Syed Shah Row Aished Ali Al Quaderi , Kolkata V. ITO, Ward - 32(2) , Kolkata

ITA 2545/KOL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1634 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 02-07-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 07-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHANKAR HALDER
• Section: 131; 68; 142(1); 143(1); 143(2)

Judgement Text

1 ITA NO. 2545/KOL/2018 SYED SHAH ROW AISHED ALI AL QUADERI, AY- 2013-14 , (SMC) , IN THE INCOME TAX APPELLATE TRIBUNAL (SMC) BENCH: KOLKATA ( ) . . , ) [BEFORE SHRI A. T. VARKEY, JM] I.T.A. NO. 2545/KOL/2018 ASSESSMENT YEAR: 2013-14 SYED SHAH ROW AISHED ALI AL QUADERI (PAN: AAIPA0341E) VS. INCOME-TAX OFFICER, WD-32(2), KOLKATA APPLICANT RESPONDENT DATE OF HEARING 02.07.2019 DATE OF PRONOUNCEMENT 06.09.2019 FOR THE APPLICANT SHRI SIDDHARTH JHAJHARIA, ADVOCAT E FOR THE RESPONDENT SHRI SHANKAR HALDER, JCIT, SR. D R ORDER THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAINST TH E ORDER OF THE LD. CIT(A)-9, KOLKATA DATED 27.09.2018 FOR AY 2013-14. 2. THE ONLY ISSUE INVOLVED IN THIS APPEAL OF ASSESS EE IS AGAINST THE ACTION OF LD. CIT(A) IN UPHOLDING THE ADDITION OF RS.8,00,000/- MADE IN THE ASSESSMENT ORDER BY THE AO U/S. 68 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED T O AS THE ACT). 3. BRIEFLY STATED FACTS AS OBSERVED BY THE AO ARE T HAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 28.03.2014 DECLARING TOTAL INCOME OF RS.6 ,55,480/- WHICH COMPRISES OF INCOME FROM HOUSE PROPERTY AND INCOME FROM OTHER SOURCES. RETURN WAS PROCESSED U/S. 143(1) OF THE ACT ON 05.02.2015. SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY THROUGH CASS. ACCORDINGLY, NOTICES U/S. 143(2) AND 142(1) OF THE ACT WERE ISSUED AND SERVED UPON THE ASSESSEE. ACCORDING TO AO, THE ASSESSEE HAS SHOWN UNSECURED LOAN TO THE TUNE OF RS.25,00,000/- IN THE BALANCE SHEET. ON BEING ASKE D THE ASSESSEE FURNISHED DETAILS OF THE UNSECURED LOAN. FROM THE DETAILS OF LOAN CREDITORS SUMMONS U/S. 131 OF THE ACT WAS ISSUED TO SMT. AYESHA KHATUN, SHRI ABDUR RAKIB AND SHRI AB DULS SAHED FROM WHOM LOANS TO THE TUNE OF RS.5,00,000/-, RS.3,00,000/- AND RS.1,50,00 0/- WAS CLAIMED TO HAVE BEEN TAKEN. 2 ITA NO. 2545/KOL/2018 SYED SHAH ROW AISHED ALI AL QUADERI, AY- 2013-14 ACCORDING TO AO, IDENTITY AND GENUINENESS OF THE TR ANSACTION WERE ESTABLISHED IN RESPECT OF AYESHA KHATUN AND ABDUR RAKIB BUT CREDITWORTHINESS OF SMT. AYESHA KHATUN AND SHRI ABDUR RAKIB COULD NOT BE ESTABLISHED. ACCORDINGLY, NOTICE WAS ISSUED TO THE ASSESSEE VIDE LETTER DATED 16.11.2015 WHICH IS AVAILABLE IN THE A SSESSMENT ORDER. AFTER GOING THROUGH THE REPLY, THE AO BEING DISSATISFIED HAD HELD AS UNDER: THE ASSESSEE IN HIS REPLY DATED 27. 11.2015 INTER ALIA STATED THAT YOUR ASSESSEE IS A RELIGIOUS LEADER AND GUIDE BOTH THE PARTIES WHO ARE DISCIPLES OF YOUR ASSESSEE. ON LEARNING NEED OF THEIR REVERED GURUDEB, THEY POOLED THEIR RESOURCES AND EX PRESS THEIR INTENTION TO BE PERMITTED TO CONTRIBUTE THE AMOUNT TOWARDS THE NECESSITY OF THEI R GURUDEB. HOWEVER, SINCE IT IS IMPROPER TO RECEIVE THE AMOUNT IN CASH THEY WERE TOLD THAT IF T HEY WERE WILLING TO ARRANGE TO GIVE THE MONEY BY CHEQUE. BOTH THE ASSESSEES ARE CONDUCTING BUSINE SS IN AND AROUND BURDWAN AND CONDUCT THEIR BUSINESS TOTALLY IN CASH FOR WHICH THEY DID N OT HAVE ANY BANK ACCOUNT AND NOR HAD ANY NECESSITY FOR A BANK ACCOUNT. HOWEVER LEARNING THE NEED OF THE CIRCUMSTANCES THEY READILY OPENED THEIR ACCOUNTS WITH BANK AND GAVE THE LOAN B Y ACCOUNT PAYEE CHEQUE. THE AMOUNT DEPOSITED WAS OUT OF CASH ACCUMULATION FROM BUSINES S COLLECTION. IN THIS CONTEXT, IT MAY BE MENTIONED HERE THAT AT T HE TIME OF RECODING STATEMENT U/S. 131 SMT AYESHA KHATUN WAS SPECIFICALLY ASKED TO EXPLAIN THE SOURCES OF RS.5,28,400/- WHICH WAS DEPOSITED IN CASH BETWEEN 04.03.2013 TO 08.03.2013 IN HER BANK ACCOUNT BEFORE ISSUING THE CHEQUE. [RELEVANT BANK STATEMENT IS MADE PART OF TH E ORDER AS ANNEXURE 'C'] . SMT. KHATUN PUT FORWARD A VERY MEAK EXPLANATION THAT DUE TO HER SON 'S ILLNESS SHE HAS TO KEEP READY MONEY IN HER HOME AND THE CASH WAS GATHERED OVER A PERIOD OF TIME. SMT. AYESHA KHATUN IS LIVING IN THE HEART OF BURDWA N TOWN WHERE ALL THE FACILITIES OR BANKING AS WELL AS ATM ARE AVAILABLE. IT IS UNBELIE VABLE THAT SUCH AMOUNT OF MONEY BEING KEPT IDLE IN HER HOME. FURTHER, IF THE MONEY IS KEPT REA DY THERE FOR REQUIREMENT IN EMERGENCY FOR HER SON'S ILLNESS THEN WHY THE SAME HAS BEEN GIVEN TO H ER GURUDEB AND THE SAME IS STILL REMAINING OUTSTANDING AS ON DATE. THE SOURCES OF SUCH CASH DE POSITS REMAINED UNEXPLAINED. IN THE CASE OF SRI ABDUR RAKIB ALSO SHOWN PROFIT FR OM ALL DISCLOSED SOURCES WAS COPY OF THE RETURN WHEREAS CASH DEPOSITS TO THE TUNE OR RS. 3,05,000/- WAS MADE IN HIS SB ACCOUNT WITHIN A SHORT SPAN (09.01.2013 TO 07.03.2013). IRONICALL Y, THE ACCOUNT WAS OPENED ON 14.12.2012. (RELEVANT BANK STATEMENT IS MADE PART OF THE ORDER AS ANNEXURE 'D'. AT THE TIME OF RECODING STATEMENT U/S. 131, SRI ABD UR RAKIB WAS ASKED TO EXPLAIN THE SOURCES OF RS.3,05,000/- WHICH WAS DEPOSITED IN CAS H BETWEEN 09.01.2013 TO 07.03.2013 IN HIS BANK ACCOUNT, BEFORE ISSUING THE CHEQUE IN FAVOUR O F THE ASSESSEE. SRI ABDUR RAKIB PUT FORWARD HIS ARGUMENT BY A WRITTEN SUBMISSION DT. 09.10.2015 FILED SEPARATELY, WHICH IS MADE A PART OF THE ASSESSMENT ORDER AS ANNEXURE 'E' SAYING 'WHEN I HEARD ABOUT MY GURUDEB'S NEED I GATHERED CASH FROM ALL MY RESOURCES AND DEPOSITED T O MY BANK ACCOUNT AND I GAVE HIS HOLINESS A LOAN OF RS.3,00,000/- BY CHEQUE'. HOWEVER, THE SO URCES OF SUCH CASH DEPOSITS STILL REMAINED UNEXPLAINED. IN VIEW OF THE DISCUSSION AS ABOVE, IT IS ESTABLISH ED THAT THE TWO ALLEGED LOAN CREDITORS SMT. AYESHA KHATUN AND SRI ABDUR RAKIB HAD NO CREDI TWORTHINESS OF THEIR OWN TO GIVE LOANS TO THE MAGNITUDE OF RS.5,00,000/- & RS.3,00,000/- RESP ECTIVELY AND THAT RS.8,00,000/- (5,00,000 + 3,00,000) IS THUS FOUND TO BE THE ASSESSEE'S OWN MO NEY ROUTED THROUGH THEIR ACCOUNTS. THEREFORE, RS.8,00,000/- IS ADDED TO THE TOTAL INCO ME OF THE ASSESSEE TREATING THE SAME AS CASH CREDIT IN TERMS OF SECTION 68 OF THE I. T. ACT 1961 . 3 ITA NO. 2545/KOL/2018 SYED SHAH ROW AISHED ALI AL QUADERI, AY- 2013-14 AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO CONFIRMED THE ACTION OF AO. AGGRIEVED ASSESSEE IS BEFORE THIS TRIBUNAL. 4. I HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. THE LD. AR FAIRLY CONCEDED THE FACT THAT HE HAS NO DOCUMENTARY EVIDENCE TO SUBSTANTIATE THE SOURCE OF AMOUNT DEPOSITED BY SHRI ABDUR RAKIB OF RS.3,05,000/-. HOWEVER, IN RESPECT OF SMT. AYESHA KHATUN HE DREW O UR ATTENTION TO PAGE 7 WHICH IS THE PASS BOOK (PAGES 7 - 8) AND THEN TO THE BALANCE SH EET OF SMT. AYESHA KHATUN PLACED AT PAGE 6 OF THE PAPER BOOK. FROM A PERUSAL OF THE SA ME, IT IS NOTED THAT AS PER THE BALANCE SHEET AS AT 31.03.2013 IN HER CAPITAL ACCOUNT SHE H AD AN OPENING BALANCE OF RS.5,22,298/- (I.E. AS ON 01.04.2012) AND SHE HAD INCOME IN THIS YEAR FROM COACHING CENTRE TO THE TUNE OF RS.2,22,610/- WHICH HAS BEEN TRANSFERRED TO HER CAP ITAL ACCOUNT AND THUS HAD A TOTAL CAPITAL OF RS.7,44,908/-. IT IS ALSO SEEN FROM THE BALANCE SHEET THAT THE LENDING OF LOAN AMOUNT OF RS. 5 LACS BY CHEQUE NO.792751 DATED 09.03.2013 TO THE ASSESSEE HAS BEEN REFLECTED. SINCE SMT. AEYSHA KHATUN HAD OPENING BALANCE OF RS.5,22,2 98/- I.E. OPENING BALANCE OF CASH IN HER HAND AND ALSO HAD INCOME FROM COACHING CENTRE A S NOTED SUPRA AND, THEREFORE, SHE HAD THE CREDITWORTHINESS TO TRANSFER THE SUM OF RS.5 LA CS TO THE ASSESSEE. THEREFORE, I ACCEPT THE CONTENTION OF THE ASSESSEE AFTER PERUSAL OF THE DOC UMENTS DISCUSSED (SUPRA) THAT SMT. AYESHA KHATUN HAD TRANSFERRED RS. 5 LACS FROM HER OPENING BALANCE SHE HAD AS ON 01.04.2012 AND THE SOURCE IS THUS EXPLAINED, THEREFORE, THE ADDITI ON OF RS. 5 LACS IS DELETED, THEREFORE, THE ASSESSEE GETS A PART RELIEF TO THE TUNE OF RS. 5 LA CS AND I CONFIRM THE ADDITION OF RS. 3 LACS. 5. IN THE RESULT, APPEAL OF ASSESSEE IS PARTLY ALLO WED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 6 TH SEPTEMBER, 2019. SD/- (ABY. T. VARKEY) JUDICIAL MEMBER DATED : 6TH SEPTEMBER, 2019 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 4 ITA NO. 2545/KOL/2018 SYED SHAH ROW AISHED ALI AL QUADERI, AY- 2013-14 1. APPELLANT SYED SHAH ROW AISHED ALI AL QUADERI, 4, HAJI MOHSIN SQUARE, KOLKATA-700 013. 2 RESPONDENT ITO, WARD-32(2), KOLKATA 3. 4. CIT(A)-9, KOLKATA (SENT THROUGH E-MAIL) CIT-, , KOLKATA. 5. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR