DCIT, Circle - 51, Kolkata, Kolkata V. Shri Dulal Saha, Kolkata

ITA 32/KOL/2012

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0520 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-06-2015
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 06-01-2012
• Court: TRIBUNAL
• Department Lawyers: R P NAG
• Assessee Lawyers: SOUMITRA CHOW DHURY
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOLKATA [BEFORE SHRI P. K. BANSAL, AM & SHRI MAHAVIR SINGH, JM ] I.T.A NO. 32 /KOL/201 2 ASSESSMENT YEAR : 200 8 - 0 9 DEPUTY COMMISSIONER OF INCOME - TAX , VS. SHRI DULAL SAHA (PAN: ALSPS6613A) CIRCLE - 51, KOLKATA. ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 17 .0 6 .2015 DATE OF PRONOUNCEMENT: 17 . 0 6 . 2015 FOR THE APPELLANT: SHRI R. P. NAG, JCIT, SR. DR FOR THE RESPONDENT: S HRI SOUMITRA CHOWDHURY, ADVOCATE ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF CIT (A) - XXXI I , KOLKATA VIDE APPEAL NO. 234 /CIT(A) - XXXI I /10 - 11/CIR - 51/KOL DATED 15 . 0 7 .201 1 . ASSESSMENT WAS FRAMED BY DCIT, CIRCLE - 5 1 , KOLKATA U/S. 1 43(3) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) FOR ASSESSMENT YEAR 200 8 - 0 9 VIDE HIS ORDER DATED 30 . 12 .20 1 0 . 2. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGAINST THE ORDER OF CIT(A) IN DELETING THE ADDITION MADE BY AO ON ACCOUNT OF GROSS PROFIT RATE @ 11.80%. F OR THIS, REVENUE HAS RAISED FOLLOWING GROUNDS: THE LD. CIT(A) HAS DELETED ADDITION OF RS.24,48,905/ - ON ACCOUNT OF UNDISCLOSED SALE AND TAKING G.P. RATE @ 11.80%. BUT ADDITION WAS MADE ON THE DIFFERENCE OF MONTH WISE UNRECORDED SALE AS PER SALES REGISTERS AND AS PER KACHA KHATA FROM SEPTEMBER 2007 TO JANUARY 2008 OF IMPOUNDED DOCUMENT. SO IT HAS NO RELATION WHAT CIT(A) STATED. FURTHER THE ASSESSEE CONFIRMED IN HEARING STAGE THAT HE IS AGREED TO PAY TAX ON THIS UNDISCLOSED INCOME. HENCE, SECOND APPEAL IS SUGGESTED. 3. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS IN THE BUSINESS OF JEWELLERY. DURING THE RELEVANT PREVIOUS YEAR 2007 - 08 RELEVANT TO THIS AY 2008 - 09 A SURVEY U/S. 133A OF THE ACT WAS CONDUCTED BY THE I. T. DEPARTMENT ON 30.01.2008. DURING TH E COURSE OF SURVEY STOCK OF GOLD ORNAMENTS WAS INVENTORISED AND FOUND THAT THERE IS UNRECORDED ORNAMENTS SOLD TO THE EXTENT OF RS.24,48,905/ - . AT THE TIME OF SURVEY, THE ASSESSEE AGREED FOR THIS ADDITION BUT WHILE FILING THE RETURN OF INCOME HE IS NOT INC LUDED THE SAME IN THE RETURN OF INCOME. THE AO WHILE FRAMING THE ASSESSMENT MADE ADDITION OF UNDISCLOSED SALE TREATING THE SAME AS PROFIT AS CREDITED BY THE ASSESSEE AT RS.24,48,905/ - . 2 ITA NO. 32 /K/201 2 DULAL SAHA AY 200 8 - 0 9 ACCORDING TO AO, AS PER VAT REGISTER DS - 3, SALES UP TO DECEMBER. 2007 WAS AT RS.57,70,384/ - BUT ASSESSEE HAD DISCLOSED AT RS.80,49,591/ - . AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A), WHO APPLIED GP RATE @ 11.80% ON THE ABOVE SALE AND ASSESS THE UNDISCLOSED INCOME AT RS.2,88,970/ - AS AGAINST THE ENTIRE SALE ADDED BY THE AO AT RS.24,48,905/ - . AGGRIEVED, REVENUE CAME IN APPEAL BEFORE TRIBUNAL. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE CIT(A) HAS APPLIED GROSS PROFIT RATE @ 11.80% (AS DISCLOSED BY THE AS SESSEE IN NORMAL COURSE) AND ASSESSED THE PROFIT ELEMENT ONLY. ADMITTEDLY, REVENUE HAS ADMITTED THE SALE AS UNDISCLOSED FOUND DURING THE COURSE OF SURVEY AS THERE IS ALLEGED RECORDING OF SALE IN THE VAT REGISTER. THE ASSESSEE ALSO ADMITTED UNDISCLOSED SA LES BUT ONLY ALTERNATIVE PLEA ON THE SAME IS TO APPLY GP RATE AND ENTIRE SALE CANNOT BE ADDED AS INCOME OF THE ASSESSEE. HENCE, WE FIND NO INFIRMITY IN THE ORDER OF CIT(A) AND THE SAME IS HEREBY UPHELD. THE APPEAL OF REVENUE IS DISMISSED. 5 . IN THE RES ULT, APPEAL OF REVENUE IS DISMISSED. 6 . ORDER IS PRONOUNCED IN THE OPEN COURT . S D / - S D / - ( P. K. BANSAL ) (MAHAVIR SINGH) ACCOUNTANT MEMBER J UDICIAL MEMBER DATED : 17 TH JUNE , 201 5 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . A PPELLANT DCITL, CIRCLE - 51, KOLKATA. 2 RESPONDENT SHRI DULAL SAHA, PROP. NEW MANIHAR JEWELLERY, ANANDLOK, SODEPUR, KOLKATA - 700 110 3 . THE CIT (A), KOLKATA 4. 5. CIT, KOLKATA . DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .