Ranjit Makal, Kolkata V. DCIT, Circle - 50, Kolkata, Kolkata

ITA 600/KOL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54651 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 18-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K M ROY
• Section: 194C

Judgement Text

, ' , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA ( ) . . , , , , , , ) [BEFORE SRI S.V. MEHROTRA, A.M. & SRI MAHAVIR SING H, J.M.] ! ! ! ! / I.T.A NO. 600/KOL/2011 ASSESSMENT YEAR : 2006-2007 RANJIT MAKAL, KOLKATA -VS.- DEPUTY COMMISSIONER OF INCOME TAX, (PAN : AHZPM 8947 L) CIRCLE-50, KOLKATA ( '# /APPELLANT ) ( $%'# / RESPONDENT ) FOR THE APPELLANT ( '# ) : SHRI K.M. ROY, A.R. FOR THE RESPONDENT ( $%'# ) : SHRI S.K. ROY, D.R. &' ( ) * &' ( ) * &' ( ) * &' ( ) * /DATE OF HEARING : 24.11.2011 +, ) * +, ) * +, ) * +, ) * /DATE OF PRONOUNCEMENT : 02.12.2011 - / ORDER PER SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER/ . . , :- THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER OF LD. COMMISSIONER OF INCOME- TAX (APPEALS)-XXXII, KOLKATA DATED 29.10.2010 FOR T HE ASSESSMENT YEAR 2006-07. 2. THE ASSESSEE INDIVIDUAL IN THE RELEVANT ASSESSME NT YEAR WAS RUNNING CONTRACTING BUSINESS AS A LABOUR CONTRACTOR UNDER THE NAME AND STYLE AS DIPCON. THE ASSESSEE EXECUTED MAINLY PILING WORK IN RAJARHAT UNDER M/S. SHAPOORJI PALLONJI & CO. LIMITED. HE HAS FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME OF RS.5,88, 810/-. THE ASSESSMENT WAS COMPLETED AT A TOTAL INCOME OF RS.12,69,250/-, INTER ALIA, MAKING FOLLOWING ADDITIONS /DISALLOWANCES :- DISALLOWANCE UNDER SECTION 40(A)(IA) OF THE INCOME TAX ACT, 1961 1,79,830/- CLAIM ON ACCOUNT OF DAMAGES 1,60,000/- DISCREPANCY IN CLOSING BALANCE IN BANK ACCOUNT 3,20,855/- DONATION AND SUBSCRIPTION 19,756/- LD. CIT(APPEALS) DISMISSED THE ASSESSEES APPEAL. B EING AGGRIEVED WITH THE ORDER OF LD. CIT(APPEALS), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. ITA NO. 600/KOL./2011 2 3. GROUND NO. 1 RAISED BY THE ASSESSEE READS AS UND ER :- THAT THE LOWER AUTHORITIES MISCONSTRUED THE PROVIS IONS OF SECTION 40(A)(14) OF THE ACT NOTWITHSTANDING THE FACT THAT THERE IS NO REQUIREMENT OF DEDUCTING TAX IN THE ABSENCE OF ANY CONTRACT UNDER SECTION 194C AND FURTHER PERIOD TO 01.06.2007 THERE WAS NO SUCH REQUIREMENT UPON AN INDIVIDUAL TO DEDUCT TAX AT SOU RCE ON PAYMENT TO CONTRACTOR. 4. BRIEF FACTS APROPOS THIS ISSUE ARE THAT THE ASSE SSING OFFICER NOTICED THAT ASSESSEE HAD NOT MADE TDS WHILE PAYING LABOUR CHARGES TO M/S. G. B. ENTERPRISES OF RS.1,79,830/-. HE, THEREFORE, MADE A DISALLOWANCE OF RS.1,79,830/- UND ER SECTION 40(A)(IA). LD. CIT(APPEALS) CONFIRMED THE DISALLOWANCE. 5. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PROVISIONS OF SECTION 194C(1)(K) WERE NOT APPLICABLE FOR THE RELEVANT ASSESSMENT YEAR 200 6-07 AS THE SAME HAVE BEEN INSERTED W.E.F. 01.06.2007. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE RECORDS OF THE CASE. THE ASSESSING OFFICER DISALLOWED RS.1,79,830/- PAID AS LABOUR CHARGES TO M/S. G.B. ENTERPRISES, CONTRACTOR, ON THE GROUND THAT SINCE ACCOUNTS OF TH E ASSESSEE-INDIVIDUAL WERE SUBJECT TO TAX AUDIT UNDER SECTION 44AB, THEREFORE, HE WAS REQUIRE D TO DEDUCT TDS. WE FIND THAT TRIBUNAL IN THE CASE OF ACIT VS.- SMT. KEYA SETH IN ITA NO. 84 2 & 843/KOL./2010 FOR ASSESSMENT YEARS 2006-07 & 2007-08 VIDE ORDER DATED 11.03.2011 HAS H ELD THAT THE PROVISIONS OF SECTION 194C(1)(K), SINCE INCORPORATED FROM 01.06.2007, ARE NOT APPLICABLE FOR THE ASSESSMENT YEARS 2006-07 AND 2007-08. THE FINDINGS OF TRIBUNAL ARE R E-PRODUCED HEREUNDER :- 5. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROU GH FACTS AND CIRCUMSTANCES OF THE CASE. IT IS AN ADMITTED POSITION THAT THE ASSESSEE AN IND IVIDUAL CARRYING ON THE BUSINESS OF AYURVEDIC (COSMETIC DIVISION) AND THE CONSULTANCY ON BEAUTICI AN AND ALSO RELATED THERAPIES . AS CLAIMED BY THE ASSESSEE, WHETHER THE PROVISIONS OF SECTION 194(1) AS EXISTED IN ASSESSMENT YEARS 2006- 07 & 2007-08 WILL APPLY TO THE ASSESSEE OR NOT? ADM ITTEDLY, ASSESSEE HAS NOT DEDUCTED ANY TDS ON ADVERTISEMENT PAYMENT AND ACCORDING TO HER, PROV ISIONS OF SECTION 194C(1) AS EXISTED IN THE RELEVANT ASSESSMENT YEARS WILL NOT OBLITERATE ANY D UTY ON ASSESSEE TO DEDUCT TDS. NOW, WE HAVE TO EXAMINE THIS. THE RELEVANT PROVISIONS OF SECTION 194C(1) & (2) AS EXIST IN ASSESSMENT YEAR 2006-07 & 2007-08 READS AS UNDER :- (1) ANY PERSON RESPONSIBLE FOR PAYING ANY SUM TO A NY RESIDENT (HEREAFTER IN THIS SECTION REFERRED TO AS THE CONTRACTOR) FOR CARRYING OUT ANY WORK (INCLUDING SUPPLY OF LABOUR FOR CARRYING OUT ANY WORK) IN PURSUANCE OF A CONTRACT BETWEEN TH E CONTRACTOR AND-- ITA NO. 600/KOL./2011 3 (A) THE CENTRAL GOVERNMENT OR ANY STATE GOVERNMENT ; OR (B) ANY LOCAL AUTHORITY ; OR (C) ANY CORPORATION ESTABLISHED BY OR UNDER A CENTR AL, STATE OR PROVINCIAL ACT ; OR (D) ANY COMPANY, OR (E) ANY CO-OPERATIVE SOCIETY ; OR (F) ANY AUTHORITY, CONSTITUTED IN INDIA BY OR UNDER ANY LAW, ENGAGED EITHER FOR THE PURPOSE OF DEALING WITH AND SATISFYING THE NEED FOR HOUSING AC COMMODATION OR FOR THE PURPOSE OF PLANNING, DEVELOPMENT OR IMPROVEMENT OF CITIES, TOWNS AND VIL LAGES, OR FOR BOTH ; OR (G) ANY SOCIETY REGISTERED UNDER THE SOCIETIES REGI STRATION ACT, 1860 (21 OF 1860), OR UNDER ANY LAW CORRESPONDING TO THAT ACT IN FORCE IN ANY PART OF INDIA ; OR (H) ANY TRUST ; OR (I) ANY UNIVERSITY ESTABLISHED OR INCORPORATED BY O R UNDER A CENTRAL, STATE OR PROVINCIAL ACT AND AN INSTITUTION DECLARED TO BE A UNIVERSITY UNDE R SECTION 3 OF THE UNIVERSITY GRANTS COMMISSION ACT, 1956 (3 OF 1956), OR (J) ANY FIRM, SHALL, AT THE TIME OF CREDIT OF SUCH SUM TO THE ACCOUNT OF THE CONTRACTOR OR AT THE TIME OF PAYMENT THEREOF IN CASH OR BY ISSUE OF A CH EQUE OR DRAFT OR BY ANY OTHER MODE, WHICHEVER IS EARLIER, DEDUCT AN AMOUNT EQUAL TO-- (I) ONE PER CENT. IN CASE OF ADVERTISING, (II) IN ANY OTHER CASE TWO PER CENT OF SUCH SUM AS INCOME-TAX ON INCOME COMPRISED THEREIN. (2) ANY PERSON (BEING A CONTRACTOR AND NOT BEING AN INDIVIDUAL OR A HINDU UNDIVIDED FAMILY) RESPONSIBLE FOR PAYING ANY SUM TO ANY RESIDENT (HER EAFTER IN THIS SECTION REFERRED TO AS THE SUB- CONTRACTOR) IN PURSUANCE OF A CONTRACT WITH THE SUB -CONTRACTOR FOR CARRYING OUT, OR FOR THE SUPPLY OF LABOUR FOR CARRYING OUT, THE WHOLE OR ANY PART OF THE WORK UNDERTAKEN BY THE CONTRACTOR OR FOR SUPPLYING WHETHER WHOLLY OR PARTL Y ANY LABOUR WHICH THE CONTRACTOR HAS UNDERTAKEN TO SUPPLY SHALL, AT THE TIME OF CREDIT O F SUCH SUM TO THE ACCOUNT OF THE SUB-CONTRACTOR OR AT THE TIME OF PAYMENT THEREOF IN CASH OR BY ISS UE OF A CHEQUE OR DRAFT OR BY ANY OTHER MODE, WHICHEVER IS EARLIER, DEDUCT AN AMOUNT EQUAL TO ONE PER CENT OF SUCH SUM AS INCOME-TAX ON INCOME COMPRISED THEREIN. THIS VIEW HAS AGAIN BEEN FOLLOWED BY THE TRIBUNAL I N THE CASE OF SHRI GAUTAM SARKAR VS.- DCIT [ITA NO. 1972/KOL./2010 , AY 2007-2008]. SINCE ASSESSEES CASE IS COVERED BY THE PROVISIONS OF SECTION 194C(1)(K), THEREFORE, IN VIE W OF THE ABOVE LEGAL POSITION, THE PROVISIONS FOR ASSESSMENT YEAR UNDER CONSIDERATION WERE NOT AP PLICABLE. ACCORDINGLY, THIS GROUND OF APPEAL IS ALLOWED. ITA NO. 600/KOL./2011 4 7. BRIEF FACTS APROPOS GROUND NO. 2 IN THIS APPEAL ARE THAT THE ASSESSEE HAD DEBITED A SUM OF RS.2,25,814/- ON ACCOUNT OF CARRIAGE/ TRANSPORT, WHICH INCLUDED DAMAGES ALLOWED FOR RS.1,60,000/-. THE ASSESSING OFFICER OBSERVED THAT FOR ALLOWABILITY OF DAMAGES, FOLLOWING CONDITIONS HAVE TO BE FULFILLED :- (I) THE CIRCUMSTANCES UNDER WHICH DAMAGES WAS ALLOW ED AND WHETHER IT WAS IN CONNECTION WITH THE BUSINESS OF THE ASSESSEE OR NOT . (B) EVIDENCE/ PAPER ARE REQUIRED TO BE EXAMINED F OR ALLOWING SUCH CLAIM. (C) IT IS ALSO TO BE ESTABLISHED WITH REFERENCE TO TERMS AND CONDITIONS WITH THE PARTY CARRYING THE GOODS / DAMAGES IF ANY, IS TO BE PAID BY WHOM, WHETHER BY THE TRANSPORTER OR BY THE PARTY. (D) CORRESPONDENCES BETWEEN THE ASSESSEE AND THE PA RTY TO WHOM DAMAGES HAVE BEEN ALLOWED ARE ALSO THE VITAL EVIDENCE TO BE TAKE N INTO ACCOUNT. THE ASSESSING OFFICER OBSERVED THAT THE PAYMENTS HA D BEEN MADE THROUGH CHEQUE AND THE ASSESSEE COULD NOT PRODUCE ANY EVIDENCE. THEREFORE, THE ASSESSING OFFICER DISALLOWED THE ASSESSEES CLAIM. 8. BEFORE LD. CIT(APPEALS), IT WAS SUBMITTED AS UND ER :- THAT THE ASSESSING OFFICER HAS DISALLOWED THE PAYM ENT OF PS. 160000/- TO M/S. PUJA TRANSPORT OUT OF RS.2,25,814/- DEBITED ON ACCOUNT OF CARRIAGE/TRANSPORT AS PER P&L ACCOUNT. PUJA TRANSPORT SUPPLIED HEAVY DUTY EARTH CUTTING MA CHINES SUCH AS POCKLAND, BULDOGER, DRESSER AND TRIPPER ETC. ON HIR E BASIS, FOR THE PURPOSE OF DEVELOPMENTAL WORK FOR ESTABLISHMENT OF NEW TOWN, A T RAJARHAT. DUE TO OBVIOUS REASONS THE LAND LOOSERS CREATED PROBLEM AN D THE WORK OF THE ASSESSEE GOT SERIOUSLY DISRUPTED. ULTIMATELY THE WORK HAD TO BE SUSPENDED. BUT THE SUPPLIER SUBMITTED A BILL FOR RS.3,35,217/- COVERIN G IDLE PERIOD ALSO. AFTER NEGOTIATION THE SUPPLIER AGREED TO ACCEPT THE PAYME NT OF RS.1,60,000/- INCLUSIVE OF WORKING AND NON WORKING DAYS IN FULL. ACCORDINGL Y THEY WERE PAID RS.1,60,000/- BY CHEQUE NO. 669359 DATED 15.02.2006 ON IOB TOWARDS SETTLEMENT OF THE ACCOUNT. ITA NO. 600/KOL./2011 5 THE DISALLOWANCE OF THE SAID PAYMENT BY THE LD. AO IS TOTALLY ILLEGAL AND IMPROPER. 9. LD. CIT(APPEALS) DID NOT ACCEPT THE ASSESSEES C LAIM, INTER ALIA, FOR THE FOLLOWING REASONS :- (I) THE NOTING REGARDING FULL AND FINAL SETTLEMENT OF THE BILL BY PUJA TRANSPORT WAS NEITHER SIGNED BY ANYONE NOR VERIFIED BY ANYONE . (II) THE DOCUMENT DOES NOT SHOW THAT THE SUM OF RS. 1,60,000/- WAS ON ACCOUNT OF ANY DAMAGES. THE BILL WAS FOR HIRE CHARGES AND N OT FOR DAMAGES. LD. COUNSEL REFERRED TO PAGE 17 OF THE PAPER BOOK, WHEREIN THE BILL NO. PT/01/05-06 DATED 13.02.2006 OF PUJA TRANSPORT IS CONTAINED. THE BILL WAS FOR HIRE CHARGES OF POCK LAND 200, BULDOGER, TRIPPER, ETC. FOR THE PERIOD FROM 06.02.2 006 TO 13.02.2006. LD. COUNSEL FURTHER REFERRED TO PAGE 20 OF THE PAPER BOOK, WHEREIN THE LETTER OF ASSESSEE SETTLING THE BILL IS CONTAINED, IN WHICH, INTER ALIA, IT IS STATED AS UN DER :- DIPCON 105, DUTTABAD ROAD, SALTLAKE KOLKATA-700064 REF. NO DATE :15/02/2006 TO, M/S. PUJA TRANSPORT EARTH MOVERS, VEHICLES AND GENERAL ORDER SUPPLIER MADRAL, JAPADDAL, NORTH 24 PARAGANAS DEAR SIRS, SUB: SETTLEMENT OF BILL NO. PT/01/05-06 DATED 13.02.2006 FOR RS.3,35,217.00 HIRE CHARGES OF POCK LAND 200, BULDOGER, TRIPPER ETC. REGARDING I AM IN RECEIPT OF YOUR CAPTIONED BILL FOR PROVIDIN G CONTRACTING EQUIPMENTS ON HIRE AT CANOPY SITE, PATHORGHATA, NEW TOWN. WE REQUISITIONED THE EQUIPME NTS TIME TO TIME WITH THE EXPECTATION THAT THESE WILL COME TO OUR USE. UNFORTUNATELY EVERY TIME WE F ACED RESISTANCE FROM THE LOCAL LAND LOOSERS AND ULTIMATELY NO SUBSTANTIAL WORK COULD BE DONE. UNDER SUCH CIRCUMSTANCES, YOU WILL PLEASE APPRECIATE THAT YOUR CLAIM FOR RS.3,35,217.00 ON THIS ACCOUNT CANNOT BE ENTERTAINED. HOWEVER, IN VIEW OF OUR GOOD BUSINESS RELATIONSHIP WITH YOU AND IN CONSIDERATION OF PARTIAL UTILISATION OF THE MACHINE WE ARE RELEASING YOU A PAYMENT OF RS.1,60,000/- (RUPEES ON E LAC SIXTY THOUSAND ONLY) BY CHEQUE NO. 669359 DATED 15.02.2006 DRAWN ON L.O.B SALT LAKE, KOLKATA. WHICH MAY KINDLY BE TREATED AS SETTLEMENT OF YOUR ACCOUNT IN FULL AND FINAL. I HOPE YOU WILL APPRECIA TE THE PECULIAR CIRCUMSTANCES AND ACCEPT THE PAYMEN T. ITA NO. 600/KOL./2011 6 PLEASE ACKNOWLEDGE RECEIPT OF THE PAYMENT. THANKING YOU YOURS FAITHFULLY FOR, DIPCON PROPRIETOR WITH REFERENCE TO THE AFORESAID DOCUMENTS, LD. COUN SEL FOR THE ASSESSEE SUBMITTED THAT THE CLAIM OF ASSESSEE WAS WRONGLY DENIED. LEARNED DEPARTMENTA L REPRESENTATIVE RELIED ON THE ORDER OF LD. CIT(APPEALS) 10. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE RECORDS OF THE CASE. THE ASSESSEES CLAIM IS THAT ON ACCOUNT OF DI STURBANCES BY POLITICAL PARTIES, THE WORK HAD TO BE GIVEN UP. IN SUPPORT OF HIS CONTENTION, THE A SSESSEE HAS FILED A PAPER CUTTING FROM BENGALI NEWSPAPER DATED 01.06.2009 AT PAGE 18. THEREFORE, T HE SAID NOTING CANNOT BE CONSIDERED. THE ASSESSEE HAD TO SUBSTANTIATE THE CIRCUMSTANCES UNDE R WHICH THE DAMAGES HAD BEEN PAID. THE ASSESSING OFFICER HAS POINTED OUT FOUR CONDITIONS, IN WHICH DAMAGES COULD BE ALLOWED. THE ONUS WAS ON THE ASSESSEE TO SUBSTANTIATE HIS CLAIM. MERE PAYMENT THROUGH CHEQUE DOES NOT SUFFICE THE ASSESSEES CLAIM. THE HONBLE SUPREME C OURT IN THE CASE OF CIT VS.- CALCUTTA AGENCY LIMITED [19 ITR PAGE 191 HAS HELD AS UNDER : - RESPECTFULLY FOLLOWING THE JUDGMENT OF HONBLE SURP REME COURT (SUPRA), WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF LD. CIT(APPEA LS). RESULTANTLY, GROUND NO. 2 OF THIS APPEAL IS DISMISSED. 11. WITH REGARD TO GROUND NO. 3 OF THIS APPEAL, BRI EF FACTS ARE THAT FROM THE BANK STATEMENT OF ACCOUNT NO. 1501 WITH OBC, SALT LAKE BRANCH FOR THE ASSESSMENT YEAR 2005-06, THE ASSESSING OFFICER NOTICED THAT THE CLOSING BALANCE AS ON 31.03.2006 IN THE SAID ACCOUNT WAS ONLY RS.1,585/-, BUT IN THE BALANCE-SHEET THE BALAN CE IN THE SAID BANK A/C. HAD BEEN SHOWN AT RS.3,22,450/-. AS THE ASSESSEE FAILED TO RECONCILE THE DIFFERENCE BETWEEN THE BANK BALANCE AND THE BALANCE AS PER BALANCE-SHEET, THE ASSESSING OFF ICER MADE AN ADDITION OF RS.3,20,855/-. ITA NO. 600/KOL./2011 7 12. BEFORE LD. CIT(APPEALS), IT WAS, INTER ALIA, SU BMITTED THAT THERE WAS A TYPOGRAPHICAL ERROR IN THE BALANCE SHEET IN SHOWING THE BANK BALA NCE AT RS.3,22,450/-. THE ACTUAL POSITION WAS AS UNDER :- CASH & BANK BALANCE ORIENTAL BANK OF COMMERCE, SALT LAKE CITY, KOLKATA S.B. A/C. NO. 4501 RS. 1,594.78 CASH AT SITES RS.3,20,855.00 _____________ RS.32,249.78 (322449.78) WHILE TYPING THE BALANCE SHEET THE CASH AT SITES AM OUNTING TO RS.320855/- WAS OMITTED AND THE ENTIRE BALANCE OF RS.322449.78 APPE ARED AS BANK BALANCE IN THE BALANCE SHEET, WHICH WAS SUBMITTED ALONG WITH THE R ETURN. 13. LD. CIT(APPEALS) DID NOT ACCEPT THE ASSESSEE C ONTENTION BY OBSERVING AS UNDER :- IN SUPPORT OF HIS SUBMISSIONS THE ASSESSEE PRODUCE D A CONFIRMATION SIGNED BY ONE SAMARENDRA NATH BOSE AS SITE INCHARGE . THE SAID CONFIRMATION STATES THAT AS ON 31.03.2006 A CASH OF RS.3,20,855/- WAS HELD BY MR. BOSE AT THE SITE AT RAJARHAT, NEW TOWN. IN THIS REGARD, IT IS OBSERVED THAT FIRST OF ALL TH E ASSESSEE HAS NOT BEEN ABLE TO PROVE THAT SHRI SAMARENDRA NATH BOSE WAS SI TE INCHARGE OF ASSESSEE AT RAJARHAT, NEW TOWN. SECONDLTY, THE CLAI M THAT CASH AMOUNT OF RS.3,20,855/- WAS HELD AT ASSESSEES SITE AT RAJARHAT IS NOT SUPPORTED BY ANY CASH BOOK. THIRDLY, IF THE CLAIM O F THE ASSESSEE WAS TRUE THAN WHY THE FACT WAS NOT CLAIMED BEFORE THE A O AND WHY DID HE ADMIT AT THE ASSESSMENT STAGE THAT THERE WAS A MIST AKE IN THE AMOUNT OF THE BANK BALANCE SHOWN IN THE BALANCE SHEET. IN THE LIGHT OF THE ABOVE FACTS, I DO NOT FIND ANY MERIT IN THE CLAIM OF THE ASSESSEE, THEREFORE, THE ADDITION OF RS.3,20,85 5/- MADE BY THE AO IS CONFIRMED AND THIS GROUND IS DISMISSED. 14. LD. COUNSEL FOR THE ASSESSEE REFERRED TO PAGE 3 5 OF THE PAPER BOOK, WHEREIN THE BALANCE- SHEET AS AT 31.03.2006 IS CONTAINED IN WHICH UNDER THE HEAD CASH & BANK BALANCES A SUM OF RS.3,22,449.78 IS SHOWN AGAINST OBC A/C. NO. 1501. LD. COUNSEL FURTHER REFERRED TO PAGE 87 OF THE PAPER BOOK, WHEREIN THE BALANCE SHEET AS AT 31. 03.2005 IS CONTAINED, IN WHICH UNDER THE HEAD CASH & BANK BALANCES, FOLLOWING DETAILS ARE GI VEN :- ORIENTAL BANK OF COMMERCE, SALT LAKE CITY, KOLKATA S.B. A/C. NO. 4501 RS. 1594.78 ITA NO. 600/KOL./2011 8 CASH AT SITES RS.320855.00 ___________ RS.322449.78 14.1. LD. COUNSEL FURTHER REFERRED TO PAGE 71 OF TH E PAPER BOOK, WHEREIN THE CONFIRMATION LETTER DATED 31.03.2006 OF SAMARENDRA NATH BOSE IS CONTAINED, WHEREIN HE CONFIRMED THAT HE HELD THE AMOUNT OF RS.3,20,855/- FOR SITE EXPENSES. WITH REFERENCE TO THE ABOVE DOCUMENTS, LD. COUNSEL SUBMITTED THAT INSTEAD OF SHOWING THE ADVAN CE WITH SHRI SAMARENDRA NATH BOSE, THE AMOUNT HAD BEEN CLUBBED WITH THE BANK A/C. AND, THE REFORE, IT WAS ONLY A MISTAKE IN SHOWING THE AMOUNT IN THE BALANCE SHEET, BUT THE SAME COULD NOT LEAD TO ANY ADDITION. 15. LEARNED DEPARTMENTAL REPRESENTATIVE RELIED ON T HE ORDER OF ASSESSING OFFICER. 16. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HA VE PERUSED THE RECORDS OF THE CASE. THE SUBMISSION OF THE ASSESSEE IS THAT THE BALANCE WITH ORIENTAL BANK OF COMMERCE S.B. A/C. NO. 4501 WAS RS.1594.78 ONLY AND THE BALANCE SUM OF RS. 3,20,855/- WAS WRONGLY CLUBBED WITH THE SAID A/C. AS THE SAME WAS LYING WITH SAMARENDRA NAT H BOSE. IN SUPPORT OF HIS CONTENTION, LD. COUNSEL HAS REFERRED TO THE BALANCE SHEET AS ON 31. 03.2005. ADMITTEDLY, THE BANK BALANCE AND THE CASH AT SITES BALANCE AGGREGATED TO RS.3,22,449 .78 AS ON 31.03.2005 AND IN THE OBC A/C. NO. 1501 AS ON 31.03.2006 THE ASSESSEE HAD SHOWN RS .3,22,449.78. THEREFORE, THE ASSESSEES CLAIM THAT IT WAS MERELY A TYPOGRAPHICAL MISTAKE, C AN NOT BE BRUSHED ASIDE. THE ASSESSEE HAD SHOWN SEPARATELY CASH AT HAND OF RS.68,093.75, THE OPENING BALANCE OF WHICH WAS RS.9,570/-. THUS, CASH IN HAND IS SEPARATED FROM CASH AT SITES SHOWN AT RS.3,20,855/- IN THE BALANCE SHEET AS ON 31.03.2005. IN OUR OPINION, THE MATTER NEEDS TO BE RESTORED BACK TO THE FILE OF ASSESSING OFFICER TO FIND OUT THE FOLLOWING FACTS :- (I) WHEN THE SUM OF RS.3,20,855/- WAS ADVANCED TO S HRI SAMARENDRA NATH BOSE AND ENTRIES TO THIS EFFECT IN THE CASH BOOK AND IF ASSE SSING OFFICER FINDS THAT THE SUM WAS GIVEN OUT OF REGULAR CASH BOOK THEN THE GENUINENESS OF CASH AT SITES CANNOT BE DOUBTED. (II) ASSESSING OFFICER HAS TO VERIFY THE CORRECTNES S OF CASH IN HAND SHOWN IN THE BALANCE SHEET AS ON 31.03.2006. ITA NO. 600/KOL./2011 9 (III) ASSESSING OFFICER SHOULD EXAMINE LEDGER A/C. OF ORIENTAL BANK OF COMMERCE, SAVINGS BANK A/C. NO. 4501 AND CASH AT SITES AS PER THE LEDGER A/C. AND FIND OUT THE OPENING BALANCE SHOWN IN THE SAID A/C. IF ALL THESE ENQUIRIES REVEAL THAT THERE IS ONLY A TYPOGRAPHICAL MISTAKE IN CLUBBING THE BANK BALANCE IN THE SAVINGS BANK A/C. NO. 4501 WITH CASH AT SITES ADVANCED TO SAMARENDRA NATH BOSE, THEN NO ADDITION IS CALLED FOR BECAUSE FOR ME RE MISTAKE IN INCORPORATING THE ACCOUNTS IN THE BOOKS, NO ADDITION CAN BE MADE. RESULTANTLY, TH IS GROUND OF APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 17. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES IN TERMS OF ABOVE OBSERVATIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 02/ 12 /2011. & . / - 02/12/2011. SD/- SD/- [ MAHAVIR SINGH / ] [S.V. MEHROTRA/ ( . . )] JUDICIAL MEMBER/ ACCOUNTANT MEMBER/ DATED : 02/ 12/ 2011 COPY OF THE ORDER FORWARDED TO: 1. RANJIT MAKAL, 105, DUTTABAD ROAD, SALT LAKE CITY, K OLKATA-64 2 DCIT, CIRCLE-50, KOLKATA,. MANIKTOLA CIVIC CENTRE, KOLKATA-54. 3. COMMISSIONER OF INCOME-TAX (APPEALS)- , KOLKATA 4. CIT- , KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA (TRUE COPY) BY ORDER ASSISTANT REGISTRAR, I.T.A.T., KOLKATA LAHA, SR. P.S.