Tushar Navinchandra Shah, Kolkata V. I.T.O.,Ward-31(4), Kolkata

ITA 306/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5190 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 13-08-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 20-02-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDER JCITSRDR
• Keywords: Business income
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.306 & 307/KOL/2019 ASSESSMENT YEARS:2010-11 & 2011-12 TUSHAR NAVINCHANDRA SHAH, 38, CHAKRABERIA LANE, KOLKATA-700020 [ PAN NO.AKWPS 2277 F ] / V/S . INCOME TAX OFFICER WARD-31(4). 10B, MIDDLETON ROW, KOLKATA-71 /APPELLANT .. /RESPONDENT /BY ASSESSEE NONE /BY RESPONDENT SHRI SANKAR HALDER, JCIT-SR-DR /DATE OF HEARING 13-08-2019 /DATE OF PRONOUNCEMENT 23-08-2019 /O R D E R THESE TWO ASSESSEES APPEAL(S) FOR ASSESSMENT YEAR (S) 2010-11 AND 2011-12, ARISE AGAINST THE COMMISSIONER OF INCOME-TAX (APPEA LS)-9, KOLKATAS SEPARATE ORDER DATED 11.12.2018 PASSED IN CASE NOS.283/284/CIT(A)- 9/WD-31(4)/2015-16/KOL INVOLVING PROCEEDINGS U/S. 144/147 R.W.S. 145(3) O F THE INCOME TAX ACT, 1961; IN SHORT THE ACT. CASES CALLED TWICE. NONE APPEARS AT ASSESSEES BEHE ST. THE REGISTRY HAS ALREADY SENT IT A COMMON RPAD NOTICE(S) ON 04.07.2019 FOR T ODAYS HEARING. I THEREFORE PROCEED EX PARTE AGAINST THE ASSESSEE/APPELLANT IN BOTH THESE CASES . SAME ARE NOW TAKEN UP FOR ADJUDICATION ON MERITS. 2. THE ASSESSEES IDENTICAL SUBSTANTIVE GROUND IN THESE TWO CASES INVOLVED VARYING ADDITION(S) AMOUNTS UNDER ESTIMATED PROFIT, SHORT T ERM CAPITAL GAINS, INTEREST RECURRING ITA NO.306-307/KOL/2019 A.YS. 10-11 & 11- 12 TUSHAR NAVINCHANDRA SHAH VS. ITO WD-31(4) , KOL. PAGE 2 DEPOSITS AND INTEREST ON REFUND OF INCOME TAX; RESP ECTIVELY. HIS FORMER APPEAL ITA NO.306/KOL/.2019 PLEADS THE FOLLOWING GROUNDS:- 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS)-9, KOLKATA ERRED IN UPHOLDING THE DECISION OF THE LEARNED AO IN TREATING THE ENTI RE RECEIPTS FROM SALE OF CARS ON COMMISSION BASIS AS TURNOVER AND ALSO ESTIMATING THE TURNOVER OF THE ASSESSEE AT RS.50,29,042 AND CALCULATING THE BUSINESS INCOME AT RS.4,02,323 BEIN G 8% OF ESTIMATED TURNOVER OF RS.50,29,042. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS)-9, KOLKATA ERRED IN CONFIRMING THE DECISION OF THE LEARNED AO IN DETERMINING THE I NCOME OF RS.28,782 UNDER THE HEAD SHORT TERM CAPITAL GAIN. 4. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS)-9, KOLKATA ERRED IN AFFIRMING THE ACTION OF THE LEARNED AO IN ASSESSING INTEREST ON R ECURRING DEPOSIT AT RS.2,968. 5. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS)-9, KOLKATA ERRED IN CONFIRMING THE ACTION OF THE LEARNED AO IN TREATING RS.436 AS INTEREST ON REFUND OF INCOME TAX. 3. MR. HALDER TAKES ME TO CIT(A)S DETAILED DISCUSS ION ON ALL THESE ISSUES READING AS UNDER:- ' /DECISION: I HAVE GONE THROUGH THE ASSESSMENT ORDER, GROUNDS O F APPEAL AND SUBMISSIONS MADE ON BEHALF OF THE APPELLANT. 4.1 GROUND 2 RELATES TO FAILURE OF THE LD. AO IN PR OVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE AND IGNORING THE EXPLANATION FIELD BY THE ASSESSEE VIDE LETTER DATED 17.12.2015. I HAVE CAREFULLY CONSIDERED THE ACTION OF THE LD. A O AND GONE THROUGH THE RECORDS, I DO NOT AGREE WITH THE ASSESSEE THAT THE ASSESSMENT SUFFERS ON ACCOUNT OF THE ABSENCE OF ANY OPPORTUNITY GRANTED TO IT BY THE ASSESSING OFFICER BEFORE PASSING THE ORDER UNDER SECTION 144 OF THE ACT. 4.2 GROUND NO.3 RELATES TO ACTION OF THE LD. AO IN TREATING ENTIRE BUSINESS RECEIPTS AS TURNOVER AND ESTIMATING TURNOVER AT RS.50,29,042 AN D ESTIMATING INCOME UNDER SECTION 144 AT 8% OF THE ESTIMATED TURNOVER AS AGAINST THE ACTUAL PROFIT AT 4.22% OF TURNOVER. I HAVE CAREFULLY CONSIDERED THE ACTION OF THE LD. A O IN MAKING THE IMPUGNED ADDITION UNDER THE HEAD BUSINESS. I HAVE ALSO CAREFULLY EXAM INED THE SUBMISSIONS OF THE APPELLANT MADE ALONG WITH THE DOCUMENTS SUBMITTED DURING THE APPEAL IN THE INDEXED PAPER BOOK. THE ASSESSEE HAS NOT SUBSTANTIATED THE TURNOVER/COMMISS ION RECEIPTS AND HAS NOT BROUGHT ANY SUPPORTING IN SUPPORT OF HIS CONTENTION THAT THE LD . AO ERRED IN TREATING RECEIPTS ON ACCOUNT OF CARS SOLD ON COMMISSION. THE LD. AO ESTIMATED I NCOME AT 8% OF TURNOVER BY OBSERVING THAT THE ASSESSEE HAS ALSO OFFERED INCOME @ 8% ON TURNO VER CLAIMED BY HIM. THEREFORE THE ASSESSEE ALSO ESTIMATES HIS INCOME @ 8% OF TURNOVER . AS THE APPELLANT HAS HIMSELF ESTIMATED HIS INCOME @ 8% OF TURNOVER CLAIMED BY HIM. THE ACTION TAKEN BY AO SEEMS JUSTIFIED. THIS GROUND OF APPEAL IS DISMISSED. 4.3 GROUND 4 RELATES TO ACTION OF THE LEARNED. AO I N TREATING RECEIPTS OF RS.28,782/-AS SHORT TERM CAPITAL GAINS WITHOUT VERIFYING THE FACTS AND WITHOUT GIVING AN OPPORTUNITY TO THE APPELLANT. I HAVE CAREFULLY CONSIDERED THE ACTION OF THE LD. A O IN MAKING THE IMPUGNED ADDITION UNDER THE HEAD CAPITAL GAINS. I HAVE ALSO CAREFULL Y EXAMINED THE SUBMISSIONS OF THE APPELLANT MADE ALONG WITH THE DOCUMENTS SUBMITTED D URING THE APPEAL IN THE INDEXED PAPER BOOK. I FIND THAT THE APPELLANT HAS NOT EXPLAINED T HE RECEIPT OF RS.28,782/-. I, THEREFORE, UPHELD THE ADDITION MADE BY THE LEARNED AO. 4.4 GROUND 5 AND 6 RELATES TO ACTION OF THE LD. AO IN TREATING RECEIPTS OF RS.2,968/- AS INTEREST ON RD WITHOUT INTEREST HAVING BEEN RECEIVE D BY THE APPELLANT NOR ACCRUAL OF SUCH INTEREST HAVING BEEN INTIMATED TO THE APPELLANT AND IN TREATING RS.436/- AS INTEREST ON INCOME ITA NO.306-307/KOL/2019 A.YS. 10-11 & 11- 12 TUSHAR NAVINCHANDRA SHAH VS. ITO WD-31(4) , KOL. PAGE 3 TAX REFUND WITHOUT INTEREST HAVING BEEN RECEIVED BY THE APPELLANT NOR SUCH INTEREST BEEN REFLECTED IN FORM 26AS. IT IS THE CONTENTION OF THE APPELLANT THAT BOTH THE INCOME HAS NOT BEEN RECEIVED AND IT IS NOT BEING REFLECTED IN FORM 26AS AND WILL BE OFF ERED TO TAX IN THE YEAR OF RECEIPT. I DO NOT FIND MYSELF AGREEABLE WITH THE CONTENTION OF THE AP PELLANT. THE APPELLANT HAS NOT BEEN ABLE TO EXPLAIN WHEN THE MONEY HAS BEEN ACTUALLY RECEIVED. I, THEREFORE, UPHELD THE ADDITION MADE BY THE LD. AO. 4. IT IS THUS CLEAR THAT BOTH THE LOWER AUTHORITIES HAVE ESTIMATED THE ASSESSEES PROFIT @ 8% GOING BY ADMITTED INCOME ON DECLARED TU RNOVER FOLLOWED BY SHORT TERM CAPITAL GAINS, INTEREST ON RECURRING DEPOSITS AND I NCOME TAX REFUNDS SUMS. THERE IS NO REBUTTAL TO THE SAID FACTS COMING FROM BOTH CASES F ILES. I THEREFORE AFFIRM THE CIT(A)S IDENTICAL ACTION UNDER CHALLENGE IN THESE TWO ASSES SMENT YEARS. 5. THESE TWO ASSESSEES APPEALS ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 23/08/2019 SD/- (S.S. GODARA) JUDICIAL MEMBE R KOLKATA, *DKP/SR.PS $ - 23/08/2019 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-TUSHAR NAVINCHANDRA SHAH 38, CHAKRABERIA LANE, KOLKATA-20 2. /REVENUE-ITO WARD-31(4) 10B,MIDDLETON ROW, KOLKATA- 71 3. ' ) / CONCERNED CIT 4. ) - / CIT (A) 5. * ''' , ' / DR, ITAT, KOLKATA 6. . / GUARD FILE. BY ORDER/ , /TRUE COPY/ ',