Sri Ayan Kumar Mustafi, North 24 Parganas V. Income Tax Officer-Ward-51(2), Kolkata, Kolkata

ITA 2605/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5051 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-04-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 14-11-2013
• Court: TRIBUNAL
• Department Lawyers: MD S S ALAM
• Assessee Lawyers: SOUMITRA CHOW DHURY; S P CHOWDHURY
• Keywords: Unexplained cash credit; Rejection of books of accounts; Peak credit; Source of fund

Judgement Text

ITA NO.2605/KOL/2013-SHRI AYAN KUMAR MUSTAFI A.Y.20 08-09 1 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BE NCH : KOLKATA [BEFORE HONBLE SRI N.V.VASUDEVAN, JM ] I.T.A NO.2605/KOL/201 3 ASSESSMENT YEAR : 2008-0 9 SHRI AYAN KUMAR MUSTAFI -VS.- I.T.O., WA RD-51(2), KOLKATA KOLKATA [PAN : AJLPM1801F) (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI S.P.CHOWDHURY AND SH RI SOUMITRA CHOWDHURY,ADVOCATE FOR THE RESPONDENT : MD. S.S.ALAM, JCIT, SR .DR DATE OF HEARING : 01.03.2016. DATE OF PRONOUNCEMENT : 6.4.2016. ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 29.08.2013 OF CIT(A)-XXXII, KOLKATA, RELATING TO AY 2008-09. 2. THE ASSESSEE IS AN INDIVIDUAL. HE CARRIES ON BU SINESS AS A DEALER IN NEWSPAPERS AND MAGAZINES. THE ASSESSEE SELLS NEWSPA PERS AND MAGAZINES TO HAWKERS. IN THE COURSE OF ASSESSMENT PROCEEDINGS AO NOTICED THAT APART FROM THE BANK ACCOUNT IT WAS DISCLOSED IN THE BOOKS OF ACCOUNTS OF THE AS SESSEE THERE WAS ANOTHER SAVINGS BANK ACCOUNT MAINTAINED BY THE ASSESSEE IN AXIS BAN K, BARRACKPORE BRANCH BEARING NO.43610100192132. AO CALLED UPON THE ASSESSEE TO S HOW CAUSE AS TO WHY THE AFORESAID BANK ACCOUNT WAS NOT DISCLOSED BY THE ASS ESSEE IN THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE. THERE WERE HUGE DEPOSIT S OF CASH IN BOTH THESE BANK ACCOUNTS. AO WAS OF THE VIEW THAT THE AFORESAID DEP OSITS IN THE BANK ACCOUNT REPRESENT MONEYS RECEIVED BY THE ASSESSEE FROM SALE OF NEWSPA PERS AND MAGAZINES WHICH WERE NOT DISCLOSED BY THE ASSESSEE IN THE BOOKS OF ACCOU NTS. THE GROSS PROFIT DECLARED BY THE ASSESSEE IN THE REGULAR BOOKS OF ACCOUNTS FOR T HE PREVIOUS YEAR RELATING TO A.Y.2008-09 WAS 4.71%. AO APPLIED THE DISCLOSED GRO SS PROFIT RATE ON THE CASH DEPOSITS IN THE BANK ACCOUNT AND MADE ADDITION OF R S.1,23,887/- TO THE TOTAL INCOME ON ACCOUNT OF UNDISCLOSED GROSS PROFIT EARNED ON UNDIS CLOSED SALES. ITA NO.2605/KOL/2013-SHRI AYAN KUMAR MUSTAFI A.Y.20 08-09 2 2.1. BESIDES THE ABOVE, THE AO WAS ALSO OF THE VIEW THAT THE PEAK CREDIT IN THE AFORESAID BANK ACCOUNT SHOULD BE ADDED AS FUNDS WHI CH WERE MET BY THE ASSESSEE FROM UNDISCLOSED SOURCES TO CARRY OUT THE BUSINESS OF SA LE OF NEWSPAPERS AND MAGAZINES NOT RECORDED IN THE BOOKS OF ACCOUNTS . THE PEAK CREDIT IN THE AXIS BANK ACCOUNT WAS RS.3,23,404/- ON 20.07.2007. THIS AMOUNT WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 2.2. THUS INCOME OF THE ASSESSEE WAS DETERMINED BY AO AS FOLLOWS :- INCOME AS PER RETURN RS.1,09,960/- ADD: UNDISCLOSED SALES MADE AS RS.1,23,887/- ADD: CAPITAL FUND AS RS.3,23,404/- RS.4,47,291/- RS.5,57,251 /- 3. BEFORE CIT(A) THE ASSESSEE CONTENDED THAT SINCE THE AO HAS ACCEPTED THAT SALE PROCEEDS OF NEWSPAPERS AND MAGAZINES WAS THE SOURCE OF FUND OUT OF WHICH THE DEPOSITS IN THE UNDISCLOSED BANK ACCOUNTS WERE MADE BY THE ASSESSEE, NO ADDITION ON ACCOUNT OF PEAK CREDIT OUGHT TO HAVE BEEN MADE BY A O. WITH REGARD TO THE ADDITION MADE ON ACCOUNT OF GROSS PROFIT ON ACCOUNT OF UNACC OUNTED SALE THE ASSESSEE CONTENDED THAT ONLY THE NET PROFIT RATE SHOULD HAVE BEEN TAXED BY THE AO AND NOT THE GROSS PROFIT RATE. CIT(A) DEALT WITH THE AFORESAID CONTENTIONS AS FOLLOWS :- THE ASSESSEE CARRIES ON WHOLESALE STOCKIST BUSINES S FOR NEWSPAPER & MAGAZINES. HE HAS A REGULAR BUSINESS SET UP WHERE ALL NECESSARY E XPENSES ARE CLAIMED. THE G.P. RATE DECLARED IS 4.71%. THE A.O. HAS APPLIED THIS G. P. RATE TO THE UNDISCLOSED BUSINESS TURNOVER APPEARING AS CASH DEPOSITS IN THE UNDISCLO SED BANK ACCOUNT. THE ASSESSEE MERELY CLAIMS THAT THE A.O. SHOULD NOT HAVE MADE TH E G.P. ADDITION OF RS. 1,23,887/- FOR THE FOLLOWING REASONS:- (I) THE A.O. HAS NOT REJECTED THE BOOKS OF ACCOUNTS (II) NO OTHER EVIDENCES HAVE BEEN BROUGHT ON RECORD . (III) THE A.O. SHOULD HAVE APPLIED N.P. RATE ONLY. THE CONTENTIONS OF THE ASSESSEE ARE GROUNDLESS. THE A.O. HAS NOT REJECTED THE REGULAR BOOKS OF ACCOUNT AND THE PROFIT CONTAINED THEREIN. THE AO HAS FOUND UNDISCLOSED BANK ACCOUNT, WHICH DO NOT FIGURE IN THE BALANCE SHEET O F THE ASSESSEE. ALL THE DECLARED BUSINESS TRANSACTIONS ARE ALREADY COVERED (BOTH THE IR DEBIT & CREDIT; & RECEIPTS & PAYMENTS) FROM THE CASH BOOK AND BANK BOOK MAINTAIN ED FOR THE REGULAR BUSINESS. THE BANK ACCOUNT WHICH ARE ADMITTEDLY UNDISCLOSED CONTA IN TRANSACTIONS OF ANOTHER SET OF BUSINESS DEALT ONLY IN CASH. THE AO COULD HAVE TREA TED THE ENTIRE DEPOSITS AS UNEXPLAINED CASH CREDITS BUT SINCE THE WITHDRAWAL F ROM THE AXIS BANK OF NO. 43610100192132 HAVE GONE TO CONCERNS LIKE H.P.MEDIA LTD., ABP PVT LTD, PRATIN PRAKASHNI LTD, . AAJ KAL PUBLISHER P. LTD ETC THE A O HAS REFRAINED FROM ADDING THE ENTIRE SUM. AS REGARDS THE QUESTION OF N.P ADDITION, IT IS NOT THE ASSESSEE'S CASE THAT IT HAD A DIFFERENT BUSINESS OPERATING SET UP OR THAT THE UND ISCLOSED BUSINESS WAS CARRIED OUT FROM ANOTHER SECRET PREMISES WITH DIFFERENT ESTABLISHMEN T COSTS. IN THE ABSENCE OF THE SAME ITA NO.2605/KOL/2013-SHRI AYAN KUMAR MUSTAFI A.Y.20 08-09 3 THE PRESUMPTION IS THAT THE UNDISCLOSED TURNOVER WA S ONLY DEALT THROUGH THE REGULAR BUSINESS SET UP OF THE ASSESSEE. AS THE FIXED COSTS REMAIN THE SAME, THE AO CORRECTLY APPLIED THE G.P. RATE. 3.1. AS FAR AS ADDITION ON ACCOUNT OF PEAK CREDIT IS CONCERNED CIT(A) HELD AS FOLLOWS :- IN THESE GROUND THE ASSESSEE HAS QUESTIONED THE AD DITION OF RS.3,23,404/- ,MADE BY THE A.O. ON ACCOUNT OF INVESTMENT MADE TO FUND THE UNDI SCLOSED TRADING ACTIVITIES OF THE ASSESSEE. THE AO INTER-ALIA HAS HELD THAT TO ACQUIR E MORE PERIODICALS, MAGAZINES AND NEWSPAPER STOCK, THE ASSESSEE MUST HAVE INCURRED IN VESTMENT EXPENSE FOR BUYING STOCKS AND OTHER EXPENSES LIKE SECURITY DEPOSITS, FREIGHT PAYMENTS ETC. THE ASSESSEE BY WAY SUCH ARGUMENTS IS FEEBLY TRYING TO ABSOLVE ITSELF O F ALL WRONG DOING AND KEEPING ITS TRANSACTION HIDDEN FROM THE REVENUE AND SEEKING TO PUT ENTIRE ONUS ON THE REVENUE. THE BANK ACCOUNT IS OF THE ASSESSEE, THE DEPOSITS T HEREIN ARE BY THE ASSESSEE, THE FUNDS ARE UTILIZED BY THE ASSESSEE AND THEREFORE IT IS FO R THE ASSESSEE TO SHOW THAT SHE HAD MADE NO INVESTMENT OR THAT THERE WAS NO BLOCKED FUNDS. I T IS COMMON KNOWLEDGE THAT IN COMMON HOUSEHOLDS THE NEWSPAPERS VENDOR COLLECTS MO NEY NEARLY AFTER A MONTH AND IN A WHOLESALE BUSINESS THE ROLL OVER CAN EASILY SURPA SS THREE MONTH'S SALES. THE A.O. HAS FOUND THAT THE MAXIMUM CASH BALANCES IN THE UNDISCL OSED ACCOUNT WAS ON 20/07/07 FOR RS.3,23,404/-. THE AXIS BANK ACCOUNT WAS OPENED ONLY ON 18.06.2007 AND THE PEAK CASH DEPOSIT OF RS. 3,23,404/- WAS ON 27/07/07. THEREFORE, IT IS LO GICAL TO PRESUME THAT A SIMILAR SUM MUST HAVE BEEN PAID UP-FRONT TO THE SUPPLIERS BEFOR E THE SALE PROCEEDS STARTED TRICKLING IN. THEREFORE THE A.O. WAS JUSTIFIED TO TAX THE SUM OF RS. 4,81,988/-. 4. AGGRIEVED BY THE ORDER OF CIT(A) ASSESSEE HAS P REFERRED THE PRESENT APPEAL FOR THE TRIBUNAL. 5. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS WERE MADE BEFORE CIT(A). THE LEARNED DR RELIED ON THE ORDER O F CIT(A). 6. I HAVE GIVEN A CAREFUL CONSIDERATION TO THE RIVA L SUBMISSIONS. AS FAR AS THE QUESTION WHETHER THE GROSS PROFIT ON UNRECORDED SAL ES OR NET PROFIT ON ACCOUNT OF UNRECORDED SALES HAVE TO BE ADDED TO THE TOTAL INCO ME, I FIND THAT CIT(A) HAS PROCEEDED ON THE BASIS THAT THERE CANNOT BE ANY EXP ENSES INCURRED BY THE ASSESSEE FOR THE PURPOSE OF CARRYING THE UNRECORDED SALES OF NEW SPAPERS AND MAGAZINES. IT IS FOR THIS REASON THAT CIT(A) REFUSED TO ACCEPT THE CONTE NTION OF THE ASSESSEE THAT ONLY THE NET PROFIT RATE OUGHT TO HAVE ADDED AS INCOME FROM UNRECORDED BUSINESS OF THE SALE OF NEWSPAPERS AND MAGAZINES. THIS FACT HAS NOT BEEN CO NTROVERTED BY THE ASSESSEE BY SHOWING AS TO HOW OTHER OPERATING EXPENSES WERE REQ UIRED OR INCURRED BY THE ASSESSEE FOR MAKING UNRECORDED SALE OF NEWSPAPERS AND MAGAZI NES. IN THE GIVEN CIRCUMSTANCES THE CONCLUSION DRAWN BY CIT(A) THAT THE FIXED COST OF THE ASSESSEE REMAINED THE SAME ITA NO.2605/KOL/2013-SHRI AYAN KUMAR MUSTAFI A.Y.20 08-09 4 AND THEREFORE THE GROSS PROFIT RATE HAS TO BE ADDED AS PROFITS FROM UNDISCLOSED SALES IS CORRECT AND CALLS FOR NO INTERFERENCE. 6.1. AS FAR AS THE QUESTION WHETHER THE PEAK CREDIT IN THE AXIS BANK HAS TO BE ADDED TO THE TOTAL INCOME OR NOT I FIND THAT CIT(A) HAS P ROCEEDED ON THE BASIS THAT IN NEWSPAPER VENDING BUSINESS MONEY IS COLLECTED ONLY AFTER A MONTH AND THEREFORE A WHOLESALER HAS TO ROLL OVER THREE MONTHS SALES AS H IS INITIAL CAPITAL FOR DOING UNRECORDED BUSINESS ON SALE OF NEWSPAPERS AND MAGAZ INES. THIS PRESUMPTION OF CIT(A) IS CORRECT. THE ARGUMENT OF THE ASSESSEE BE FORE ME WAS THAT MONEYS WERE WITHDRAWN FROM THE DISCLOSED BANK ACCOUNT AND DEPOS ITED IN AXIS BANK (UNDISCLOSED BANK ACCOUNT). THIS HAS NEITHER BEEN SUBSTANTIATED BEFORE AO OR CIT(A). EVEN BEFORE THE TRIBUNAL NO MATERIAL WHATSOEVER HAS BEEN PRODUC ED TO SUBSTANTIATE THE AFORESAID CONTENTION. IN THE CIRCUMSTANCES I AM OF THE VIEW T HAT THE PRESUMPTION DRAWN BY CIT(A) IS CORRECT AND CALLS FOR NO INTERFERENCE. A CCORDINGLY I DO NOT FIND ANY MERITS IN THIS GROUND OF APPEAL BY THE ASSESSEE. ACCORDING LY THE SAME IS DISMISSED. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 6.4.2016. SD/- [ N.V.VASUDEVAN ] JUDICIAL MEMBER DATED : 6.4.2016. [RG PS] COPY OF THE ORDER FORWARDED TO: 1.SHRI AYAN KUMAR MUSTAFI, 84A, SATISH NANDY ROAD, P.O., KANCHRAPARA, 24 PGS- 743145. 2. I.T.O., WARD-51(2), KOLKATA. 3. CIT(A)-XXXII, KOLKATA 4. CIT-XVII, KOLKA TA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSTT.REGISTRAR, ITAT, KOLKATA BENCHES