M/s. Md. Muslim Sheikh, Murshidabad V. I.T.O., Ward -1, MURSHIDABAD, Murshidabad

ITA 39/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54762 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-12-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 26-04-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 07-01-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R K SAHA
• Assessee Lawyers: S K TULSIYAN; S K DAS SHARMA
• Keywords: Bogus purchase; Opportunity of being heard; Reasonable cause; Assessment record
• Section: 40A(3); 131; 69; 6

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA [ . . . . . .. . , . . . . ' ' ' ', ,, , ] [BEFORE SHRI S.V. MEHROTA, A.M. & SHRI N. VIJAYA KUMARAN, JM] % % % % / I.T.A NO.39/KOL/2010 / // / ASSESSMENT YEAR : 2004-05 M/S. MD. MUSLIM SHEIKH -VS.- INCOME TAX OFFICER/WARD-I MURSHIDABAD [PAN : AAJFM 9892 P] MURSHIDABAD. [ , , , , /APPELLANT ] ]] ] [ ./, ./, ./, ./,/ // / RESPONDENT ] ]] ] , , , , / FOR THE APPELLANT : S/SHRI S. K. TULSIYA N & S.K. DAS SHARMA ./, ./, ./, ./, / FOR THE RESPONDENT : SHRI R. K. SAHA 1 2 1 2 1 2 1 2 /DATE OF HEARING : 18. 10. 2011 1 1 1 1 2 2 2 2 /DATE OF PRONOUNCEMENT : 29.11.2011 /ORDER . . . . ' ' ' ' , PER N. VIJAYA KUMARAN, J. M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A)-XXXVI, KOLKATA DATED 30.10.2007 FOR ASSESSMENT YEAR 2004-05. 2. THE FIRST GROUND IS OF ADDITION OF RS.5,55,034/- UNDER SECTION 69 OF THE ACT. THE ASSESSING OFFICER OBSERVED IN HIS ORDER THAT THAT THE ASSESSE E HAS NOT SHOWN WORK-IN-PROGRESS WITH PROFIT & LOSS ACCOUNT FOR THE RELEVANT PREVIOUS YEAR ENDED W ITH 31.03.2004. HOWEVER, ASSESSEE CLAIMED THE EXPENSES USED IN THE ON GOING WORK BUT NOT COMPLETE D WITHIN THE YEAR. ASSESSING OFFICER WAS OF THE OPINION THAT IT IS UNDER STATEMENT OF PROFITS. HE, THEREFORE, ADDED THE TOTAL SUM OF RS.10,66,594/-. 3. THE CONTENTION OF THE ASSESSEE THROUGHOUT THE PR OCEEDINGS WOULD BE THAT THE ABOVE TOTAL AMOUNT COMPRISED IN TWO BILLS WHICH WERE DATED 28.0 2.2004 FOR RS.9,09,032/- AND RS.36,94,964/- VIDE BILL DATED 31.03.2004. THESE BILLS AND THE AMO UNT HAS BEEN DISCLOSED BY THE ASSESSEE AS HIS [ ITA NO.39/KOL/2010] 2 GROSS RECEIPTS IN THE RELEVANT YEAR UNDER APPEAL. H ENCE, IT CAN NOT BE TAKEN AS WORK-IN-PROGRESS AND THIS ALREADY TAKEN AS INCOME BY HE ASSESSEE IN ITS PROFIT AND LOSS ACCOUNT. THE MATERIALS PURCHASED AFTER 27.03.2004 AND BEFORE 31.03.2004 AMOUNTING TO RS.5,55,039/- WHICH WAS CONSIDERED TO BE UTILISED FOR THE PURPOSES OF WORK-IN-PROGRESS WAS A LSO WITHDREW IN THE INCOME DECLARED BY THE ASSESSEE IN ITS PROFIT & LOSS ACCOUNT. 4. THE FURTHER CONTENTION OF THE ASSESEE BEFORE US IS THAT THE ASSESSEE IS IN THE BUSINESS OF A CIVIL CONTRACTOR. THAT INCLUDES FEEDER CANAL DIVISI ON AND JANGIPUR BARRAGE DIVISION OF THE FARAKKA BARRAGE PROJECT AND THE WORK UNDERTAKEN BY THE ASSESEE WAS FOR THE EMBANKMENT OF THE RIVER BANK BED ALSO OF REPAIRING THE BARRAGE UNDER THE FARAKKA BARRAGE PROJECT. THE ASSESSEE CONSISTENTLY FOLLOWING THE ACCOUNTING PRACTICE FOLL OWED IN SUCH CONTRACT WORK. BY THIS METHOD FOR ALL THE PROJECTS INCLUDING THE ON-GOING PROJECTS, T HE GROSS RECEIPTS, RECEIVED BY THE ASSESSEE AGAINST THE SAID CONTRACTS ARE FULLY CREDITED TO THE PROFIT AND LOSS ACCOUNT AS THE INCOME OF THE ASSESSEE AS AND WHEN THE PAYMENT AGAINST THE SAME ARE RECEIVED AND THE EXPENSES ARE DEBITED TO THE PROFIT & LOSS ACCOUNT AS AND THEY ARE INCURRED. THERE EXISTS NO WORK-IN-PROGRESS IN RELATION TO THE ON-GOING PROJECTS OF THE ASSESSEE IN THE ACCOUNTS OF THE ASS ESSEE. THIS PRACTICE BEING CONSISTENTLY FOLLOWED BY THE ASSESSEE AS ARGUED BY THE LD. COUNSEL FOR THE A SSESSEE. 5. AS THE ASSESSEE HAD SHOWN NO WORK-IN-PROGRESS TH E ASSESSING OFFICER WAS OF THE VIEW THAT THE SAME TO BE WORK-IN-PROGRESS OF THE PENDING CONT RACT IN RESPECT OF WHICH THE SAME WAS INCURRED AND THE ADDITION WAS MADE BY THE ASSESSING OFFICER. THE LD. CIT(A) CONFIRMED THE ADDITION. LD. COUNSEL INVITED ATTENTION TO THE PAGE 5 TOP PARA, W HICH IS REPRODUCED AS UNDER :- I HAVE ALSO PERUSED A COPY OF THE BALANCE SHEET, TRADING AND P&L A/C AND OTHER DETAILS FURNISHED BY THE APPELLANT. I HAVE ALSO PE RUSED THE ASSESSMENT RECORD. THE DETAILS OF CONTRACT RECEIPTS INDICATE THAT THE BILL S FOR RS.36,94,964/- & RS.909032/- (WHICH WERE TAKEN BY THE A.O. TO WORK OUT THE WORK- IN-PROGRESS AT RS.511555/- WERE ALREADY RECEIVED DURING THE PREVIOUS YEAR AND ADMITTED IN THE RETURN OF INCOME. THEREFORE, THE ABOVE AMOUNT CANNOT BE CATEG ORIZED AS WORK IN PROGRESS. THEREFORE THE A.O ACTUALLY TREATING THE SAME AS UND ISCLOSED INVESTMENT IS NOT CORRECT THIS CONTRADICTORY FINDING OF THE LD. CIT(A) AND TH E ASSESSEE EXPLAINED THE CONSISTENT PRACTICE FOLLOWED IN PAST YEARS ALSO AND WITHOUT FINDING TH AT BY THIS CONSISTENT PRACTICE THE ASSESSEE SUPPRESSED THE TAXABLE INCOME. THE RESTRICTED ADDIT ION IS NOT JUSTIFIED IS THE ARGUMENT OF LD. COUNSEL FOR THE ASSESSEE. [ ITA NO.39/KOL/2010] 3 6. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATI VE SUPPORTED THE FINDINGS OF THE AUTHORITIES BELOW. IT IS CLEAR UNDERSTATEMENT OF PROFIT BY THE ASSESSEE, HENCE THIS CLAIM OF ASSESSEE TO BE REJECT ED IN THE ARGUMENT OF THE LD. DEPARTMENTAL REPRESENTAT IVE. 7 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD INCLUDING THE PRECEDENTS. 8. THE CHOICE OF THE METHOD OF ACCOUNTING LIES WITH THE ASSESSEE. HE MUST SHOW THAT HE HAS FOLLOWED THE METHOD REGULARLY. IT IS THAT METHOD OF ACCOUNTING ACCEPTED BY THE DEPARTMENT OVER SEVERAL YEARS. THEN THE DEPARTMENT HAS TO RECORD A FINDING THAT ASSESSEES METHOD OF ACCOUNTING DISTORTS PROFIT, THEN ONLY IT IS PERMISSIBLE FOR TH E DEPARTMENT TO SUSTAIN AN ADDITION. HERE, IN THIS CASE UNDER APPEAL, THE ACCOUNTING POLICY CONSISTENT LY FOLLOWED BY THE ASSESSEE WHEREIN ALL THE INCOME AND EXPENSES WERE WHOLLY ACCOUNTED FOR AND O FFERED AS SUCH IN THE PROFIT & LOSS ACCOUNT AS AND WHEN IT WAS RECEIVED OR INCURRED, THERE ARISES NO WORK-IN-PROGRESS WITH RELATION TO EXPENSES INCURRED ON THE ON-GOING PROJECTS AS THE WHOLE IS O FFERED AS INCOME/EXPENSES. HERE, THE LD. COUNSEL MADE A STATEMENT AT BAR THAT NO OTHER WORK-IN-PROGR ESS IS PENDING AND WHAT IS SHOWN IN THE BOOKS ARE THE SAME THAT ALL THE INCOME AND EXPENSES WERE WHOLLY ACCOUNTED FOR AND OFFERED AS SUCH AND NOTHING NEW AS NO NEW WORK-IN-PROGRESS EXISTS. THIS , THE ASSESSING OFFICER SHOULD VERIFY. HENCE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND DIRECT THE ASSESSING OFFICER TO VERIFY AND IF IT IS FOUND CORRECT THE ASSESSING OFFICER IS DIRECTED TO ALLOW THE SAME. IT IS NEEDLESS TO SAY THAT THE ASSESSING OFFICER SHOULD AFFORD OPPORTUNITY TO THE ASSESSEE. 9. COMING TO THE 2 ND GROUND, THIS ADDITION IS ALSO UNDER SECTION 69 OF THE ACT TO THE TUNE OF RS.13,85,600/-. THE ADDITIONAL FACTS RELEVANT TO DE CIDE THE ISSUES IS :- 9.1 THE ASSESSEE HAS TO MAKE EXTENSIVE PURCHASE OF CONSTRUCTION MATERIALS FROM THE LOCAL MARKETS IN SUCH REMOTE AREAS. THE EMBANKMENT OF RIV ER BANKS SITUATED IN RURAL AREAS. IN THESE REMOTE AREAS NO PROPER BANKING FACILITIES ANDS TRAD E CHANNEL AVAILABLE. THE ASSESSEE HAS TO DEPEND ON LOCAL PURCHASES FROM FARAKKA. TO MAKE PAYMENTS I N THE REMOTE LOCAL AREAS, THE ASSESSEE USED TO TRANSFER AMOUNTS FROM HIS BANK ACCOUNT BRANCH TO TH E ACCOUNT OF THE PERSON WHO HELD AN ACCOUNT IN THE SAME BRANCH AND WHO WAS LOCAL RESIDENT OF SUCH AREAS. THESE PERSONS USED TO MAKE CASH WITHDRAWALS FROM THIS BANK ACCOUNTS OUT OF THE TRAN SFERRED FUNDS AND WOULD THEN EFFECT THE PAYMENT [ ITA NO.39/KOL/2010] 4 TO THE SUPPLIERS. THE ASSESSEE KNEW ONE MR. S. DAS, WHO WAS EX-BRANCH MANAGER OF UCO BANK, FARAKKA. HE RESIDES IN FARAKKA AFTER RETIREMENT. HE MAINTAINED GOOD RELATION WITH A LOT MANY PEOPLE WITH SOUND FINANCIAL BACKING. HIS REPUTATION WAS VE RY HIGH AND RESPECTED. 9.2. THE ASSESSEE UTILIZED THE SERVICES OF MR. S. D AS IN GETTING LOCAL SUPPLIERS OF CONSTRUCTION MATERIALS. THE ASSESSEE FOLLOWED THIS PRACTICE OF P ROCURING SUPPLIERS FROM THE LOCAL MARKETS, FROM OTHER INDIVIDUALS ALSO. SO, THE BLACK-WIRES NEEDED FOR THE EMBANKMENT PROJECT WAS PURCHASED LOCALLY FROM SHRI PINTU JAIN THROUGH MR. S. DAS, WH O PROVIDED THE SAID SUPPLIER AND MR. S. DAS ARRANGED THE CREDIT FACILITY FOR THE PURCHASE, TO T HE ASSESSEE AS GUARANTOR. MR. S. DAS ALSO IN HIS STATEMENT GIVEN ON 09.06.2008, WHICH IS REPRODUCED HEREUNDER :- IT IS A FACT THAT I REQUESTED THE SUPPLIER SRI PI NTU JAM TO ALLOW CREDIT SALES TO YOU. IT IS ALSO KNOWN TO ONE THAT PINTU JAIN SENT IN 7 B ILLS THROUGH AND VALUED AT RS. 13,85,600/- PLEASE NOTE THAT I WITHDREW RS.4,00,000/- AND RS.7 ,00,000/ ON 18/04/2003 AND 08/09/2003 BUT MADE THE PAYMENTS IN CASH TO SRI PIN TU JAIN, SUPPLIER OF BLACK WIRES IN THE FOLLOWING MANNER. I FURTHER STATE THAT ON PAYMENT OF RS.11,00,000/- TO PINTU JAIN, REMAINING AMOUNT PAYABLE TO SRI JAIN SHOULD BE RS.2,85, 600/- 10. UNDER THE ABOVE FACTUAL POSITION THE ASSESSING OFFICER WHO TESTED MR. S. DAS UNDER SECTION 131 SUMMON ON 26.12.2006 AND THE SAID MR. S. DAS ST ATED BEFORE ASSESSING OFFICER ON THAT DAY THAT HE HAS NO BUSINESS/FINANCIAL TRANSACTION WITH THE A SSESSEE. BUT THE ASSESSING OFFICER USED THE STATEMENT AGAINST THE ASSESSEE WITHOUT AFFORDING AN Y OPPORTUNITY TO CROSS EXAMINE THE DEPONENT. BEFORE LD. CIT(A), THE LD. CIT(A) ALLOWED CROSS EXA MINATION OF MR. S. DAS BY THE ASSESSEE ON 09.06.2008 WHEREIN MR. S. DAS ADMITTED THAT THE EAR LIER STATEMENT IS INCORRECT. IN THE CROSS EXAMINATION MR. S. DAS ADMITTED THAT HE WAS ACTING AS AGENT FOR THE ASSESSEE WHEREBY HE PROCURED THE SAID SUPPLY OF WIRES ON CREDIT FROM ONE SHRI PI NTU JAIN ON HIS OWN PERSONAL GUARANTEE. HE HAS FURTHER CONFIRMED THAT THE BILLS FOR THE AMOUNT OF RS.13,85,600/- (COPY IS MADE AVAILABLE BEFORE US IN ASSESSEES PAPER BOOK AT PAGES 42 TO 48) WERE AL SO ISSUED AND SENT BY SHRI PINTU JAIN TO MR. S. DAS, WHO HIMSELF ON HIS OWN ACCOUNT, CLEARED THE SA ME, HOWEVER, VIDE CASH WITHDRAWALS OF RS.4,00,000/- AND RS.7,00,000/- MADE FROM HIS ACCOU NT OUT OF THE SUM TRANSFERRED BY THE ASSESSEE FROM HIS BANK ACCOUNT, UCO BANK, FARAKKA BRANCH TO THE BANK ACCOUNT OF MR. S. DAS. THIS AGAINST THE PURCHASES OF RS.13,85,000/-, A PAYMENT OF RS.11 ,00,000/- WAS DULY CLEARED BY MR. S. DAS AND [ ITA NO.39/KOL/2010] 5 THE BALANCE OF RS.2,85,600/- BEING THE OUTSTANDING AMOUNT WAS DULY SHOWN AS CREDITS IN THE BALANCE SHEET OF THE ASSESSEE. THE LD. COUNSEL CONCLUDED TH AT HIS EXPLANATION WAS REJECTED BY THE DEPARTMENT WITHOUT CONSIDERING THE SAME. HENCE, HE PRAYED FOR DELETION OF ADDITION UNDER SECTION 69 OF THE ACT. 11. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTAT IVE RELIED ON THE AUTHORITIES AND IT IS UNBELIEVABLE EXPLANATION, HENCE TO BE REJECTED. 12. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD INCLUDING THE PRECEDENTS. WE HAVE TO APPRECIATE THE ISSUE PAR TICULARLY UNDER CIRCUMSTANCES THAT THE TRANSACTIONS WERE IN REMOTE AREAS WHERE PROPER BANK ING FACILITIES AND TRADING CHANNELS WERE NOT PRESENT. THE LD. CIT(A) HAS TAKEN DUE CONSIDERATION WHILE DECIDING 40A(3) ADDITION AND HE HAS TAKEN THE REASONABLE CAUSE AND DELETED THE ADDITION MADE BY THE ASSESSING OFFICER UNDER SECTION 40A(3) OF THE ACT. THE LD. CIT(A) ALSO AT PAGE 8 OF HIS ORDER ADMITTED THAT IT IS AN UNDISPUTED FACTS THAT THE ASSESSEE HAS TRANSFERRED THE AMOUNTS FROM HIS ACCOUNTS WITH UCO BANK,BARAKKA BRANCH TO THE ACCOUNT OF MR. S. DAS WITH THE SAME BRANCH. TH E ONLY REASON FOR THIS ADDITION MADE BY THE ASSESSING OFFICER IS THAT THE NAME OF THE SUPPLIER. THERE IS DIFFERENCE WHICH MADE A DOUBT IN THE MIND OF THE ASSESSING OFFICER. IT IS AMPLY PROVED T HAT THE GENUINENESS OF THE PURCHASE AND PAYMENTS WERE MADE DULY OUT OF THE BANK ACCOUNT OF THE ASSESSEE AND IT IS NOT IN DISPUTE ALSO BEFORE US. IT IS ALSO FOR THE PURPOSE OF BUSINESS THAT THE BLACK WIRES HAVE TO BE PURCHASED AND THAT BLACK WIRES WERE USED IN THE SAID CONTRACT AS PER THE CON TRACT TERMS WITH THE GOVERNMENT. IT IS AN EMBANKMENT OF RIVER SITUATED IN RURAL AND URBAN ARE AS AND FOR THIS EMBANKMENT THE BLACK WIRES IS REQUIRED TO START THE ORIGINAL WORK CONTRACT. THE O RIGINAL WORK CONTRACT WAS IN THE EMBANKMENT OF THE RIVER BANK BED AND ALSO OF REPAIRING BARRAGE UN DER THE FARAKKA BARRAGE PROJECT. THE ASSESSEES ACCOUNTS WERE ALSO AUDITED AND HE IS A REGULAR INCO ME-TAX ASSESSEE. THE PROFIT AND LOSS ACCOUNT AND BALANCE SHEET WERE ALSO FURNISHED BEFORE THE ASSESS ING OFFICER. THE BILL DETAILS WERE AVAILABLE IN THE ASSESSEES PAPER BOOK AT PAGE 42 TO 48 IN WHICH NAME OF MR. S. DAS WAS MENTIONED WITH RELEVANT ACCOUNT NUMBER OF M/S. MD. MUSLIM SEIKH. T HE BLACK WIRE PURCHASE DETAILS/QUANTITY WERE ALSO MENTIONED. IT CLEARLY ESTABLISHES THAT THIS MO NEY FROM THE ASSESSEES ACCOUNT WENT TO MR. S. DAS WHO ACTED AS AN AGENT FOR THE ASSESSEE IN PROCU RING BLACK WIRE FROM THE LOCAL MARKET WHICH HAS BEEN SUFFICIENTLY EXPLAINED TO THE SATISFACTION OF THE AUTHORITIES. HOWEVER, THE AUTHORITIES FAILED TO APPRECIATE THE BANK STATEMENT THAT THEY WENT ON TO MISNOMER THAT THE BILLS CONTAINS TH E NAME OF MR. [ ITA NO.39/KOL/2010] 6 S. DAS BUT THEY FAILED TO NOTE THE CONTINUATION ENT RY AS AVAILABLE AT ASSESSEES PAPER BOOK PAGES 42 TO 48 WHICH SUPPORTS THE CASE OF THE ASSESSEE THAT THE MONEY WENT FROM THE ASSESSEES BANK TO MR. S. DAS ACCOUNT AND THE PURCHASE IS FOR THE PURPOSE OF PROCURING ASSESSEES BUSUINESS AND MR. S. DAS ONLY ACTED AS COMMISSION AGENT FOR THE PURPOSE OF P ROCURING BLACK WIRES. THESE WIRES ARE REQUIRED FOR THE PURPOSE OF MAKING THE CAGE FOR THE BOULDERS SO THAT THE BOULDERS DO NOT ROLL INTO THE RIVER. FOR, THIS BLACK WIRE RAW MATERIAL IS ONE OF THE MOS T IMPORTANT MATERIAL AND FOR THE EXECUTION OF THE PROJECT AND BEING AN INTEGRAL PART OF THE PROJECT. THE PROJECT CAN NOT PROCEED AND COMPLETED QITHOUT THE SAID PURCHASE. LD. COUNSEL RELIANCE ON THE DECI SION OF I.T.A.T., AGRA BENCH IN THE CASE OF SARAF GRAMODYOG SANSTHAN VS. ITO AND VICE-VERSA REPORTED IN 298 ITR (AT) 348 (AGRA), DECISION OF HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF SU MERCHAND JAIN VS. CIT 292 ITR 241 (MP), DECISION OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE IF CIT VS. LEADER VALVES (P) LTD. 285 ITR 435 (P&H) AND THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. KASHIRAM TEXTILE MILLS (P) LTD. 284 ITR 61 (GUJ.). LD. COUNS ELS CONTENTION THAT THE CASE LAWS WILL SUPPORT THE CASE OF THE ASSESSEE AND AFTER PERUSING THE SAM E, WE ARE OF THE VIEW THAT THIS ADDITION IS NOT AT ALL REQUIRED AS IT IS NOT ONLY FOR THE PURPOSE OF THE P ROJECT UNDERTOOK BY THE ASSESSEE AND THE ASSESSEE HAS AMPLY PROVED THAT IT IS NOT A BOGUS PURCHASE. H ENCE, WE SET ASIDE THE ORDERS OF THE AUTHORITIES AND ALLOW THIS GROUND OF THE ASSESSEE WHICH IS ADDI TION OF RS.13,85,600/- ON ACCOUNT OF ALLEGED BOGUS PURCHASE. 13. COMING TO THE ADDITIONAL GROUND WHICH THE ASSES SE FILED FOR THE FIRST TIME BEFORE US. THE ADDITIONAL GROUND IS AS UNDER :- THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND IN VIEW OF THE DECISION OF THE HONBLE H.C. OF CALCUTTA IN THE CAS E OF COMMISSIONER OF INCOME-TAX VS. SIMPLEX CONCRETE PILES (INDIA) PVT. LTD. (179 ITR 0008), THE RETENTION MONEY OF RS.9,33,399/- @ 10.00% OF T HE GROSS BILL AMOUNT), NOT BEING THE INCOME OF THE ASSESSEE FOR T HE YEAR UNDER APPEAL, MAY KINDLY BE REDUCED FROM THE REASONABLE INCOME OF THE ASSESSEE FIRM. 14. THE ADDITIONAL GROUND IS THE TAXABILITY OF RETE NTION MONEY WHICH WAS NOT RAISED BEFORE THE AUTHORITIES. THE LD. COUNSEL SUBMITTED THAT IT WAS NOT RAISED BEFORE THE AUTHORITIES AND THE FACTS ARE READILY AVAILABLE WHICH REQUIRES NO INVESTIGATION. HENCE, IT CAN BE ADMITTED AND DECIDED BY THE TRIBUNAL IN ACCORDANCE WITH LAW. FURTHER PROPOSITIO N THAT LD. COUNSEL DECIDED ON THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. SIMPLEX CONCRETE PILES (INDIA) PVT. LTD. 179 ITR 0008 AND CONTENDED THAT IT IS A COVERED MATTER THAT RETENTION MONEY NOT BEING THE INCOME OF THE [ ITA NO.39/KOL/2010] 7 ASSESSEE FOR THE YEAR UNDER APPEAL, IT SHOULD BE RE DUCED FROM THE ASSESSABLE INCOME FROM THE ASSESSEE-FIRM. LD. COUNSEL, THEREFORE, POLITELY SU BMITTED THAT THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD . VS. CIT 229 ITR 383 (SC) WHICH PERMITS THE TRIBUNAL TO ADMIT THE ADDITIONAL GROUND AS IT DOES NOT REQUIRE ANY INVESTIGATION OF FACTS AND IT CAN B E ADJUDICATED UPON. 15. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTAT IVE VEHEMENTLY OBJECTED TO THE ADDITIONAL GROUND AND SUBMITTED THAT IT SHOULD NOT BE ENTERTAI NED AS IT IS REQUIRED INVESTIGATION OF FACTS. THE LD. DEPARTMENTAL REPRESENTATIVE FURTHER SUBMITTED T HAT IT WAS NEVER CLAIMED BEFORE THE AUTHORITIES. THEREFORE, THE ADDITIONAL GROUND SHOULD BE REJECTED . 16. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD INCLUDING THE PRECEDENTS. THE DECISION OF HONBLE SUPREME COU RT EMPOWERED THE TRIBUNAL TO DECIDE THE ISSUE BY WAY OF ADDITIONAL GROUND IF THE FACTS ARE AVAILA BLE ON RECORD. HERE, ON PERUSAL OF RECORDS, THE FACTS ARE AVAILABLE TO ADMIT THIS GROUND FOR ADJUDI CATION AND WE, BY FOLLOWING THE DECISION OF HONBLE SUPREME COURT ADMIT THIS ADDITIONAL GROUND FOR ADJUDICATION. 17. AFTER CONSIDERING THE RIVAL SUBMISSION, WE ARE OF THE VIEW THAT THE ISSUE SHOULD GO BACK TO THE FILE OF ASSESSING OFFICER TO VERIFY THE FACTS W HETHER THE CORRESPONDING TDS WERE ALREADY TAKEN CREDIT AND THE ASSESSING OFFICER HAS TO VERIFY THE SAME AND THE ASSESSEE SHOULD PREFER THE CLAIM WITH SUFFICIENT EVIDENCE IF NEED BE AND THE ASSESSING OF FICER SHOULD DECIDE THE ISSUE IN ACCORDANCE WITH LAW. IT IS NEEDLESS TO MENTION THAT THE ASSESSING O FFICER SHOULD AFFORD SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 18. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. 5 5 5 5 2 2 2 2 ORDER PRONOUNCED IN THE OPEN COURT ON 29.11.2011 SD/- SD/- [ . . . . . .. . , ] [ . . . . ' ' ' ' , ,, , ] [S.V. MEHROTA] [ N. VIJAYAKUMARAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER D ATED : 29TH NOVEMBER, 2011. [ ITA NO.39/KOL/2010] 8 1 .' 8'/ COPY OF THE ORDER FORWARDED TO: 1. , /APPELLANT : M/S.MD. MUSLIM SHEIKH, BRAMHANAGRAM, NAYANSUKH, MURSHIDABAD. 2 . ./, / RESPONDENT : INCOME TAX OFFICER/WARD-I, LALDIGHI , 57, R.N.TAGORE ROAD, BERHAMPORE, MUR SHIDABAD. 3. - / CIT, 4. ()/ CIT(A), KOLKATA. 5. ./ DR, KOLKATA BENCHES, KOLKATA [/' ./ TRUE COPY] / BY ORDER, /ASSTT. REGISTRAR [KKC AB C /SR.PS]