M/s. Hind Builders, Kolkata V. ITO, Ward - 34(3), Kolkata , Kolkata

ITA 442/KOL/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 9824 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 15-03-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANJOY MUKHERJEE
• Keywords: Unexplained cash credit
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH : KOLKATA [BEFORE HONBLE SHRI S.S. GODARA, JM] I.T.A NO. 442/KOL/201 8 ASSESSMENT YEAR : 2010-1 1 M/S HIND BUILDERS -VS- ITO, WARD-34 (3), KOLKATA. [PAN: AADFH 2807 B] (APPELLANT) ( RESPONDENT) FOR THE APPELLANT : SHRI SUNIL S URANA, CA FOR THE RESPONDENT : SHRI SANJOY MUKHERJ EE, ADDL. CIT DATE OF HEARING : 10.09.2018 DATE OF PRONOUNCEMENT : 26.09.2018 ORDER 1. THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2010- 11 IS DIRECTED AGAINST THE CIT(A)- XX, KOLKATAS ORDER DATED 04.07.2014 PASSED IN CASE NO. 108/CIT(A)-XX/WD- 34(3)/2013-14/KOL UPHOLDING THE ASSESSING OFFICERS ACTION DISALLOWING / ADDING CASH RECEIPTS OF RS. 23,13,286/-, LABOUR CHARGES OF RS. 3,31,000/- AND REMISSION AND CESSATION OF LIABILITY ADDITION U/S 41(1) OF RS. 3,46,741/-; RESPECTIVELY IN ASSESSMENT ORDER DATED 26.03.2013, INVOLVING PROCEEDINGS U/S 143(3) OF THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. IT EMERGES AT THE OUTSET THAT THE ASSESSEES INS TANT APPEAL SUFFERS FROM 910 DAYS DELAY IN FILING. THE ASSESSEE HAS FILED ITS CONDONATION P ETITION / AFFIDAVIT DATED 24.05.2018 2 ITA NO.442/KOL/2018 M/S HIND BUILDERS A.YR. 2010-11 2 STATING OUT VARIOUS REASONS THEREOF. IT PLEADS TO H AVE COME TO KNOW ABOUT THE CIT(A)S ORDER ONLY IN SECTION 271(1)(C ) PENALTY PROCEEDING S IN THE MONTH OF OCTOBER, 2014 SINCE ITS EARLIER ACCOUNTANT HAD NOT APPEARED. THE REVENUE IS FAIRR ENOUGH IN NOT DISPUTING ALL THESE SOLEMN AVERMENTS. I ACCORDINGL Y CONDONE THE IMPUGNED DELAY IN FILING OF THE INSTANT APPEAL AS THE SAME IS NEITHER DELIBERATE NOR INTENTIONAL BUT ATTRIBUTABLE TO SOME COMMUNICATION GAP BETWEEN THE TAXPAYER AND ITS ACCOUNTANT. THE CASE IS NOW TAKEN UP FOR ADJUDICATION ON MERITS. 3. THE ASSESSEE TAKES ME TO CIT(A)S FINDINGS AFFIR MING THE ASSESSING OFFICERS ACTION MAKING SECTION 68 ADDITION OF RS. 23,13,286/- TO BE UNEXPLAINED CASH CREDITS READING AS UNDER: 2. GROUND NO. I(A) OF APPEAL RELATES TO ADDITION O F RS. 23,13,286/- MADE BY THE AO U/S 68 OF THE I.T. ACT. THE FACT OF THE CASE IS THAT THE AO FOUND THAT IN THE BOOKS OF ACCOUNT CASH RECEIPTS OF RS. 23,13,286/-WA S SHOWN IN THE NAME OF VARIOUS PERSONS HOWEVER NO CONFIRMATION OR OTHER DO CUMENTS IN SUPPORT OF THE NATURE AND SOURCE OF THE CASH RECEIPT WAS FILED, TH EREFORE, THE AO MADE THE ADDITION. THE APPELLANT SUBMITTED THAT THE CHEQUE R ECEIPTS OF RS. 8,52,750/- WAS WRONGLY TREATED AS CASH RECEIPTS AND FURTHER THE CA SH WAS RECEIVED FROM THE SUNDRY PARTIES AGAINST WORKING CONTRACT JOB. FROM THE FACTS, IT IS GATHERED THAT SO FAR CLAIM OF CHEQUE RECEIPTS IS CONCERNED, THE A PPELLANT DID NOT FILE ANY SUPPORTING DOCUMENTS / DETAILS TO SUBSTANTIATE THEI R CLAIM. FURTHER, NO SOURCE AND NATURE OF THESE RECEIPTS AS WELL AS CASH RECEIP TS WAS EXPLAINED BY THE APPELLANT WITH THE HELP OF SUPPORTING DOCUMENTS / D ETAILS. IN THE ABSENCE OF SUPPORTING DOCUMENTS/ DETAILS, I DO NOT FIND ANY IN FIRMITY IN THE AOS ORDER, HENCE, GROUND RAISED IS DISMISSED. MR. SURANA VEHEMENTLY CONTENDS DURING THE COURSE OF HEARING THAT THESE AMOUNTS HAVE COME THROUGH CHEQUE MODE RATHER THAN CASH. ITS CAS E IS BOTH THE LOWER AUTHORITIES HAVE ERRED IN FACTS AS WELL AS AND ON LAW HOLDING THIS SUM TO BE UNEXPLAINED CASH CREDITS IN ABOVE FACTS AND CIRCUMSTANCES OF THE CASE. I FIND N O FORCE IN THE INSTANT TECHNICAL 3 ITA NO.442/KOL/2018 M/S HIND BUILDERS A.YR. 2010-11 3 ARGUMENT. THE FACT REMAINS THAT THE ASSESSEE HAS NO T EVEN FILED CONFIRMATION OF THE SAID PARTIES EITHER BEFORE THE ASSESSING OFFICER OR IN L OWER APPELLATE PROCEEDINGS. THE LEARNED COUNSEL STATES THAT THE SAID CONFIRMATIONS ARE VERY MUCH READY NOW WHICH MAY BE SENT BACK TO THE ASSESSING OFFICER FOR NECES SARY VERIFICATION. I DO NOT DEEM IT FIT CASE TO EXERCISE SUCH A DISCRETION SINCE THE ASSESS EE HAD BEEN GRANTED SUFFICIENT OPPORTUNITIES BEFORE THE ASSESSING OFFICER AS WELL AS IN LOWER APPELLATE PROCEEDINGS. THERE IS NO EXPLANATION FORTHCOMING AT ITS BEHEST A S TO WHAT PREVENTED THE SAID CONFIRMATION TO BE NOT PLACED ON RECORD DURING THE LOWER AUTHORITIES PROCEEDINGS. I, THEREFORE, AFFIRM THE IMPUGNED ADDITION OF RS. 23,1 3,286/- MADE IN THE COURSE OF ASSESSMENT AS UPHELD IN THE LOWER APPELLATE PROCEE DINGS. THIS FIRST SUBSTANTIVE GROUND IS DECLINED THEREFORE. 4. THE ASSESSEES SECOND GRIEVANCE SEEKS TO DELETE LABOUR CHARGES PAYMENTS DISALLOWANCE OF RS. 3,31,408/- MADE IN THE COURSE O F ASSESSEE @ 5% AS UPHELD IN LOWER APPELLATE PROCEEDINGS. SUFFICE TO SAY, BOTH THE LOW ER AUTHORITIES HAVE MADE THIS DISALLOWANCE ON ADHOC BASIS WITHOUT EVEN A COMPARIS ON OF CORRESPONDING EXPENDITURE VIS--VIS THE RELEVANT FIGURES IN PRECEDING OR SUCC EEDING ASSESSMENT YEARS. I ACCEPT ASSESSEES INSTANT SECOND SUBSTANTIVE GROUND ON THI S COUNT ALONE THEREFORE. 5. THE LAST ADDITION OF RS. 3,46,711/- HAS BEEN MAD E BY BOTH THE LOWER AUTHORITIES U/S 41(1) OF THE ACT INVOKING CESSATION/REMISSION OF OU TSTANDING TRADING LIABILITY/ UNVERIFIED SUNDRY CREDITORS. IT EMERGES FROM THE CASE FILED TH AT THERE IS NO FINDING REGARDING THE IMPUGNED REMISSION / CESSATION SO AS TO INVOKE THE DEEMING FICTION OF INCOME IN THE RELEVANT PREVIOUS YEAR. LEARNED COUNSELS CLINCHING PLEA THAT ALL THESE PARTIES CLAIM STOOD ACCEPTED IN EARLIER ASSESSMENT YEAR HAS GONE UN RESULTED FROM REVENUES SIDE. I 4 ITA NO.442/KOL/2018 M/S HIND BUILDERS A.YR. 2010-11 4 THUS DIRECT THE ASSESSING OFFICER TO DELETE THE IMP UGNED ADDITION FOR THE SUBJECT MATTER OF THE INSTANT THIRD SUBSTANTIVE GROUND. 6. THE ASSESSEES APPEAL IS PARTLY ALLOWED IN ABOVE TERMS. ORDER PRONOUNCED IN THE COURT ON 26.09.2018 SD/- [ S.S.GODARA ] JUDICIAL MEMBER DATED : 26.09.2018 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. M/S HIND BUILDERS, C/O, A.KAYES & CO. CHARTERED ACCOUNTANTS, 231, KAMALALAYA CENTRE, 156A, LENIN SARANI, KOLKATA-700013. 2. ITO, WARD-34(3), KOLKATA, AAYAKAR BHAWAN DAKSHIN , 2, GARIAHAT ROAD (SOUTH), KOLKATA-700068. 3..C.I.T(A).- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S