Sri Sabyasachi Roy, Nadia V. ITO, Ward 41(2), Nadia, Nadia

ITA 566/KOL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1746 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 22-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA SMC BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY, HONBLE A CCOUNTANT M EMBER ] I.T.A. NO. 566 /KOL/201 7 ASSESSMENT YEAR: 20 12 - 13 SRI SABYASACHI ROY ........ . ... APPELLANT C/O. P.S. GUPTA (ADVOCATE) 100, BANK LANE HATARPARA P.O. - KRISHNAGAR DT. - NADIA PIN - 741101 [PAN : ACRPR 6607 F ] INCOME TAX OFFICER WARD - 41 ( 2 ) , NADIA .. ... RESPONDENT A.H. MITRA ROAD NEDIARPARA P.O. - KRISHNAGAR DT. - NADIA PIN - 741 101 APPEARANCES BY: SHRI P.S. GUPTA, ADVOCATE, SRI K.M. ROY, FCA , APPEAR ED ON BEHALF OF THE ASSESSEE. SHRI PIJUSH MUKHERJEE , J CIT , DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JANUARY 1 5 TH , 2017 DATE OF PRONOUNCING THE ORDER : JANUARY 19 TH , 201 8 O R D E R PER J. SUDHAKAR REDDY : - THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 12 , KOLKATA , (HEREINAFTER THE LD. CIT (A)), PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 26 / 1 2/201 6 , FOR THE ASSESSMENT YEAR 20 12 - 13 . 2. THE ASSESSEE IS AN INDIVIDUAL AND HAS VARIOUS BUSINESSES. HE FILED HIS RETURN OF INCOME ON 26/09/2012, DECLARING TOTAL INCOME AT RS.5,95,964/ - . THE ASSESSING OFFICER COMPLETED ASSESSMENT U/S 143(3) OF THE ACT, DETERMINING THE TOTAL INCOME AT RS. 42,13,895/ - . 2.1. ON APPEAL, THE LD. FIRST APPELLATE AUTHORITY GRANTED PART RELIEF. 2 I.T.A. NO. 566/KOL/2017 ASSESSMENT YEAR: 2012 - 13 SRI SABYASACHI ROY 3. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING REVISED GROUNDS OF APPEAL: - 1) THAT THE ADDITION OF RS. 11,37,559.57 TOWARDS INCENTIVE FROM VODAFONE ESSAR(S) LTD. IS ERRONEOUS. 2) THAT THE ADDITION OF RS. 1,14,628.00 TOWARDS DIFFERENCE IN BALANCE WITH NESTLE INDIA LTD. IS UNJUSTIFIED AND ADJUDICATED WITHOUT PASSING A SPEAKING ORDER. 3) THAT T HE ADDITION OF INTEREST FOR RS. 1 , 26,055.00 ON FIXED DEPOSIT IN A SINGLE YEAR IS MISTAKEN & UNJUSTIFIED. 4 ) THAT SEP ARATE ADDITION OF RS. 26,531.00 FOR REIMBURSEMENT OF ADVERTISEMENT EXPENSES IS UNJUSTIFIABLE. 5) THAT THE APPELLANT CRAVES LEAVE TO TAKE ADDITIONAL GROUNDS AT THE TIME OF HEARING. 4. I HAVE HEARD SHRI K.M. ROY, THE LD. COUNSEL FOR THE ASSESSEE AND SHRI PI JUSH MUKHERJEE, LD. SENIOR D/R, ON BEHALF OF THE REVENUE. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AND CASE - LAW CITED, I HOLD AS FOLLOWS: - 5. GROUND NO. 1, IS AGAINST THE ADDITI ON OF RS.11,37,559.57/ - , TOWARDS INCENTIVE FROM VODAFONE ESSAR (S) LTD. THE LD. ASSESSING OFFICER, HAS AT PARA 8 , HELD THAT CERTAIN DEPOSITS WERE MADE IN STATE BANK OF INDIA ACCOUNT, RANAGHAT BRANCH, TOTAL ING TO RS. 11,37,559.57/ - AND THAT T HIS AMOUNT WAS RECEIVED AS INCENTIVE FROM VODAFONE ESSAAR (S) LTD. ON BEING QUESTIONED THE ASSESSEE SUBMITTED THAT HE RECEIVED INCENTIVE FROM VODAFONE ESSAR (S) LTD., FOR THE PURPOSE OF MAKING PAYMENTS TO THE SUB - STOCKIST OF THE COMPANY AND THAT THE ENTIRE AMOUNT WAS FULLY DISBURSED. THE ASSESSING OFFICER MADE AN ADDITION ON THE GROUND THAT THE ASSESSEE HAS NOT DISCLOSED THIS AMOUNT OF RS.11,37,509.57/ - , AS INCOME, IN ITS ACCOUNTS AND RETURN OF INCOME . 5.1. ON APPEAL, THE LD. FIRST APPELLATE AUTHORITY CONF IRMED THE SAME ON THE GROUND THAT THE ASSESSE HAS NOT FILED ANY DETAILS NOR HAS BOTHERED TO SHOW HOW THE 3 I.T.A. NO. 566/KOL/2017 ASSESSMENT YEAR: 2012 - 13 SRI SABYASACHI ROY INCENTIVE WAS INCORPORATED IN ITS ACCOUNTS OR THE MANNER IN WHICH IT WAS DISBURSED TO THE SUB - STOCKIST. 5.2 BEFORE US, THE LD. COUNSEL FOR THE ASSESS E FILED A PAPER BOOK AND DREW OUR ATTENTION TO PAGE 4, WHICH IS THE TRADING AND PROFITS & LOSS ACCOUNT OF THE ASSESSEE AND POINTED OUT THAT THIS AMOUNT WAS DISCLOSED AS INCOME UNDER THE HEAD TRADE AND MARKETING CLAIMS . HE SUBMITTED THAT THE ASSESSING OFF ICER AS WELL AS THE LD. CIT(A), WAS WRONG IN COMING TO THE CONCLUSION THAT THE ASSESSEE HAS NOT DI SCLOSED THIS AMOUNT AS INCOME IN ITS ACCOUNTS OR RETURN OF INCOME. 5.3. THE LD. D/R, SUBMITTED THAT THE ASSESSEE HAS ALSO NOT PROVED EXPENDITURE BY WAY OF DI SBURSAL OF THIS INCENTIVE. ON A QUERY FROM THE BENCH, HE SUBMITTED THAT THE ISSUE CAN BE EXAMINED AS TO WHETHER IT IS A CASE OF DOUBLE TAXATION. 5. 4 . AS THE ASSESSEE CLAIMS TO HAVE DISCLOSED THIS AMOUNT AS ITS INCOME AND AS THE ADDITION WAS MADE ON THE GR OUND THAT THE ASSESSEE DID NOT FURNISH DETAILS IN THIS REGARD, I AM OF THE CONSIDERED OPINION THAT THIS ISSUE SHOULD BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR VERIFYING WHETHER THE ASSESSEE HAS ALREADY DISCLOSED THIS AMOUNT AS HIS INCOME OR NOT . IF HE HAD ALREADY DECLARED THIS AMOUNT AS HIS INCOME, THE QUESTION OF ADDITION DOES NOT ARISE BECAUSE IT WOULD BECOME A CASE OF DOUBLE ADDITION. IN THE RESULT, THIS GROUND OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. GROUND NO. 2 , IS ON THE RE CONCILIATION OF DIFFERENCE WITH NESTLE INDIA LTD. THE ASSESSEE ALSO DEALS WITH NESTLE PRODUCTS. THE ASSESSING OFFICER MADE ADDITION ON THE GROUND THAT THE FIGURES DISCLOSED BY NESTLE INDIA LTD. AND THE ASSESSEE HAVE NOT BEEN RECONCILED. 6.1. BEFORE THE L D. CIT(A), THE ASSESSEE SUBMITTED THAT A COPY OF THE STATEMENT PROCURED BY THE ASSESSING OFFICER FROM NESTLE INDIA LTD. HAS NOT BEEN PUT BEFORE THE ASSESSEE . HENCE, I AM OF THE CONSIDERED OPINION THAT HIS ISSUE SHOULD BE SET ASIDE TO THE FILE OF THE ASSESS ING OFFICER WITH THE DIRECTION TO FURNISH A COPY OF THE STATEMENT OBTAINED BY THE ASSESSING OFFICER FROM THE COMPANY NESTLE INDIA LTD. 4 I.T.A. NO. 566/KOL/2017 ASSESSMENT YEAR: 2012 - 13 SRI SABYASACHI ROY DURING THE C OURSE OF ASSESSMENT PROCEEDINGS TO THE ASSESSEE, SO AS TO ENABLE THE ASSESSEE TO MAKE HIS SUBMISSIONS ON THIS ISSUE. HENCE, I SET ASIDE THIS GROUND TO THE FILE OF THE ASSESSING OFFICER. IN THE RESULT, THIS GROUND OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. GROUND NO. 3 IS AGAINST THE ADDITION OF INTEREST OF RS.1,26,055/ - ON FIXED DEPOSITS. THE ASSESSEES CLAIM IS THAT THE ENTIRE INTEREST DOES NOT PERTAIN TO THIS YEAR AND HENCE THE ADDITION HAS TO BE MODIFIED , AS THE ASSESSEE FOLLOWS MERCANTILE SYSTEM OF ACCOUNTING. 7.1. AS IT IS AN ISSUE OF COMPUTATION OF INTEREST THAT HAS ACCRUED AND ARISEN DU RING THE IMPUGNED ASSESSMENT YEAR, I SET ASIDE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION, IN ACCORDANCE WITH LAW. IN THE RESULT, THIS GROUND OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 8. GROUND NO. 4 IS AGAINST THE ADDITION OF RS.26,531/ - , TOWARDS RE - IMBURSEMENT OF ADVERTISEMENT EXPENSES. 8.1. THE LD. CIT(A), HAS NOT ADJUDICATED THIS ISSUE. AS ALL OTHER ISSUES HAVE BEEN SET ASIDE TO THE FILE OF THE ASSESSING OFFICER, I SET ASIDE THIS ISSUE ALSO TO THE FILE OF THE AS SESSING OFFICER FOR FRESH ADJUDICATION, IN ACCORDANCE WITH LAW, AS THE LD. CIT(A) HAS NOT CONSIDERED THE CONTENTIONS OF THE ASSESSEE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. KOLKATA, THE 19 TH DAY OF JANUARY , 201 8 . SD/ - [ J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER DATED : 19 . 01 .201 8 {SC SPS} 5 I.T.A. NO. 566/KOL/2017 ASSESSMENT YEAR: 2012 - 13 SRI SABYASACHI ROY COPY OF THE ORDER FORWARDED TO: 1. SRI SABYASACHI ROY C/O. P.S. GUPTA (ADVOCATE) 100, BANK LANE HATARPARA P.O. - KRISHNAGAR DT. - NADIA PIN - 741101 2. INCOME TAX OFFICER WARD - 41(2), NADIA A.H. MITRA ROAD NEDIARPARA P.O. - KRISHNAGAR DT. - NADIA PIN - 741 101 3. CIT(A) - 4. CIT - , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES