Anjali Chowdhury, Asansol V. ACIT, CIR-1, , Asansol

ITA 453/KOL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3795 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 22-10-2019
• Assessment Year: 2006-2007
• Appeal Filed On: 05-04-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA
• Assessee Lawyers: S P DUTTA
• Keywords: TDS
• Section: 143(1); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (SMC), KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT (KZ)] I.T.A. NO. 453/KOL/2019 ASSESSMENT YEAR: 2006-07 SMT. ANJALI CHOUDHURY........................................................................APPELLANT 27, FATEHPUR, G.T. ROAD, ASANSOL, BURDWAN 713 359. [PAN: AEHPC 7858 R] VS ACIT, CIRCLE-1, ASANSOL...................................RESPONDENT SAHANA APARTMENT, LOWER CHELIDADNGA, ASANSOL 713 304. APPEARANCES BY: SHRI S.P. DUTTA, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. SHRI JAYANTA KHANRA, JCIT, SR. DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : OCTOBER 22, 2019 DATE OF PRONOUNCING THE ORDER : NOVEMBER 29, 2019 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A), ASANSOL DATED 14.11.2018 AND THE SOLITARY ISSUE INVOLVED THEREIN RELATES TO THE ADDITION OF RS. 5,80,900/- MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) ON ACCOUNT OF UNDISCLOSED CONTRACTUAL COMMISSION. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL WHO FILED HER RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 29.03.2007 DECLARING A TOTAL INCOME OF RS. 6,46,400/-. THE SAID RETURN WAS INITIALLY PROCESSED BY THE AO U/S 143(1) OF THE ACT ON 08.05.2007. SUBSEQUENTLY HE FOUND THAT THE RECEIPTS FROM CONTRACTUAL COMMISSION AS SHOWN BY THE ASSESSEE IN THE RETURN OF INCOME WERE RS. 29,87,326/- WHEREAS THE SAME AS PER THE TDS CERTIFICATES WERE RS. 35,68,226/-. TO RECTIFY THE SAID MISTAKE, A NOTICE U/S 154 WAS ISSUED BY THE AO AND THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE WHO APPEARED BEFORE THE AO IN RESPONSE TO THE SAID NOTICE ADMITTED THAT 2 I.T.A. NO. 453/KOL/2019 ASSESSMENT YEAR: 2006-07 SMT. ANJALI CHOUDHURY THERE WAS AN INADVERTENT MISTAKE ON THE PART OF THE ASSESSEE IN DECLARING THE RECEIPTS FROM CONTRACTUAL COMMISSION LESS BY RS. 5,80,900/-. THE AO ACCORDINGLY PASSED AN ORDER U/S 154 ON 04.07.2011 MAKING AN ADDITION OF RS. 5,80,900/- TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF UNDISCLOSED CONTRACTUAL COMMISSION RECEIPTS. ON APPEAL, THE LD. CIT(A) CONFIRMED THE SAID ADDITION MADE BY THE AO. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 3. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LIMITED CONTENTION THAT IS RAISED BY THE LEARNED COUNSEL FOR THE ASSESSEE IS THAT THE ENTIRE AMOUNT OF THE UNDISCLOSED RECEIPTS FROM CONTRACTUAL COMMISSION CANNOT BE TREATED AS INCOME OF THE ASSESSEE AND ONLY THE PROFIT EARNED BY THE ASSESSEE FROM SUCH RECEIPTS IS TO BE TAXED IN THE HANDS OF THE ASSESSEE AS HER INCOME. IN THIS REGARD, I HAVE NOTED FROM THE ORDER OF THE AO PASSED U/S 154 THAT THERE IS A SPECIFIC FINDING RECORDED BY THE AO HIMSELF THAT NO EXPENDITURE WAS BOOKED BY THE ASSESSEE AGAINST CONTRACTUAL COMMISSION RECEIPTS. ALTHOUGH THE LD. DR HAS STRONGLY OPPOSED THE CONTENTION RAISED BY THE LEARNED COUNSEL FOR THE ASSESSEE, I AM OF THE VIEW THAT HAVING REGARD TO ALL THE FACTS OF THE CASE, AS WELL AS THE CLEAR CUT FINDING RECORDED BY THE AO HIMSELF THAT NO EXPENDITURE WAS BOOKED BY THE ASSESSEE AGAINST CONTRACTUAL COMMISSION RECEIPTS, THE ENTIRE AMOUNT OF UNDISCLOSED RECEIPTS FROM CONTRACTUAL COMMISSION CANNOT BE TREATED AS INCOME OF THE ASSESSEE AND WHAT CAN BE TAXED IN THE HANDS OF THE ASSESSEE IS ONLY THE PROFIT OF SUCH UNDISCLOSED RECEIPTS. I ACCORDINGLY MODIFY THE IMPUGNED ORDER 3 I.T.A. NO. 453/KOL/2019 ASSESSMENT YEAR: 2006-07 SMT. ANJALI CHOUDHURY OF THE LD. CIT(A) AND DIRECT THE AO AND RESTRICT THE ADDITION MADE BY THE AO TO THE EXTENT OF RS. 58,090/- BEING PROFIT @ 10% ON THE UNDISCLOSED RECEIPTS. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH NOVEMBER, 2019. SD/- (P.M. JAGTAP) VICE PRESIDENT DATED: 29/11/2019 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. SMT. ANJALI CHOUDHURY, 27, FATEHPUR, G.T. ROAD, ASANSOL, BURDWAN- 713 359. 2. ACIT, CIRCLE -1, ASANSOL. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA