Md Serajuddin, Howrah V. I.T.O Wd - 32(2),kolkata., Kolkata

ITA 359/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99869 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 22-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NILOY BARAN SOM JCIT SRDR
• Assessee Lawyers: S K BASU

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI N.V.VASUDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 359 / KOL / 2013 ASSESSMENT YEAR :2008-09 MD. SERAJUDDIN 18/19, NANDA GHOSH ROAD, 2 ND FLOOR, HOWRAH, 711101 [ PAN NO.BAPPS 0405 P ] V/S . ITO WARD-32(2), 10, MIDDLETON ROW, 2 ND FLOOR, KOLKATA -71 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI S.K. BASU, AR /BY RESPONDENT SHRI NILOY BARAN SOM, JCIT, SR-DR /DATE OF HEARING 10-09-2015 /DATE OF PRONOUNCEMENT 07-10-2015 / O R D E R PER WASEEM AHMED, ACCOUNTANTMEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF ORD ER OF COMMISSIONER OF INCOME TAX (APPEALS)-XIX, KOLKATA IN APPEAL NO.46/C IT(A)-XIX/ITO, WARD- 32(2), KOL/10-11DATED 10.08.2011. ASSESSMENT WAS FR AMED BY ITO WARD- 32(2), KOLKATA U/S 143(3)(II) OF THE INCOME TAX ACT , 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 28.09.2012 FO R ASSESSMENT YEAR 2008-09. ITA NO.359/KOL/2013 A.Y. 2008-09 MD. SERAJUDDIN V. ITO WD-32(2) KOL. PAGE 2 2. THE ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL IS THAT THE LD CIT(A) HAS ERRED IN CONFIRMING AND SUSTAINING THE ADDITION MADE BY THE AO IN HIS ORDER ON ACCOUNT OF NON-DISCLOSURE OF THE RECEIPT O F THE BANK. 3. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND HAS THE INCOME FROM THE RETAIL BUSINESS OF STATIONERY ITEMS AND INCOME FROM OTHER SOURCES. THE ASSESSEE WAS MAINTAINING THE VARIOUS B ANK ACCOUNTS IN DIFFERENT BANK. WHILE FILING THE RETURN OF INCOME THE ASSESSE E FAILED TO DISCLOSE THE TRANSACTION OF THE FOLLOWING BANK ACCOUNT:- SL NO. NAME OF BANK A/C NO. TOTAL RECEIPTS IN THE BANK 1 STANDARD CHARTERED BANK 324-1-018118-1 RS.10,20,400/- 2 STANDARD CHARTERED BANK CB A/C 322-0-533426-5 RS. 1,47,100/- RS.11,67,500/- THE AO CALLS UPON THE ASSESSEE TO JUSTIFY THE TRANS ACTION OF THE BANKS AS MENTIONED ABOVE. THE ASSESSEE SUBMITTED THAT THE AB OVE SAID BANK ACCOUNTS WERE NOT CONSIDERED FOR FILING THE INCOME TAX RETUR NS DUE TO MISTAKE. THE ASSESSEE OFFERED THE ABOVE BANK RECEIPTS TO TAX AND PRAYED TO COMPUTE PROFIT UNDER SECTION 44 AF OF THE ACT @ 13.50% ON THE SUCH RECEIPTS. HOWEVER, THE AO FOUND THAT THE ASSESSEE HAS DECLARED TURNOVER IN ITS RETURN OF INCOME RS. 7,95,210/- AND GAINED PROFIT ON IT OF RS. 2,34,722 /- WHICH IS AROUND 30% OF THE TURNOVER. HENCE THE AO APPLIED THE SAME RATE OF PRO FIT AND DETERMINED ASSESSEES INCOME AT RS.3,50,250/- ON HIS UNDISCLOS ED SALES(30% OF RS.11,67,500/- = RS.3,50,250/-). AGGRIEVED, ASSESSE E PREFERRED APPEAL BEFORE LD. CIT(A) WHO HAS UPHELD THE ORDER OF THE AO BY PA SSING AN EX-PARTE ORDER AS NONE APPEARED ON BEHALF OF THE ASSESSEE IN SPITE OF SEVERAL NOTICES/REMINDERS ISSUED TO THE ASSESSEE. NOW, ASSE SSEE PREFERRED 2 ND APPEAL BEFORE US ON THE FOLLOWING GROUNDS:- 1. FOR THAT THE ORDER IS ARBITRARY FAR FROM NATURA L JUSTICE. 2. FOR THAT ITO WD 32(2) GIVEN STIGMA TO THE ASSESS EE THAT BANK A/C NO. 324-10181 AS UNDISCLOSED ACCOUNT WHICH WAS NOT TO BE TRUE. ITA NO.359/KOL/2013 A.Y. 2008-09 MD. SERAJUDDIN V. ITO WD-32(2) KOL. PAGE 3 3. FOR THAT ITO IGNORED THE THEORY OF RECYCLING OF MONEY IN TRADING BUSINESS AND ACTED ILLEGALLY. 4. FOR THAT IGNORANCE OF ENGLISH THE ASSESSEE HAD N O KNOWLEDGE WHAT ACTUALLY PRESENTED BEFORE ITO. EVEN HE WAS PREVENTE D BY LAWYER TO APPEAR BEFORE ITO WARD-32(2) WITH HIM. 5. FOR THAT CIT(A) XIX COULD NOT JUDGE THE ASSESSME NT PROPERLY AND PASSED ORDER. 4. BEFORE US LD. AR OF THE ASSESSEE HAS TAKEN A NEW PLEA STATING THAT HE HAS DISCLOSED ALL THE BANK ACCOUNTS IN FILING THE R ETURN INCOME OF THE ASSESSEE. THE LD. AR SUBMISSIONS ARE ENUMERATED BEL OW : 1) THE PROVISIONS OF THE SECTION 44AF OF THE ACT AR E AUTOMATICALLY APPLICABLE AS THE ASSESSEE DOES NOT MAINTAIN THE BO OKS OF ACCOUNTS. 2) THE ASSESSEE HAS RECORDED STANDARD CHARTERED BAN K ACCOUNT NO. 32910181 IN THE BALANCE SHEET BUT THE CORRECT ACCOU NT NO. IS 32410181. IT WAS JUST A TYPOGRAPHICAL MISTAKE. THE CLOSING BANK BALANCE WAS CORRECTLY RECORDED RS. 137840.58 WHILE SUBMITTING THE RETURN OF INCOME. THEREFORE, THE QUESTION OF CONCEA LMENT OF INCOME DOES NOT ARISE AT ALL. 3) THE LD. AO HAS TAKEN ONLY THE RECEIPT OF THE BAN K ACCOUNTS AND THE WITHDRAWALS WERE TOTALLY NEGLECTED AND ALSO IGNORED THE RECYCLING OF MONEY IN TRADING BUSINESS. FINALLY THE LD. AR OF THE ASSESSEE HAS PRAYED TO SE T ASIDE THE ORDERS OF AUTHORITIES BELOW. ON THE CONTRARY, LD. DR VEHEMEN TLY SUPPORTED THE VIEW OF THE LOWER AUTHORITIES BELOW. 5. WE HAVE HEARD THE RIVAL PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THIS APPEAL THE ASSESSEE HAS TAKEN A DIF FERENT PLEA BEFORE US IN COMPARISON TO THE FACTS RECORDED BEFORE THE ASSESSI NG OFFICER BESIDES LD. AR OF ASSESSEE PLEADED THAT THERE IS NO SUPPRESSION OF THE SALES AND CONSEQUENTLY NO CONCEALMENT OF INCOME. SO, IN THE I NTEREST OF JUSTICE AND FAIR ITA NO.359/KOL/2013 A.Y. 2008-09 MD. SERAJUDDIN V. ITO WD-32(2) KOL. PAGE 4 PLAY, WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE. THEREFORE WE KEEP THE ORDER OF THE CIT(A) AND RESTORE THE FILE TO AO WITH A DIRECTION TO ADJUDICATE AFRESH AS PER LAW . NEEDLESS TO MENTIONED, ASSESSEE SHOULD CO-OPERATE IN THE ASSESSMENT PROCEE DINGS. 6 IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT 07/1 0/2015 SD/- SD/- (N.V.VASUDEVAN) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 07 /10/2015 / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT-MD. SERAJUDDIN, 18/19, NANDA GHOSH ROA D, 2 ND FL, HOWRAH-711101 2. / RESPONDENT-ITO, WARD-32(2), 10, MIDDLETON ROW, 2 ND FLOOR, KOLKATA-71 3. * +, - - . / CONCERNED CIT KOLKATA 4.- - .- / CIT (A) KOLKATA 5. 012 33+,,- +, , / DR, ITAT, KOLKATA 6. 267 89 / GUARD FILE. BY ORDER/ - , /TRUE COPY/ / - +, ,