Sri Sarajit Kr Bachar, South 24 Parganas V. I.T.O Wd - 53(4),kolkata., Kolkata

ITA 362/KOL/2013

• Counselvise Citation: 36223514 RSA 2013
• Duration Of Justice: 2 year(s) 9 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 22-02-2013
• Court: TRIBUNAL
• Department Lawyers: SUDIPTA GUHA
• Assessee Lawyers: K M ROY; N DA TTA BANIK
• Keywords: Opportunity of being heard; Source of fund
• Section: 68

Judgement Text

ITA NO.362/KOL/2013 SHRI SARAJIT KR.BACHAR A/.Y.2 005-06 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH SMC, KOLKATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM ] ITA NO.362/KOL/2013 ASSESSMENT YEAR : 2005-06 SHRI SARAJIT KUMAR BACHAR . -VERSUS- I.T.O., WARD- 53(4), KOLKATA KOLKATA (PAN:AGJPB 1665 M) (APPELLANT ) (RESPONDENT) FOR THE APPELLANT : SHRI K.M.ROY, FCA AND SHRI N.DA TTA BANIK, ADVOCATE FOR THE RESPONDENT : SHRI SUDIPTA GUHA, JCIT DATE OF HEARING : 03.12.2015. DATE OF PRONOUNCEMENT : 09.12.2015. ORDER THIS IS AN APPEAL BY THE ASSESSEE DIREC TED AGAINST THE ORDER DATED 26.12.2012 OF CIT(A)-XXXIII, KOLKATA RELATING TO A.Y.2005-06. 2. THE ASSESSEE HAS FILED REVISED GROUNDS OF APPEA L AND HAS REQUESTED THAT THE SAID GROUNDS OF APPEAL BE ADJUDICATED. 3. GROUND NO.1 IN THE REVISED GROUNDS OF APPEAL REA DS AS FOLLOWS :- 1.THAT LD. CIT(APPEAL) HAS ERRED IN FACTS IN SUSTA INING THE ADDITION OF NEGATIVE CASH BALANCE OF RS.5,26,770/- WHEN IN FACT THE CASH BALA NCE WAS ALWAYS POSITIVE THROUGHOUT THE YEAR. 4. THE ASSESSEE IS AN INDIVIDUAL. HE IS ENGAGED IN THE BUSINESS OF TRADING IN SUGAR. IN THE COURSE OF ASSESSMENT PROCEEDINGS ON EXAMINAT ION OF THE CASH BOOK OF THE ASSESSEE THE AO FOUND THAT THERE WAS NEGATIVE CASH BALANCE TO THE EXTENT OF RS.5,26,770/-. NEGATIVE CASH BALANCE OCCURS WHEN AS PER THE CASH BOOK THE CASH ITA NO.362/KOL/2013 SHRI SARAJIT KR.BACHAR A/.Y.2 005-06 2 AVAILABLE IS SAY RS.100/- BUT THE ASSESSEE HAS SHOW N WITHDRAWAL OF SAY RS.200/- IN THE CASH BOOK. THE SUM OF RS.100/- IS SAID TO BE NEGAT IVE CASH BALANCE. AO MADE ADDITION OF THE AFORESAID SUM AS UNEXPLAINED CASH C REDIT U/S 68 OF THE ACT. 5. BEFORE THE CIT(A) THE ASSESSEE PLEADED THAT SOME R DEALERS USED TO KEEP MONEY AS ADVANCE IN ORDER TO SUPPLY GOODS WHICH WERE SUBS EQUENTLY ADJUSTED WITH THE GOODS SUPPLIED BY THE ASSESSEE. THE ASSESSEE EXPLAINED TH AT SUCH TEMPORARY ADVANCES WERE RECORDED IN THE CASH BOOK. THE ASSESSEE TOOK ANOTHE R STAND THAT HE HAD TAKEN CASH LOANS FROM TWO OF HIS YOUNGER BROTHERS AND THESE LO ANS WERE RECORDED IN THE CASH BOOK. THE CIT(A) CALLED FOR THE REMAND REPORT FROM THE AO ON THE NEW PLEA RAISED BY THE ASSESSEE BEFORE HIM. AO VIDE REMAND REPORT DATE D 02.03.2012 POINTED OUT THAT NO EVIDENCE REGARDING TEMPORARY LOAN GIVEN EITHER BY H IS TWO BROTHERS WAS FILED BY THE ASSESSEE IN THE REMAND PROCEEDINGS. IN THESE CIRCUM STANCES, CIT(A) WAS OF THE VIEW THAT THE ASSESSEE FAILED TO EXPLAIN CASH CREDIT SAT ISFACTORILY AND CONFIRMED THE ACTION MADE BY THE AO. 6. BEFORE US THE LD. COUNSEL FOR THE ASSESSEE FILED A COPY OF THE CASH BOOK AS WAS PRODUCED BEFORE THE AO AND MADE A SUBMISSION THAT T HERE WAS NO NEGATIVE BALANCE AS MENTIONED BY THE AO IN THE ORDER OF THE ASSESSMENT. HIS LIMITED REQUEST WAS TO SET ASIDE THE ISSUE TO THE AO FOR FRESH CONSIDERATION. 7. THE LEARNED DR OPPOSED THE PRAYER OF THE ASSESSE E. ACCORDING TO HIM THE NEGATIVE CASH BALANCE WERE ACCEPTED BY THE ASSESSEE BEFORE THE AO AS WELL AS THE CIT(A). HE POINTED OUT THAT THE CASH BOOK HAD NOT B EEN IMPOUNDED BY THE AO AT THE TIME OF ASSESSMENT PROCEEDINGS AND THEREFORE VERACI TY OF CASH BOOK NOW FILED BEFORE THE TRIBUNAL IS DOUBTFUL. 8. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND AM O F THE VIEW THAT THE PRAYER AS MADE BY THE LD. COUNSEL FOR THE ASSESSEE CANNOT BE ACCEPTED. AS RIGHTLY POINTED OUT BY THE LEARNED DR., NEITHER BEFORE THE AO NOR BEFOR E THE CIT(A), THE ASSESSEE TOOK A STAND THAT THERE WAS NO NEGATIVE BALANCE IN THE CAS H BOOK. IT IS THEREFORE NOT PROPER TO ITA NO.362/KOL/2013 SHRI SARAJIT KR.BACHAR A/.Y.2 005-06 3 TAKE COGNIZANCE OF THE CASH BOOK NOW SOUGHT TO BE F ILED BEFORE US. I, THEREFORE, REJECT THE REQUEST MADE ON BEHALF OF THE ASSESSEE AND DISM ISS GROUND NO.1 RAISED BY THE ASSESSEE AS OTHERWISE THE CONCLUSIONS OF THE CIT(A) ARE JUST AND PROPER. 9. GROUND NO.2 RAISED BY THE ASSESSEE READS AS FOLL OWS : 2. THAT THE ADDITION OF RS.3,67,625/- TOWARDS UNDI SCLOSED INVESTMENT IS PERVERSE IN THE ABSENCE OF CROSS EXAMINATION OF AFFIDAVITS. 10. THE ASSESSEE HAS PURCHASED A PLOT OF LAND AT SO NARPUR AT A COST OF RS.6,47,625/- INCLUDING COST OF REGISTRATION. IN THE BALANCE SHEE T OF THE ASSESSEE A SUM OF RS.2,80,000/- HAD BEEN SHOWN AS ADVANCE FOR PURCHAS E OF THE PLOT. THE DEED WAS REGISTERED ON 06.05.2004. AO IN THE ABSENCE OF SATI SFACTORY EXPLANATION WITH REGARD TO THE SOURCE OF FUND FOR MAKING INVESTMENTS TO THE EX TENT OF RS.3,67,625/- (RS.6,47,625 2,80,000) TREATED THE SAID SUM AS UNEXPLAINED IN VESTMENT. 11. BEFORE THE CIT(A) THE ASSESSEE SUBMITTED THAT C ONTRIBUTIONS WERE MADE BY OTHER MEMBERS OF THE FAMILY AND THAT WAS THE SOURCE FOR PURCHASE OF THE PROPERTY. THE AFFIDAVITS OF THE FAMILY WERE FILED BEFORE CIT(A). CIT(A) CALLED FOR A REMAND REPORT FROM THE AO AND THE AO IN THE REMAND REPORT SUBMITT ED THAT THE AFFIDAVIT WAS BEING FILED AFTER A LAPSE OF TIME AND IT CANNOT BE ACCEPT ED. CIT(A) ACCEPTED THE REMAND REPORT OF THE AO AND CONFIRMED THE ADDITION MADE BY THE AO. 12. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND AM OF THE VIEW THAT IN THE LIGHT OF THE AFFIDAVITS FILED BY THE RELATIVES OF THE ASSES SE, THE AO OUGHT TO HAVE EXAMINED THEM BEFORE COMING TO A CONCLUSION ABOUT THE TRUTH OR OTHERWISE OF THE STAND TAKEN BY THEM. WITHOUT EXAMINATION OF THESE PERSONS IT IS NO T POSSIBLE TO COME TO A CONCLUSION THAT THEY DO NOT HAVE SOURCE OF FUNDS FOR MAKING SU CH CONTRIBUTION. I, THEREFORE SET ASIDE THE ORDER ON THIS ISSUE AND REMAND THE ISSUE TO THE AO FOR FRESH CONSIDERATION. THE AO WILL CARRY OUT EXAMINATION OF THE DEPONENT O F THE AFFIDAVITS AND THEREAFTER DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER AFFOR DING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. CONSEQUENTLY GROUND NO.2 OF THE ASSES SEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.362/KOL/2013 SHRI SARAJIT KR.BACHAR A/.Y.2 005-06 4 13. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 09.12.2015. SD/- [N.V.VASUDEVAN] JUDICIAL MEMBER DATE: 09.12.2015. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1. SHRI SARAJIT KR.BACHAR, VILL. & P.O. GOSABA, 24- PGS. (SOUTH), W.B.- 743370. 2 THE I.T.O., WARD-53(4), KOLKATA. 3. THE CIT-XVIII, KOLKATA, 4. THE CIT(A)-XXXIII, KOLKATA. 5. DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES