Dr.Mrinmoy Sarkar., Kolkata V. I.T.O Wd - 55(3),kolkata., Kolkata

ITA 46/KOL/2013

• Counselvise Citation: 4623514 RSA 2013
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 08-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SOMNATH GHOSH
• Keywords: Income from undisclosed sources; Peak credit

Judgement Text

I.T.A. NO.: 46/KOL./2013 ASSESSMENT YEAR : 2009-201 0 PAGE 1 TO 5 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA CORAM : SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI ABRAHAM P. GEORGE (ACCOUNTANT MEMBER) I.T.A. NO.: 46/KOL./2013 ASSESSMENT YEAR : 2009-2010 DR. MRINMOY SARKAR,................................ ..................APPELLANT C/O. G. SAWADIA & CO., 50, WESTON STREET, KOLKATA-700 012 [PAN : AJRPS 1233 P] -VS.- INCOME TAX OFFICER,................................ ............................RESPONDENT WARD NO. 55(3), KOLKATA, 54/1, RAFI AHMED KIDWAI ROAD, KOLKATA-700 016 APPEARANCES BY: SHRI SOMNATH GHOSH, ADVOCATE, FOR THE ASSESSEE SHRI VIKASH KR. AGARWAL, JCIT, SR. D.R, FOR THE DEP ARTMENT DATE OF CONCLUDING THE HEARING : APRIL 09, 2014 DATE OF PRONOUNCING THE ORDER : APRIL 11, 2014 O R D E R PER ABRAHAM P. GEROGE : 1. IN THIS APPEAL FILED BY THE ASSESSEE, IT IS AGGR IEVED THAT AN ADDITION OF RS.19,70,000/- MADE BY THE ASSESSING OFFICER FOR CREDITS IN A BANK ACCOUNT WAS SUSTAINED BY THE LD. COMMISSIONER OF IN COME TAX (APPEALS). 2. FACTS APROPOS ARE THAT ASSESSEE, A DOCTOR, HAD F ILED HIS RETURN FOR THE IMPUGNED ASSESSMENT YEAR DECLARING INCOME OF RS .6,92,700/-. ASSESSEE WAS ALSO A DIRECTOR OF A COMPANY CALLED MI DNAPORE SCAN CENTRE PVT. LTD. HE WAS EARNING SALARY FROM THE SAID COMPA NY. ASSESSING OFFICER BASED ON AIR INFORMATION, REQUIRED THE ASSESSEE TO EXPLAIN DEPOSITS IN A SAVINGS BANK ACCOUNT BEARING NO. 06742151001744 WIT H M/S. ORIENTAL BANK OF COMMERCE, MIDNAPORE (DURGAPUR) BRANCH, WHIC H WAS IN ASSESSEES NAME. REPLY OF THE ASSESSEE WAS THAT THE SAID ACCOUNT BELONGED TO M/S. MIDNAPORE SCAN CENTRE PVT. LTD. AND THE TRA NSACTIONS THEREIN ALSO I.T.A. NO.: 46/KOL./2013 ASSESSMENT YEAR : 2009-201 0 PAGE 1 TO 5 2 RELATED TO THE SAID COMPANY. AS PER THE ASSESSEE, T HE SAID COMPANY HAD INTIMATED ITS ASSESSING OFFICER THAT THE SAID BANK ACCOUNT, THOUGH HELD IN ASSESSEES NAME, BELONGED TO IT. AS PER THE ASSESSE E, THE COMPANY HAD DECLARED AND CONFIRMED THAT THE TRANSACTIONS THEREI N RELATED TO ITS BUSINESS. HOWEVER, THE ASSESSING OFFICER WAS NOT IM PRESSED. ACCORDING TO HIM, ASSESSEE FAILED TO DISCLOSE HIS BANK ACCOUNT W ITH ORIENTAL BANK OF COMMERCE, THOUGH HE HAD DECLARED FIVE OTHER ACCOUNT S WITH OTHER BANKS. IT WAS ONLY WHEN ASSESSEE WAS PUT ON NOTICE REGARDI NG HIS SAVINGS BANK ACCOUNT WITH ORIENTAL BANK OF COMMERCE, THAT M/S. M IDNAPORE SCAN CENTRE PVT. LTD. WROTE A LETTER TO ITS ASSESSING O FFICER, OWNING UP THE ACCOUNT. AS PER THE ASSESSING OFFICER, ACCOUNT OPEN ING FORM AND THE BANK STATEMENT OBTAINED FROM M/S. ORIENTAL BANK OF COMME RCE, MIDNAPORE CLEARLY PROVED THAT THE ACCOUNT WAS OPENED AND OPER ATED BY THE ASSESSEE ONLY. HE HELD THAT THE AMOUNT DEPOSITED THEREIN ALS O BELONGED TO THE ASSESSEE. AN ADDITION OF RS.19,70,000/- WAS MADE, I N THIS REGARD. 3. IN ITS APPEAL BEFORE THE LD. CIT(APPEALS), ARGUM ENT OF THE ASSESSEE WAS THAT THE DEPOSITS IN BANK ACCOUNT WITH M/S. ORI ENTAL BANK OF COMMERCE BELONGED TO M/S. MIDNAPORE SCAN CENTRE PVT . LTD. ONLY. THE SAME ARGUMENTS TAKEN BEFORE THE ASSESSING OFFICER, WERE MORE OR LESS REITERATED BEFORE THE LD. CIT(APPEALS). HOWEVER, TH E LD. CIT(APPEALS) WAS NOT IMPRESSED. ACCORDING TO HIM, ASSESSEE WAS WITHD RAWING CASH WHENEVER HE NEEDED FROM THE BANK ACCOUNT. AS PER TH E LD. CIT(APPEALS) RS.19,70,000/- WAS UNACCOUNTED PAYMENTS MADE BY M/S . MIDNAPORE SCAN CENTRE PVT. LTD. TO THE ASSESSEE, CREDITED BY ASSES SEE IN HIS BANK ACCOUNT. THIS WAS NOTHING BUT UNACCOUNTED INCOME IN THE HAND S OF THE ASSESSEE. HE, THEREFORE, SUSTAINED THE ADDITION MADE BY THE A SSESSING OFFICER. 4. NOW BEFORE US, LD. A.R. STRONGLY ASSAILING THE O RDER OF LOWER AUTHORITIES SUBMITTED THAT M/S. MIDNAPORE SCAN CENT RE PVT. LTD. HAD OWNED UP THE BANK ACCOUNT AND AN AFFIDAVIT WAS FILE D BY SHRI DEBASIS SENGUPTA, A DIRECTOR OF THE SAID COMPANY BEFORE THE ASSESSING OFFICER. AS I.T.A. NO.: 46/KOL./2013 ASSESSMENT YEAR : 2009-201 0 PAGE 1 TO 5 3 PER THE LD. A.R., THE SAID AMOUNT WAS CONSIDERED IN THE ASSESSMENT OF THE SAID COMPANY AS WELL. RELYING ON THE ASSESSMENT ORD ER OF M/S. MIDNAPORE SCAN CENTRE PVT. LTD. PLACED AT PAPER BOOK PAGE NOS . 8-10, LD. A.R. SUBMITTED THAT THE SUBJECT BANK ACCOUNT ITSELF WAS FOUND OUT DURING A SURVEY, CONDUCTED IN M/S. MIDNAPORE SCAN CENTRE PVT . LTD. PEAK CREDIT OF RS.9,74,250/- IN THE SAID BANK ACCOUNT WAS CONSIDER ED FOR ADDITION BY THE ASSESSING OFFICER IN THE ASSESSMENT OF M/S. MIDNAPO RE SCAN CENTRE PVT. LTD. HAVING SO CONSIDERED, LD. A.R. SUBMITTED THAT SAME ACCOUNT AGAIN COULD NOT BE CONSIDERED IN THE HANDS OF THE ASSESSE E. 5. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE STRO NGLY SUPPORTED THE ORDERS OF AUTHORITIES BELOW. ACCORDING TO THE LD. D .R., JUST BECAUSE SOME ASSESSEE OFFERED THE PEAK CREDIT IN A BANK ACCOUNT WHICH WAS NOT ITS, AS ITS INCOME, WOULD NOT MEAN THAT THE BANK ACCOUNT W AS NOT THAT OF THE HOLDER OF THE ACCOUNT. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THERE IS NO DISPUTE THAT THE A CCOUNT WITH M/S. ORIENTAL BANK OF COMMERCE WAS OPENED AND OPERATED I N ASSESSEES NAME. HOWEVER, AT THE SAME TIME, DURING THE COURSE OF ASS ESSMENT OF M/S. MIDNAPORE SCAN CENTRE PVT. LTD. OF WHICH ASSESSEE W AS ALSO A DIRECTOR, AN AFFIDAVIT WAS FILED BY ONE OTHER DIRECTOR OF THE SA ID COMPANY. PART OF THIS AFFIDAVIT AS IT APPEARS IN THE ORDER OF LD. CIT(APP EALS), IS REPRODUCED HEREUNDER:- I, SRI DEBASIS SENGUPTA, SON OF LATE SUKHARANJAN S ENGUPTA AS A DIRECTOR OF MIDNAPORE SCAN CENTRE PVT. LTD. DO HE REBY UNDERTAKE THAT I AM VOLUNTARILY DISCLOSING RS.32,37 ,000/- AS ADDITIONAL INCOME FOR THE FINANCIAL YEAR 2008-09 OV ER AND ABOVE THE COMPANYS REGULA INCOME FOR THE SAID FINA NCIAL YEAR. I PROMISE TO PAY RS.10,00,000/- BEING TAX ON INCOME SO DISCLOSED FOR THE FINANCIAL YEAR2008-09 IN SIX INST ALMENTS. I SHALL PAY THE FIRST INSTALMENT BY 15.09.2008 FOR RS .1,65,000/- AND THE BALANCE AMOUNT OF SUCH TAX IN FIVE MONTHLY INSTALMENTS SHALL BE PAID IN OCTOBER, 2008, RS.1,67,000/- IN NO VEMBER, 2008, RS.1,67,000/- IN DECEMBER, 2008, RS.1,67,000/ - IN I.T.A. NO.: 46/KOL./2013 ASSESSMENT YEAR : 2009-201 0 PAGE 1 TO 5 4 JANUARY, 2009, RS.1,67,000/- IN FEBRUARY, 2009,. RS .1,67,000/- RELEVANT TO F.Y. 2008-09 AND ASSESSMENT YEAR 2009-1 0. I FURTHER STATE THAT THE ABOVE ADDITIONAL INCOME IS BEING OFFERED FOR TAXATION, APART FROM THE REGULAR INCOME ON ACCOUNT OF DISCREPANCIES / DEFICIENCIES FOUND AS A RESULT O F SURVEY OPERATION CONDUCTED ON 12.09.2008 AT THE BUSINESS P REMISES AS ABOVE AND SUBSEQUENT INVESTIGATION IS TAKEN PLACE A ND SCRUTINY OF THIS CASE IN FUTURE ON THE FOLLOWING....(1) DOCT ORS COMMISSION (2) SERVICE CHARGES (3) POSSIBLE LEAKAGE IN BUSINESS PREMISES (4) ANY TDS DETAILS. I WILL NOT CLAIM ANY REFUND AGAINST THIS AMOUNT WHI CH IS TO BE DEPOSITED AS ABOVE IN ANY CASE. ABOVE DISCLOSURE OF INCOME HAS BEEN MADE WITHOUT ANY PRESSURE AND WITH MY FULL SEN SE. WITNESS(S) SIGNATURE FOR MIDNAPORE SCAN CENTRE PVT. LTD. DILIP KUMAR KARUNAMOY ELIGIBLE D IRECTOR INSPECTOR IN THE ASSESSMENT DONE IN THE CASE OF M/S. MIDNAPOR E SCAN CENTRE PVT. LTD., PURSUANT TO THE ABOVE DISCLOSURE, THERE IS IN DEED A CLEAR REFERENCE TO THE SUBJECT BANK ACCOUNT. ASSESSMENT ORDER OF M/S. MIDNAPORE SCAN CENTRE PVT. LTD. FOR THE CONCERNED ASSESSMENT YEAR PLACED AT PAPER BOOK PAGES 8 10 CLEARLY SHOWS THAT THE SAME BANK ACCOU NT WAS CONSIDERED DURING THE ASSESSMENT OF THE SAID COMPANY ALSO. REL EVANT PARA NO. (III) OF THE ASSESSMENT ORDER OF THE SAID COMPANY IS REPRODU CED HEREUNDER:- (III) AT THE TIME OF SURVEY, THE ASSESSEE COMPANY H AD GIVEN A DECLARATION TO THE DEPARTMENT THAT THERE CAN BE SOM E DISCREPANCIES DUE TO NO. (1) DOCTORS COMMISSION, (2 ) SERVICE CHARGES, (3) POSSIBLE LEAKAGE IN BUSINESS AND ANY T DS DEFAULT BUT SUBSEQUENTLY HE HAD NOT AGREED WITH THE AMOUNT DECLARED AT THE TIME OF SURVEY. WHILE DURING THE COURSE OF H EARING, THE ASSESSEE COMPANY DECLARED AN AMOUNT OF RS.9,74,250/ - AS UNDISCLOSED INCOME. AN UNDISCLOSED SAVINGS BANK ACC OUNT NO. 0674215100 MAINTAINED WITH ORIENTAL BANK OF COMMERC E, MIDNAPORE BRANCH. THE SAID SAVINGS A/C. WAS OPERATE D BY THE COMPANY THOUGH THE A/C WAS MAINTAINED IN THE NAME O F ONE OF ITS DIRECTOR, DR MRINMOY SARKAR. THE PEAK CREDIT AM OUNT BEING RS.9,74,250/- IN SUCH SAVINGS A/C. IS TREATED AS UN DISCLOSED INVESTMENT AND IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. THUS IT IS CLEAR THAT THE BANK ACCOUNT HAS BEEN ACC EPTED BY THE ASSESSING OFFICER AS BELONGING TO M/S. MIDNAPORE SCAN CENTRE PVT. LTD. THE I.T.A. NO.: 46/KOL./2013 ASSESSMENT YEAR : 2009-201 0 PAGE 1 TO 5 5 ASSESSMENT OF M/S. MIDNAPORE SCAN CENTRE PVT. LTD. WAS COMPLETED ON 28.12.2011, WHEREAS THAT OF THE ASSESSEE WAS COMPLE TED ON THE NEXT DATE, VIZ. 29.12.2011. THUS AT THE POINT OF TIME WHEN ASS ESSMENT WAS DONE ON THE ASSESSEE, THE BANK ACCOUNT STOOD ALREADY CONSID ERED IN THE HANDS OF M/S. MIDNAPORE SCAN CENTRE PVT. LTD. ONCE IT IS ACC EPTED THAT ASSESSEE WAS OPERATING THE SAID BANK ACCOUNT FOR AND ON BEHA LF OF M/S. MIDNAPORE SCAN CENTRE PVT. LTD. AND ONCE THE SAID BANK ACCOUN T WAS CONSIDERED FOR ASSESSMENT IN THE HANDS OF THAT COMPANY, IT WOULD N OT BE APPROPRIATE TO CONSIDER THE SAME BANK ACCOUNT IN THE ASSESSMENT DO NE ON THE ASSESSEE. WE ARE, THEREFORE, OF THE OPINION THAT AN ADDITION COULD NOT HAVE BEEN MADE IN THE HANDS OF THE ASSESSEE. THE ADDITION MAD E BY THE ASSESSING OFFICER IS DELETED. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH DAY OF APRIL, 2014. SD/- SD/- MAHAVIR SINGH ABRAHAM P. GEORGE (JUDICIAL MEMBER) (ACC OUNTANT MEMBER) KOLKATA, THE 11 TH DAY OF APRIL, 2014 COPIES TO : (1) DR. MRINMOY SARKAR, C/O. G. SAWADIA & CO., 50, WESTON STREET, KOLKATA-700 012 (2) INCOME TAX OFFICER, WARD NO. 55(3), KOLKATA, 54/1, RAFI AHMED KIDWAI ROAD, KOLKATA-700 016 (3) CIT(APPEALS) (4) CIT (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.