Shri Pratip Saha, Kolkata V. ITO,WD-22(1), KOLKATA, Kolkata

ITA 591/KOL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1144 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 21-06-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 04-04-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SOUMYAJIT DASGUPTA
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Unexplained cash credit; Gift
• Section: 234B; 68

Judgement Text

ITA NO.591/KOL/2016-SHRI PRATIP SAHA A.Y.2006-07 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH SMC K OLKATA [BEFORE HONBLE SHRI J.SUDHAKAR REDDY, AM] ITA NO.591//KOL/2016 ASSESSMENT YEAR : 2006-07 SHRI PRATIP SAHA VERSUS- I.T.O., WARD-22(1) KOLKATA KOLKATA. (PAN: AIOPS 8349 G)) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI MIRAJ D.SHAH, ADVOCATE FOR THE RESPONDENT: SHRI SOUMYAJIT DASGUPTA, JCIT DATE OF HEARING : 08.09.2017. DATE OF PRONOUNCEMENT : 31.10.2017. ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AG AINST THE ORDER OF THE COMMISSIONER OF INCOME TAX-(A)-21, KOLKATA RELATIN G TO A.Y. 2006-07. 2. THE ASSESSEE IS AN INDIVIDUAL AND IS A PARTNE R IN A PARTNERSHIP FIRM M/S. CLINICAL DIAGNOSTIC CENTRE. HE FILED RETURN OF INCOME ON 26. 03.2007 DECLARING TOTAL INCOME OF RS.98,997/-. THE AO, DURING THE COURSE OF ASSESSMEN T PROCEEDINGS CALLED UPON THE ASSESSEE TO EXPLAIN THE SOURCE OF DEPOSIT IN HDFC B ANK LTD OF RS.12,58,500/-. THE ASSESSEE EXPLAINED THE SAME AS FOLLOWS :- 1. CASH LOAN WAS SHOWN RS.7,95,000/- 2. CASH GIFT RECEIVED RS.2,00,000/- 3. RECEIVED FROM FIRM TOWARDS SHARE OF PROFIT, PARTNERS REMUNERATION AND INTEREST ON CAPITAL RS.2,00,000/- TOTAL RS.11,95,000/- 3. THE ASSESSEE ALSO DISCLOSED RECEIPT FROM NSC BY CASH OF RS.85,000/- AND SHARE APPLICATION RETURN FOR RS.34,500/- ETC. ITA NO.591/KOL/2016-SHRI PRATIP SAHA A.Y.2006-07 2 4. THE AO REJECTED SOME OF THE EXPLANATIONS OF TH E ASSESSEE AND DETERMINED THE TOTAL INCOME AT RS.17,25,520/- INTER-ALIA MAKING THE FOLL OWING ADDITIONS (I) UNEXPLAINED CASH CREDIT RS.9,95,000/- (II) INTEREST INCOME RS. 26,990/- (III) INVESTMENT IN MIP RS.90,000/- (IV) INVESTMENT IN SHARES AND BONDSRS.4,64,941/- (V) LESS SHOWN BALANCE RS.53,593/- 5. AGGRIEVED THE ASSESSEE CARRIED THE MATTER ON APP EAL. THE FIRST APPELLATE AUTHORITY GRANTED PART RELIEF. FURTHER AGGRIEVED THE ASSESSEE IS IN APPEAL ON THE FOLLOWING GROUNDS :- 1. FOR THAT ON THE FACTS OF THE CASE, THE ORDER PA SSED BY THE LD.C.I.T.(A) IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 2. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I.T .(A) WAS WRONG IN DITTOING THE ORDER OF THE A.O. AND CONFIRMING THE ADDITION AMOUN TING TO R~,95,000/- AS UNEXPLAINED CASH CREDIT WHICH IS COMPLETELY ARBITRA RY, UNJUSTIFIED AND ILLEGAL. 3. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I.T .(A) WAS WRONG IN DITTOING THE ORDER OF THE A.O. AND CONFIRMING THE ADDITION AMOUN TING TO RS.26,990/- AS NON OFFERING OF INTEREST INCOME WHICH IS COMPLETELY ARB ITRARY, UNJUSTIFIED AN ILLEGAL. ~ 4. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I.T .(A) WAS WRONG IN DITTOING THE ORDER OF THE A.O. AND CONFIRMING THE ADDITION AMOUN TING TO RS.90,000/- AS NON REFLECTION OF MONTHLY INCOME SCHEME OF POST OFFICE WHICH IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 5. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I.T .(A) WAS WRONG IN DITTOING THE ORDER OF THE A.O. AND CONFIRMING THE ADDITION AMOUN TING TO..RS.4,,64,941/- ON ACCOUNT OF INVESTMENT IN SHARE & BONDS WHICH IS COM PLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 6. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I.T .(A) WAS WRONG IN DITTOING THE ORDER OF THE A.O. AND CONFIRMING THE ADDITION AMOUN TING TO RS.53,594/- ON ACCOUNT OF DIFFERENCE IN BANK BALANCE WHICH IS COMP LETELY ARBITRARY, UNJUST AND ILLEGAL. 7. FOR THAT THE INTEREST U/S. 234A & 234B AMOUNTING TO RS.42,080/ - & RS.1,73,5S0/ - CHARGED MECHANICALLY IS WRONG & ILLE GAL. 8. FOR THAT THE APPELLANT RESERVES THE RIGHT TO ADD UCE ANY FURTHER GROUND OR GROUNDS, IF NECESSARY, AT OR BEFORE THE HEARING OF THE APPEAL. 6. AFTER HEARING THE RIVAL CONTENTIONS AND CONSIDE RING THE PAPERS ON RECORD I HELD AS FOLLOWS :- ITA NO.591/KOL/2016-SHRI PRATIP SAHA A.Y.2006-07 3 GROUND NO.1 IS GENERAL IN NATURE. GROUND NO.2 IS AG AINST THE ADDITION OF RS.9,95,000/- AS UNEXPLAINED CASH CREDIT. THE ASSESSEE CLAIMED TH AT HE HAD RECEIVED LOAN OF RS.5,00,000/- FROM SHRI TAPAS KUMAR BARK. THIS CLAI M IS PROVED AS FALSE BY THE AO. THE ASSESSEE WAS UNABLE TO ESTABLISH THE GENUINENES S OF THE LOAN AND ON THE OTHER HAND, THE AO FOUND OUT THAT MR.TAPAS KUMAR BARIK HA S NOT SHOWN ANY SUCH ADVANCE IN HIS BALANCE SHEET DURING THE YEAR. THE ASSESSEE ALSO CHANGED HIS VERSION ON THE ABOVE ISSUE. THUS I CONFIRM THIS ADDITION, OF RS.5, 00,000/-. 7. IN RESPECT OF THE CASH CREDIT, THE CLAIM OF THE ASSESSEE IS THAT HE RECEIVED A LOAN OF RS.2,00,000/- FROM HIS FATHER-IN-LAW WHICH WAS L ATER CONVERTED INTO A GIFT. AS THE FATHER-IN-LAW IS A CLOSE RELATIVE, THIS CLAIM OF TH E ASSESSEE CAN BE BELIEVED. JUST BECAUSE THE FATHER-IN-LAW IS A RETIRED PERSON, IT D OES NOT LEAD TO A CONCLUSION THAT THE DONOR HAS NO CREDITWORTHINESS. THE ASSESSEE HAS PRO DUCED CONFIRMATION LETTERS AND OTHER DOCUMENTS IN SUPPORT OF HIS CLAIM. THUS THIS ADDITION OF RS.2,00,000/- TOWARDS CASH GIFT IS DELETED. 8. THE CLAIM OF THE ASSESSE THAT HE HAD RECEIVE D LOAN FROM FRIENDS AND RELATIVES TO THE TUNE OF RS.2,95,000/- IS NOT SUPPORTED BY ANY E VIDENCE. HENCE THIS CREDIT U/S 68 IS UPHELD. 9. GROUND NO.3 AND 4 ARE DISMISSED AS NOT PRES SED. 10. GROUND NOS. 5 AND 6 RELATE TO THE ADDITION O F RS.4,64,941/- BEING INVESTMENT IN SHARES AND BONDS AND AN AMOUNT OF RS.53,594/- ON AC COUNT OF DIFFERENCE IN BANK BALANCE. I HAVE CONFIRMED THE ADDITION OF RS.7,95,0 00/- U/S 68 OF THE ACT. THE ASSESSEE CLAIMES THE BENEFIT OF TELESCOPING OF THIS INCOME W ITH THE INVESTMENTS. IN MY VIEW THIS AMOUNT HAS TO BE TELESCOPED WITH THE INVESTMENTS. T HUS THE ADDITION OF RS.4,64,941/- ON ACCOUNT OF INVESTMENT IN SHARES AND BONDS AND TH E AMOUNT OF RS.53,594/- HAVE DIFFERENCE IN THE BANK BALANCE IS HEREBY DELETED BY GRANTING TELESCOPIC BENEFIT TO THE ASSESSEE. HENCE THESE GROUNDS OF THE ASSESSEE ARE ALLOWED. 11. GROUND NO.7 IS CONSEQUENTIAL IN NATURE. GRO UND NO.8 IS GENERAL IN NATURE. ITA NO.591/KOL/2016-SHRI PRATIP SAHA A.Y.2006-07 4 12. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED IN PART. ORDER PRONOUNCED IN THE COURT ON 31.10.2017. SD/- [ J.SUDHAKAR REDDY ] ACCOUNTANT MEMBER DATED : 31.10.2017. [RG SR.PS] COPY OF THE ORDER FORWARDED TO: 1.SHRI PRATIP SAHA, 77/8, BHUPEN ROY ROAD, KOLKATA- 700034. 2. I.T.O., WARD-22(1), KOLKATA. 3. C.I.T.(A)- 21, KOLKATA 4. C.I.T-8, KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, SENIOR PRIVATE SECRETARY HEAD OF OFFICE/D.D.O, ITAT KOLKATA BENCHES