Sushanta Kumar Pal, Nadia V. ITO, Ward - 41(4), Nadia, Nadia

ITA 2496/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3111 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 21-12-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA SMC BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER) ITA NO. 2496/KOL/2017 ASSESSMENT YEAR: 2012-13 SUSHANTA KUMAR PAL.............APPELLANT C/O. S.N. GHOSH & ASSOCIATES, ADVOCATES SEVEN BROTHERS LODGE P.O. BUROSHIBTALA CHINSURAH DIST. HOOGHLY PIN 712 105 [PAN : ANXPP 7143 H] INCOME TAX OFFICER, WARD-41(4), KOLKATA...........RESPONDENT APPEARANCES BY: SOMNATH GHOSH, ADVOCATE, APPEARED ON BEHALF OF THE ASSESSEE. NONE APPEARED ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JULY 3 RD , 2018 DATE OF PRONOUNCING THE ORDER : AUGUST 24 TH , 2018 ORDER PER J. SUDHAKAR REDDY, AM :- THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-12, KOLKATA, (HEREINAFTER THE LD. CIT(A)), DT. 28/08/2017, PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT), RELATING TO ASSESSMENT YEAR 2012-13. 2. THE ASSESSEE IS AN INDIVIDUAL AND IS IN THE BUSINESS OF TRADING IN SEEDS, JUTE AND FERTILIZERS. HE ALSO HAS INCOME FROM TRANSPORT BUSINESS. HE FILED HIS RETURN OF INCOME ON 18/09/2012, DISCLOSING TOTAL INCOME OF RS.1,97,510/-. THE ASSESSING OFFICER PASSED AN ORDER U/S 143(3) OF THE ACT, DETERMINING THE TOTAL INCOME AT RS.25,04,750/-, INTERALIA MAKING AN ADDITION ON ACCOUNT OF UNEXPLAINED RECEIPTS, EXPENDITURE FROM UNDISCLOSED SOURCES, UNDISCLOSED INCOME AND INTRODUCTION OF CASH FROM UNEXPLAINED SOURCES. AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL. THE LD. FIRST APPELLATE AUTHORITY, GRANTED PART RELIEF. 3. FURTHER AGGRIEVED, THE ASSESSEE IS BEFORE US IN APPEAL ON THE FOLLOWING GROUNDS:- 1. FOR THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-12. KOLKATA FAILED TO CONSIDER THAT NONE OF THE CONDITIONS PRECEDENT EXISTED FOR AND/OR WERE FULFILLED BY THE LD. INCOME TAX OFFICER. WARD 41(4), NADIA FOR HIS PURPORTED ACTION OF RESORTING TO THE SPECIOUS ADDITION OF RS. 16,56,022/- ON 2 ITA NO. 2496/KOL/2017 ASSESSMENT YEAR: 2012-13 SUSHANTA KUMAR PAL ACCOUNT OF ALLEGED INCOME FROM UNEXPLAINED SOURCES INDULGING IN SPECULATION, SURMISE, SUSPICION AND CONJECTURE AND THE SPURIOUS ADDITION UPHELD THAT ACCOUNT IS THEREFORE AB INITIO VOID, ULTRA VIRES AND EX -FACIE NULL IN LAW. 2. FOR THAT THE LD. COMMISSIONER OF INCOME TAX. (APPEALS)-12, KOLKATA FELL IN ERROR IN UPHOLDING IMPUGNED ADDITION OF RS. 16,56,022/- RESORTED TO BY THE LD. INCOME TAX OFFICER. WARD 41 (4), NADIA WITHOUT FACTUALLY APPRECIATING THE CONTENTS OF THE REJOINDER OF THE APPELLANT UNDERLINED WITH EVIDENCE WHICH DO NOT WARRANT THE PURPORTED CONCLUSION IN THE PRESENT CONTEXT AND THE IMPUGNED FINDINGS REACHED ON THAT BEHALF ON EXTRANEOUS CONSIDERATIONS NOT GERMANE TO THE ISSUE IN DISPUTE IS COMPLETELY UNFOUNDED. UNJUSTIFIED AND UNTENABLE IN LAW. 3. FOR THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-12, KOLKATA ACTED UNLAWFULLY IN UPHOLDING THE IMPUGNED ADDITION IN THE SUM OF RS. 36,379/- MADE ON A TENUOUS BASIS BY THE LD. INCOME TAX OFFICER. WARD 41(4), NADIA ALLEGING UNEXPLAINED EXPENSES WITHOUT ADDUCING ANY ADVERSE EVIDENCE ON RECORD IN SUPPORT OF SUCH PURPORTED ACTION AND THE ALLEGED FINDINGS ON THAT BEHALF BASING ON IRRELEVANT CONSIDERATIONS IS WHOLLY ILLEGAL, ILLEGITIMATE AND INFIRM IN LAW. 4. TODAY, THOUGH NINE MATTERS WERE LISTED BEFORE THE BENCH, NO DEPARTMENTAL REPRESENTATIVE APPEARED. THERE WAS NO APPLICATION FOR ADJOURNMENT EITHER. THE BENCH RE-ASSEMBLED FOR A BREAK, SO AS TO ENABLE THE DEPARTMENT TO DEPUTE A DEPARTMENTAL REPRESENTATIVE. DESPITE WAITING, THERE WAS NO RESPONSE. HENCE I PROCEED TO DISPOSE OFF THE CASE EX-PARTE ON MERITS, QUA THE REVENUE. THERE IS A DELAY OF 11 DAYS IN FILING OF THIS APPEAL. AFTER PERUSING THE PETITION FILED FOR CONDONATION OF DELAY, I AM CONVINCED THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM FILING THE APPEAL IN TIME. HENCE THE DELAY IS CONDONED AND APPEAL ADMITTED. 5. WE HAVE HEARD THE CONTENTIONS OF THE LD. COUNSEL FOR THE ASSESSEE. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS:- 6. GROUND NO. 1 & 2 ARE AGAINST THE ADDITION OF RS.16,56,022/-, ON THE GROUND THAT THE ASSESSEE EARNED INCOME FROM UNEXPLAINED SOURCES. THE ASSESSEE EXPLAINED THAT HE SOLD WHEAT TO ONE MR. RAJ KUMAR BHUTIKA, AMOUNTING TO RS.36,69,728/-, DURING THE FINANCIAL YEAR 2011-12 AND THAT THIS IS EVIDENCED BY THE RECORDINGS IN THE BOOKS OF ACCOUNTS. OUT OF RS.36,69,728/-, AN AMOUNT OF RS.19,35,808/- WAS PAID THROUGH NEFT/RTGS. THE ASSESSEE CLAIMED THAT THE BALANCE AMOUNT WAS DEPOSITED DIRECTLY BY MR. RAJ KUMAR BHUTIKA IN THE BANK ACCOUNT OF THE ASSESSEE. ON AN ENQUIRY MR. RAJ 3 ITA NO. 2496/KOL/2017 ASSESSMENT YEAR: 2012-13 SUSHANTA KUMAR PAL KUMAR BHUTIKA, HAS DENIED THE CASH DEPOSIT. THE ASSESSEE CLAIMS THAT THIS REPLY U/S 133 (6) CANNOT BE RELIED UPON FOR THE REASON THAT THE SALES IN QUESTION WERE NOT DOUBTED AND THE FACT THAT MR. RAJ KUMAR BHUTIA OWED MONEY TO THE ASSESSEE WAS NOT DOUBTED. HE SUBMITTED THAT THE ASSESSEES PLEA FOR CROSS-EXAMINATION OF MR. RAJ KUMAR BHUTIA HAS NOT BEEN PROVIDED AND HENCE THE EVIDENCE IN QUESTION CANNOT BE ACTED UPON. HE FURTHER PLEADS THAT THIS AMOUNT HAS BEEN DISCLOSED AS INCOME BY THE ASSESSEE BY WAY OF CASH SALES AND HENCE IT CANNOT BE ADDED ONCE AGAIN AS IT WOULD AMOUNT TO DOUBLE ADDITION. 6.1. WE FIND THAT THE ASSESSING OFFICER, ON CROSS-EXAMINATION OF THE BOOKS OF ACCOUNTS OF THE ASSESSEE, FOUND THAT THIS AMOUNT IN QUESTION WAS SHOWN AS CASH SALES BY THE ASSESSEE. ONCE THE ASSESSEE DISCLOSED ITS AMOUNT AS AN INCOME FROM SALES, THE QUESTION OF ADDING THE SAME AGAIN AS UNEXPLAINED RECEIPT DOES NOT ARISE. THE PURCHASE AND SALES AND THE CLOSING STOCK DISCLOSED BY THE ASSESSEE HAVE BEEN ACCEPTED BY THE ASSESSING OFFICER. THE BOOKS HAVE NOT BEEN REJECTED. UNDER THESE CIRCUMSTANCES, THE ADDITION MADE, IN MY OPINION IS BAD IN LAW. IN THE RESULT GROUND NO. 1 & 2 ARE ALLOWED. 7. GROUND NO. 3, IS AGAINST THE ADDITION OF RS.36,379/-. THIS ADDITION HAS BEEN MADE ON THE GROUND THAT THERE IS A VARIATION IN THE QUANTITATIVE DETAILS FURNISHED BY THE ASSESSEE. THE ASSESSEE EXPLAINS THAT THERE WAS A MISTAKE IN MAKING PARTICULAR ENTRY AND HAD SUBMITTED A FRESH RECONCILIATION. THE ASSESSING OFFICER WAS NOT CONVINCED AND MADE THE ADDITION. 7.1. AFTER HEARING RIVAL CONTENTIONS, I CONCUR WITH THE FINDINGS OF THE ASSESSING OFFICER. THE ASSESSEE HAS NOT BEEN ABLE TO CONTROVERT THESE FINDINGS OF THE ASSESSING OFFICER. HENCE, THIS GROUND OF THE ASSESSEE IS DISMISSED. 8. IN THE RESULT, THIS APPEAL OF THE ASSESSEE IS ALLOWED IN PART. KOLKATA, THE 24 TH DAY OF AUGUST, 2018. SD/- [ J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER DATED : 24.08.2018 {SC SPS} 4 ITA NO. 2496/KOL/2017 ASSESSMENT YEAR: 2012-13 SUSHANTA KUMAR PAL COPY OF THE ORDER FORWARDED TO: 1. SUSHANTA KUMAR PAL C/O. S.N. GHOSH & ASSOCIATES, ADVOCATES SEVEN BROTHERS LODGE P.O. BUROSHIBTALA CHINSURAH DIST. HOOGHLY PIN 712 105 2. INCOME TAX OFFICER, WARD-41(4), KOLKATA 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