Rizwan Asraj, Purulia V. ITO-Wd-3(2), Purulia

ITA 551/KOL/2020

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 5794 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 27-10-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: FORM 26AS
• Section: 40A(3); 143(3)

Judgement Text

ITA No. 551/KOL/2020 Assessment Year : 2013-2014 Rizwan Asraf 1 IN THE INCOME TAX APPELLATE TRIBUNAL, ‘A’ BENCH, KOLKATA Before Shri Sanjay Garg, Judicial Member & Shri Manish Borad, Accountant Member I.T.A. No. 551/KOL/2020 Assessment Year: 2013-2014 Rizwan Asraf,............................................................................Appellant Purulia F.L. (OFF) Shop, Shop No. 2, Chaibasa Road, Purulia-723101 [PAN: ADEPA0112C] -Vs.- Income Tax Officer,.................................................................Respondent Ward-3(2), Purulia, Purulia Income Tax Office, Purulia-723101 Appearances by: Sri Ravi Tulsiyan, FCA, appeared on behalf of the assessee Shri Biswanath Das, Addl. CIT, appeared on behalf of the Revenue Date of concluding the hearing: March 02, 2022 Date of pronouncing the order: March 29, 2022 O R D E R Per Manish Borad, Accountant Member:- This appeal filed by the assessee pertaining to the assessment year (in short “AY”) 2013-14 is directed against the order of ld. Commissioner of Income Tax (Appeals), Asansol [in short ld. ‘CIT(A)’] dated 19.02.2020 which is arising out of the assessment order framed u/s 143(3) of the Income Tax Act, 1961 (in short the ‘Act’) dated 30.03.2020 by ITO, Ward- 3(2), Kolkata. 2. Registry has informed that the appeal is time barred by 169 days. On perusal of the condonation application, we find that the reason for the delay is due to lockdown and COVID 19 pandamic. Therefore, in view of ITA No. 551/KOL/2020 Assessment Year : 2013-2014 Rizwan Asraf 2 the same and the extension of limitation period by the Hon’ble Supreme Court following the COVID situation, we condone the delay of 169 days and admit the appeal for adjudication on merits. 3. The assessee is in appeal before the Tribunal raising the following grounds: “1. That on the fact and circumstances of the case Ld. CIT(A) erred in confirming the addition of Rs. 69,67,069/ - made by A/ O on account of difference of purchase from M/s. Johal & Co, & where as M/s. Johal & Co confirmed the transaction which tallied with the figure shown by the appellant and where as the copy of such confirmation was filed before the CIT(A) at the time of appeal proceeding. 2.That on the fact and circumstances of the case Ld. CIT(A) erred in not appreciating the fact that cash purchase of liquor dose not attract addition where such payment was made directly in the bank account of seller in view of various judicial pronouncement including that ofKolkata High Court. 3.That the appellant craves leave to alter amend or substitute any ground & grounds before or at the time of hearing”. The assessee has, further, taken the following additional ground of appeal: “The appellant hairing provided complete details of opening stock, purchases, sales and closing stock and Assessing Officer having found no defect in the figures, nor did the Assessing Officer reject the books of accounts, the Assessing Officer erred in making addition on the basis of Form 26AS that purchases from Johal & Co. to the tune of Rs. 69,67,069/- were bogus.” 4. Perusal of the grounds shows that the sole issue relates to the genuineness of purchases of Rs.69,67,069/-. 4. Facts in brief are that the assessee is an individual and engaged in purchase and sale of liquor under his sole proprietorship concern in the name and style of “Purulia F.L. (OFF) Shop No. 2”. Income of Rs.722180 declared in the return of income filed on 30.10.2013. As far as the issue raised in the instant appeal is concerned during the course of assessment proceedings carried out after selection through CASS, ld. Assessing Officer noticed that the purchase shown from M/s. Johal & Co. in Form ITA No. 551/KOL/2020 Assessment Year : 2013-2014 Rizwan Asraf 3 26AS is Rs.1,85,95,794/-, whereas in the books, the purchase is at Rs.2,55,62,893/-. In the ledger account of this party, various payments were made in cash also. Genuineness of such purchase was doubted by the Assessing Officer and disallowed the same. 5. The assessee challenged this matter before the ld. CIT(Appeals) submitting the invoices raised by Johal & Co., confirmation letter and quantitative details. It was also submitted by the assessee that various cash payments were directly deposited by its customers in the account of M/s. Johal & Co. However, since the details of such customers were not provided, the ld. CIT(Appeals) confirmed the disallowance. 6. Aggrieved by the order of ld. CIT(Appeals), the assessee is in appeal before the Tribunal. 7. Ld. Counsel for the assessee referred to the written submissions, filed on 28.12.2021 and 03.01.2022, referred to the paper book containing 99 pages dated 28.12.2021 and paper book containing 121 pages filed on 07.12.2021. Crux of the arguments is that the books of account were audited; Assessing Officer has not rejected the book results, major portion of the purchases made from Johal & Co. was accepted, the Assessing Officer made the addition only on the basis of 26AS Statement, which is not justified and the assessee maintains regular excise records, which are not disputed, confirmation letter from Johal & Co. stating to have received the some payment in cash. Ld. Counsel for the assessee further submitted that in case if required the matter may be restored to the Assessing Officer for verification of the details of those customers who have directly deposited cash in the Bank account of M/s. Johal & Co, against the goods received by them from the assessee. ITA No. 551/KOL/2020 Assessment Year : 2013-2014 Rizwan Asraf 4 8. Per contra, ld. D.R. supported the order of the lower authorities and did not raise any objection if the issue is restored back to the Assessing Officer for necessary examination and verification. 9. We have heard the rival contentions and perused the relevant material available on record. Though the assessee has raised various grounds of appeal and additional ground also, but the grievance is only with regard to the disallowance of purchase of Rs.69,67,069/- made by the assessee from Johal & Co. The assessee regularly purchases liquor from Johal & Co.. During the year, purchase made from this concern is Rs.2,55,62,892/-. In Form 26AS, the amount of purchase is shown at Rs.1,85,95,794/-. Difference of both these figures is Rs.69,67,069/- which both the lower authorities have held to be ingenuine purchase. So far as the contentions made by the assessee are concerned, we find that the book results were not rejected, confirmation from Johal & Co. stands filed, wherein it is stated that against the total purchases during the year, all payments have been received through banking channel except for Rs.72,70,206/-, received in cash. The assessee maintains excise records, which are found to be correct. The Assessing Officer has not made any addition/disallowances under section 40A(3) of the Act for the alleged cash payment. 10. We further observe that before the ld. CIT(Appeals) it was specifically argued by the assessee that various parties to whom it had sold country spirit, was directly deposited cash in the Bank account of M/s. Johal & Co. on behalf of the appellant. However, instead of giving an opportunity by the ld. CIT(Appeals), the appellant could not produce the details of such parties and their confirmations that they have made cash deposits directly to Johal & Co.’s Bank account on behalf of the appellant from time to time. ITA No. 551/KOL/2020 Assessment Year : 2013-2014 Rizwan Asraf 5 11. Before us, ld. counsel for the assessee has made a submission that if an opportunity is provided, then all the details can be filed to the satisfaction of the Assessing Officer so as to prove that various parties have deposited the amount directly in the Bank account of M/s. Johal & Co. We, therefore, under the facts and circumstances of the case and the request made by the ld. counsel for the assessee restore the issue of examination of genuineness of such purchases of Rs.69,67,609/- made by the assessee from M/s. Johal & Co. to the learned Assessing Officer for examining the same after providing necessary opportunity to the assessee for making necessary submissions and to file the details of such parties (with their confirmations), who have made the payments on behalf of the assessee by way of depositing cash in the Bank account of Johal & Co., so that the assessee can reconcile the difference of alleged purchase of Rs.69,67,069/-. 12. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on March 29, 2022. Sd/- Sd/- (Sanjay Garg) (Manish Borad) Judicial Member Accountant Member Kolkata, the 29 th day of March, 2022 Copies to : (1) Rizwan Asraf, Purulia F.L. (OFF) Shop, Shop No. 2, Chaibasa Road, Purulia-723101 (2) Income Tax Officer, Ward-3(2), Purulia, Purulia Income Tax Office, Purulia-723101 (3) Commissioner of Income Tax (Appeals), Asansol, (4) Commissioner of Income Tax- , (5) The Departmental Representative (6) Guard File TRUE COPY By order Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S.