUNT DURING THE FINANCIAL YEAR 2011-12 AND I S ADDED TO HIS TOTAL INCOME FOR THE A. Y2012-13. THE PENALTY PROCEEDINGS U/S 27 1(1)(C) OF THE I. T. ACT, 1961 HAS BEEN INITIATED SEPARATELY FOR CONCEALMENT OF PARTICULARS OF INCOME. 06. DURING THE APPEAL STAGE THE APPELLANT / LD. A.R FOR THE APPELLANT HAS SUBMITTED AS UNDER: 'HON'BLE SIR, THE LD. ASSESSING OFFICER ERRED IN AD DING RS.1,,17,324/- BEING THE AMOUNT OF SUNDRY CREDITORS AND ADVANCES R ECEIVED FROM DEBTORS, STATING AS UNEXPLAINED CREDIT TO THE TOTAL INCOME OF THE ASSESSEE. HON'BLE SIR, THE ASSESSEE HAS FILED HIS RETURN OF I NCOME AND SUBMITTED THE AUDITED BALANCE SHEET, PROFIT & LOSS ACCOUNT WI TH TAX AUDIT REPORT. BANK STATEMENTS AND CONFIRMATIONS FROM SOME OF THE CREDITORS, THE LD. AO SHOULD HAVE PASSED THE ASSESSMENT ORDER AFTER TAKING INFO ALL RELEVANT MATERIALS WHICH THE LD. AO HAS GATHERE D OR HAS IN HER POSSESSION. EVEN IN CASE OF BEST JUDGMENT ASSESSMEN T THE LD. AO SHOULD HAVE PASSED THE ASSESSMENT ORDER TAKING INTO ACCOUNTS THE RELEVANT MATERIALS AND FIGURES SUBMITTED TO HER. TH E AUDITED BALANCE SHEET & PROFIT & LOSS ACCOUNT TOGETHER WITH. TAX AU DIT REPORT WAS IN HER POSSESSION AND SINCE THE INCOME TAX RETURN WAS FILED ELECTRONICALLY HAVING ALL THE FIGURES RELATING TO B ALANCE SHEET & PROFIT & LOSS ACCOUNT THEREIN, THERE IS NO REASON TO SAY THA T SHE COULD NOT GO THOUGH THEM. SIR, ASSESSMENTS ARE DONE ON THE BASIS OF PERFORMANCE OF THE BUSINESS OF THE ASSESSEE BUT THE AO DID NOT GO THROUGH THE FIGURES OF PROFIT & LOSS ACCOUNT. THE ASSESSEE IS A WHOLESALE TRADER AND TOTAL SALES TURNOVER WAS OF RS. 96,32,929/- ONL Y AND THE GROSS PROFIT RATE AND NET PROFIT RATE DISCLOSED THERE ON WERE 11.56% AND 3.65% RESPECTIVELY. THE LD AO MIGHT HAVE COMPARED T HE SUCH RESULTS WITH THE OTHER BUSINESS RESULTS OF SAME NATURE, BUT SHE DID NOT. INSTEAD SHE MADE AN ADDITION OF RS.1,10,17,324/- WHICH COMP RISES RS.73,86,727/- DUES OF CREDITORS AND RS.36,30,597/- BEING ADVANCES RECEIVED FROM THE DEBTORS (CUSTOMERS) STATING THEM AS UNEXPLAINED CREDIT WHICH IS TOTALLY WRONG. THE APPELLANT THEREF ORE STRONGLY PRAY TO YOUR HONOUR TO DELETE THE ADDITION OF RS.1,10,17,32 4/- 07. DECISION: ITA NO.2350/KOL/2016 A.Y. 2012- 13 NEEL KAMAL AGARWAL VS. ITO WD-35(2), KOL. PAGE 3 1. I HAVE CAREFULLY CONSIDERED THE ACTION OF THE LD AO IN MAKING A DISALLOWANCE OF RS.1,10,17,324/- ON ACCOUNT OF THE UNCONFIRMED SUNDRY CREDITORS / UNEXPLAINED CREDITS. DURING THE COURSE OF THE ASSESSMENT, THE LD AO NOTICED THAT THERE HAD BEEN C LAIM OF SUNDRY CREDITORS FOR THE SUM OF RS.1,10,17,324/- AND EXPEN SES PAYABLE (AUDIT FEES, TELEPHONE EXPENSES & MOBILE EXPENSES) OF RS.9 ,350/- IN THE BALANCE SHEET OF THE ASSESSEE FOR THE A.Y 2012-13. ACCORDINGLY, THE LD.AO RECKONED THAT SUCH SUNDRY CREDITORS OF RS.1,1 0,17,324/- WERE CREDITS IN THE ACCOUNTS OF THE ASSESSEE DURING THE F.Y. 2011-12, RELEVANT TO THE A.Y 2012-13. ACCORDING TO THE LD AO , THE ASSESSEE- INDIVIDUAL DID NOT EXPLAIN THE ABOVE CREDITS IN HIS ACCOUNTS BY FURNISHING ACCOUNTS, CONFIRMATION OF SUCH BALANCES FROM THE RESPECTIVE PARTIES AND BILLS AND VOUCHERS IN SUPPORT OF SUCH C LAIM OF SUNDRY CREDITORS BALANCES. THEREFORE, AS RECORDED BY THE L D AO, THE ASSESSEE WAS DIRECTED TO SHOW CAUSE AS TO WHY THE A BOVE CREDITS IN HIS ACCOUNTS SHOULD NOT BE TREATED AS UNEXPLAINED C REDIT IN HIS ACCOUNT DURING THE FINANCIAL YEAR 2011-12 AND THE SAME SHOU LD NOT BE ADDED TO HIS TOTAL INCOME FOR THE A.Y 2012-13. THE LD AO HAS RECORDED FURTHER, THAT THE ASSESSEE- INDIVIDUAL DID NOT OFFE R ANY EXPLANATION AGAINST THE ABOVE SHOW CAUSE AND ALSO DID NOT FURNI SH ANY DOCUMENTARY EVIDENCE IN SUPPORT OF HIS CLAIM. THERE FORE, THE LD AO TREATED THE SUM OF RS.1,10,17,324/- ' UNEXPLAINED CREDIT ' IN HIS ACCOUNT DURING THE FINANCIAL YEAR 2011-12 AND ADDED THE SAME TO THE TOTAL INCOME RETURNED FOR THE A.Y 2012-13. 2. DURING APPEAL, THE LD A.R FOR THE APPELLANT HAS SUBMITTED THAT THE ASSESSEE HAS TILED HIS RETURN OF INCOME AND SUBMITT ED THE AUDITED BALANCE SHEET, PROFIT & LOSS ACCOUNT WITH TAX AUDIT REPORT. IT WAS CONTENDED THAT THE BANK STATEMENTS AND CONFIRMATION S FROM, SOME OF THE CREDITORS WERE ALSO SUBMITTED. IT WAS ARGUED TH AT THEREFORE, THE LD. AO OUGHT TO HAVE PASSED THE ASSESSMENT ORDER AFTER TAKING INTO ALL RELEVANT MATERIALS WHICH THE LD. AO HAS GATHERED OR HAS IN HER POSSESSION. IT WAS PLEADED THAT EVEN IN A CASE OF B EST JUDGMENT ASSESSMENT THE LD. AO SHOULD HAVE PASSED THE ASSESS MENT ORDER TAKING INTO ACCOUNTS THE RELEVANT MATERIALS AND FIG URES SUBMITTED TO HER, AND THAT THE AUDITED BALANCE SHEET & PROFIT & LOSS ACCOUNT TOGETHER WITH TAX AUDIT REPORT WERE IN HER POSSESSI ON AND SINCE THE INCOME TAX RETURN WAS FILED ELECTRONICALLY HAVING A LL THE FIGURES RELATING TO BALANCE SHEET & PROFIT & LOSS ACCOUNT T HEREIN, THERE IS NO REASON TO SAY THAT SHE COULD NOT GO THOUGH THEM. IT WAS ARGUED THAT THE ASSESSMENTS ARE DONE ON THE BASIS OF PERFORMANCE OF THE BUSINESS OF THE ASSESSEE BUT THE LD. AO DID NOT GO THROUGH THE FIGURES OF PROFIT & LOSS ACCOUNT. IT WAS CONTENDED THAT THE ASSESSEE IS A WHOLESALE TRADER AND TOTAL SALES TURNOVER WAS OF RS.96,32,929/- ONLY AND THE GROSS PROFIT RATE AND NET PROFIT RATE DISCLOSED THERE ON WERE 11 .56% AND 3.65% RESPECTIVELY. IT WAS ARGUED THAT THE LD.AO MIGHT HA VE COMPARED SUCH RESULTS WITH THE OTHER BUSINESS RESULTS OF SAME NAT URE, BUT SHE DID NOT, AND THAT INSTEAD SHE MADE AN ADDITION OF RS.1,10,17 ,324/- WHICH COMPRISES RS.73,86,727/- DUES OF CREDITORS AND RS. 36,30,597/- BEING ADVANCES RECEIVED FROM THE DEBTORS (CUSTOMERS) STAT ING THEM AS ITA NO.2350/KOL/2016 A.Y. 2012- 13 NEEL KAMAL AGARWAL VS. ITO WD-35(2), KOL. PAGE 4 UNEXPLAINED CREDIT WHICH IS TOTALLY WRONG. IT WAS P LEADED THAT THE ADDITIONS BE DELETED. 3. I HAVE GIVEN MY CONSIDERED THOUGHT TO THE ACTION OF THE LD. AO AS RECORDED IN THE ASSESSMENT ORDER AND THE POSITION T AKEN BY THE ASSESSEE-APPELLANT DURING THE COURSE OF THE SCRUTIN Y PROCEEDINGS. IT IS SEEN THAT FROM THE PERIOD 26.03.2015 TO 30.03.2015, THE LD. AO HAS GIVEN MULTIPLE OPPORTUNITIES TO THE ASSESSEE TO BRI NG FORTH THE NECESSARY EVIDENCE RELATING TO THE CREDITS APPEARIN G IN THE BOOKS / BALANCE SHEET. THIS WAS AFTER THE LD.AO HAS NOTICED THAT THE FIGURE OF RS.73,86,727/- WAS APPEARING AS SUNDRY CREDITORS AN D THE FIGURE OF RS.36,30,597/- WAS APPEARING UNDER THE HEAD OF ADVA NCE CREDIT IN THE LIABILITIES, AS PER THE BALANCE SHEET ENDED 31.03.2 012. THOUGH THE SPECIFIC REQUISITION HAD BEEN MADE BY THE LD. AO BY THE ORDER SHEET NOTING OF 26.03.2015 AVAILABLE ON RECORD, CALLING F OR THE ACCOUNT CONFIRMATION OF ALL THE SUNDRY CREDITORS, DETAILS O F WHETHER LIABILITIES WERE DISCHARGE WITH DOCUMENTARY EVIDENCE, BANK AND PARTY DETAILS OF THE CREDITORS, ETC, THERE WAS NO COMPLIANCE BY THE ASSESSEE, AS HAS ALSO BEEN NOTED BY THE LD.AO. THOUGH THE NAMES OF T HE PARTIES HAD BEEN ENCLOSED WITH THE BALANCE SHEET OF M/S CHAMPIO N SALES AND SERVICES, THE PROPRIETARY CONCERN OF THE ASSESSEE, THE SPECIFIC CONFIRMATIONS AS REQUISITIONED BY THE LD. WERE NOT OFFERED BY THE APPELLANT-ASSESSEE. DURING APPEAL ALSO, THE APPELLA NT HAS MADE NO EFFORT TO OBTAIN AND FURNISH THE PROOF FROM THE SUN DRY CREDITORS BY WAY OF CONFIRMATION OF ACCOUNTS, OR EVEN PAYMENTS OVER THE SUCCEEDING YEARS. THE APPELLANT HAS ONLY DEPENDED UPON THE LAC K OF ANY ENQUIRY BY THE LD AO. HOWEVER, IN MY CONSIDERED OPINION, AS THE ASSESSEE- APPELLANT HAS NOT SUPPLIED ANY DETAILS EITHER DURIN G THE ASSESSMENT OR EVEN DURING THE APPEAL STAGE, AT NO POINT IN TIME H AS BE DISCHARGED THE ONUS OF GIVING THE BASIS DETAILS SUCH AS ADDRESS FO R COMMUNICATION, ACCOUNT CONFIRMATIONS ETC., TO PLACE ON RECORD SOME SEMBLANCE OF IDENTITY OR GENUINENESS OF THE PARTIES. IT IS NOT E VEN KNOWN WHETHER THEY WERE TRADE CREDITORS FOR THE ASSESSEE DURING T HE RELEVANT YEAR. HON'BLE COURTS HAVE FOR LONG HELD THAT THE ONUS IS CAST ON THE APPELLANT TO EXPLAIN THE CREDITS IN THE BOOKS OF ACCOUNTS, OT HERWISE THEY WOULD REMAIN UNEXPLAINED, AND LIABLE FOR BEING DISBELIEVE D. SIMILARLY F IT IS NOTICED THAT IN THE MATTER OF THE AMOUNT OF RS.36,3 0,597/-WHICH HAS BEEN CLAIMED BY THE APPELLANT TO BE ADVANCES RECEIV ED FROM THE DEBTORS (CUSTOMERS), THE ASSESSEE HAS NOT SUPPORTED SUCH CLAIMS EITHER BEFORE THE LD.AO OR BEFORE THIS FORUM. 4. IN THE CASE OF SURESH KUMAR T JAIN VS ITO, WARD- 2(1), BANALORE, THE HON'BLE ITAT, BANGALORE, BENCH-A, REPORTED IN [ 2011] 128 ITD 74 (BANGALORE) BY THEIR ORDER DATED 08.01.2010 HAVE HE LD AS FOLLOWS: SECTION 68 READ WITH SECTION 41(1) OF THE INCOME-TA X ACT, 1961 - CASH CREDITS - ASSESSMENT YEAR 2005-06 - IN COURSE OF ASSESSMENT, ASSESSING OFFICER ASKED ASSESSEE TO PRO VE GENUINENESS OF SUNDRY CREDITORS SHOWN IN RETURN OF. INCOME - IN REPLY, ASSESSEE MERELY FILED CONFIRMATION LETTERS I SSUED BY SOME OF ALLEGED CREDITORS - ASSESSING OFFICER REJECTED T HOSE LETTERS ITA NO.2350/KOL/2016 A.Y. 2012- 13 NEEL KAMAL AGARWAL VS. ITO WD-35(2), KOL. PAGE 5 AND MADE ADDITION UNDER TWO HEADS, I.E., 'BROUGHT F ORWARD CREDITORS BALANCES TREATED AS CESSATION OF TRADING LIABILITY UNDER SECTION 41(1) AND 'CURRENT CREDITORS UNDER SECTION 68 - COMMISSIONER (APPEALS) CONFIRMED ADDITION - ON INST ANT APPEAL, IT WAS SEEN THAT ASSESSING OFFICER WENT TO ROOT OF ISSUE; MADE INQUIRIES AND BROUGHT ON RECORD THAT BROUGHT FORWAR D ALLEGED SUNDRY CREDITORS AND CURRENT YEAR'S CREDITORS WERE NOT GENUINE. FURTHER, ASSESSEE NEVER TRIED TO RECONCILE DIFFEREN CE OF BROUGHT FORWARD BALANCES NOR PRODUCED ANY BILLS OF PURCHASE , ETC., FOR VERIFICATION IN SPITE OF BEING PROVIDED WITH AMPLE TIME TO RECONCILE - WHETHER, ON FACTS, ASSESSEE HAD FAILED TO DISCHARGE ONUS CAST ON HIM TO SUBSTANTIATE HIS CLAIM AND, THE REFORE, IMPUGNED ADDITION MADE BY AUTHORITIES BELOW WAS TO BE UPHELD - HELD, YES 5. SIMILARLY IN THE CASE OF ASHT LAXMI DIAMOND & JE WELLERY VS ITO, MUMBAI, THE HON'BLE ITAT, BENCH A BY THEIR ORD ER DATED 20.02.2015, REPORTED IN [2015] 59 TAXMANN.COM 430 ( MUMBAI - TRLB.) HAVE HELD AS UNDER: IT : WHERE ASSESSEE COULD NOT PROVIDE ADDRESSES, CONFIRMATION, ETC., FROM TWO CREDITORS AND IT WAS F OUND THAT IN LAST SO MANY YEARS THOSE PARTIES HAD NEVER BEEN SEEN BY ANYBODY AND THEY HAD ALSO NOT MADE ANY DEMAND FROM ASSESSEE FOR LAST MORE THAN 10 YEARS, LIABILITY IN RESPECT OF SAID CREDITORS WAS CONSIDER ED AS HAVING BEEN CEASED UNDER SECTION 41(1) SECTION 41(1 ) OF THE INCOME-TAX ACT, 1961 - REMISSION OR CESSATION O F TRADING LIABILITY (CESSATION OF LIABILITY) - ASSESS MENT YEAR 2007-08 - DURING ASSESSMENT PROCEEDINGS, ASSESSING OFFICER ASKED ASSESSEE TO FURNISH DETAILS AND CONFIRMATION OF ALL SUNDRY CREDITORS SHOWN IN BALAN CE SHEET - ASSESSEE COULD NOT SUBMIT CONFIRMATION OF T WO CREDITORS - IT WAS FOUND THAT IN LAST SO MANY YEARS THOSE PARTIES HAS NEVER BEEN SEEN BY ANYBODY, NOR ANY KNO WN ADDRESS OF THEM WAS AVAILABLE; THAT THERE WAS NEVER ANY DEMAND FOR PAYMENT BY ANY OF SAID PARTIES FROM ASSESSEE FOR LAST MORE THAN 10 YEARS; AND THAT NO INCOME-TAX RETURNS HAD BEEN FILED BY THEM - WHETHER LIABILITY OF ASSESSEE HAD CEASED TO EXIST AND WAS L IABLE TO BE ADDED UNDER SECTION 41(1) - HELD, YES [ PARA 8 ] [IN FAVOUR OF REVENUE ] AFTER A CAREFUL ANALYSIS OF THE ACTION OF THE LD. A O AND THE SUBMISSIONS MADE BY THE APPELLANT, AND IN THE LIGHT OF THE JUDI CIAL PRONOUNCEMENTS MADE BY DIFFERENT HON'BLE COURTS, IN MY CONSIDERED OPINION, THE LD AO CANNOT BE FAULTED FOR MAKING THE ADDITIONS THAT SHE HAS MADE, AND ACCORDINGLY CONFIRM THE SAME. AS THE RESULT, THE GROUND TAKEN BY THE APPELLANT STANDS DISMISSED. ITA NO.2350/KOL/2016 A.Y. 2012- 13 NEEL KAMAL AGARWAL VS. ITO WD-35(2), KOL. PAGE 6 3. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS. THERE IS HARDLY ANY DISPUTE THAT THIS ASSESSEE IS A WHOLE SALE DEALER / TRADER IN VARIOUS ELECTRICAL ITEMS AND APPLIANCES SUCH AS WAT ER PUMPS, FANS, COOLERS, GESYSERS, HOME APPLIANCES ETC.,. IT TRANSPIRES DURI NG THE COURSE OF HEARING THAT NEITHER OF THE LOWER AUTHORITIES HAS REJECTED ASSESSEES CORRESPONDING SALES NOR HAVE THEY TREATED ASSESSEES PURCHASES TO BE BOGUS. THEY SIMPLY HOLD THE CORRESPONDING PARTIES AS BOGUS SUNDRY CRED ITORS. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO DISPUTE THAT I F THE CORRESPONDING SALES AND PURCHASES ARE TREATED AS GENUINE, THE VERY COUR SE OF ACTION HAS TO BE FOLLOWED REGARDING CREDITORS PARTIES IN ISSUE IN OR DER TO AVOID INCONSISTENCY. WE THEREFORE REVERSE THE IMPUGNED ADDITION IN PRINC IPLE ON THIS COUNT ALONE. 4. NEXT COMES EQUALLY IMPORTANT ASPECT THAT THE ASS ESSEE HAS ALSO FAILED TO PROVE ITS RELEVANT PARTIES TO BE GENUINE. MR. SH AH VEHEMENTLY CONTENDS DURING THE COURSE OF HEARING THAT THE LOWER AUTHORI TIES HAVE ACCEPTED SALES OF THE CORRESPONDING ITEMS AND ALL THIS SUFFICIENTLY P ROVES ASSESSEES PURCHASES TO BE GENUINE. WE FIND NO SUBSTANCE IN ASSESSEES I NSTANT ARGUMENT AS IT IS ASSESSEES BOUNDEN DUTY TO PROVE OF THE PURCHASES I N ISSUE BY WAY OF LEADING COGENT EVIDENCES. THE FACT ALSO REMAINS WHOLE OF TH E ASSESSEES PURCHASES CANNOT BE TREATED AS BOGUS SINCE CORRESPONDING SALE S HAVE ALREADY BEEN ACCEPTED. WE HOLD IN THESE PECULIAR FACTS AND CIRCU MSTANCES THAT THE IMPUGNED PURCHASES DESERVE TO BE DISALLOWED @ 12.5% ONLY. WE THEREFORE DIRECT THE ASSESSING OFFICER TO RESTRICT THE IMPUGN ED DISALLOWANCE OF 1,10,17,324/- TO THE EXTENT 12.5% THEREOF ONLY IN C ONSEQUENTIAL COMPUTATION. THIS FORMER SUBSTANTIVE GROUND IS PARTLY ACCEPTED I N ABOVE TERMS. 5. NEXT COMES SHORT TERM CAPITAL GAINS ADDITION OF 10.57 LAC MADE IN BOTH THE LOWER PROCEEDINGS TREATING ASSESSEES AGRICULTU RAL LAND SOLD TO BE A CAPITAL ASSET. IT EMERGES DURING THE COURSE OF HEARING THAT THE ASSESSING OFFICER HAD COMPLETED HIS BEST JUDGMENT ASSESSMENT U/S. 144 OF THE ACT ON 31.03.2015. THE ASSESSEE COULD NOT PRODUCE ALL THE RELEVANT DET AILS IN THE LOWER APPELLATE PROCEEDINGS AS WELL. WE REITERATE THAT WE HAVE ALRE ADY RESTORED THE FORMER ISSUE BACK TO THE ASSESSING OFFICER WITH SPECIFIC D IRECTIONS (SUPRA). WE ITA NO.2350/KOL/2016 A.Y. 2012- 13 NEEL KAMAL AGARWAL VS. ITO WD-35(2), KOL. PAGE 7 THEREFORE DEEM IT APPROPRIATE THAT LARGER INTEREST WOULD BE MET IN CASE THE ASSESSING OFFICER ADJUDICATE THE INSTANT ISSUE AFRE SH AS PER LAW AFTER AFFORDING THREE EFFECTIVE OPPORTUNITIES TO THE ASSESSEE. THIS LATTER SUBSTANTIVE GROUND IS ACCEPTED FOR STATISTICAL PURPOSES. 6. THIS ASSESSEES APPEAL IS PARTLY ALLOWED IN ABOV E TERMS. ORDER PRONOUNCED IN THE OPEN COURT 28/ 02/2019 SD/- SD/- ( %) (' %) (DR.A.L. SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP, SR.P.S (- 28 / 02 /201 9 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-NEEL KAMAAL AGARWAL, M/S M JAIN & ASSOCI ATES, 9/12 LAL BAZAR STREET, BLOCK- E, 4 TH FLOOR, KOLKATA-001 2. /RESPONDENT-ITO WARD-35(2), AAYAKAR BHAWAN, POORVA, 110, SHANTIPALLY, E.M. BYPASS, KOLKAT AA-107 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/ / 3,