Somdeb Biswas, Nadia V. ITO, Ward - 2, Nadia, Nadia

ITA 2438/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1401 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 27-12-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SAILEN SAMADDAR CIT DR REV
• Assessee Lawyers: S K KOCHAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA SMC BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY, A CCOUNTANT M EMBER ] I.T.A. NO. 2 438 / KOL/201 6 ASSESSMENT YEAR: 20 0 9 - 10 SOMDEB BISWAS. . .. . . ... APPELLANT RAGHABPUR, PANPARA RANAGHAT, NADIA W.B. - 741403 [PAN : AGHPB 3404 G ] I.T.O. WARD - 2 , NADIA .. ... .. ... RESPONDENT KRISHNANAGAR NADIA APPEARANCES BY: SHRI S.K. KOCHAR & SHRI ANIL KOCHAR , A DVOCATE , APPEAR ED ON BEHALF OF THE ASSESSEE. SHRI SAILEN SAMADDAR , ADDL. CIT , DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JANUARY 18 TH , 201 8 DATE OF PRONOUNCING THE ORDER : MARCH 9 TH , 201 8 O R D E R PER J. SUDHAKAR REDDY : - THIS APPEAL FILED BY THE ASSESSE E IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 1 2 , KOLKATA , (HEREINAFTER THE LD. CIT (A)), PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 01 / 0 3 /201 6 . 2. THE LD. COUNSEL FOR THE ASSESSEE FILED REVISED GROUNDS OF APPEAL. HE SUBMITTED THAT HE IS NOT PRESSING GROUND NO. 2, 4 & 5. HENCE, THE SAME ARE DISMISSED AS NOT PRESSED. 3. GROUND NO. 1 AND 7 ARE GENERAL IN NATURE. 4. GROUND NO. 6, IS ON THE DELAY IN FILING OF THE APPEAL. 4.1. AS PER THE REGISTRY, THERE IS NO DELAY IN FILING OF THIS APPEAL. HENCE THIS GROUND IS DISMISSED AS INFRUCTUOUS. 5. THIS LEAVES US WITH GROUND NO. 3, WHICH READS AS FOLLOWS: - 3. FOR THAT THE LD. CIT(A) OUGHT TO HAVE PROPERLY CONSIDERED THE FACTS OF THE CASE OF THE APPELLANT AS NOTED IN THE WRITTEN SUBMISSIONS AND OUGHT 2 I.T.A. NO. 2438/KOL/2016 ASSESSMENT YEAR: 2009 - 10 SOMDEB BISWAS NOT TO HAVE CONFIRMED THE ADDITION OF RS.18,57,000/ - OUT OF THE TOTAL ADDITION OF RS.19,77,000/ - , WHICH WAS CHALL ENGED BY THE APPELLANT. 6. AFTER HEARING RIVAL CONTENTIONS, I HOLD AS FOLLOWS: - THE ASSESSEE IS AN INDIVIDUAL AND IS TRADING IN CEMENT AND BUILDING MATERIAL. THE UNDISPUTED FACT IS THAT, AN UNDISCLOSED BANK ACCOUNT WAS FOUND BY THE REVENUE AUTHORITIES. THE ASSESSEE ADMITTED TO HAVE DEPOSITED AN AMOUNT OF RS.17,06,660/ - , TOWARDS INVESTMENT IN SHARE TRADING BUSINESS AND THAT HE MADE PAYMENT OF RS.1,82,000/ - FOR PURCHASE OF CEMENT FROM ULTRA TECH CEMENT COMPANY FROM THIS BANK ACCOUNT. THE ASSESSING OFFICER ADDED THE ENTIRE AMOUNT AS UNDISCLOSED INCOME AS THE ASSESSEE DID NOT FURNISH ANY DETAILS. ON APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY, THE ASSESSEE SUBMITTED THAT THE AMOUNT DEPOSITED IN THE BANK WAS PAID TO PORTFOLIO MANAGERS, NAMELY, VCK SHARES & STOCK BROKING SERVICES LTD., MOTILAL OSWAL SECURITIES LTD., APPOLLO SINDOORI (LATER TAKEN OVER BY ADITYA BIRLA MONEY LTD.), AND THAT THE ASSESSEE HAD DONE SHARE TRADING BUSINESS THROUGH THESE PORTFOLIO MANAGERS. HE CLAIMED THAT THE ASSESSEE HAS INCURRED A LOSS OF RS.7,43,657/ - . THE LD. CIT(A) CALLED FOR A REMAND REPORT. THE ASSESSING OFFICER AS WELL AS THE JCIT CONFIRMED THAT THE ASSESSEE HAS INCURRED A LOSS OF RS. 7 ,43,657/ - . THEY WERE OF THE VIEW THAT THE ADDITION WAS M ADE ON ACCOUNT OF INVESTMENT AND HENCE THE LOSS CANNOT BE SET OFF. THE LD. CIT(A) REFERRED TO SECTION 157 OF THE ACT AND HELD THAT THIS LOSS CANNOT BE CARRIED FORWARD. 6.1. AGGRIEVED, THE ASSESSEE IS BEFORE US. 7. IN MY VIEW, THE LD. CIT(A) HAS COMMITTED AN ERROR BY REFERRING TO SECTION 157 OF THE ACT. THE UNDISPUTED FACT IS THAT THE ASSESSEE HAS LOSS FROM SHARE TRADING BUSINESS OF RS.7,43,657/ - . IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEE HAS DEPOSITED A TOTAL AMOUNT OF RS.18 ,57,000/ - , IN THIS BANK ACCOUNT. THE ASSESSEE WITHDREW AN AMOUNT OF RS.1,20,000/ - , ON FOUR OCCASIONS FROM THIS BANK ACCOUNT AND THE LD. CIT(A) HAS RIGHTLY DIRECTED THAT TELESCOPING SHOULD BE GIVEN FOR RS.4,80,000/ - FROM RS.18,57,000/ - . AS THE LOSS IS OF THE CURRENT YEAR AND IT IS NOT A C ASE OF CARRY FORWARD OF UNABSORBED LOSS AND AS THE ASSESSING OFFICER BROUGHT THIS AMOUNT TO TAX AS UNRECORDED INCOME, I DIRECT 3 I.T.A. NO. 2438/KOL/2016 ASSESSMENT YEAR: 2009 - 10 SOMDEB BISWAS THAT THE AMOUNT OF RS.7,43 657/ - TO BE DEDUCTED FROM THE UNRECORDED INCOME OF RS.19,77,000/ - AND ONLY THE BALANCE TO BE BROUGHT TO TAX. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART. KOLKATA, THE 9 TH DAY OF MARCH , 201 8 . SD/ - [ J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER DATED : 09 . 0 3 .201 8 {SC SPS} C OPY OF THE ORDER FORWARDED TO: 1. SOMDEB BISWAS RAGHABPUR, PANPARA RANAGHAT, NADIA W.B. - 741403 2 . I.T.O. WARD - 2, NADIA KRISHNANAGAR NADIA 3. CIT(A) - 4. CIT - , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES 4 I.T.A. NO. 2438/KOL/2016 ASSESSMENT YEAR: 2009 - 10 SOMDEB BISWAS