Swastika Mukherjee, Kolkata V. ITO, WD-55(4), KOLKATA, Kolkata

ITA 257/KOL/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1865 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 1 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 05-09-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 17-03-2015
• Court: TRIBUNAL
• Keywords: Revised return
• Section: 131

Judgement Text

1 ITA NO. 257/KOL/15 SWASTIKA MUKHERJEE IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA D B ENCH, KOLKATA BEFORE: SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 257/KOL/2015 A.Y 2008-09 SWASTIKA MUKHERJEE ................................. .. APPE LLANT PAN: AJCPM4871C C/O AMITAVA BANIK & ASSOCIATES CHARTERED ACCOUNTANTS 409, BENTINCK CHAMBERS 37A, BENTINCK STREET KOLKATA-700 069. -VS- INCOME TAX OFFICER .. ........................................ RESPONDE NT WARD 55(4), 54, RAFI AHMED KIDWAI ROAD KOLKATA-700 016. APPEARANCES BY: SHRI SAJJAN KUMAR TULSIYAN, ADVOCATE, LD.AR OF THE ASSESSE SHRI S.M.DAS, ADDL. CIT, LD. SR.DR FOR THE REVENUE DATE OF HEARING: 21-03-2017 DATE OF PRONOUNCEMENT: 19-04-2017 SHRI S.S. VISWANETHRA RAVI , JM: THIS APPEAL BY THE ASSESSEE IS AGAINST ORDER DT: 15 -01-2015 PASSED BY THE COMMISSIONER OF INCOME TAX-(APPEALS), 6, KOLKAT A FOR THE ASSESSMENT YEAR 2008-09. 2. IT IS NOTICED THAT THOUGH THE ASSESSEE HAS RAISE D AS MANY AS FIVE GROUNDS OF APPEAL IN THIS APPEAL. THE LD.AR OF THE ASSESSEE AT THE TIME OF HEARING BEFORE US HAS NOT PRESSED GROUND NO.2 I.E AN ADDITION OF RS.68,448/- 2 ITA NO. 257/KOL/15 SWASTIKA MUKHERJEE TREATING THE SAME AS UNDISCLOSED INCOME BEING DEPO SIT IN UCO BANK ACCOUNT. HENCE, THE SAME NEEDS NO ADJUDICATION BY US BEING N OT PRESSED. ACCORDINGLY, THIS GROUND OF ASSESSEES APPEAL IS DISMISSED. 3. GROUND NO. 1 IS RELATING TO CONFIRMATION OF ADDI TION OF RS.12,75,826/- MADE BY THE AO TREATING THE SAME AS UNDISCLOSED INC OME BEING DEPOSIT MADE IN BANK OF INDIA, WHICH WAS ALSO CONFIRMED BY THE C IT-A. 4. THE FACTS RELATING TO ISSUE IN HAND THAT DURING THE SCRUTINY PROCEEDINGS THE AO FOUND THAT HE ASSESSEE RECEIVED AN AMOUNT OF RS .33,88,691/- ON THE BASIS OF BANK STATEMENT & OTHER MATERIAL AVAILABLE ON RECORD . BUT, THE ASSESSEE HAS SHOWN ONLY RS.13,26,722/- AS PROFESSIONAL FEES RECE IPTS IN HER P & L ACCOUNT FOR THE A.Y UNDER CONSIDERATION. THE ASSESSEE WAS SHOW CAUSED BY THE AO BEING WHY THE DIFFERENCE ARISEN BETWEEN ABOVE SAID AMOUNTS S HOULD NOT BE TREATED AND ADDED AS CONCEALED PROFESSIONAL INCOME TO HER TOTAL INCOME FOR THE A.Y UNDER CONSIDERATION. THE AO ISSUED NOTICE U/S. 131 OF THE ACT TO THE ASSESSEE TO RECORD STATEMENT. IN SUCH STATEMENTS, THE ASSESSEE STATED THAT THE SAID AMOUNTS WERE RECEIVED FROM VARIOUS PRODUCTION HOUSES FOR MAKING FILMS & SERIALS AND DUE TO MISTAKE OF THE ACCOUNTANT THE SAID AMOUNTS WERE NOT INCLUDED IN THE GROSS RECEIPTS. THE ASSESSEE STATED THAT SOME EXPENSES WE RE ALSO OMITTED TO HAVE BEEN INCORPORATED IN THE P & L ACCOUNT. IN SUPPORT OF THE CONTENTION AND CLAIM, THE ASSESSEE FILED THE DETAILS OF EXPENSES AND CLAI MED THE SAME AS DEDUCTION. HOWEVER, THE AO WAS NOT SATISFIED WITH SUCH SUBMISS IONS OF ASSESSEE AND TREATED THE SUM OF RS.13,44,314/- AS HER CONCEALED INCOME A ND ADDED THE SAME TO THE TOTAL INCOME OF ASSESSEE. IT IS PERTINENT TO NOTE T HAT THE AO OBSERVED THAT IN RESPECT OF ALLOWANCE OF EXPENDITURE AS CLAIMED AND FILED BY THE ASSESSEE THAT UNLESS A REVISED RETURN IS FILED BY THE ASSESSEE, T HE EXPENDITURE, IF ANY, AS CLAIMED FOR DEDUCTION BY THE ASSESSEE CANNOT BE ALL OWED BY FOLLOWING THE ORDER OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZE (I) LTD VS. CIT REPORTED 229 ITR 383 (SC) AND WHILE THE ASSESSEE DID NOT FILE AN Y REVISED RETURN FOR CLAIM OF 3 ITA NO. 257/KOL/15 SWASTIKA MUKHERJEE ADDITIONAL DEDUCTION IN RESPECT OF EXPENSES, THE SA ME CANNOT BE CONSIDERED/ENTERTAINED. THUS, HE ADDED THE AMOUNT O F RS.13,44,314/- BEING UNDISCLOSED INCOME OF ASSESSEE TO HER TOTAL INCOME. 5. THE ASSESSEE CHALLENGED THE SAME BEFORE THE CIT- A. BEFORE HIM THE ASSESSEE REITERATED THE SAME SUBMISSIONS AS MADE BE FORE THE AO AND URGED TO ALLOW SUCH EXPENDITURE AS DEDUCTION, WHICH WAS N OT CONSIDERED BY THE AO IN THE ASSESSMENT PROCEEDINGS. BUT, HOWEVER, THE CIT-A FOUND THAT THE ASSESSEE DID NOT FILE ANYTHING TO SHOW THAT SUCH EXPENDITUR E AS CLAIMED BY HER IS GENUINE, EXCEPT MAKING SUBMISSIONS IN GENERAL TERM S REGARDING THE ALLOWANCE OF EXPENDITURE AS DEDUCTION. BEFORE THE C IT-A THE ASSESSEE ADMITTED THE SUPPRESSION OF RECEIPTS AND PUT THE BLAME ON HE R ACCOUNTANT FOR SUCH SUPPRESSION. HENCE, HE WAS OF THE VIEW THAT SINCE T HE ASSESSEE HAS NOT MADE SUCH EXPENDITURE AS CLAIM IN THE RETURN OF INCOME, HE CONFIRMED THE ORDER OF THE AO IN MAKING THE SAID ADDITION ON THIS ISSUE. R ELEVANT FINDINGS OF THE CIT-A ARE REPRODUCED HEREIN BELOW:- 4.2 APPELLANTS GROUND OF APPEAL, STATEMENT OF FAC TS AND MATERIAL AVAILABLE ON RECORD IS CAREFULLY CONSIDERED. ON PERUSAL OF THE ORDER, IT I S SEEN THAT A.D. DURING THE COURSE OF ASSESSMENT ON ANALYZING THE BANK A/E. DEPOSITS HAD NOTICED THAT THERE WAS EVIDENCE OF RECEIPTS SUPPRESSION. THIS FACT WAS CONFRONTED TO ASSESSEE A ND HER STATEMENT RECORDED U/S. 131 OF THE I. T. ACT. DURING THE COURSE OF RECORDING OF STATEMENT , SHE ADMITTED TO SUPPRESSION OF RECEIPTS, HOWEVER PUTTING THE BLAME ON HER AUTHORIZED REPRESE NTATIVE FOR SUCH SUPPRESSION. AFTER TAKING INTO CONSIDERATION EXPLANATION OF ASSESSEE, THE AMO UNT OF SUPPRESSION OF RECEIPT WAS ARRIVED AT RS. 13,44,314/- WHICH HAS BEEN ELABORATELY DISCUSSE D IN A.O. 'S ORDER. THE ASSESSEE DURING THE COURSE OF ASSESSMENT CLAIMED INCURRING OF CERTAIN E XPENDITURE FOR EARNING SUCH RECEIPT WHICH WAS NOT ALLOWED BY A.O. BY CORRECTLY POINTING OUT T HAT NO SUCH CLAIM OF EXPENDITURE WAS MADE IN THE RETURN OF INCOME FILED. EVEN DURING THE APPE LLATE PROCEEDING OTHER THAN STATING IN GENERAL TERMS REGARDING ALLOWING OF EXPENDITURE AGAINST REC EIPT NO EVIDENCE OF INCURRING OF ANY EXPENDITURE OVER AND ABOVE THE AMOUNT CLAIMED IN RE TURN HAS BEEN FILED, DUE TO CONTINUOUS NON-COMPLIANCE. I VIEW OF THE ABOVE A.OS ADDITION ON ACCOUNT OF RECEIPT SUPPRESSION IS SUSTAINED. THE APPEAL MADE ON THESE GROUNDS IS DISM ISSED. 6. THE LD. AR SUBMITS THAT THE ASSESSEE FILED ALL T HE DETAILS OF EXPENDITURE INCURRED IN RELATION TO THE PROFESSIONAL EXPENDITUR E. HE ALSO SUBMITS THAT THE AO HAVING EXAMINED AND RECOGNIZED THE DETAILS OF EX PENDITURE AND CLAIMING THE SAME AS DEDUCTION DID NOT ALLOW THE CLAIM OF EX PENDITURE. THE LD.AR OF THE ASSESSEE REFERRED TO PARA NO. 5 OF THE AOS ORDER A ND ARGUED THAT THE AO ADDED THE SAID AMOUNT AS DEPOSITS MADE IN BANK A/CS BEING REMAINED 4 ITA NO. 257/KOL/15 SWASTIKA MUKHERJEE UNEXPLAINED. THE ASSESSEE CLAIMED THE SAME AS EXPEN DITURE AGAINST SAID PROFESSIONAL RECEIPTS. THE LD.AR OF THE ASSESSEE FU RTHER ARGUED THAT THE DECISION IN THE CASE OF GOETZE (I) LTD SUPRA AS REL IED ON BY THE AO FILING A REVISED RETURN TO CLAIM THE SAME AS DEDUCTION IS NO T APPLICABLE TO THE PRESENT FACTS OF THE CASE. THUS, HE SUBMITS THAT THERE IS N O NECESSARY TO FILE REVISED RETURN TO CLAIM THE EXPENDITURE AS DEDUCTION. THE A O IS SUPPOSED TO GIVE ANY RELIEF IN ACCORDANCE WITH LAW EVEN IRRESPECTIVE NAT URE OF CLAIM IS MADE BY THE ASSESSEE. HE FURTHER SUBMITS THAT THE CIT-A SIMPLY CONFIRMED THE ORDER OF THE AO WITHOUT CONSIDERING THE DETAILED SUBMISSIONS OF ASSESSEE FILED BEFORE HIM. IN SUPPORT OF THE CONTENTIONS, THE LD.AR OF THE ASS ESSEE FILED BEFORE US THE DETAILS OF EXPENDITURE TOGETHER WITH BREAK UP OF EA CH EXPENDITURE AND ARGUED THAT ALL THE EXPENDITURE WAS INCURRED THROUGH BANKI NG CHANNEL AND AS SUCH SHE CLAIMED THE EXPENDITURE AS DEDUCTION. HE URGED TO A LLOW THE DEDUCTION IN RESPECT OF EXPENDITURE AS INCURRED BY THE ASSESSEE. 7. THE LD.DR SUBMITS THAT IT IS A FIT CASE FOR MAKI NG ADDITION. THE AO WAS JUSTIFIED IN MAKING THE ADDITION FOR NON DISCLOSURE OF BANK DEPOSITS TO AN EXTENT OF RS.13,26,722/-. BEFORE THE AO THE ASSESSEE DID N OT OFFER ANY PROPER EXPLANATION FOR THE SAME. THEREFORE, THE CLAIM OF E XPENDITURE AS DEDUCTION BEFORE THE AO IS AN AFTERTHOUGHT BY THE ASSESSEE, W HICH CANNOT BE CONSIDERED IN THE EYE OF LAW. THE LD. DR ALSO OBJECTED TO IN F ILING OF DETAILS AND BREAK UP OF EXPENDITURE BEFORE THE TRIBUNAL AS THE SAME WERE NOT FILED BEFORE THE AUTHORITIES BELOW. THE LD.DR RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 8. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE INCLUDING THE DETAILS FILED BEFORE US. WE FIND THAT THE DETAILS OF EXPENDITURE WERE FILED BEFORE THE AO. THE AO HAVING EXAMINED THE SAME DID NOT ALLOW THE DEDUCTION OF CLAIM MADE BY THE ASSESSEE. THE ONLY REASON IS T HAT THE ASSESSEE DID NOT CLAIM THE SAME IN HER ORIGINAL RETURN AND THE ASSES SEE DID NOT FILE ANY REVISED RETURN FOR CLAIMING THE SAME AS DEDUCTION. THEREFOR E, THE ONLY QUESTION IS 5 ITA NO. 257/KOL/15 SWASTIKA MUKHERJEE BEFORE US AS TO WHETHER THE ASSESSEE IS ENTITLED TO CLAIM THE SAME AS DEDUCTION IN ABSENCE OF ANY CLAIM IN THE ORIGINAL RETURN OR R EVISED RETURN. WE FIND THAT THE ASSESSEE CLAIMED THE EXPENDITURE AGAINST GROSS RECEIPTS. THE AO FOUND THE SAME AS UNDISCLOSED INCOME OF ASSESSEE. WE FIND THA T WHEN THE AO ADDED THE SAME TO THE INCOME OF ASSESSEE, CERTAINLY THE ASSES SEE IS ENTITLED TO CLAIM THE EXPENDITURE AS DEDUCTION. IN SUCH CIRCUMSTANCES AN D FILING OF DETAILS AND BREAK UP OF EXPENDITURE BEFORE US, WHICH WERE NOT B EFORE THE AO, WE DEEM IT FIT AND PROPER TO REMAND THE ISSUE TO THE FILE OF T HE AO FOR HIS FURTHER CONSIDERATION AND TO PASS AN APPROPRIATE ORDER IN A CCORDANCE WITH LAW. THE ASSESSEE SHALL BE AT LIBERTY TO FILE THE RELEVANT D ETAILS AS FILED BEFORE US TO SUBSTANTIATE HER CLAIM. THIS GROUND OF ASSESSEES A PPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 9. REGARDING GROUND NO. 2, THE LD.AR OF THE ASSESSE E SUBMITS THAT HE IS NOT PROSECUTING THIS GROUND OF ASSESSEE. THEREFORE, THE SAME IS DISMISSED AS NOT PROSECUTED. 10. GROUND NO. 3 IS RELATING TO CLAIM OF ADDITIONAL EXPENDITURE OF RS.12 LAKHS IT IS ALSO NOTICED THAT THE CLAIM OF ADDITIONAL EX PENDITURE MADE FOR THE FIRST TIME BEFORE THE CIT-A. HOWEVER, IN VIEW OF ABOVE OU R DISCUSSION AND DECISION RENDERED IN GROUND NO. 1 RAISED BY THE ASSESSEE, WE ARE OF THE OPINION THAT THIS ISSUE IS TO BE REMITTED BACK TO THE FILE OF TH E AO TO DECIDE THE SAME AFRESH AND TO PASS AN APPROPRIATE ORDER AS PER LAW. ACCORDINGLY, THIS GROUND OF ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOS E. 11. GROUND NO. 4 IS IN RELATION TO SEEKING OF CREDI T OF RS.1,83,487/- FOR TDS. THE AO DENIED THE ASSESSEE TO GIVE CREDIT ON TDS, AGAINST WHICH THE CIT-A HELD THAT THE AO IS REQUIRED TO CALL FOR THE EVID ENCE OF TDS, IF NOT AVAILABLE ON RECORD AND GIVE CREDIT ACCORDINGLY. RELEVANT FINDIN G OF THE CIT-A VIDE PARA 5.2 IS REPRODUCED HEREIN BELOW:- 6 ITA NO. 257/KOL/15 SWASTIKA MUKHERJEE 5.2 APPELLANTS APPEAL IS CONSIDERED. SINCE THE ENT IRE RECEIPT, AS APPEARING IN TDS CERTIFICATE HAS BEEN TAKEN INTO CONSIDERATION, FULL CREDIT OF TDS OUGHT TO HAVE BEEN GIVEN. A.O IS THEREFORE REQUIRED TO CALL FOR THE EVIDENCE OF TDS IF NOT AVAILABLE ON RECORD AND GIVE CREDIT ACCORDINGLY. 12. HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ENTIRE RECEIPTS OF RS. 1,83, 487/- H AVE BEEN ADDED TO THE TOTAL INCOME OF ASSESSEE BY THE AO. THEREFORE, THE ASSESS EE IS ENTITLED TO CLAIM THE SAME FOR CREDIT OF TDS. THEREFORE, WE FIND NO INFI RMITY IN THE IMPUGNED ORDER OF THE CIT-A REQUIRING THE AO TO CALL FOR THE EVIDE NCE OF TDS, IF NOT AVAILABLE ON RECORD AND GIVEN CREDIT ACCORDINGLY. ACCORDINGLY, W E DIRECT THE AO TO GIVE CREDIT ON TDS. THIS GROUND OF ASSESSEES APPEAL IS ALLOWED. 13. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 19-04 -2017 SD/- SD/- WASEEM AHMED S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 19 -04-2017 COPIES OF THE ORDER FORWARDED TO : (1) THE ASSESSEE: SWASTIKA MUKHERJEE C/O AMITAVA BA NIK & ASSOCIATES, CHARTERED ACCOUNTANTS, 409, BENTINCK CHAMBERS, 37A, BENTINCK STREET, KOLKATA-69. (2) THE DEPARTMENT: INCOME TAX OFFICER, WARD 55(4), 54 RAFI AHMED KIDWAI ROAD, KOLKATA-16. (3) COMMISSIONER OF INCOME-TAX (APPEALS)-I, KOLKATA (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE **PP/SPS BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL