Yatkhung Manpower & Servics (P) Ltd., Kolkata V. ITO, Ward-2(2), Siliguri, Siliguri

ITA 264/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7533 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 14-02-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDAR JCITSRDR
• Assessee Lawyers: SUBASH AGARWA
• Keywords: Peak credit
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.264/KOL/2019 ASSESSMENT YEAR:2014-15 YATKHUNG MANPOWER & SERVICES (P) LTD., C/O SUBASH AGARWAL & ASSOCIATES, ADVOCATES SIDDHA GIBSON, 1, GIBSON LANE, SUITE 213, 2 ND FLOOR, KOLKATA-700 069 [ PAN NO.AAACY 2020 P ] / V/S . INCOME TAX OFFICER WARD-2(2), MATIGARA, SILIGURI-754001 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI SUBASH AGARWA, ADVOCATE /BY RESPONDENT SHRI SANKAR HALDAR, JCIT-SR-DR /DATE OF HEARING 27-06-2019 /DATE OF PRONOUNCEMENT 26-07-2019 /O R D E R THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2014-15 , ARISES AGAINST THE COMMISSIONER OF INCOME-TAX (APPEALS)-SILIGURIS ORD ER DATED 09.10.2018 PASSED IN CASE NO.103/ CIT(A)/SLG/2016-17, INVOLVING PROCEEDI NGS U/S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. 2. I NOTICE AT THE OUTSET THAT THE INSTANT APPEAL S UFFERS FROM 68 DAYS DELAY IN FILING STATED TO BE ATTRIBUTABLE TO COMMUNICATION GAP AND MISPLACEMENT OF THE RECORDS IN THE ARGUING COUNSEL FOR. LEARNED DEPARTMENTAL REPRESENT ATIVE IS FAIR ENOUGH IN NOT DISPUTING ALL THESE CONDONATION AVERMENTS. I THEREF ORE HOLD THAT ASSESSEES IMPUGNED ITA NO.264/KOL/2019 A.Y. 2014-1 5 YATKHUNG MANPOWER & SERVICES (P) LTD. VS. ITO W D-2(2), SLG. PAGE 2 DELAY OF 68 DAYS IS ON ACCOUNT OF CIRCUMSTANCES BEY OND ITS CONTROL. SAME IS ORDERED TO BE CONDONED AND CASE IS TAKEN UP FOR ADJUDICATION M ERITS. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 3. THE ASSESSEE HAS PLEADED TO ITS SUBSTANTIVE GROU NDS IN CHALLENGING CORRECTNESS OF BOTH THE LOWER AUTHORITIES ACTION ESTIMATING ITS PROFIT @ 8% IN RESPECT OF DEPOSITS IN AXIS BANK, GANGTOK BRANCH AS AGAINST DECLARED NET P ROFIT RATE OF 3.3526% INVOLVING CASH RECEIPTS OF 88,04,090/-. ITS LATTER GRIEVANCE IS THAT THE ASSES SING OFFICER HAS ERRED IN TAKING PROFIT OF 14,83,300/- ON UNDISCLOSED RECEIPTS OF 1,85,41,282/- RESULTING IN DOUBLE ADDITION. 4. I HAVE GIVEN MY THOUGHTFUL CONSIDERATION TO RIVA L CONTENTIONS OF BOTH THE PARTIES RESPECTIVE SUBMISSIONS AGAINST AND IN SUPPO RT OF THE IMPUGNED ADDITION(S). IT EMERGES AT THE OUTSET THAT THE VERY ISSUE OF ASSESS EES PROFIT RATE ESTIMATION HAD ARISEN IN THE PRECEDING ASSESSMENT YEAR 2013-14 AS WELL WH EREIN THE SAME WAS ASSESSED @ 6%. I THEREFORE ADOPT JUDICIAL CONSISTENCY IN THESE PECULIAR FACTS AND DIRECT THE ASSESSING OFFICER TO ASSESS THE TAXPAYER @ 6% IN TH E IMPUGNED ASSESSMENT YEAR AS WELL AFTER FINALIZING NECESSARY FACTUAL VERIFICATIO N. THIS FORMER SUBSTANTIVE GROUND IS ALLOWED IN PRINCIPLE IN ABOVE TERMS. SAME ORDER TO FOLLOW IN ASSESSEES LATTER GRIEVANCE INVOLVING UNDISCLOSED RECEIPTS OF 1,85,41,282/- AS WELL IN ORDER TO AVOID DOUBLE ADDITION. 5. LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITS THAT THE ASSESSEES UNDISCLOSED RECEIPTS OF 1,85,41,282/- ARE NOWHERE INCLUDED THE FORMER TURNO VER OF 88,04,090/-. THE TAXPAYERS CASE ON THE OTHER HAND IS THAT ONCE THE ASSESSING OFFICER HAD ASSESSED ITS PROFIT @ 8% IN RESPECT OF AXIS BANK DEPOSITS, A NY FURTHER ADDITION INCLUDING PEAK CREDIT OF 10,88,761/- WOULD AMOUNT TO DOUBLE ADDITION. I CONC LUDE IN THESE FACTS THAT THE ASSESSING OFFICERS IMPUGNED ACTION IN TREATING THE PEAK CREDIT SHALL FORM NOT ART OF ASSESSEES ESTIMATED PROFIT IN ORDER TO AVOID DO UBLE ADDITION. THIS IS FOR THE REASONS THAT WHATEVER THE ASSESSEES ESTIMATE PROFIT 6% OR 8% SUBJECT TO THE ULTIMATE FACTUAL VERIFICATION, THE SAME SHALL FORM SOURCE OF THE PEA K CREDIT ADDITION AMOUNT IN ISSUE. I ITA NO.264/KOL/2019 A.Y. 2014-1 5 YATKHUNG MANPOWER & SERVICES (P) LTD. VS. ITO W D-2(2), SLG. PAGE 3 CONCLUDE IN THESE FACTS THAT THE ASSESSEE IS ENTITL ED TO ABOVE CREDIT OF FORMER ESTIMATED PROFIT AGAINST THE PEAK AMOUNT. NECESSARY CONSEQUEN TIAL COMPUTATION AS PER LAW SHALL FOLLOW IN ABOVE TERMS. 5. THIS ASSESSEES APPEAL IS PARTLY ALLOWED IN ABOV E TERMS. ORDER PRONOUNCED IN OPEN COURT ON 26/07/2019 SD/- (S.S. GODARA) JUDICIAL MEMBE R KOLKATA, *DKP/SR.PS - 26/07/2019 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-YATKHUNG MANPOWER & SERVICES (P) LTD., C /O SUBASH AGARWAL & ASSOC IATES, ADVOCATES SIDDHA GIBSON, 1 GIIBSON LANE, SUITE 21 3, 2 ND FLOOR, KOLKATA-69 2. /RESPONDENT-ITO WARD-2(2), MATIGARA, SILIGURI-75400 1 3. ' % / CONCERNED CIT 4. % - / CIT (A) 5. & ))' , ' / DR, ITAT, KOLKATA 6. + / GUARD FILE. BY ORDER/ , /TRUE COPY/ ',