Sri Gourav Goel, Kolkata V. DCIT, Circle -7, Kolkata, Kolkata

ITA 502/KOL/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70406 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2013
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 1999-2000
• Appeal Filed On: 02-04-2012
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Section: 40A(3); 143(3)

Judgement Text

, A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE , /AND . . . . ''# ''# ''# ''#, $% ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI ABRAHAM P. GEORGE, AM] & & & & / I.T.A NO. 502/KOL/2012 '( )* '( )* '( )* '( )*/ // / ASSESSMENT YEAR: 1999-2000 SHRI GOURAV GOEL VS. DEPUTY COMMISSIONER OF IN COME-TAX, (PAN: ADXPG9123E) CIRCLE-7, KOLKATA. (,- /APPELLANT ) (./,-/ RESPONDENT ) DATE OF HEARING : 08.11.2013 DATE OF PRONOUNCEMENT: 21.11.2013 FOR THE APPELLANT: SHRI SUBASH AGARWAL, ADVOCATE FOR THE RESPONDENT: SMT. RANU BISWAS, SR. DR $0 / ORDER PER BENCH: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-VIII, KOLKATA IN APPEAL NO. 177/CIT(A)-VIII/KOL/02-03 DATED 25.01.2012. ASSESS MENT WAS FRAMED BY DCIT, CIRCLE-7, KOLKATA U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HE REINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 1999-2000 VIDE HIS ORDER DATED 26.0 3.2002. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE ORDER OF CIT(A) CONFIRMING THE DISALLO0WANCE MADE BY AO U/S. 40A(3) OF THE ACT AMO UNTING TO RS.2,80,304/-. FOR THIS, ASSESSEE HAS RAISED FOLLOWING GROUND NO.2: THAT ON THE FACTS BROUGHT ON RECORD, THE LD. CIT(A ) OUGHT TO HAVE DELETED THE DISALLOWANCE U/S. 40A(3) AMOUNTING TO RS.2,80,304/- MADE BY THE LD. ASSESSING OFFICER. 3. BRIEFLY STATED FACTS ARE THAT THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOTED THE FOLLOWING FACT IN RESPECT TO THE ADDITION IN DI SPUTE: FOR THE ASSESSMENT YEAR 1999-2000, THE VARIOUS DIS CREPANCIES REPORTED IN THE FOLLOWING TABLES OF THE SURVEY REPORT WERE BROUGHT TO THE NOTICE OF THE ASSESSEE VIDE MY LETTER DATED 06.03.2002 AND ASSESSEE WAS GIVEN EXTR ACT OF THE RELEVANT PORTION OF THE SURVEY REPORT AND HE WAS ASKED TO EXPLAIN THE SAME WITH EVIDENCES THE DETAILS WHICH ARE AS UNDER: FINALLY, HE NOTED THIS AT SL. NO. 7 AS UNDER: TABLE NO.11(2): VIOLATION OF SECTION 40A(3) IN TH E MONTH OF FEBRUARY AND MARCH, 1999. AND IN COMPUTATION OF INCOME HE MADE THIS ADDITION AS UNDER: 2 ITA NO. 502/K/2012 SHRI GOURAV GOEL, AY:1999-2000 ADD: U/S. 40A(3) AS PER TABLE 11(2) SURVEY REPORT 20% OF RS.14,01,520/- RS.2,80,304/- APART FROM THIS, THERE IS NO DISCUSSION IN THE ASSE SSMENT ORDER OR AS CONTENDED BY THE LD. COUNSEL FOR THE ASSESSEE NO OPPORTUNITY OR NO QUERY WAS RAISED DURING THE COURSE OF HEARING IN RESPECT TO THIS DISALLOWANCE. AGGRIEVED AGAINST TH E ADDITION, ASSESSEE PREFERRED APPEAL BEFORE CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS OF TH E ASSESSEE CONFIRMED THE ADDITION BY OBSERVING AS UNDER: AFTER CONSIDERING THE WRITTEN SUBMISSION OF THE A/ R AND FACTUAL POSITION, I DO FIND ANY FORCE IN THE ARGUMENT OF THE A/R IN SUPPORT OF THE APPEAL AS THE ADDITION/DISALLOWANCE ARE MADE AS PUNISHMENT DUE TO THE VIOLATION OF THE LEGAL SPECIFIC PROVISION OF SECTION 40A(3) OF THE I. T. ACT. THERE IS NO DISPUTE REGAR DING THE ISSUE OF CASH PURCHASES AND VIOLATION OF THE PROVISION OF THE ACT, THEREFORE, T HE QUESTION OF DOUBLE TAXATION DOES NOT ARISE. THUS THE ACTION OF THE A.O. IS HELD TO BE F ULLY JUSTIFIED. AGGRIEVED, NOW ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. THE MAIN CONTENTION OF THE ASSESSEE IS THAT THERE I S NO QUANTIFICATION HOW THIS ADDITION IS MADE EVEN THERE IS NO WHISPER IN THE ORDER HOW THERE IS VIOLATION OF SECTION 40A(3) OF THE ACT. IN THIS RESPECT, LD. COUNSEL FOR THE ASSESSEE STATED THAT T HE AO HAS ALREADY RECAST THE TRADING ACCOUNT AND, THEREFORE, WHATEVER CASH PAYMENTS OR, IF ANY, AND THAT ALSO WITHOUT CONCEDING, HAS ALREADY BEEN CONSIDERED IN THE ADDITION GIVING EFFECT TO GR OSS PROFIT. WHEN THIS WAS POINTED OUT TO LD. SR. DR SHE COULD NOT FIND OUT FROM THE ASSESSMENT O RDER THAT WHAT IS THE BASIS OF DISALLOWANCE. SHE STATED THAT ONLY THE SURVEY REPORT IS BASIS AND THIS WAS NOT PUT TO QUESTION TO THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS. WE FIND THAT TH ERE IS NO BASIS FOR MAKING THIS DISALLOWANCE AND EVEN IF THERE IS BASIS THAT HAS NOT BEEN CONFRO NTED TO THE ASSESSEE. IN SUCH CIRCUMSTANCES, WE HAVE NO ALTERNATIVE EXCEPT TO DELETE THE DISALLO WANCE AND ORDERS OF THE AUTHORITIES BELOW ARE REVERSED. APPEAL OF ASSESSEE IS ALLOWED. 5. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. 6. ORDER IS PRONOUNCED IN THE OPEN COURT ON 21 ST NOVEMBER, 2013. SD/- SD/- . . . . ''# ''# ''# ''# , $% , (ABRAHAM P. GEORGE) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 21 ST NOVEMBER, 2013 12 '3' 4 JD.(SR.P.S.) 3 ITA NO. 502/K/2012 SHRI GOURAV GOEL, AY:1999-2000 $0 5 . 6$ )7- COPY OF THE ORDER FORWARDED TO: 1 . ,- / APPELLANT SHRI GOURAV GOEL, 57G, BALLYGUNGE CIRCUL AR ROAD, KOLKATA-700 019. 2 ./,- / RESPONDENT - DCIT, CIRCLE-7, KOLKATA 3 . 0' ( )/ THE CIT(A), KOLKATA 4. 5. 0' / CIT KOLKATA. <= .' / DR, KOLKATA BENCHES, KOLKATA / ./ TRUE COPY, $0'>/ BY ORDER, ' /ASSTT. REGISTRAR .