Partha Chakraborty , Birbhum V. ACIT, Circle - 50(1), Kolkata

ITA 2585/KOL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2061 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 11-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR P K SRIHARI
• Keywords: Unexplained cash credit; Unexplained investment; Capital asset; Business expenditure; Application of stay; Additional evidence; Accommodation entries; Bogus loan
• Section: 40A(3); 143(3); 133(6); 195; 68

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI J.SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI S.S.GODARA, JUDICIAL MEMBER ITA NO.2585KOL/2018 ASSESSMENT YEARS: 2014-15 PARTHA CHAKRABORTY C/O SUBASH AGARWAL & ASSOCAITES, ADVOCATES SIDDHA GIBSON, 1, GIBSON LANE, SUITE 213, 2 ND FLOOR, KOLKTA-69 [ PAN NO.ADQPC 5578 E ] / V/S . ACIT, CIRCLE-50(1) KOLKATA /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI SUBASH AGARWAL, ADVOCATE /BY RESPONDENT DR. P.K SRIHARI, CIT-DR /DATE OF HEARING 21-06-2019 /DATE OF PRONOUNCEMENT 06-09-2019 /O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2014-15 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-15, KOLKATAS ORDER DATED 14.09.2017 PASSED IN CASE NO.10340/CIT(A)-15/16-17(1)/KOL, INVOLVING PROCEEDINGS U/S/. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. WE PROCEED TO ADJUDICATE AS SESSEES MAIN APPEAL ITSELF ITA NO.2585/KOL/2018 WITH THE CONSENT OF BOTH THE P ARTIES. THE ASSESSEES STAY APPLICATION NO.07/KOL/2019 IS NOT PRESSED DURI NG THE COURSE OF HEARING THEREFORE. ITA NO.2585/KOL/2018 ASSESSMENT YEAR 2014-15 PARTHA CHAKRABORTY VS ACIT,CIR-50(1) KOL. PAGE 2 2. COMING TO MAIN APPEAL ITA NO.2585/KOL/2018, MR. AGARWAL IS FAIR ENOUGH IN NOT PRESSING FOR THE ASSESSEES FIRST TWO SUBSTANTI VE GROUNDS CHALLENGING CORRECTNESS OF THE BOTH THE LOWER AUTHORITIES ACTION DISALLOWING DONATION / SUBSCRIPTION AS WELL AS ENTERTAINMENT EXPENSES OF 1,445/- AND 12,075/-; RESPECTIVELY. THESE TWO SUBSTANTIVE GROUNDS ARE DISMISSED AS NOT PRESSED. 3. NEXT COMES THE ASSESSEES THIRD SUBSTANTIVE GRIE VANCE THAT THE ASSESSING OFFICER AS WELL AS THE CIT(A) HAVE ERRED IN ADDING HIS LOAN AMOUNT FROM M/S CHAKRA INFRASTRUCTURE LTD. ( HEREINAFTER REFERRED TO AS CIL ) AS UNEXPLAINED CASH CREDITS U/S. 68 OF THE ACT. 4. WE ADVERT TO RELEVANT FACTS AS PER PARA-6 PAGES 2 AND 3 IN ASSESSMENT ORDER DATED 26.12.2016. THE ASSESSING OFFICER HAD ISSUED SECTION 133(6) NOTICE TO CIL WHICH STOOD RETURNED BACK BY THE POSTAL AUTHORITY LEFT . HE THEN REQUIRED THE ASSESSEE TO PROFILE PHOTO ID , SUPPORTIVE DOCUMENTS , PROFIT AND LOSS ACCOUNT, BALANCE- SHEET AND RETURN RELATING TO THE RELEVANT PREVIOUS YEAR CREDITWORTHINESS AND THE CORRESPONDING BANK STATEMENT THEREOF. 5. CASE FILE SUGGESTS THAT CILS DIRECTOR SHRI, PRA NAB KR. ROY APPEARED BEFORE THE ASSESSING OFFICER ON 19.12.2016 ALONGWITH VOTER ID CARD, MUSTER DATA, DIRECTORS SIGNATORY DETAILS AND UNSIGNED CONFIRMATION OF ACCO UNT IN ASSESSEES NAME. HE STATED THAT CIL PROFIT AND LOSS ACCOUNT, BALANCE-SHEET, IT R AND BANK STATEMENT FOR FINANCIAL YEAR 2013-14 WAS NOT READILY AVAILABLE. THE ASSESSI NG OFFICER OBSERVES THAT ASSESSEE THEREAFTER FILED THE OTHER ENTITIES LEDGER COPY AS ON 31.03.2014 WITH CLOSING BALANCE OF 6,44,95,068/- AFTER ADJUSTING ALL CREDIT / DEBIT EN TRIES IN THE RELEVANT PREVIOUS YEARS. HE CONCLUDED IN THIS FACT THAT THE ASSESSEES FAILU RE IN GETTING EVEN THE CONFIRMATION FROM THE OTHER SIDE INVITED UNEXPLAINED CASH CREDI TS ADDITION U/S68 OF THE ACT. 6. THE ASSESSEE FILED APPEAL. HE PLACED ON RECORD A DDITIONAL SUBMISSION AS WELL DURING THE LOWER APPELLATE PROCEEDINGS. THE CIT(A) CALLED FOR THE ASSESSING OFFICERS RESPONSE. THE ASSESSEES ASSESSING OFFICER SUBMITTE D HIS REMAND REPORT IN THE LOWER ITA NO.2585/KOL/2018 ASSESSMENT YEAR 2014-15 PARTHA CHAKRABORTY VS ACIT,CIR-50(1) KOL. PAGE 3 APPELLATE PROCEEDINGS. THE CIT(A) HOLDS THAT AS PER THE ASSESSING OFFICERS ACTION RAISING VARIOUS ISSUES IN THE REMAND REPORT, IT EM ERGED THAT SHRI ROY HAD NOT FILED HIS RETURN FOR ASSESSMENT YEAR 2014-15. THE ASSESSEES SALE AGREEMENT WITH THE SAID ENTITY WAS UNREGISTERED FIRM, THE STOCK EXCHANGE BOARD OF INDIA, SEBI HAD BARRED ITS DIRECTOR FROM CAPITAL MARKET WITH FURTHER DIRECTION TO REFUND INVESTORS MONEY. THE POLICE HAD FILED A CASE ON 09.07.2014 AND THE DEPAR TMENTS INSPECTOR HAD FOUND ITS ADDRESS AS NOT CORRECT; SUFFICIENTLY INDICATED THAT THE IMPUGNED ADDITION HAD BEEN RIGHTLY MADE DURING THE COURSE OF ASSESSMENT. THIS LEAVES THE ASSESSEE AGGRIEVED. 7. WE HAVE GIVEN OUR THOUGHTFUL CONTENTIONS TO RIVA L PLEADINGS AGAINST AND IN SUPPORT OF THE IMPUGNED ADDITION. THE ASSESSEES DE TAILED EVIDENCE I.E. COPY OF AGREEMENT, SALE DATED 24.11.2011, LEDGER ACCOUNT OF CIL AND ITS CONFIRMATION COMING FROM OTHER SIDE ALONGWITH THE ASSESSING OFFICERS R EMAND REPORT DATED 28.08.2017; STAND PERUSED. 8. WE NOTICE FROM THE ASSESSING OFFICERS REMAND RE PORT THAT THE ASSESSEE HAD STATED PURPOSE OF THE IMPUGNED SUM TO BE REGARDING ADVANCE MONEY STIPULATED IN THE AGREEMENT TO SALE WITH CIL INVOLVING OF SIX STORIED BUILDING ALONGWITH THE LAND OF CHAKRA NAYANTARA HOTEL INCLUDING FURNITURE AND FIXT URES FOR A CONSIDERATION AMOUNT OF 10 CRORES PAYABLE FROM TIME TO TIME BY 31.03.2014. HE THEN STATED THAT THIS DEAL COULD NOT MATERIALIZE THE ASSESSING OFFICERS REMAN D REPORT DEALS WITH ALL THE ISSUE AS UNDER:- IV) GROUND NO.6 1. THIS GROUND RELATES TO THE ADDITION OF RS.6,4495,06 8/- MADE BY THE LD. AO. 2. THE ADDITION WAS MADE REGARDING LOAN &ADVANCE TAKEN FROM M/S CHAKRA INFRASTRUCTURE LTD. AMOUNT OF OUTSTANDING LOAN AS ON 31.03.2014 WA S RS.6,44,96,068/- 3. IN THIS REGARD, TO VERIFY THE LOAN TRANSACTION, U/S . 133(6) NOTICE WAS ISSUED ON 9.11.2016 WHICH WAS RETURNED BACK BY THE POSTAL AUTHORITY WIT H THE REMARK THAT THE LOAN CREDITOR WAS NOT FOUND ON THE GIVEN ADDRESS AT M/S CHAKRA I NFRASTRUCTURE LTD., CHAKRAMADHUMATI, 40D NORTH PURBACHAL, HALTU, KALITA LA LINK ROAD, KOLKAT-700078. 4. THE ASSESSEE WAS ASKED TO PRODUCE THE PARTY. AS PER ORDER SHEET NOTING DATED 19.12.2016, SRI PRANAB KR. ROY, DIRECTOR OF M/S CHAKRA INFRASTR UCTURE LTD., SUBMITTED A PHOTOCOPY OF HIS ID CARD AND ONE UNSIGNED CONFIRMATION OF ACC OUNT. 5. THE DOCUMENTS WHICH WERE CALLED BY 133(6) NOTICE WE RE NOT SUBMITTED BY HIM LIKE PROFIT & LOSS ACCOUNT. BALANCE-SHEET AND BANK STATEMENT OF M/S CHAKRA INFRASTRUCTURE LTD. ITA NO.2585/KOL/2018 ASSESSMENT YEAR 2014-15 PARTHA CHAKRABORTY VS ACIT,CIR-50(1) KOL. PAGE 4 THIS PROVES THAT GENUINENESS OF TRANSACTION IS NOT PROVED FOR WHICH ONUS IS ON THE ASSESSEE . 6. HE ALSO STATED THAT THE COMPANY HAS NOT FILED RETUR N OF INCOME FOR AY : 2014-15. THIS ALSO PROVES THAT GENUINENESS OF TRANSACTION IS NOT PROVED FOR WHICH ONUS IS ON THE ASSESSEE. 7. IN THIS REGARD DURING APPELLATE PROCEEDING, THE ASS ESSEE HAS SUBMITTED THAT HE HAS ENTERED INTO AN AGREEMENT FOR SALE WITH M/S CHAKRA INFRASTRUCTURE LTD. WHO HAD ADMIT TO PURCHASE A SIX-STORIED BUILDING ALONGWITH THE LAND OF CHAKRANAYANTARA HOTEL INCLUDING FURNITURE AND FIXTURE FROM THE ASSESSEE FOR A CONSI DERATION AMOUNT OF RS.10 CRORE. IT WAS FURTHER DECIDED THAT CIL WOULD PAY SUCH AMOUNT TO T HE ASSESSEE FROM TIME TO TIME BY 31.03.2016.HOWEVER, THE SAID DEAL DID NOT MATERIALI ZE AND THE ASSESSEE WAS RETURNING THE MONEY RECEIVED FROM CIL [LEDGER ACCOUNT OF CIL IS A NNEXED HEREWITH AND MARKED AS ANNEXURE-G] COMMENTS OF AO 8. AFTER GOING THROUGH THE AGREEMENT FOR SALE FURNISHED BY THE ASSESSEE WITH CHAKRA INFRASTRUCTURE LEARNED. ON 24 TH MARCH, 2011, IT IS SEEN THAT DOCUMENT IS NOT REGIS TERED ANYWHERE, BUT IT NOTARIZED DOCUMENT. IT CANNOT BE A DMITTED AS EVIDENCE U/S. 49 OF THE REGISTRATION ACT WHICH REQUIRES COLLATERAL PROOF, H ENCE CANNOT BE RELIED UPON THE ASSESSEE AND THE BALANCE RS.99,980,000/- SHALL BE PAID BY THE PURCHASER FROM TIME TO TIME NOT LATER THAN 31.03.2014. 9. IN THIS REGARD, THE CONFIRMATION FILED BY ASSESSEE IS PERUSED WHERE THERE ARE THE JOURNAL ENTRIES SHOWING TRANSFER OF FUND FROM 1.4.2013 TO 7 .7.2013 AND DEBIT TO P. CHAKRABORTY AND ALLIANCE FORM 12.04.2013 TO 06.01.2014. THUS TH E ENTRIES ARE AS LATE AS 1.4.2013 AND NOT FROM THE DATE OF EXECUTION OF CLAIMED SALE DEED AS ON 24.03.2011. IT CANNOT BE ESTABLISHED THAT THEY BELONG TO SOURCE AS CLAIMED B Y ASSESSEE FROM SALE OF CHAKRA NARAYAN HOTEL. 10. FURTHER, IT IS SUBMITTED BY ASSESSEE THAT, (B) DURING THE COURSE OF ASSESSMENT PROCEEDINGS, TH E ASSESSEE SUBMITTED THE SAID AGREEMENT FOR SALE DATDED 24.03.2011. FURTHER, ONE OF THE DIRECTORS OF CIL, SHRI PRANAB KR. ROY APPEARED BEFORE THE AO ALONGWITH A CONFIRMA TION OF ACCOUNTS. IT IS HUMBLY SUBMITTED THAT THE SAID CONFIRMATION OF ACCOUNT INA DVERTENTLY REMAINED UNSIGNED. HOWEVER, THE FACT THAT THE CONFIRMATION WAS NOT SIG NED ON BEHALF OF CIL CANNOT BE DEEMED TO BE AN ADVERSITY SINCE THE DIRECTOR OF CIL HIMSELF APPEARED BEFORE THE AO AND CONFIRMED THE TRANSACTION. THE SAID CONFIRMATION SU BMITTED WAS NOTHING BUT A COPY OF ACCOUNT BETWEEN CIL AND THE ASSESSEE AND NO DISCREP ANCY WAS NOTICED BY THE LD. AO IN THE SAID COPY OF ACCOUNTS/ CONFIRMATION. HOWEVER, ANNEXED HEREWITH AND MARKED AS ANNEXURE H). THE SAID SIGNED CONFIRMATION IS NOTH ING BUT A CLARIFICATORY EVIDENCE AND CANNOT BE SAID TO BE ADDITIONAL EVIDENCE SINCE THE CORROBORATIVE MATERIAL IS ALREADY ON RECORD. THUS, THE LD. AO SHOULD HAVE CONSIDERED THA T THE ASSESSEE PRODUCED THE DIRECTOR OF CIL BEFORE HIM ON HIS REQUEST WHO CONFIRMED THE TRANSACTIONS WITH THE ASSESSEE. COMMENTS OF A.O 11. MERE STATEMENT WITHOUT CORROBORATORY EVIDENCES ARE NOT VALID. THE DOCUMENTS WHICH WERE CALLED BY 133(6) NOTICE WE RE NOT SUBMITTED BY DIRECTOR LIKE PROFIT & LOSS ACCOUNT, BALANCE-SHEET AND BANK STATE MENT OF M/S CHAKRA INFRASTRUCTURE LTD. HE ALSO STATED THAT THE COMPANY HAS NOT FILED RETURN OF INCOME FOR ASSESSMENT YEAR: 2014-15. THIS PROVES THAT GENUINENESS OF TRANSACTIO N IS NOT PROVED FOR WHICH ONUS IS ON THE ASSESSEE. 12. FURTHER, IT IS STATED BY ASSESSEE THAT- ITA NO.2585/KOL/2018 ASSESSMENT YEAR 2014-15 PARTHA CHAKRABORTY VS ACIT,CIR-50(1) KOL. PAGE 5 IN THE RELEVANT YEAR, THE ASSESSEE RECEIVED ONLY SUM OF RS.8,52,000/- FROM CIL. HOWEVER, THE AO WRONGLY ADDED THE CLOSING BALANCE O F RS.6,44,95,068/- TO THE INCOME OF THE ASSESSEE WITHOUT CONSIDERING THAT THE SAID AMOU NT ALSO INCLUDED BROUGHT FORWARD BALANCE. THE DETAILS OF THE TRANSACTIONS WITH CIL I N THE RELEVANT YEAR IS GIVEN AS UNDER. OPENING BALANCE AMOUNT RECEIVED AMOUNT PAID CLOSING BALANCE RS.6,83,85,969/- RS.8,52,000/- RS.47,901/- RS.6,44, 95,068/- THE ABOVE FACTS FIND CORROBORATION WITH THE CONFIRM ATION OF ACCOUNT SIGNED BY THE SAID PARTY [ANNEXURE H] FRO THE ABOVE, IT IS APPARENT THAT THE ADDITION MAD E BY THE LD. AO WAS NOT PERMISSIBLE IN LAW INASMUCH AS RS.6,83,85,969/- WAS APPEARING AS T HE BROUGHT FORWARD BALANCE FORM THE EARLIER YEAR AND DURING THE INSTANT YEAR, THE C LOSING BALANCE HAS, IN FACT, BEEN REDUCED TO RS.6,44,95,068/-. COMMENTS OF AO- AS DISCUSSED ABOVE, CONFIRMATION FILED BY ASSESSEE IS PERUSED. THE AMOUNT SHOWN BY M/S CHAKRA INFRASTRUCTURE LTD. DOES NOT SHOW CAPACITY T O ADVANCE SUCH HUGE LOANS WHICH HAD NOT EVEN FILED ANY RETURN FOR THE SAID ASSESSMENT Y EAR. FURTHER, BALANCE SHEET OF THE ASSESSEE ALSO DOES NO T SHOW THE NAME OF M/S CHAKRA INFRASTRUCTURE LTD. BUT THE ASSESSEE DURING ASSESSM ENT PROCEEDING HAD STATED THAT UNSECURED LOAN FROM FRIENDS & RELATIVES, SUNDRY CRE DITORS FROM CAPITAL GOODS. ADVANCE & DEPOSITS ARE NOTING BUT LOAN FORM M/S CHAKRA INFRASTRUCTUR E LTD. THEREBY, THE IDENTITY OF LOAN CREDITOR IS NOT ESTABLISHED TH ROUGH BOOKS OF ACCOUNT. THE AMOUNT IS FOUND IN BOOKS OF ACCOUNT CREDITED AND ASSESSEE COU LD NOT PROVE NATURE AND SOURCE. THEREFORE, THE ISSUE MAY BE DECIDED ON MERIT OF THE CASE AFTER CONSIDERING THE ABOVE FACT. 13. FURTHER, IT IS SUBMITTED BY ASSESSEE THAT IT IS HUMBLY SUBMITTED THAT THE OPENING BALANCE OF RS.6,83,85,969/- WAS REFLECTED IN VARIOUS PROPRIETORSHIP BUSINESS OF THE ASSESSEE IN THE AY :2013-14. THE BREAKUP OF THE AMOUNTS AS REFLECTED IN THE BOOKS A ON 31.03.2013 I S GIVEN HEREIN UNDER- (I) CHAKRA NARAYAN HOTEL AS ON 31.03.2013 A. UNSECURED LOAN FROM FRIENDS & RELATIVES 3269503.60 B. UNSECURED LOAN FROM OTHERS 32722020.89 C. SUNDRY CREDITORS FROM CAPITAL GOODS 4525750 40517273.89 (II) P. CKHAKRABORTI &ALLIANCES AS ON 31.03.2013 A. UNSECURED LOAN FROM FRIENDS & RELATIVES 6626940.00 B. UNSECURED LOAN FROM OTHERS 13065754,84 19692694. 84 (III) BABA LOKENATH RURAL GODOWN AS ON 31.03.2013 A. UNSECURED LOAN FROM FRIENDS & RELATIVES 4826000.00 B. ADVANCE & DEPOSITS 3350000.00 8176000.00 68385968.73 IT IS CLARIFIED HERE THAT IN THE EARLIER YEARS, PUR SUANT TO THE ABOVE MENTIONED AGREEMENT FOR SALE DATED 24.11.2011, THE ASSESSEE WAS RECEIVI NG THE PAYMENTS FROM CIL IN HIS DIFFERENT PROPRIETARY CONCERN M/.S CHAKRA NARAYANTA RA HOTEL AND THE CLOSING BALANCE OF RS.6,44,95,068/- WAS REFLECTED IN THE BALANCE-SHEET AS ON 31.03.2014 OF THE SAID CONCERN (ANNEXURE-A). 14. THE PERUSAL OF SUBMISSION AS VERIFIED FROM BALANCE SHEET, THE WHOLE TRANSACTION IS FOUND TO BE ACCOMMODATED ENTRIES SHOWN UNDER THE HEAD LOAN FROM, OTHERS AND LOAN FROM, FRIENDS AND RELATIVES AND BALANCE RS.6,44,95,068/- IS SHOWN AS OUTSTAND ING. NO ITA NO.2585/KOL/2018 ASSESSMENT YEAR 2014-15 PARTHA CHAKRABORTY VS ACIT,CIR-50(1) KOL. PAGE 6 TRANSACTION DIRECTLY FROM CHAKRA INFRASTRUCTURE LTD IS APPEARING IN THE BOOKS OF ACCOUNT. FURTHER THE IDENTITY OF THE LOAN CREDITORS IS NOT E STABLISHED ON THIS FACT AND AS RETURN OF INCOME WAS NOT FILE BY CHAKRA INFRASTRUCTURE LTD., GENUINENESS OF THE TRANSACTION IS NOT ESTABLISHED. FURTHER, PROFIT & LOSS ACCOUNT, BALANC E-SHEET AND BANK STATEMENT WERE NOT FILED BY M/S CHAKRA INFRASTRUCTURE LTD., THEREFORE, CREDITWORTHINESS IS NOT ESTABLISHED. THEREFORE, THE BALANCE APPEARING IN BALANCE SHEET O F THE ASSESSEE OF RS.6,44,95,068/- REMAINS UNEXPLAINED. 15. THE ABOVE DISCREPANCIES IN ACCOUNT OF ASSESSEE WAS CATEGORICALLY MENTIONED AS IT LEADS TO SOME CIRCUMSTANTIAL EVIDENCES IN CASE OF ASSESSE E. IN THIS REGARD, CIRCUMSTANTIAL EVIDENCES ARE OF CRU CIAL IMPORTANCE COLLECTED FROM PUBLIC DOMAIN WHICH ARE OF CRUCIAL IMPORTANCE. THE NEWS IN THE ECONOMIC TIMES OF INDIA DATED 21.4. 2016 IS VERY RELEVANT THAT SEBI BARRED THE FIRM AND ITS DIRECTORS FROM THE CAPITAL MARKET FOR FOUR YEARS OF M/S CHAKRA INFRASTRUCTURE LTD WHO HAD GARNERED FUNDS ILLEGALLY . IT IS REPRODUCED BASED ON GOOGLE SEARCH AS UNDER FO R READY REFERENCE AS UNDER. SEBI ASKS CHAKRA INFRASTRUCTURE TO REFUND INVESTORS MONEY . NEW DELHI: MARKETS REGULATOR SEBI HAS ORDERED CHAKR A INFRASTRUCTURE AND ITS DIRECTORS TO REFUND INVESTORS MONEY WHICH IT HAD R AISED ILLEGALLY B ISSUING SECURITIES. BESIDES, THE SECURITIES AND EXCHANGE BOARD OF INDIA (SEBI) HAS BARRED THE FIRM AND ITS DIRECTORS FROM THE CAPITAL MARKETS FOR FOUR YEARS. CHAKRA INFRASTRUCTURE GARNED FUNDS ILLEGALLY THROUG H ISSUANCE OF NON-CONVERTIBLE REDEEMABLE DEBENTURES (NCDS) AS PER SEBI, THE COMPANY HAD RAISED RS.10.24 CRORE BY ISSUING NCDS TO 72 INVESTORS DURING 2012-13. WHILE CHAKRA INFRASTRUCTURE SAID IT MOPPED UP RS.10 CRORE, THERE WAS AN ADDITIONAL AMOUNT OF OVER RS.24 LAKH ABOUT WHICH CO MPLAINTS WERE RECEIVED. SINCE THE SHARES WERE ISSUED BY THE FIRM TO MORE TH AN 50 PEOPLE, IT QUALIFIED AS A PUBLIC ISSUE THAT REQUIRES COMPULSORY LISTING ON A RECOGNI ZED STOCK EXCHANGE. IT WAS ALSO REQUIRED TO RILE A PROSPECTUS, AMONG OTHER THINGS, WHICH IT FAILED TO DO. IN AN ORDER DATE APRIL 20, THE REGULATOR HAS DIRECT ED THE COMPANY AND ITS DIRECTORS TO REFUND THE MONEY ALONG WITH AN INTEREST OF 15 PER C ENT PER ANNUM. THE FIRM AND ITS DIRECTORS HAVES BEEN RESTRAINED AN D PROHIBITED FROM BUYING, SELLING OR OTHERWISE DEALING IN THE SECURITIES MARKETS FOR FOU R YEARS AND THE BAN WILL CONTINUE TILL THE COMPLETION OF REFUNDS TO INVESTORS. IN CASE, THE FIRM FAILS TO COMPLY WITH THE ORDER IN THREE MONTHS, SEBI WOULD MAKE A REFERENCE TO STATE GOVERNMENT OR LOCAL POLICE TO RE GISTER A CASE AGAINST THEM FOR FRAUD, CHEATING AND MISAPPROPRIATION OF PUBLIC FUNDS. BESIDES, THE MINISTRY OF CORPORATE AFFAIRS WOULD IN ITIATE THE PROCESS OF WINDING UP OF THE COMPANY. THE DIRECTIONS WOULD COME INTO FORCE WITH IMMEDIATE EFFECT. 2. FURTHER, SEBI HAS PASSED ORDER NO.WPM/PS/09/ERO/ APR/2016 DATED 22.04.2016 RESTRAINING THE CHAKRA INFRASTRUCTURE LTD ALONG WIT H ITS DIRECTORS FROM ACCESSING THE SECURITY MARKET AND A FURTHER PROHIBITED FROM BUYIN G SELLING OR DEALING IN SECURITIES. IN THE SAID ORDER NAME OF ASSESSEE ALSO APPEARED AS A DIRECTOR. 3. FURTHER, DY. COMMISSIONER OF POLICE(II), DETECTI VE DEPARTMENT, 18, LAL BAZAR STREET, KOLKATA FORWARDED ITS MEMO NO.22/SIT/DD DATED 29.05 .2017 STATING THAT THE CASE WAS FILED AGAINST THE ASSESSEE WITH REF NO.GARFA PS.DD/ SIT, CASE NO.227 DATED 09.07.2014 U/S. 120B/420/406/409 IPC AND HAD STARTED THE INVES TIGATION. COMMENTS 1. THE AMOUNT ESTIMATED BY SEBI IN ITS ORDER AND THE A MOUNT SHOWN AS SALE OF CHAKRANARAYAN HOTEL IS SAME OF RS.10 CRORES. ITA NO.2585/KOL/2018 ASSESSMENT YEAR 2014-15 PARTHA CHAKRABORTY VS ACIT,CIR-50(1) KOL. PAGE 7 2. CIRCUMSTANTIAL EVIDENCE PROVES THAT THE AGREEMENT F ILED BY ASSESSEE IS NOTHING BUT CREATED DOCUMENT TO ACCOMMODATE ILLEGAL FUND AND MI GHT BE TAINTED MONEY. 3. IT IS FURTHER STRENGTHENED ON THE BASIS OF REPORT O F INSPECTOR, WHO WAS DEPUTED AND IN HIS REPORT DATED 25.8.2017, HE STATED THAT IN CASE OF SHRI JITENDRA PRASAD SINGH, DA-33,SAGARI KA APARTMENT, 1SET FLOOR, NEW TOWN, KOLKATA, INSPECTOR SHRI GANESH CHANDRA CHAK LADARS REPORT IS AS FOLLOW- FIRST I TRY TO FIND OUT THE EXISTENCE THE ADDRESS I.E. OF M/.S CHAKARA INFRASTRUCTURE LTD. OF 40B/B, NORTH PURBACHAL, P.O.HALTU, KALI TAL A LINK ROAD, [P.NO.28, PURBACHAL MAIN ROAD, KOLKATA-78. EVERYBODY OF THE AREA FAILED TO INFORM ABOUT SUCH NAME AND ADDRESS. BUT A GROCER, NAMED BAPI BAR ICK, INFORMED THAT M/S CHAKRA INFRASTRUCTURE LTD HAS BEEN ABOLISHED A FEW YEARS B ACK AND IT WAS ESTABLISHED IN A ROOM UNDER A APARTMENT, NAMED MADUMATI . BUT THE GIVEN ADDRESS IS NOT CORRECT. AS PER HIS INSTRUCTION I HAVE TRACED OUT THE EXISTENCE OF M/S CHAKRA INFRASTRUCTURE LTD. ON GOING THERE, I NOTICE THAT THERE IS NO OFFICE UNDER NAME AND STYLE M/S CHAKRA INFRASTRUCTURE LTD. BUT I OBSERVE SEVERAL NOTICES A FFIXED ABOVE THE GATE [ENCLOSED PHOTOCOPY]. ONE OF THEM IS SHOWN AS CHAKRA INFRASTR UCTURE LTD. I ALSO NOTICE THAT THE COLLAPSIBLE GATE IS SEALED. WIFE OF CARE TAKER, SMT . ANIMA HALDER TOLD ME THAT LOCAL POLICE SEALED THE GATE. I OBSERVED THAT THE BUILDIN G WAS PAINTED AND NAMED MADUMATI. PREMISE NO.653, KALI TALA LINK ROAD, PO STAL ADDRESS; 28 PURBACHAL ROAD, KOLKATA-700078. 4. INSPECTOR HAD SUBMITTED THE SPOT REPORT ALONGWITH P HOTOGRAPH CONFIRMING THE ACTION TAKEN BY POLICE. 5. THEREFORE, YOU ARE KINDLY REQUESTED TO TAKE ABOVE E VIDENCES ALSO INTO CONSIDERATION WHILE DECIDING THE CASE, WHICH SHOWS THAT IDENTITY AND GENUINENESS OF TRANSACTION IS NOT PROVED OF M/S CHAKRA INFRASTRUCTURE LTD. 9. LEARNED CIT-DR VEHEMENTLY SUPPORTS THE LOWER AUT HORITIES ACTION AND ALL MORE PARTICULARLY THE ASSESSING OFFICERS ABOVE EXT RACTED REMAND REPORT HOLDING HIS AGREEMENT TO SALE WITH CIL TO BE NOT A GENUINE ONE BEING AN UNREGISTERED DOCUMENT. HE PIN-POINTS GLARING ASPECT OF THE ISSUE AS PER SE BIS DIRECTION CRIMINAL PROCEEDINGS PENDING AGAINST THE SAID ENTITY (SUPRA). 10. WE FIND NO REASON TO CONCURRING WITH EITHER REV ENUES FOREGOING ARGUMENTS OR BOTH THE LOWER AUTHORITIES ACTION TREATING THE ASS ESSEES ADVANCE / LOAN AMOUNT(S) TO 6.44 CRORES IN CASE OF CIL. WE WISH TO MAKE IT CLE AR FIRST OF ALL THAT THE DEPARTMENT IS FAIR ENOUGH IN NOT DISPUTING THE ASSESSEES EXPLANA TION TO HAVE OWNED / POSSESSED A SIX STORIED RESIDENCE / COMMERCIAL B COMPRISING OF FIF TY ROOMS UNITS AND THAT TEN OF SAID UNITS STOOD SOLD LEAVING BEHIND FORTY OF THEM WITH KITCHENS, STORE AND OTHER SPECIFIED EMANATED OF FLOW ROOMS RECEPTION ROOMS BATH ROOMS. THERE IS FURTHER NO ISSUE REGARDING ASSESSEES COST OF CONSTRUCTION MET OUT F ROM LOANS AVAILED FROM PSU BANK. THIS ABOVE STATED AGREEMENT STATED ON 24.04.2011 IN PAPER BOOK PAGES 46 TO 57 ITA NO.2585/KOL/2018 ASSESSMENT YEAR 2014-15 PARTHA CHAKRABORTY VS ACIT,CIR-50(1) KOL. PAGE 8 REVEALS THAT CIL HAD AGREED TO PURCHASE THIRTY OUT OF ASSESSEES FORTY REMAINING UNITS FOR 10 CRORES INCLUDING ALL MOVABLE ASSETS AND EMANATED ATTACHED BATHROOMS. IT HAD PAID 20,000/- AS ADVANCE AND BALANCE FIGURE(S) OF 99,980,000/- HAD TO BE TRANSFERRED NOT LATER THAN 31.03.2014. THE ASSESSEE AND HIS VEN DEE FURTHER AGREED THAT THE LATER WOULD BE ENTITLED TO USE THE ABOVE SAID THIRTY ROOM S UNITS UPON PAID OF 25% OF THE CONSIDERATION MONEY. WE RE-EMPHASIS THAT DEPARTMENT HAS NOT DOUBTED ASSESSEES OWNERSHIP AS WELL AS POSSESSION ALL THESE FOREGOING ASSETS. 11. WE NOW DEAL WITH THE REGISTRATION ASPECT OF THE ABOVE STATED AGREEMENT. THE REVENUES CASE AS PER THE LOWER AUTHORITIES FINDING IS THAT THE IMPUGNED AGREEMENT DOES NOT DESERVE TO BE ACCEPTED AS GENUINE SINCE AN UN-REGISTERED DOCUMENT. WE FIND THAT THE VERY ISSUE HAD COME UP BEFORE THIS TRIBUNA LS CO-ORDINATE BENCHES IN SMT. SAPNABEN DEPAKBHAI PATEL VS. ITO WARD-10(1) AHMEDAB AD IN ITA NO.2414/AHD/2013 DECIDED ON 13.01.2016. LEARNED CO- ORDINATE BENCH CONSIDERED THE INTERPLAY BETWEEN SEC. 24D OF THE INCOME TAX ACT VI S--VIS THE SEC. 17(2)(1A) AND SEC. 49 OF THE REGISTRATION ACT AS WELL AS SEC. 53A OF THE TRANSFER OF PROPERTY ACT AS UNDER:- 23. THE FIRST REASON ASSIGNED BY THE LD.FIRST APPE LLATE AUTHORITY FOR IGNORING THE AGREEMENT DATED 4.4.2008 AND 2.3.2009 FOR HOLDING THEM INVALI D AND NON-GENUINE IS THAT FOR HARBOURING ANY TRANSFER WITHIN THE MEANING OF CLAUSE (V) OF SECTION 2(47) , THERE MUST BE A TRANSACTION UNDER WHICH THE POSSESSION OF IMMOVABLE PROPERTY IS ALLOWED TO BE TAKEN OR ALLOWED TO BE RETAINED. THERE IS NO DISPUTE WITH REGARD TO THE AB OVE FINDING OF THE LD.CIT(A). WE ALSO CONCUR WITH REGARD TO THE OBSERVATION OF THE LD.FIR ST APPELLATE AUTHORITY THAT SECTION 53A OF THE TRANSFER OF PROPERTY ACT (TPA), 1982 IS NOT SOU RCE BY WHICH THE TITLE TO THE IMMOVABLE PROPERTY CAN BE ACQUIRED, BUT IT ONLY SERVED AS A S HIELD TO DEFEND ONES LAWFUL POSSESSION OBTAINED IN PURSUANCE TO A CONTRACT. ACCORDING TO T HE LD.FIRST APPELLATE AUTHORITY, SECTIONS 17 AND 49 OF THE INDIAN REGISTRATION ACT HAVE BEEN AME NDED BY ACT NO.2001 WHEREBY IT HAS BEEN LAID DOWN THAT THE REGISTRATION OF SALE AGREEM ENT/CONTRACT FOR THE PURPOSE OF SECTION 53A IS MANDATORY. THE LD.DR WHILE PUTTING RELIANCE UPON THE ORDER OF THE LD.CIT(A) ALSO BROUGHT TO OUR NOTICE COPY OF THE GOVT. OF GUJARAT EXTRAORD INARY GAZETTE NOTIFICATION PUBLISHED ON SATURDAY, FEBRUARY, 2002 WHEREBY AMENDMENT OF THE I NDIAN REGISTRATION ACT IN SECTION 17 OF THE REGISTRATION ACT HAS BEEN PUBLISHED. THE LD.CIT (A), WHILE CONSTRUING THE IMPACT OF SECTIONS 17 AND 49 OF INDIAN REGISTRATION ACT ALONG WITH SECTION 53A OF TPA WITHIN THE MEANING OF SECTION 2(47) OF THE INCOME TAX ACT HAS CONCLUDED THAT THE TRANSFER WITHIN THE SECTION 2(47) OF THE INCOME TAX ACT CAN ONLY BE COM PLETED, IF IN PART PERFORMANCE OF THE CONTRACT, POSSESSION HAS BEEN HANDED OVER AS PER SE CTION 53A OF THE TPA. ONCE THE AGREEMENT WAS NOT REGISTERED THEN IT WILL LOSE ITS EVIDENTIAR Y VALUE WITHIN THE MEANING OF SECTION 53A OF THE TPA. IN OTHER WORDS, THE RIGHTS FLOWING FROM AN AGREEMENT CAN ONLY BE RECOGNIZED IF IT WAS DULY REGISTERED. IF THE AGREEMENT WAS NOT REGIS TERED, THEN THE RIGHTS WOULD NOT ACCRUE TO THE PARTIES TO THE AGREEMENT. IF NO RIGHTS WOULD AC CRUE, THEN IT WILL BE CONSTRUED THAT THE POSSESSION WAS NOT DELIVERED BY THE ASSESSEE VIDE A GREEMENT DATED 4.4.2008 AND 2.3.2009, MEANING THEREBY, NO TRANSFER HAS TAKEN PLACE. THE L D.FIRST APPELLATE AUTHORITY FURTHER PUT ITA NO.2585/KOL/2018 ASSESSMENT YEAR 2014-15 PARTHA CHAKRABORTY VS ACIT,CIR-50(1) KOL. PAGE 9 RELIANCE UPON THE JUDGMENT OF THE HONBLE SUPREME C OURT IN THE CASE OF SURAJ LAMP & INDUSTRIES PVT. LTD. VS. STATE OF HARYANA, 14 TAXMA NN.COM 103. 24. ON DUE CONSIDERATION OF THE ABOVE REASONING, WE ARE OF THE VIEW THAT AS FAR AS THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE O F SURAJ LAMP & INDUSTRIES (SUPRA) IS CONCERNED, IT IS ALTOGETHER IN DIFFERENT CONTEXT. T HERE IS NO DISPUTE WITH REGARD TO THE PROPOSITION THAT TRANSFER OF AN IMMOVABLE PROPERTY HAVING VALUE OF MORE THAN RS.100/- CAN ONLY BE COMPLETED BY WAY OF REGISTERED SALE DEED, A S CONTEMPLATED IN SECTION 17 OF THE REGISTRATION ACT. THIS JUDGMENT DEALS WITH THE CONC EPT OF POWER OF ATTORNEY, LEASE, LICENCE ETC. DEFINITION OF EXPRESSION TRANSFER PROVIDED IN SECTION 2(47) IS MORE WIDER THAN IN T HE GENERAL LAW. AS OBSERVED EARLIER, WHILE DEALING WIT H THE ISSUE NO.(II), THE EXPRESSION TRANSFER EMPLOYED IN SECTION 2(47) INCLUDES (A) ANY TRANSACT ION WHICH ALLOWS POSSESSION TO BE TAKEN/RETAINED IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TPA, AND (B) ANY TRANSACTION ENTERED INTO IN ANY MA NNER WHICH HAS THE EFFECT OF TRANSFERRING, OR ENABLING THE ENJOYMENT OF, ANY IMMOVABLE PROPERT Y. IN THESE TWO EVENTUALITIES, PROFITS ON ACCOUNT OF CAPITAL GAINS WOULD BE TAXABLE IN THE YE AR IN WHICH SUCH TRANSACTIONS ARE ENTERED INTO, EVEN IF A TRANSFER OF IMMOVABLE PROPERTY IS N OT EFFECTIVE OR COMPLETED UNDER THE GENERAL LAW. IN THE PRESENT CASE, THERE IS A FINE DISTINCTI ON WHICH REMAINED UN-NOTICED AT THE END OF THE LD. CIT(A). ACCORDING TO THE ASSESSEE, THE RIGHTS W HICH HAVE BEEN ALIENATED BY HER BY VIRTUE OF AGREEMENT DATED 4.4.2008 ARE THE RIGHTS OF CAPIT AL NATURE. THESE RIGHTS HAVE BEEN ALIENATED IN FAVOUR OF SDS. THE LD.CIT(A) HAS REFERRED TO SEC TIONS 17 AND 49 OF THE INDIAN REGISTRATION ACT, BUT, FAILED TO NOTICE THE PROVISO APPENDED TO SECTION 49 WHICH HAS BEEN INCORPORATED BY WAY OF AMENDMENT SUBSEQUENTLY. THUS, IT IS PERTINEN T TO TAKE NOTE OF SECTION 49 ALONG WITH PROVISO WHICH READS AS UNDER: 49. EFFECT OF NON-REGISTRATION OF DOCUMENTS REQUIR ED TO BE REGISTERED.NO DOCUMENT REQUIRED BY SECTION 17 OR BY ANY PROVISION OF THE T RANSFER OF PROPERTY ACT, 1882 (4 OF 1882), TO BE REGISTERED SHALL (A) AFFECT ANY IMMOVABLE PROPERTY COMPRISED THEREI N, OR (B) CONFER ANY POWER TO ADOPT, OR (C) BE RECEIVED AS EVIDENCE OF ANY TRANSACTION AFFE CTING SUCH PROPERTY OR CONFERRING SUCH POWER, UNLESS IT HAS BEEN REGISTERE D : PROVIDED THAT AN UNREGISTERED DOCUMENT AFFECTING IM MOVABLE PROPERTY AND REQUIRED BY THIS ACT OR THE TRANSFER OF PROPERTY ACT, 1882 (4 OF 188 2), TO BE REGISTERED MAY BE RECEIVED AS EVIDENCE OF A CONTRACT IN A SUIT FOR SPECIFIC PERFO RMANCE UNDER CHAPTER II OF THE SPECIFIC RELIEF ACT, 1877 (1 OF 1877), OR AS EVIDENCE OF PAR T PERFORMANCE OF A CONTRACT FOR THE PURPOSES OF SECTION 53A OF THE TRANSFER OF PROPERTY ACT, 188 2 (4 OF 1882) OR AS EVIDENCE OF ANY COLLATERAL TRANSACTION NOT REQUIRED TO BE EFFECTED BY REGISTERED INSTRUMENT. 25. SECTION 53A OF THE T.P. ACT PROVIDE A SHIELD TO DEFEND THE POSSESSION TAKEN BY VIRTUE OF THE AGREEMENT. THE VENDEE CAN CLAIM PROTECTION OF T HE POSSESSION EVEN AGAINST THE OWNER I.E. VENDOR, DURING THE PERIOD SALE DEED WAS NOT REGISTE RED. THE PERSON WHO HAS ACQUIRED THE POSSESSION ON EXECUTION OF AGREEMENT AS REFERRED TO IN SECTION 53A MAY NOT BE ABLE TO PROTECT HIS POSSESSION ON ACCOUNT OF NON-REGISTRATION OF TH E AGREEMENT, BUT FOR ALL OTHER COLLATERAL PURPOSES, I.E. FOR TENDERING THE AGREEMENT INTO EVI DENCE FOR SUIT FOR SPECIFIC PERFORMANCE, ETC. IT IS TO BE TREATED AS VALID AGREEMENT. A CONTROVER SY IN THIS ASPECT HAD ARISEN WHETHER SUCH NON-REGISTERED AGREEMENT CAN BE ENTERTAINED IN EVID ENCE OR NOT IN A SUIT FOR SPECIFIC PERFORMANCE. A REFERENCE WAS MADE BEFORE THE DIVISI ON BENCH OF PUNJAB & HARYANA HIGH COURT IN REGULAR SECOND APPEAL NO.4946 OF 2011 IN T HE CASE OF RAM KISHAN VS. BIJEDER MANN. THE HONBLE HIGH COURT HAS RESOLVED THE CONTR OVERSY AND HELD THAT SUCH UNREGISTERED AGREEMENT CAN BE PRODUCED AS EVIDENCE IN SUIT FOR S PECIFIC PERFORMANCE. IT CAN BE MADE BASIS OF SUIT FOR SPECIFIC PERFORMANCE. THE FINDING RECOR DED BY THE HONBLE PUNJAB & HARYANA HIGH COURT IN THIS CASE REPORTED IN (2013) 1 PLR 195 AS UNDER: ITA NO.2585/KOL/2018 ASSESSMENT YEAR 2014-15 PARTHA CHAKRABORTY VS ACIT,CIR-50(1) KOL. PAGE 10 11. A CONJOINT APPRAISAL OF SECTIONS 53A OF THE TR ANSFER OF PROPERTY ACT, 1882, SECTIONS 17(1A) AND 49 OF THE INDIAN REGISTRATION A CT, 1908, PARTICULARLY THE PROVISO TO SECTION 49 OF THE INDIAN REGISTRATION ACT, IN OU R CONSIDERED OPINION, LEAVES NO AMBIGUITY THAT, THOUGH, A CONTRACT ACCOMPANIED BY D ELIVERY OF POSSESSION OR EXECUTED IN FAVOUR OF A PERSON IN POSSESSION, IS COMPULSORIL Y REGISTRABLE UNDER SECTION 17(1A) OF THE REGISTRATION ACT, 1908, BUT THE FAILURE TO R EGISTER SUCH A CONTRACT WOULD ONLY DEPRIVE THE PERSON IN POSSESSION OF ANY BENEFIT CON FERRED BY SECTION 53A OF THE 1882 ACT. THE PROVISO TO SECTION 49 OF THE INDIAN REGIST RATION ACT CLEARLY POSTULATES THAT NON-REGISTRATION OF SUCH A CONTRACT WOULD NOT PROHI BIT THE FILING OF A SUIT FOR SPECIFIC PERFORMANCE BASED UPON SUCH AN AGREEMENT OR THE LEA DING OF SUCH AN UNREGISTERED AGREEMENT INTO EVIDENCE. 12. A SUIT FOR SPECIFIC PERFORMANCE BASED UPON AN U NREGISTERED AGREEMENT TO SELL ACCOMPANIED BY DELIVERY OF POSSESSION OR EXECUTED I N FAVOUR OF A PERSON WHO IS ALREADY IN POSSESSION, CANNOT, THEREFORE, BE SAID T O BE BARRED BY SECTION 17(1A) OF THE REGISTRATION ACT, 1908. 13. SECTION 17(1A) MERELY DECLARES THAT SUCH AN UNR EGISTERED CONTRACT SHALL NOT BE PRESSED INTO SERVICE FOR THE PURPOSE OF SECTION 53A OF THE TRANSFER OF PROPERTY ACT, 1882. SECTION 17(1A) OF THE REGISTRATION ACT, 1908, DOES NOT, WHETHER IN SPECIFIC TERMS OR BY NECESSARY INTENT, PROHIBIT THE FILING O F A SUIT FOR SPECIFIC PERFORMANCE BASED UPON AN UNREGISTERED AGREEMENT TO SELL, THAT RECORDS DELIVERY OF POSSESSION OR IS EXECUTED IN FAVOUR OF A PERSON TO WHOM POSSESSION I S DELIVERED AND THE PROVISO TO SECTION 49 OF THE INDIAN REGISTRATION ACT, 1908, PU T PAID TO ANY ARGUMENT TO THE CONTRARY. 14. WE, THEREFORE, HOLD THAT : (A) A SUIT FOR SPECIFIC PERFORMANCE, BASED UPON AN UNREGISTERED CONTRACT/AGREEMENT TO SELL THAT CONTAINS A CLAUSE R ECORDING PART PERFORMANCE OF THE CONTRACT BY DELIVERY OF POSSESSION OR HAS BE EN EXECUTED WITH A PERSON, WHO IS ALREADY IN POSSESSION SHALL NOT BE DISMISSED FOR WANT OF REGISTRATION OF THE CONTRACT/AGREEMENT; (B) THE PROVISO TO SECTION 49 OF THE REGISTRATION A CT, LEGITIMISES SUCH A CONTRACT TO THE EXTENT THAT, EVEN THOUGH UNREGISTER ED, IT CAN FORM THE BASIS OF A SUIT FOR SPECIFIC PERFORMANCE AND BE LED INTO EVIDE NCE AS PROOF OF THE AGREEMENT OR PART PERFORMANCE OF A CONTRACT.' 26. THUS, IF THE ASSESSEE REFUSED TO HONOUR HER AGR EEMENT DATED 4.4.2008, SDS HAS A RIGHT TO GET THIS AGREEMENT ENFORCED BY WAY OF SUIT FOR SPEC IFIC PERFORMANCE AND THE ASSESSEE COULD BE PERSUADED TO EXECUTE THE SALE DEED IN FAVOUR OF SDS BY VIRTUE OF THIS AGREEMENT. THE VALIDITY OF THIS AGREEMENT UNDER GENERAL LAW VIZ. SPECIFIC R ELIEF ACT AS WELL AS INDIAN REGISTRATION ACT HAS NOT BEEN EFFECTED. THIS ASPECT HAS NOT BEEN APP RECIATED BY THE LD.CIT(A) WHILE HOLDING THAT SINCE THE AGREEMENTS ARE UNREGISTERED, THEREFO RE, THEY ARE NON-GENUINE. WE OBSERVE IN THE LIGHT OF FOREGOING DETAILED DISCU SSION THAT THE LEARNED LOWER AUTHORITIES HAVE ERRED IN NOT ACCEPTING GENUINENESS OF THE ASSESSEES OWNED REGISTERED AGREEMENT TO SALE. WE WISH TO MAKE IT CLEAR THAT TH E ASSESSEE HAS FURTHER PROVED ALL UNCOLLATERAL CIRCUMSTANCES N HIS FAVOUR SINCE THE A BOVE STATED UNREGISTERED AGREEMENT FOLLOWED THE VENDEES MULTIPLE PAYMENTS OF TRANSFERS MADE FORMER NAME AS WELL AS HIS ITA NO.2585/KOL/2018 ASSESSMENT YEAR 2014-15 PARTHA CHAKRABORTY VS ACIT,CIR-50(1) KOL. PAGE 11 PROPRIETORY CONCERN M/S CHAKRA NAYANTARA HOTEL, M/S NAYANTARA APPLIANCES AND M/S B.N. AS ON 31.03.2013 (SUPRA). THE RELEVANT LEDGE R ACCOUNT TO THIS EFFECT FROM 01.04.2013 INDICATES ALL THESE PAYMENTS INSTANCES. THE ASSESSEES OPENING BALANCE AS ON 01.04.2013 INCLUDING THESE PAYMENTS INDICATION T HAT A FIGURE OF 6,83,85,969/-. 12. THE REVENUES STAND THAT ALL THESE ARE ACCOMMOD ATION ENTRIES IN THE NAME OF ASSESSEES THREE CONCERN, DOES NOT INSPIRE CONCURRE NCE THEREFORE SINCE THE LOWER AUTHORITIES HAVE THEMSELVES INCLUDED PAYMENTS MADE IN RESPECT OF ASSESSEE AS WELL AS HIS PROPRIETARY CONCERN NAME. WE REITERAT THAT IMPU GNED ADDITION SUM OF 6,44,95,068/- IS THE NET BALANCE OF CIL. WE ACCORDI NGLY OBSERVE THAT THE REVENUES ACTION OF MAKING THE IMPUGNED ADDITION OF THE VERY SUM IN ASSESSEES HAND ON ONE HAND AND HOLDING THE SAME AS ACCOMMODATION ENTRIES ON THE OTHER IS NOT ACCEPTABLE. 13. COMING TO EQUALLY IMPORTANT ASPECT THAT THE ASS ESSEES OPENING BALANCE FIGURE(S) AS ON 01.04.2018 READ AN AMOUNT OF 6,83,85,969/- FOLLOWED BY FURTHER AMOUNT RECEIVED OF 8,52,00/- AND AMOUNT PAID 47,42,901/- ONLY, THIS TRIBUNALS CO- ORDINATE BENCHS IN ITO WARD-1(4) KOLKATA VS. M/S SANKHUWALA COMMERCIAL PVT. LTD . IN ITA NO.1973/KOL/2016 DECIDED ON 27.07.2018 HAS TAKEN INTO CONSIDERATION THE CATENA OF CASE LAW TO HOLD THAT SEC. 68 ADDITION OF UNEXPLAINED CASH CREDITS COMES INTO PLAY ONLY QUA THE RELEVANT TRANSACTIONS OR CREDIT I NSTANCES IN THE SPECIFIED ACCOUNTING PERIOD AS FOLLOWS:- 8. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT T HE CLAIM OF HAVING RECEIVED THE AMOUNT IN QUESTION TOWARDS SHARE CAPITAL AND SHARE PREMIUM DURING THE EARLIER F.Y. 1999-2000 RELEVANT TO A.Y. 2000-01 AND NOT DURIN G THE YEAR UNDER CONSIDERATION WAS NOT ACCEPTED BY THE A.O. DURING T HE COURSE OF ASSESSMENT PROCEEDINGS IN THE ABSENCE OF DOCUMENTARY EVIDENCE FILED BY THE ASSESSEE TO SUPPORT AND SUBSTANTIATE THE SAME. DURING THE COURS E OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A), THE ASSESSEE COMPANY HOWEVER FILED SUCH DOCUMENTARY EVIDENCE AS ADDITIONAL EVIDENCE TO SUPPORT AND SUBS TANTIATE ITS CLAIM THAT THE AMOUNT IN QUESTION ON ACCOUNT OF SHARE CAPITAL AND SHARE PREMIUM HAVING BEEN RECEIVED IN THE EARLIER YEAR AND NOT IN THE YEAR UN DER CONSIDERATION, THE ADDITION MADE BY THE A.O. BY TREATING THE SAME AS UNEXPLAINE D CASH CREDIT DURING THE YEAR UNDER CONSIDERATION WAS NOT SUSTAINABLE. THE SAID D OCUMENTARY EVIDENCE FILED BY THE ASSESSEE WAS FORWARDED BY THE LD. CIT(A) TO THE A.O. ALONG WITH THE SUBMISSION MADE BY THE ASSESSEE FOR HIS VERIFICATIO N AND COMMENTS. AS PER THE DIRECTION OF THE LD. CIT(A), THE A.O. VERIFIED THE DOCUMENTARY EVIDENCE FILED BY THE ASSESSEE AND FOUND THE SAME TO IN ORDER. HE ALSO VE RIFIED THE CLAIM OF THE ASSESSEE ITA NO.2585/KOL/2018 ASSESSMENT YEAR 2014-15 PARTHA CHAKRABORTY VS ACIT,CIR-50(1) KOL. PAGE 12 COMPANY FROM THE SHARE SUBSCRIBER COMPANIES AND FOU ND THAT THE ENTIRE SHARE CAPITAL ALONG WITH SHARE PREMIUM AMOUNTING TO RS. 5 4.35 CRORES WAS ACTUALLY RECEIVED BY THE ASSESSEE COMPANY DURING THE F.Y. 199 9-2000 RELEVANT TO A.Y. 2000-01. KEEPING IN VIEW THIS CATEGORICAL FINDING G IVEN BY THE ASSESSING OFFICER IN HIS REMAND REPORT AFTER VERIFYING THE CLAIM OF THE ASSESSEE COMPANY FROM THE RELEVANT DOCUMENTARY EVIDENCE AS WELL AS FROM THE S HARE SUBSCRIBER COMPANIES, THE LD. CIT(A) HELD THAT THE AMOUNT IN QUESTION TOW ARDS SHARE CAPITAL AND SHARE PREMIUM HAVING BEEN RECEIVED BY THE ASSESSEE COMPAN Y IN THE EARLIER YEAR, THE SAME COULD NOT BE TREATED AS UNEXPLAINED CASH CREDI T FOR THE YEAR UNDER CONSIDERATION. TO ARRIVE AT THIS CONCLUSION, THE LD . CIT(A) RELIED ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS: I. IN CIT V. USHA STUD AGRICULTURAL FARMS LTD. 301 ITR 384 (DELHI) IT WAS HELD IN PARA (6) OF THE ORDER: (6) HERE, THE CIT(A) HAS DELETED THE ADDITION OF RS. 15 LACS MAINLY ON THE GROUND THAT THIS CREDIT BALANCE OF RS. 15 LACS IS BEING REFLECTED IN THE ACCOUNTS OF THE ASSESSEE OVER THE PAST FOUR TO FIVE Y EARS OR SO AND HENCE THIS WAS NOT A FRESH CREDIT ENTRY OF THE PREVIOUS YEA R UNDER CONSIDERATION AND THESE CREDIT ENTRIES WERE ALREADY MADE AND ACCOUNTED FOR IN THE A.Y.S 1995-96 AND 1997-98 WHICH W ERE INTRODUCED IN THE FORM OF ADVANCE AGAINST BREEDING STALLIONS OW NED BY THE ASSESSEE AND THUS THESE CREDIT ENTRIES DID NOT RELATE TO THE YEAR UNDER CONSIDERATION FOR BEING CONSIDERED UNDER SECTION 68 OF THE ACT. SINCE IT IS A FINDING OF FACT RECORDED BY THE CIT(A) THAT THIS CREDIT BALANCE APPEARING IN THE ACCOUNTS OF THE ASSESSEE, DOES NOT PERTAIN TO THE YEAR UNDER CONSIDERATION, UNDER THESE CIRCUMSTANCES, THE A .O. WAS NOT JUSTIFIED IN MAKING THE IMPUGNED ADDITION UNDER SECT ION 68 OF THE ACT AND AS SUCH NO FAULT CAN BE FOUND WITH THE ORDER OF THE TRIBUNAL WHICH HAS ENDORSED THE DECISION OF THE CIT(A). II. IN CIT V. PARAMESHWR BOHRA 301 ITR 404 (RAJASTHAN) I T WAS HELD IN PARA (5) OF THE ORDER: (5) ON THE MERIT OF THE ADDITIONS MADE IN THE INCOME OF THE ASSESSEE, THERE IS A CLEAR FINDING, AND ABOUT WHICH THERE IS NO DISPUTE, THAT THE AMOUNT ADDED IN THE INCOME OF THE ASSESSEE AS UNEXP LAINED INVESTMENT OR CASH CREDIT IN THE A.Y. 1993-94 WAS THE SAME AMOUN T WHICH WAS CREDITED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE FOR PREVIOUS YEAR ENDING ON 31 ST MARCH, 1992. THE TRIBUNAL HAS CATEGORICALLY COME TO A FINDING, AND THAT FINDING IS NOT UNDER CHALLENGE, THAT THIS IS NOT A CASE OF CASH CREDIT ENTERED IN THE BOOKS OF ACCOUNT OF THE ASSESSE E DURING THE YEAR BUT IT IS A CASE IN WHICH THE ASSESSEE HAS INVESTED THE CAPITAL IN THE BUSINESS AND THIS AMOUNT WAS SHOWN AS A CLOSING CAPIT AL AS ON 31 ST MARCH, 1992 AND ON 1 ST APRIL, 1992 IT WAS AN OPENING BALANCE. CONSIDERING THIS ASPECT, THE TRIBUNAL HAS COME TO THE CONCLUSION THAT WHAT WAS ALREADY CREDITED IN THE BOOKS OF ACCOUNT END ING ON 31 ST MARCH, 1992 FOR FINANCIAL YEAR 1991-92 RELEVANT TO A.Y. 1992-93 CANNOT BE AN UNEXPLAINED CASH CREDIT OR INVESTMENT IN THE BOOKS OF ACCOUNT MAINTAINED FOR THE FINANCIAL YEAR 1992-93, THE ACCOUN TING PERIOD OF WHICH ENDS ON 31 ST MARCH, 1993 SO AS TO WARRANT ITS CONSIDERATION AS UNEXPLAINED INVESTMENT OR CASH CREDIT FOR ITS RELEVA NT A.Y. 1993-94. ITA NO.2585/KOL/2018 ASSESSMENT YEAR 2014-15 PARTHA CHAKRABORTY VS ACIT,CIR-50(1) KOL. PAGE 13 IT DOES NOT REQUIRE ANY ELABORATE ARGUMENT THAT A CA RRIED FORWARD AMOUNT OF THE PREVIOUS YEAR DOES NOT BECOME AN INVES TMENT OR CASH CREDIT GENERATED DURING THE RELEVANT YEAR 1993-94. 9. AS HELD BY THE HONBLE DELHI HIGH COURT IN THE C ASE OF USHA STUD AGRICULTURAL FARMS LTD. (SUPRA) AS WELL AS BY THE HONBLE RAJAST HAN HIGH COURT IN THE CASE OF PARMESHWAR BOHRA (SUPRA), THE AMOUNT RECEIVED BY TH E ASSESSEE IN THE EARLIER YEAR AND NOT IN THE YEAR UNDER CONSIDERATION AND DU LY CREDITED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE FOR SUCH EARLIER YEAR CANNO T BE ADDED UNDER SECTION 68 AS UNEXPLAINED CASH CREDIT FOR THE YEAR UNDER CONSIDER ATION. IN OUR OPINION, THE RATIO OF THE SAID TWO JUDICIAL PRONOUNCEMENTS IS SQ UARELY APPLICABLE TO THE FACTS OF THE PRESENT CASE AND THE LD. CIT(A) WAS FULLY JU STIFIED IN DELETING THE ADDITION MADE BY THE A.O. UNDER SECTION 68 DURING THE YEAR U NDER CONSIDERATION BY TREATING THE AMOUNT IN QUESTION TOWARDS SHARE CAPIT AL AND SHARE PREMIUM WHICH WAS RECEIVED BY THE ASSESSEE COMPANY IN THE EARLIER YEAR AND NOT IN THE YEAR UNDER CONSIDERATION. AT THE TIME OF HEARING BEFORE US, THE LEARNED DR HAS NOT DISPUTED THIS FACTUAL POSITION OR EVEN THE APPLICAB ILITY OF THE RATIO OF THE SAID TWO JUDICIAL PRONOUNCEMENTS RELIED UPON BY THE LD. CIT( A) WHILE DELETING THE ADDITION MADE BY THE A.O. UNDER SECTION 68. 10. IT IS ALSO OBSERVED THAT THE SIMILAR ISSUE INVO LVING IDENTICAL FACTS AND CIRCUMSTANCES HAS BEEN DECIDED BY THE COORDINATE BE NCH OF THIS TRIBUNAL VIDE ITS ORDER DATED 05.07.2018 PASSED IN ITA NO. 1972/K/2016 WHEREIN THE ORDER OF THE LD. CIT(A) DELETING THE ADDITION MADE BY THE A.O. U NDER SECTION 68 BY TREATING THE SHARE CAPITAL AND SHARE PREMIUM AMOUNT RECEIVED IN THE EARLIER YEAR AS UNEXPLAINED CASH CREDIT IN THE SUBSEQUENT YEAR WAS UPHELD BY THE TRIBUNAL FOR THE FOLLOWING REASONS GIVEN IN PARAGRAPH NO 4 & 5 OF IT S ORDER: 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT THE ASSESSE E IS AN INCOME TAX ASSESSEE UNDER PAN AABCJ9581H OF THE TAX WARD 1(4), KOLKATA. THE A.O. HAS PASSED THE ASSESSMENT ORDER DATED 21.03.2014 U/ S 147/143(3)/263/144 OF THE ACT. THE A.O. HAS MADE TH E ADDITION U/S 68 OF THE ACT, THEREFORE, WE WOULD LIKE TO REPRODUCE SECT ION 68 OF THE ACT WHICH READS AS UNDER: WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR AND THE ASSESSEE O FFERS NO EXPLANATION ABOUT THE NATURE AND SOURCES THEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINION O F THE ASSESSING OFFICER, SATISFACTORY, THE SUM SO CREDITED MAY BE C HARGED TO INCOME TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. 5. ON PERUSAL OF THE AFORESAID PROVISION OF LAW SHO WS THAT AN ADDITION U/S 68 OF THE ACT FOR MAKING ADDITION U/S 68 AS UNEXPLAINE D CASH CREDIT THE FOLLOWING CONDITION HAS TO BE SATISFIED: A. SUM MUST BE FOUND CREDITED IN THE BOOKS OF THE A SSESSEE FOR ANY PREVIOUS YEAR; ITA NO.2585/KOL/2018 ASSESSMENT YEAR 2014-15 PARTHA CHAKRABORTY VS ACIT,CIR-50(1) KOL. PAGE 14 B. ON BEING NOT SATISFACTORILY EXPLAINED, SUM SO CR EDITED MAY BE TREATED AS INCOME OF THAT PREVIOUS YEAR. THEREFORE, FOR THE PURPOSE OF SECTION 68 OF THE ACT THE YEAR IN WHICH THE SUM IS CREDITED IN THE BOOKS OF THE ASSESSEE IS VERY RE LEVANT. THE MAIN CONTENTION OF THE ASSESSEE WAS THAT THE IMPUGNED ADDITION AMOU NT/SUM WAS CREDITED IN THE BOOKS OF THE ASSESSEE FOR FINANCIAL YEAR/PREVIO US YEAR 1999-2000 RELEVANT A.Y. 2000-01. WE NOTE THAT THE AMOUNT ADDED IN THE INCOME OF THE ASSESSEE AS UNEXPLAINED CASH CREDIT IN THE A.Y. 2005 -06 WAS THE SAME AMOUNT WHICH WAS CREDITED IN THE BOOKS OF ACCOUNT O F THE ASSESSEE IN THE PREVIOUS YEAR ENDING ON 31.03.2000. IT IS NOT THE C ASE OF THE REVENUE THAT THIS AMOUNT OF CREDIT ENTERED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE DURING THE YEAR ENDING ON 31.03.2005. THE ASSESSEES CASE IS T HAT THIS IS THE CLOSING CAPITAL AS ON 31.03.2000 AND ON 01.04.2000 IT WAS A N OPENING BALANCE. THEREFORE, THE LD. CIT(A) CONCLUDED THAT WHAT WAS A LREADY CREDITED IN THE BOOKS OF ACCOUNT ENDING ON 31.03.2000 FOR A.Y. 1999- 2000 RELEVANT TO A.Y. 2000-01 CANNOT BE AN UNEXPLAINED CASH CREDIT IN THE BOOKS OF ACCOUNT MAINTAINED FOR THE F.Y. 2004-05 RELEVANT TO A.Y. 2005 -06 SO AS TO WARRANT THIS CONSIDERATION AS UNEXPLAINED CASH CREDIT FOR R ELEVANT A.Y. 2005-06. 11. RESPECTFULLY FOLLOWING THE DECISION OF THE COORDIN ATE BENCH OF THIS TRIBUNAL IN THE CASE OF GEOLETIC SUPPLY PVT. LTD. (SUPRA) AS WEL L AS THAT OF HONBLE DELHI HIGH COURT IN THE CASE OF USHA STUD AGRICULTURAL FARMS LTD . (SUPRA) AND HONBLE RAJASTHAN HIGH COURT IN THE CASE PARMESHWAR BOHRA (SUPRA ), WE UPHOLD THE IMPUGNED ORDER OF THE LD. CIT(A) DELETING THE ADDITI ON MADE BY THE A.O. UNDER SECTION 68 BY TREATING THE AMOUNT OF SHARE CAPITAL A ND SHARE PREMIUM RECEIVED DURING THE EARLIER YEAR AS UNEXPLAINED CASH CREDITS FOR THE YEAR UNDER CONSIDERATION. 14. COMING TO THE REVENUES VEHEMENT ARGUMENTS THAT CIL HAS BEEN FACING BOTH THE SEBI AND CRIMINAL PROCEEDINGS (SUPRA), WE OBSERVE T HAT SAME HAS NO BAR ON THE ISSUE BEFORE US AS ALL THESE ARE SUBSEQUENT DEVELOPMENTS THAN THE RELEVANT ACCOUNTING PERIOD AND MORE SO WHEN WE ARE ADJUDICATING IDENTITY, GENU INENESS AND CREDITWORTHINESS OF THE ASSESSEES ADVANCE PAYMENTS RECEIVED FROM THE S AID ENTITY. WE FURTHER ARE OF THE VIEW THAT THE MERE FACT OF THE SAID ENTITY NOT HAVI NG FILED ITS RETURN DOES NOT PROVE NOT FATAL TO THE ASSESSEES EXPLANATION PROVING IDENTIT Y, GENUINENESS AND CREDITWORTHINESS OF THE ADVANCE RECEIPTS. WE THEREFORE DIRECT THE AS SESSING OFFICER TO DELETE THE IMPUGNED ADDITION OF 6,44,95,068/-. 15. NEXT COMES ASSESSEES FOURTH SUBSTANTIVE GROUND SEEKING TO DELETE ALLEGED BOGUS LOAN ADDITION OF 71,57,971/- IN CASE OF M/S DISHA PRODUCTIONS AND ME DIA PVT. ITA NO.2585/KOL/2018 ASSESSMENT YEAR 2014-15 PARTHA CHAKRABORTY VS ACIT,CIR-50(1) KOL. PAGE 15 LTD. THIS PAPER BOOK PAGE 88 CONTAINS RNI LICENCE A GREEMENT DATED 23.10.2013 WITH M/S DARPAN PUBLICATION LTD, ACCOUNTING CONFIRMATION OF LEDGER / BOOKS OF ACCOUNT AND M/S DISHA PRODUCTION AND MEDIA PVT. LTD. ITR ACKNOW LEDGMENT AND FINAL ACCOUNT; RESPECTIVELY. ALL THESE SUFFICIENTLY INDICATES THAT THE ASSESSEE; HOLDER OF RNI LICENCE ON BEHALF OF M/S DISHA PRODUCTIONS & MEDIA PVT. LTD AS AN INDIVIDUAL, HAD RECEIVED THE IMPUGNED SUM FROM M/S DARPAN PUBLICATION. ONE O F THE SAID ENTITY DIRECTOR (SUPRA) ALSO APPEARED AND CONFIRMED THE ASSESSEES CASE BEFORE THE ASSESSING OFFICER TO THIS EFFECT. WE CONCLUDE IN THIS FACT THAT THE L OWER AUTHORITIES HAVE ERRED IN TREATING THE IMPUGNED SUM IN ASSESSEES HANDS AS UNEXPLAINED CASH CREDITS. THE SAME IS DIRECTED TO BE DELETED. 16. NEXT COMES CORRECTNESS OF SEC. 40A(3) DISALLOWA NCE OF 9,60,669/- ON CASH PAYMENTS MADE TO SHRI J.P. SINGH AS ON 20.08, 9.11. 2011 AND 28.12.2013 INVOLVING VARYING SUMS. THE ASSESSING OFFICERS REMAND REPORT ITSELF IS VERY VERY CLEAR THAT NONE OF THE ASSESSEES CASH PAYMENTS HAS EXCEEDED T HE THRESHOLD LIMIT OF 20,000/- DURING THE COURSE OF A DAY SO AS TO TRIGGER THE IMP UGNED DISALLOWANCE. WE THEREFORE DELETE THE SAME FOR THIS PRECISE REASON ALONE. 17. LASTLY COMES THE ASSESSEES SIXTH SUBSTANTIVE G RIEVANCE CHALLENGING CORRECTNESS OF THE DISALLOWANCE OF BUSINESS EXPENDITURE OF 50,50,700/- TREATED AS BOGUS DURING THE COURSE OF ASSESSMENT AS WELL AS IN LOWER APPELL ATE PROCEEDINGS. LEARNED CIT-DR INVITES OUR ATTENTION TO THIS ASSESSING OFFICERS R EMAND REPORT GOING AGAINST THE ASSESSEE. WE FIND THAT THE ASSESSEE HAS DULY FILED HIS DETAILED EVIDENCE OF BILLS AND CONFIRMATION OF THE PAYEES PAYMENTS MADE THROUGH BA NKING CHANNEL AND ITS PROFIT AND LOSS ACCOUNT PAGE 19 INDICATING THE CONSTRUCTION IN BROKERS CREDITED OF 1.59 CRORES CORRESPONDING TO THE IMPUGNED EXPENDITURE. LEARNED COUNSEL SUBMITS THAT THE ASSESSEE HAS SHOWN GROSS PROFIT @ 35% ON THE IMPUGNED COST O F DISALLOWANCE WHICH HAS GONE UP TO 67% GIVING RISE TO AN ABSURD RESULT IN CASE B OTH THE LOWER AUTHORITIES ACTION IS UPHELD. THE FACT ALSO REMAINS THAT THE ASSESSEE HIM SELF HAS NOT BEEN ABLE TO PROVE ONE TO ONE MATCHING OF IMPUGNED MATERIAL PURCHASES AND THE RESPECTIVE PAYEES BOOKS. WE THEREFORE DEEM HOLD IN THIS PECULIAR FACTUAL BAC KDROP THAT A LUMP SUM ADDITION OF ITA NO.2585/KOL/2018 ASSESSMENT YEAR 2014-15 PARTHA CHAKRABORTY VS ACIT,CIR-50(1) KOL. PAGE 16 7 LAC OUT OF 50,50,700/- WOULD MEET THE ENDS OF JUSTICE WITH A R IDER THAT THE SAME SHALL NOT BE TAKEN AS A PRECEDENT ANY OTHER CASE OR ASSESSMENT YEAR; AS THE CASE MAY BE. NECESSARY COMPUTATION TO FOLLOW. 18. THIS ASSESSEES APPEAL IS PARTLY ALLOWED IN ABO VE TERMS. ORDER PRONOUNCED IN OPEN COURT ON 06/09/2019 SD/- SD/- ( &) (( &) (J.SUDHAKAR REDDY) (S.S.GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER *DKP-SR.PS ) - 06/09/2019 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-PARTHA CHAKRABORTY C/O SUBASH AGARWAL & ASSOCIATES, ADVOCATES SI DDHA GIBSON, 1, GIBSON LANE, SUITE 213 2 ND FLOOR, KOLKTA-69 2. /RESPONDENT-ACIT CIRCLE-50(1), KOLKATA 3. , - / CONCERNED CIT 4. - - / CIT (A) 5. . ((, , , /DR, ITAT, KOLKATA 6. 2 / GUARD FILE. BY ORD ER/ , /TRUE COPY/ ,,