Neena Choudhury, Kolkata V. ITO, Ward 23(2)/ Hoogly, Hooghly

ITA 57/KOL/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 8782 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 11-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PROBHAS ROY J
• Assessee Lawyers: RAJIV CHOUDHURY
• Keywords: Unexplained investment
• Section: 147; 69

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 57 / KOL / 2017 ASSESSMENT YEAR :2009-10 MS. NEENA CHOUDHURY 8/2 KIRAN SHANKAR ROY ROAD, 3 RD FLOOR, R.NO. 35 TO 37, KOLKATA-001 OR SUKANTO SARANI, 2 ND FLOOR, HIND MOTOR, HOOGHLY-712233 [ PAN NO.AKXPC 6963 D ] V/S . INCOME TAX OFFICER WARD-23(2), AAYAKAR BHAWAN, G.T.ROAD, CHINSURA, HOOGHLY- 712101 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI RAJIV CHOUDHURY, ADVOCATE /BY RESPONDENT SHRI PROBHAS ROY, JCIT-DR /DATE OF HEARING 13 -11-2019 /DATE OF PRONOUNCEMENT 20 -11-2019 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2009-10 ARISES AGAINST COMMISSIONER OF INCOME TAX (APPEALS)-6 KOLKATA-S OR DER DATED 24.10.2016 PASSED IN CASE NO.113/CIT(A)-6/KOL/2015-16 INVOLVIN G PROCEEDINGS U/S 147 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. ITA NO.57/KOL/2017 A.Y. 2009-10 MS NEENA CHOUDHURY VS. ITO WD-23(2), HGY. PAGE 2 2. THE ASSESSEE SOLE SUBSTANTIVE GRIEVANCE CHALLENG ES CORRECTNESS OF BOTH THE LOWER AUTHORITIES ACTION TREATING HER BANK DEPOSITS OF 5,11,28,728/- AS UNEXPLAINED INVESTMENTS U/S 69 OF THE ACT. 3. LEARNED COUNSEL INVITES US FIRST OF ALL SUBMITST HAT THE ASSESSING OFFICER MADE THE IMPUGNED ADDITION IN HIS ASSESSMENT ORDER DATED 31.03.2015 WHICH HAS BEEN CONFIRMED IN THE CIT(A)S FINDINGS UNDER C HALLENGE EX PARTE. HE IS FAIR ENOUGH IN NOT DISPUTING THE CLINCHING FACT THA T THE ASSESSEE HAD INDEED MADE CASH DEPOSITS IN HER BANK ACCOUNT AMOUNTING TO 5,11,28,728/-. LEARNED COUNSEL ONLY PLEA DURING THE COURSE OF HEAR ING IS THAT THE ASSESSEE HAS BEEN ACTING AS AN ACCOMMODATION ENTRY PROVIDER THROUGHOUT WHEREIN SHE WOULD MAKE CASH DEPOSITS AND ISSUE CHEQUE IN FAVOUR BENEFICIARY PARTIES THEREBY DERIVING COMMISSION INCOME ONLY. HE SEEKS T O ADD ONLY THE COMMISSION ELEMENT INCOME COMPONENT THAN THE ENTIRE INVESTMENT IN OTHER WORDS. CASE LAW IN ITA NO.1948/KOL/2014 IN DCIT,CC-XXI, KOLKATA VS. M/S SAFECO PROJECTS P. LTD., DECIDED ON 03.11.2017 ADDING 0.25% COMMISSION ELEMENT ONLY IN THE CORRESPONDING SEARCH DATED 10.1 0.2009 CARRIED OUT IN CASE OF M/S BADALIA GROUP; IS QUOTED IN SUPPORT. 4. WE FIND NO MERIT IN ASSESSEES FOREGOING ARGUMEN T SINCE IT HAS BEEN RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL WITHO UT PLACING ON RECORD THE CORRESPONDING SUPPORTIVE EVIDENCE. THE FACT ALSO RE MAINS THAT THE ASSESSEE HAS NOT CARRIED OUT ANY CLAIMED BUSINESS. NOR THERE IS ANY EVIDENCE THAT SHE HAS OWNED ANY CORRESPONDING FIXED ASSETS ETC. LEARN ED DEPARTMENTAL REPRESENTATIVE FAILS TO REBUT THAT THE ASSESSING OF FICER HAS NOT CARRIED OUT HIS FACTUAL VERIFICATION OF THE ALLEGED ACCOMMODATION E NTRY BENEFICIARIES. WE THEREFORE DEEM IT APPROPRIATE TO RESTORE THE INSTAN T ISSUE BACK TO THE ASSESSING OFFICER WITH A DIRECTION TO CARRY OUT NEC ESSARY FACTUAL VERIFICATION TO THIS EFFECT WITHIN THREE EFFECTIVE OPPORTUNITIES AN D ADD ONLY THE COMMISSION ELEMENT INCOME IN THOSE CASES WHERE THE ASSESSEE PR OVES THE CORRESPONDING ENTRIES PROVIDED OUT OF THE CASH DEPOSITS OF 5,11,28,728/-. WE FURTHER MAKE IT ITA NO.57/KOL/2017 A.Y. 2009-10 MS NEENA CHOUDHURY VS. ITO WD-23(2), HGY. PAGE 3 CLEAR THAT ANY SUM OVER AND ABOVE SUCH ACCOMMODATIO N ENTRY DEPOSITS WOULD CONTINUE BE ASSESSED AS UNEXPLAINED INVESTMENTS U/S 69 OF THE ACT. THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE ASSESSING OFFICER ALONGWITH A COPY OF THIS ORDER ON OR BEFORE 31.03.2020 FOR FURTHER NECESSARY PROCEEDINGS. 5. THIS ASSESSEES APPEAL IS ALLOWED FOR STATISTICA L PURPOSES IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT 20/ 11/2019 SD/- SD/- ( %) (' %) ( A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP (- 20 / 11 /201 9 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-MS NEENA CHOUDHURY 8/2, KIRAN SHANKAR RO Y ROAD, 3 RD FL. R.NO. 35-37, KOLKATKA-001/SU KANTO SARANI, 2 ND FL, HINDI MOTOR, HOOGHLY-712233 2. /RESPONDENT-ITO WD-23(2), AAYAKAR BHAWAN, G.T. RD. CHINSURA, HOOGHLY-712101 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA 5. 7 ''3, 3, / DR, ITAT, KOLKATA 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ 3,