ITO, Ward-1(4), Kolkata, Kolkata V. M/s Sound Mercantile Private Ltd., Kolkata

ITA 2369/KOL/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9258 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2017
• Appeal Filed By: Department
• Bench Allotted: C
• Next Hearing Date: 03-11-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 13-09-2013
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Additional evidence
• Section: 68; 144

Judgement Text

I.T.A. NO. 2369/KOL./2013 ASSESSMENT YEAR: 2007-2008 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 2369/KOL/ 2013 ASSESSMENT YEAR : 2007-2008 INCOME TAX OFFICER,................................ ...........................APPELLANT WARD-1(4), KOLKATA, AAYAKAR BHAWAN, 7 TH FLOOR P-7, CHOWRINGHEE SQUARE, 7 TH FLOOR, KOLKATA-700 069 -VS.- M/S. SOUND MERCANTILE PVT. LIMITED,................ ..............................RESPONDENT P-41, PRINCEP STREET, 5 TH FLOOR, ROOM NO. 509, KOLKATA-700 072 [PAN: AAICS 7561 B] APPEARANCES BY: SHRI DEBASISH LAHIRI, JCIT, SR. D.R., FOR THE DEPAR TMENT N O N E, FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : FEBRUARY 21, 2017 DATE OF PRONOUNCING THE ORDER : FEBRUARY 28, 2017 O R D E R PER SHRI J. SUDHAKAR REDDY, A.M. THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-I, KOLKATA DAT ED 13.06.2013 FOR THE ASSESSMENT YEAR 2007-08. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE AT THE T IME OF HEARING BEFORE US DESPITE THE SERVICE OF NOTICE. THE CASE W AS EARLIER LISTED ON 10.05.2016, 13.07.2016, 19.09.2016 AND TODAY. NONE OF THE OCCASIONS, THE ASSESSEE HAS APPEARED NOR AUTHORIZED ANY LD. COUNSE L APPEARED. THE NOTICE OF HEARING SENT TO THE ADDRESS MENTIONED IN FORM NO. 36 (COLUMN I.T.A. NO. 2369/KOL./2013 ASSESSMENT YEAR: 2007-2008 PAGE 2 OF 3 20) WAS RETURNED BY THE POSTAL AUTHORITIES WITH THE REMARK NOT KNOWN AND NOT CLAIMED. UNDER THESE CIRCUMSTANCES, WE DIS POSE OF THE CASE EX- PARTE QUA THE ASSESSEE ON MERITS AFTER HEARING THE LD. D.R. 3. THE GROUNDS OF APPEAL RAISED BY THE REVENUE READ AS FOLLOWS:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE CIT(A) IS NOT JUSTIFIED IN ADMITTING FRESH EVIDENCE IN VIOLATION OF RULE 46A OF I.T. RULES. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.1,99,65,228/- MADE BY THE A. O. ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S. 68 OF THE I.T. ACT EVE N AFTER CONCLUDING THAT TOTAL DEPOSITS TO BANK WERE ACTUALL Y RS.3,13,00,000/-. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT THE CASE WAS CORRECTLY ASSESSED U/S 144 OF HE I. T. ACT, 196 1 BY THE ASSESSING OFFICER BECAUSE OF THE PECULIAR CIRCUMSTA NCES EXISTING DURING THE SCRUTINY ASSESSMENT PROCEEDINGS . 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN NOT BRINGING ANY FACTS ETC. ON RECORD TO SUBSTANTIATE WHY COMMISSION @ 0.25% ON DEPOSITS MAD E INTO THE BANK ACCOUNT IS TO BE APPLIED FOR DETERMIN ATION OF ADDITIONAL INCOME. 5. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN APPLYING COMMISSION @0.25% ON DEPOSITS INTO BANK PLACING RELIANCE UPON SOME CASES , WITHOUT MENTIONING HOW THESE CASES ARE SIMILAR TO T HE INSTANT CASE. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE CL AIMS THAT IT IS ENGAGED IN THE BUSINESS OF PROVIDING ACCOMMODATION OR BOGUS ENTRIES FOR A COMMISSION. THE UNDISPUTED FACT IS THAT A SUM OF RS .1,99,65,228/- WAS DEPOSITED IN THE ASSESSEES BANK ACCOUNT. THE NATUR E AND SOURCE OF THESE DEPOSITS WAS NOT EXPLAINED BY THE ASSESSEE BEFORE T HE ASSESSING OFFICER OR EVEN BEFORE THE LD. CIT(APPEALS). WE DO NOT FIND THAT THE ASSESSEE HAS FURNISHED ANY EVIDENCE IN SUPPORT OF THIS CLAIM, TH AT IT WAS MERELY A CONDUIT OR PASS THE ROUGH ENTITY. WE CANNOT ACCEPT THE CLAIM THAT THE I.T.A. NO. 2369/KOL./2013 ASSESSMENT YEAR: 2007-2008 PAGE 3 OF 3 ASSESSEE IS IN THE BUSINESS OF PROVIDING ACCOMMODAT ION OR BOGUS ENTRIES FOR A COMMISSION. THE COMPANY HAS ALSO NOT FILED AN Y EVIDENCE TO PROVE THE SOURCE OF BANK DEPOSITS OF RS.1,99,65,228/-. ME RELY BECAUSE, THE DEPOSITS WERE MADE IN BANK THROUGH BANKING CHANNELS IT DOES NOT TAKE AWAY THE BURDEN THAT LAY ON THE ASESSEE-COMPANY, TO PROVE THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE PERSONS FRO M WHOM THE CREDIT AMOUNTS WERE RECEIVED. AS RIGHTLY ARGUED BY THE LD. D.R. THE LD. CIT(APPEALS) HAS ADMITTED CERTAIN ADDITIONAL EVIDEN CES WITHOUT RECORDING ANY REASON FOR ADMISSION OF THE SAME. HE IS ALSO RIGHT IN POINTING OUT THAT THE ASSESSING OFFICER WAS NOT GIV EN ANY OPPORTUNITY TO EXAMINE AND COMMENT UPON THESE ADDITIONAL EVIDENCES . UNDER THESE CIRCUMSTANCES, WE HOLD THAT THE ORDER OF THE FIRST APPELLATE AUTHORITY IS DEVOID OF MERIT. THE LD. CIT(APPEALS) HAS NOT BASED HIS FINDING ON ANY EVIDENCE. THUS WE REVERSE THE ORDER OF THE FIRST AP PELLATE AUTHORITY AND RESTORE THE ORDER OF THE ASSESSING OFFICER PASSED U NDER SECTION 144 OF THE ACT ON 30.12.2009. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON FEBRUARY 28, 2017. SD/- SD/- (S.S. VISWANETHRA RAVI) (J. SUDHAKAR REDDY) JUDICIAL MEMBER AC COUNTANT MEMBER KOLKATA, THE 28 TH DAY OF FEBRUARY, 2017 COPIES TO : (1) INCOME TAX OFFICER, WARD-1(4), KOLKATA, AAYAKAR BHAWAN, 7 TH FLOOR P-7, CHOWRINGHEE SQUARE, 7 TH FLOOR, KOLKATA-700 069 (2) M/S. SOUND MERCANTILE PVT. LIMITED, P-41, PRINCEP STREET, 5 TH FLOOR, ROOM NO. 509, KOLKATA-700 072 (3) COMMISSIONER OF INCOME-TAX (APPEALS)-I, KOLKA TA (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.