Tajrul Seikh, Kolkata V. PCIT-14, Kolkata

ITA 349/KOL/2021

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 6351 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2016-2017
• Appeal Filed On: 23-09-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEVI SHARAN SINGH
• Keywords: Revision of order; Onus to prove; Set aside; Bogus
• Section: 68; 263; 142(1); 133(6); 143(2)

Judgement Text

1 I.T.A. No.349/Kol/2021 Assessment Year: 2016-17 Tajrul Seikh आयकर अपील य अधीकरण, यायपीठ –“A” कोलकाता, IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH: KOLKATA [Before Shri P. M .Jagtap, Vice-President (KZ) and Shri A. T. Varkey, JM] I.T.A. No.349/Kol/2021 Assessment Year: 2016-17 Tajrul Seikh C/o S.M. Surana, Advocate, Unit 1501, 15 th Floor, Diamond Heritage, 16, Strand Road, Kolkata-1. (PAN: DNSPS9580P) Vs. PCIT-14, Kolkata Appellant Respondent Date of Hearing (Virtual) 30.11.2021 Date of Pronouncement 15 .12.2021 For the Appellant Shri S. M. Surana, Advocate For the Respondent Shri Devi Sharan Singh, CIT-DR ORDER Per Shri A. T. Varkey, JM: This is an appeal preferred by the assessee against the order of the Principal CIT-14, Kolkata dated 17.03.2020 passed u/s 263 of the Income Tax Act (hereinafter the ‘Act’). 2. At the outset, the Ld. AR of the assessee, Shri S.M. Surana, drew our attention to the legal issue that has been raised by the assessee challenging the jurisdiction of the Ld. PCIT to invoke the revisional jurisdiction u/s 263 of the Act without validly holding that the A.O’s action was erroneous as well as prejudicial to the Revenue. 3. Brief facts are that the assessee had filed return disclosing total income of Rs.3,76,700/-. Later the assessee’s case was selected by CASS for scrutiny inter alia. As far as this appeal is concerned, the relevant issue is “large increase in sundry creditors with respect to turnover as shown in the ITR”. The A.O had issued notices u/s 143(2) and 142(1) of the Act on 05.07.2017 and 15.05.2018, copy of the same is 2 I.T.A. No.349/Kol/2021 Assessment Year: 2016-17 Tajrul Seikh found placed at page 3 to 10 of the paper-book. From a perusal of the same, we note queries regarding the issue of sundry creditors were raised by the A.O and he had asked for the list of names, address of sundry creditors for A.Y 2015-16 which is item No.(f) [the Ld. PCIT has reproduced the ibid notice at page 2 of the impugned order]. Thereafter going through the replies of the assessee filed at page 10 and after going through the books of the assessee, Form No.26AS audit report along with the Trading and Profit & Loss A/c as well as balance sheet on 31.03.2016 and other documents called for, and after hearing the AR of the assessee, the A.O has made an observation in respect of the sundry creditors as under: “The AR of the assessee was asked why there was a large amount of sundry creditors. He explained that the amount of sundry creditors was 1,86,05,800/-. There was also 1,71,81,900/- as sundry debtors. So, as the assessee was a labour contractor, there was huge amount of payment outstanding to the labour. Considering the volume of turnover of the assessee’s business, the plea of the AR of the assessee is acceptable.” And thereafter the A.O has accepted the claims of the assessee in respect of sundry creditors and did not draw any adverse inference on this issue and therefore he accepted the returned income of Rs.3,76,000/-. 4. Thereafter the Ld. PCIT proposed to invoke his revisional jurisdiction on the issue of “large increase in sundry creditors with respect to turnover as compared to the preceding year”. According to the Ld. PCIT even though the A.O vide notice u/s 142(1) of the Act has called for the books of account/documents relating to the relevant year and also had called for the list of names and details of sundry creditors for the F.Y under consideration, however the AO did not enquire in to the genuineness of the sundry creditors and held as under: “7. The submission of the assessee was meticulously examined by the undersigned. It was seen that the A.O vide notice u/s 143(2) dated 05.07.2017 had given the assessee an opportunity to produce evidence/information in support of the return. However, I find that no evidence in support of the genuineness of the sundry creditors was furnished by the assessee. The A.O accepted the explanation of the assessee without examining or enquiring into the genuineness of the sundry creditors. The A.O was required to at least conduct enquiries/verifications regarding the genuineness of the sundry creditors relevant to the Assessment Year in question.” 3 I.T.A. No.349/Kol/2021 Assessment Year: 2016-17 Tajrul Seikh And thereafter the Ld. PCIT was pleased to set aside the order of the A.O dated 26.06.2018 and directed him to frame fresh assessment on this issue. Aggrieved by the aforesaid action, the assessee is before us. 5. We have heard both the parties and perused the records. In order to examine whether the Ld. PCIT had successfully invoked the revisional jurisdictional u/s 263 of the Act or not, we have to examine whether the issue in respect of sundry creditors has been enquired/examined by the A.O and if has done so then whether he has taken a plausible view on the issue or not. We note that the Ld. PCIT has reproduced the notice of A.O u/s 142(1) dated 15.05.2018 wherein Item No.(f) the A.O had called for list of names and address of the sundry creditors for the A.Y 2015-16 along with other details as indicated by the CASS and since we have to examine only this issue i.e. sundry creditors, we confine ourselves to this relevant issue only. We note that the A.O has recorded in the assessment order that the Ld. AR of the assessee has appeared before him and filed the assessee’s financials including the Profit & Loss A/c, Balance Sheet and books of accounts. And in respect of large amount of sundry creditors shown by the assessee, the A.O after having examined the details collected of sundry creditors, has accepted the version/explanation of the assessee that the sundry creditors to the tune of Rs.1,86,05,800/- was existing in liability side of balance sheet because the assessee being a labour supplier contractor after having got this contract which fetched him Rs.2,73,08,300/- and the cost of labour supply to him for this contract being Rs.2,62,24,786/- which inter-alia includes (i) outstanding machinery rent of Rs.9,55,800/- (ii) outstanding labour payment of Rs.1,74,85,000/- and (iii) outstanding salary payment of Rs.1,65,000/- and this amount (Rs.1,86,05,800/-) would be disbursed/discharged when the assessee receives the payment due from the principal which is shown as sundry debtors to the tune of Rs.1,71,81,900/- along with security deposit of Rs.16,60,500/- (which is shown in the right hand side of the balance sheet). These facts are discernible from the perusal of page 17 of paper-book wherein the Profit & Loss A/c and balance sheet has been placed. The Ld. AR also drew our attention to the labour account of sundry creditors from 01.04.2015 to 4 I.T.A. No.349/Kol/2021 Assessment Year: 2016-17 Tajrul Seikh 31.03.2016 at pages 27 to 32 of paper-book; and details of sundry creditors’ accounts from 01.04.2015 to 31.03.2016 at pages 33 to 36 of paper-book. He has also drew our attention to the ledger account at pages 37 to 39 which figures tallies with the figures reflected in the balance sheet in respect of sundry creditors as well as sundry debtors. According to the Ld. AR, the action of the A.O to have accepted the contention of the assessee after perusal of the records is a plausible view because even the Ld. PCIT has not found any fault with the gross receipt which the assessee has shown in its Profit & Loss A/c which is Rs.2.73 crores and has not disturbed the cost of contract to the tune of Rs.2.62 crores. So the gross receipts and cost/expense of assessee has been accepted by even the Ld. PCIT. So if the Ld. PCIT had to question the sundry creditors then he could have done so only after disturbing/rejecting the audited books of account. So when the Ld. PCIT has not found any fault on the part of A.O accepting the gross receipt as well as the cost incurred by the assessee, the Ld. PCIT could not have found fault with the sundry creditors. For such a proposition, the Ld. AR cited the ratio of the Hon’ble Delhi High Court in the case of CIT vs. Ritu Anurag Aggarwal in ITA No.325 of 2008 dated 22.07.2009 wherein the A.O had held after the notices issued to the sundry creditors (in that case) under section 133(6) of the Act got returned “unserved” with the remark ‘not known’. So the A.O in that case concluded that the assessee has failed to discharge its onus to prove the capacity of the creditors and genuineness of the transaction and made additions. This action of the A.O was reversed by the ITAT by observing that “This is a case, where the books are not out- rightly rejected, there is no adverse inference drawn regarding quantum of purchases or sales and even the purchase accounts of the sundry creditors have not been disturbed. The assessee maintained regular books of account including stock register which also has not been negated. The Assessing Officer had not disallowed the purchases from those creditors nor the trading results were disturbed”. After this observation, the ITAT held that since the sales, purchases as well as gross profits as disclosed by the assessee have been accepted by the A.O then the sundry creditors cannot be added u/s 68 by holding it as bogus. This action of the ITAT has been 5 I.T.A. No.349/Kol/2021 Assessment Year: 2016-17 Tajrul Seikh upheld by the Hon’ble Delhi High Court wherein the Hon’ble Delhi High Court observed as under: “....Proceeding on this basis, the ITAT observed that the sales, purchases as well as gross profits as disclosed by the assessee have been accepted by the Assessing Officer. 4. Once this is accepted, we are of the opinion that the approach of the ITAT was correct inasmuch as the Assessing Officer did not consider this aspect while making additions of the sundry creditors under section 68 of the Income Tax Act. As there was no case for disallowance for responding purchases, no addition could be made under section 68 inasmuch as it is not in dispute that the creditors' outstanding related to purchases and the trading results were accepted by the Assessing Officer.” Therefore, according to the Ld. AR in view of the ratio laid down by the Hon’ble Delhi High Court in the present case when the A.O has accepted the gross receipt from labour supply contract and the cost/expense incurred by the assessee, then after making enquiry and after hearing the explanation, the A.O accepted the claim of the assessee regarding the sundry creditors, which action of A.O in the facts and circumstances of the case discussed supra is a plausible view which is in consonance with the view of the Hon’ble High Court. According to Ld. AR, it is not the case of the PCIT that the sundry creditors are bogus and if that is so, the Ld. PCIT should have directed the books of accounts of the assessee to be rejected. By not directing so, the Ld. PCIT has accepted the gross receipt of Rs.2.73 crores and cost of Rs.2.62 crores while doubting the sundry creditors without even doubting the sundry debtors of like amount. So therefore, according to the Ld. AR the action of the A.O to have accepted the explanation given by the assessee after going through the ledgers of the sundry creditors and sundry debtors as well as the balance sheet as well as profit & loss filed by the assessee is a plausible view, so the Ld. PCIT ought not to have interfered with it. We find force in the submissions of Shri S.M. Surana. We find from the discussion supra and after going through the records especially the details of sundry creditors and sundry debtors, we are of considered opinion that the A.O has taken a plausible view in the facts and circumstances of the case. And at any rate the action of the A.O in the given facts cannot be held to be unsustainable in law. So, therefore, the action of the A.O in not drawing any adverse inference in respect of 6 I.T.A. No.349/Kol/2021 Assessment Year: 2016-17 Tajrul Seikh sundry creditors in the given facts should not have been interfered by Ld. PCIT exercising his revisional jurisdiction u/s 263 of the Act. Therefore, the action of the Ld. PCIT to interdict when the A.O has discharged his duty as an investigator as well as that of the adjudicator as discussed above. Since the A.O’s action on the facts as discussed (supra) is a plausible view, we find merit in the appeal of the assessee and we are inclined to hold that the impugned action of the Ld. PCIT is without jurisdiction and therefore null in the eyes of law so quashed. 6. In the result, the appeal of the assessee is allowed. Order is pronounced in the open court on 15 December, 2021. Sd/- Sd/- (P. M. Jagtap) (A. T. Varkey) Vice-President Judicial Member Dated: 15 .12.2021 RS Copy of the order forwarded to: 1. Appellant- Tajrul Seikh 2. Respondent – PCIT-14, Kolkata 3. The CIT(A)- , Kolkata 4. CIT- , Kolkata 5. DR, Kolkata Benches, Kolkata (sent through e-mail) True Copy By Order Senior Private Secretary/DDO ITAT, Kolkata Benches, Kolkata