Amal Kumar Sinha, Kolkata V. Income Tax Officer, Ward - 55(2), Kolkata, Kolkata

ITA 2474/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92024 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-06-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 23-10-2013
• Court: TRIBUNAL
• Department Lawyers: SANJAY SR DR
• Keywords: Depreciation; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH: KOLKATA [BEFORE HON BLE SHRI B.P.JAIN, AM] I.T.A NO.2474 /KOL/2013 ASSESSMENT YEAR: 2006 - 07 AMAL KUMAR SINHA VS I.T.O., WARD - 55(2), KOLKATA KOLKATA (APPELLANT) ( RESPONDENT) (PAN: ABDPS 3066 N) FOR THE APPELLANT : NONE FOR THE RESPONDENT : SHRI SANJAY, SR.DR, ADDL. C.I.T. DATE OF HEARING : 05 .06 .2015. DATE OF PRONOUNCEMENT: 05 .06 .2015. ORDER THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF LD.CIT(A) - XXXV I , KOLK ATA DATED 19.08 .2013 FOR ASSESSMENT YEAR 2006 - 07. 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM AO S ORDER AT PAGES 1 AND 2 ARE REPRODUCED HEREIN BELOW FOR THE SAKE OF CONVENIENCE : DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS , ATTENTION OF THE AR W AS DRAWN TO T HE FACT T HAT DEPRECIATION ON CAR WAS C L A I MED @ 20 % IN PLACE OF 15 % AS ALLOWABLE AND ALSO TO THAT OF THE REMITTANCE OF RS 4,64 , 274/ - FROM U . K. IN RESPONSE, THE AR SUBMITTED A REVISED INCOME & EXPENDITURE ACCOUNT , CLAIM I NG DEPRECIATION OF RS 62, 343/ - AND DEB I TING AFRESH RS 54,796/ - , CLAIMED AS CAR INSURANCE & REGISTRATION . IN RESPECT OF THE FORE I GN REMITTANCE , I T WAS STATED THAT T HIS WAS MERELY - A REMITTANCE FROM LLYODS TSB BANK OF THE U . K. OUT OF THE ACCUMULATED BALANCE , NOT AN INCOME. STATEMENT FROM LLOYDS TSB BANK WAS CALLED FOR AND THE SAME WAS SUBMITTED. ON PERUSA L, IT WAS FOUND THAT DURING THE RELEVANT PERIOD THERE WAS ONE CREDIT OF 3790 AND PAYMENT TYPE DETAILS SHOWED DR G. HALDER . WHILE ASKED TO C LARIFY , THE ASSESSEE ON 10.11 . 2009 F I LED A WRITTEN SUBM I SSION STATING THAT DR GANES CH HALDER , MBBS , A GENERAL PRACTITIONER IN UK BORROWED 3790 AND PAID BACK IN 2005. A TYPED MATTER , WITHOUT SIGNATURE, STATED TO BE SENT BY DR GANES CHANDRA HALDER OF 5 , HAITHWAITE, TWO MILE ASH , MILTON KEYNES, MK 8 8LJ DATED 11 . 11 . 2009 WAS SUBMITTED IN WHICH DR HALDER DECLARES THAT HE BORROWED ABOUT 4000 FROM DR AMAL K R S I NHA IN THE YEAR 2005 AND PAID BACK 3790 ON 16 . 08.2005 I N THE FORM OF LLYYDS TSB BANK CHEQUE . ON 25.11 . 2009 , THE ASSESSEE SUBMITTED A DECLAR ATION IN WHICH IT WAS IT A NO . 2474/KOL/2013 AMAL KR.SINHA A.YR. 2006 - 07 2 STATED THAT HE GAVE ABOUT FOUR THOUSAND POUNDS TO DR GANES CHANDRA HALDER IN 2005 IN CASH AND HE PAID BACK 3790 IN T HE ACCOUN T OF THE AS SESSEE AT LLOYDS TSB BANK , UK . ON PERUSAL OF THE ABOVEMENTIONED STATEM E NT AND LLOYDS TSB BANK S T A T E MENT , THE FO L LO W ING MATTERS COME UP: A ) THE ASS E SSE E , IN HIS FINAL STATEMENT QUANTIFY THE SO - CALLED LOAN AMOUNT OF 3790 WHERE AS, IN T HE SE COND O N E , S TAT ES IT AS AB O UT F 4000 . B) THE ASSESSEE CANNOT MENTION THE EXACT DATE OF PAYMENT AND ALSO THE SOURC E. C) THE ASSESSEE HAS MADE PAYMENT OF 5 0 TO SIDNEY HOTEL ON 09.08.2005 THOUGH LLOYDS TSB BANK. EVEN 20 HAS BEEN PAID BY HIM ON 09.08.2005 THOUGH THE BANK WHEREAS THERE IS NO SIGN OF WITHDRAWAL OF THE SAID 4000 / 3790. ACTUALLY, THIS RECEIPT O F 3790 IS AN INCOME OF DR SINHA FOR RENDERING PROFESSIONAL SERVICE TO DR GANESH HALDER IN THE UK WHERE DR SINHA GOES FREQUENTLY AS PER HIS VERBAL STATEMENT , SUPPORTED BY THE PASSPORT . THIS HAS BEEN TRANSFERRED TO THE ASSESSEE IN THE BANK OF INDIA, ]ODHPU R PARK BRANCH ON 04.10.2005. SE CTION 5 OF THE INCOME TAX ACT, 1961 READS AS UNDER: SUBJECT TO THE PROVISIONS OF THIS ACT, THE TOTAL INCOME OF ANY PREVIOUS YEAR OF A PERSON WHO IS A RESIDENT INCLUDES ALL INCOME FROM WHATEVER SOURCE DERIVED WHICH - A) IS RECEIVED OR IS DEEMED TO BE RECEIVED IN INDIA IN SUCH YEAR OR ON BEHALF OF SUCH PERSON; OR B) A CCRUES OR ARISES OR IS DEEMED TO ACCRUE OR ARISE TO HIM IN INDIA DURING SUCH YEAR ; OR C) AC CRUES OR ARISES TO HIM OUTSIDE INDIA DURING SUCH YEAR . IN THE LIGHT OF THE ABOVE, THIS 3790 IS AN INCOME OF THE ASSESSEE WHICH COMES TO RS 2 , 93 , 3611 - [464424X3790 / 6000] IN INDIAN R UPEES AND ADDED BACK WITH TOTAL INCOME AS UNDISCLOSED INCOME. PENALTY PROCEEDINGS U/S 271 (L)(C) IS INITIATED SEPARATELY. THE LD. CIT(A) CO NFIRMED THE ACTION OF AO. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE. I PROCEED TO DECIDE THE ISSUE ON THE BASIS OF HEARING THE LD. DR AND PERUSAL OF MATERIAL AVAILABLE ON RECORD. ON PERUSAL OF THE RECORD AT PAGE 6 OF THE LD. CIT(A) S ORDER , THE YEAR HA S BEEN MENTIONED AS 2003 AND AT PAGE 8 IT IS MENTIONED AS 2005. IT HAS CREATED A CONFUSION THAT THE LOAN WAS TAKEN IN 2003 AND REPAID IN THE SAME YEAR AND SECONDLY AT PAGE 6 OF THE ORDER OF LD.CIT(A) THE NAME OF THE PERSON TO WHOM THE LOAN HAS BEEN GIVEN I S DR.GANESH HALDA R WHEREAS AT PAGE 8 IT IS DR.J AYANTA .KUMAR.HALDER. T HIRDLY NO CREDITWORTHINESS OF THE PERSON TO WHOM THE LOAN HAS BEEN PAID HAS BEEN PROVED OR NO EVIDENCE HAS BEEN BROUGHT ON RECORD EXCEPT AS STATED THE PRINT OUT E - MAIL AND A CONFIRMATI ON WHICH HAS NOT BEEN E X AMINED BY ANY OF THE AUTHORITIES BELOW. IN THE CIRCUMSTANCES IT A NO . 2474/KOL/2013 AMAL KR.SINHA A.YR. 2006 - 07 3 AND FACTS OF THE CASE THE MATTER IS SET ASIDE TO THE FILE OF AO, WHO WILL EXAMINE THE WHOLE ISSUE AFRESH AND FIND THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRA NSACTIONS AND DECIDE THE ISSUE DE NOVO BUT AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDE R PRONOUNCED IN THE OPEN COURT ON 05 .06 .2015. SD/ - [ B.P.JAIN ] ACCOU NTANT MEMBER DATE: 05 .06 .2015. R.G.(.P.S.) C OPY OF THE ORDER FORWARDED TO: 1 . SHRI AMAL KUMAR SINHA, 63, PURNA DAS ROAD, KOLKATAP - 700029. 2 I.T.O., WARD - 52(2 ), KOLKATA 3 . CIT(A) - X XXV I , KOLKATA 4. CIT - KOLKATA. 5. CIT - DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES