ACIT, Circle-5(1), Bhubaneswar V. Pralep Kumar Samal, Bhubaneswar

ITA 25/CTK/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5453 (ITAT-CUTTACK)
• Duration Of Justice: 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 19-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: T K AGARWAL
• Section: 40A(3); 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 25 /CTK/2017: ASSESSMENT YEAR : 2010 - 2011 ITO, WARD 2(1), BHUBANESWAR. VS. MR PRALEP KUMAR SAMAL , PLOT NO.1196/1984, NILAKANTHA NAGAR, NAYAPALI, BHUBANESWAR PAN/GIR NO.ADQPS 4031 G (APPELLANT ) .. ( RESPONDENT ) C.O.NO.04 /CTK/2017 (IN ITA NO .25/CTK/2017: A.Y. 2010 - 11) MR PRALEP KUMAR SAMAL, PLOT NO.1196/1984, NILAKANTHA NAGAR, NAYAPALI, BHUBANESWAR VS. ITO, WARD 2(1), BHUBANESWAR. PAN/GIR NO. ADQPS 4031 G (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI T.K.AGARWAL, AR REV ENUE BY : SHRI D.K.PRADHAN, DR DATE OF HEARING : 02 /08/ 2017 DATE OF PRONOUNCEMENT : 8 /08/ 2017 O R D E R PER N.S.SAINI, AM THE APPEAL FILED BY THE REVENUE AND CROSS OBJECTION FILED ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE CIT(A) - 2, BHUBANESWAR DATED 1 7.10 .2016 F OR THE ASSESSMENT YEAR 2010 - 11 . 2 ITA NO .25/CTK/2017 & C.O.4 /CTK/17 ASSESSMENT YEAR: 2010 - 11 2. THE SOLE ISSUE INVOLVED IN THE APPEAL FILED BY THE REVENUE IS THAT THE CIT(A) ERRED IN DELET ING THE ADDITION OF RS.1,07,87,313 / - U/S 40A(3) OF THE ACT. 3. THE BRIEF FACTS OF THE CASE ARE THAT THERE WAS A SURVEY UNDER SECTION 133A OF THE ACT AT THE BUSINESS PREMISES OF THE ASSESSEE ON 30.1.2013 DURING WHICH MONEY RECEIPTS AND OTHER DOCUMENTS PERTAINING TO PAYMENTS MADE TO TRUCKS WERE FOUND AND IMPOUNDED . THE ASSESSING OFFICER OBSERVED THAT AS PER ENTRIES IN SOME OF THE VOUCHERS FOUND DURING THE COURSE OF SURVEY IN BUNCH IDENTIFIED AS SSM - 26 & 24, THOUGH THE Y PERTAINED TO OTHER ASSESSMENT YEAR, PAYMENTS WERE MADE OF AN AMOUNT OF RS.20,000/ - AND ABOVE WHEREAS IN THE BOOKS OF ACCOUNT, MONEY RECEIPTS OF LESS THAN RS.20,000/ - ARE ENTERED EVEN WHEN PAYMENTS MADE TO THE TRUCK DRIVERS AGAINST TRANSPORT BILLS EXCEEDE D THAT AMOUNT. ON THE BASIS OF THESE OBSERVATIONS, THE ASSESSING OFFICER CONCLUDED THAT PAYMENTS AGGREGATING TO RS.1,07,87,313/ - EXCEEDED RS.20,000/ - AND SINCE THEY WERE PAID IN CASH, PROVISIONS OF SECTION 40A(3) ARE ATTRACTED. HE, ACCORDINGL Y, MADE AN ADDITION OF RS.1,07,87,313/ - . 4. BEFORE THE CIT(A), THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER HAS NOT FOUND ANY EVIDENCE OF PAYMENT ABOVE RS.20,000/ - FOR FINANCIAL YEAR 2008 - 09 RELEVANT TO ASSESSMENT YEAR 2009 - 2010 AND, THEREFORE, NO ADDITION CAN B E MADE U/S.40A(3) OF THE ACT. 5. THE CIT(A) AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE HELD AS UNDER: 3 ITA NO .25/CTK/2017 & C.O.4 /CTK/17 ASSESSMENT YEAR: 2010 - 11 5.3 I HAVE GONE THROUG H THE ASSESSMENT ORDER AND THE SUBMISSION OF THE APPELLANT DURING THE COURSE OF APPEAL. IN THE ASSESSMENT ORDER, THE ASSESSIN G OFFICER HAS GIVEN T HE DESCRIPTION OF IMPOUND ED DOCUMENTS SSM - 26 & 24. NONE OF THESE DOCU MENTS RELATE TO FY 20 09 - 10 RELE VANT TO A.Y. 201 0 - 11 . THE ASSESSING OFFICER HIMSELF HAS MENTIONED THAT THE VOUCHER S F OUND DO NOT RELATE TO A.Y. 2010 -- 11 . THE ADDITION U/S. 40A(3) HAS TO BE BASED ON FACTS AND EVIDENCES. UNLESS THE ASSESSING OFFICER FINDS THE EVIDENCE THA T PAYMENTS MA DE TO A PERSON ON A SINGLE DAY EXCE EDS RS. 20,000/ - , HE CANNOT MAKE ADDITION U/S 40A(3). THE DOCUMENTS IMPOUNDE D BY THE ASSESS ING OFFICER MAY BE RELEVANT TO ASSESSMENT YEAR TO WHICH THEY RELATE, BUT NOT FOR A.Y. 2010 - 11 . IT IS IMPORTANT TO NOTE THAT SURVEY WAS CONDUCTED AT ASSESSEE'S BUSINESS PREMISES ON . 30 .01.2013 . EVEN THOUGH THE SURVEY WAS CONDUCTED, THE ASSESSING OFFICER DID NOT FIND ANY EVIDENCE O F CASH PAYMENT OF EXCEEDING RS. 20,000/ - TO A PERSON IN A SINGLE DATE. SURVEY WAS ME ANT FOR COLLECTION OF EVIDENCE. BUT NO SUCH EVIDENCE WAS FOUND DURING THE COURSE OF SURVEY. ON THE CONTRARY, THE APPELLANT HAS MAINTAINED THE PAYME NT RECEIPTS WHERE NON E OF THE CASH PAYMENTS WERE MADE TO A PERSON ON A SINGLE DAY EXCEEDS RS. 20,000/ - . CONSIDERING THESE ASPECTS, THE ADDITION MADE BY THE ASSESSING OFFICER OF RS.1,07,87,313/ - IS ORDERED TO BE DELETED. ACCORDINGLY, THE GROUNDS OF APPEAL ARE ALLOWED. 6. LD D.R. RELIED ON THE ORDER OF THE ASSESSING OFFICER WHEREAS LD AR SUPPORTED THE ORDER OF THE CIT(A). 7. AFTER HEARING RIVAL SUBMISSION AND PERUSING THE ORDERS OF LOWER AUTHORITIES, WE FIND THAT LD D.R. COULD NOT CONTRO VERT THE FINDINGS OF THE CIT(A) TO THE EFFECT THAT NO PAYMENT EXCEEDING RS.20,000/ - IN CASH MADE BY THE ASSESSEE D URING THE FINANCIAL YEAR 2009 - 10 RELEV ANT TO ASSESSMENT YEAR 2010 - 11 WAS FOUND BY THE ASSESSING OFFICER. THE ASSESSING OFFICER HAS HIMSELF ME NTIONED THAT VOUCHERS FOUND ARE RELATING TO ASSESSMENT YEAR 2010 - 11 . THEREFORE, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE CIT(A) WH ICH IS HEREBY CONFIRMED AND THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 8. THE CROSS OBJECTION FILED BY THE ASSESSEE IS IN SUPPORT OF THE ORDER OF THE CIT(A), HENCE SAME IS INFRUCTUOUS AND DISMISSED. 4 ITA NO .25/CTK/2017 & C.O.4 /CTK/17 ASSESSMENT YEAR: 2010 - 11 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE AND CROSS OBJECTION FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRON OUNCED IN THE OPEN COURT ON 8 /08/2017. SD / - SD/ - ( PAVAN KUMAR GADALE) ( N.S SAINI) JUDICIALMEMBER A CCOUNTANT MEMBER CUTTACK; DATED 8 /08/2017 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANT : MR PRALEP KUMAR SAMAL, PLOT NO.1196/1984, NILAKANTHA NAGAR, NAYAPALI, BHUBANESWAR 2. THE RESPONDENT. ITO, WARD 2(1), BHUBANESWAR 3. THE CIT(A) - 2, BHUBANESWAR 4. PR.CIT - 2, BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//