Sri Ramen Kundu, Hooghly V. I.T.O Wd - 2(4),Hooghly, Hooghly

ITA 658/KOL/2013

• Counselvise Citation: 65823514 RSA 2013
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 26-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR SWETABH SUMAN
• Assessee Lawyers: SOUMITR A CHOUDHURY
• Keywords: Corroborative evidences
• Section: 40A(3); 133(6)

Judgement Text

I.T.A. NO.: 658/KOL./2013 ASSESSMENT YEAR : 2009-10 PAGE 1 TO 10 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA CORAM : SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI ABRAHAM P. GEORGE (ACCOUNTA NT MEMBER) I.T.A. NO.: 658/KOL./ 2013 ASSESSMENT YEAR : 2009-2010 SRI RAMEN KUNDU,................................. ...APPELLANT VILL. GANGPUR, P.O. PILKHAN, DISTRICT- HOOGHLY-712 613 [PAN : AFIPK 3363 D] -VS.- INCOME TAX OFFICER,................................ ....................RESPONDENT WARD-2(4),HOOGHLY, G.T. ROAD, CHINSURAH, HOOGHLY-712 101 APPEARANCES BY: SHRI SOUMITRA CHOUDHURY, ADVOCATE, FOR THE ASSESSEE DR. SWETABH SUMAN, CIT, FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : DECEMBER 11, 2013 DATE OF PRONOUNCING THE ORDER : DECEMBER 19, 2013 O R D E R PER ABRAHAM P. GEORGE : 1. THIS APPEAL FILED BY THE ASSESSEE IS AGAINST AN ORDER DATED 22 ND JANUARY, 2013 OF COMMISSIONER OF INCOME TAX (APPEAL S)-XXXVI, KOLKATA FOR ASSESSMENT YEAR 2009-10. 2. ASSESSEE HAS RAISED NINE GROUNDS IN TOTAL, OUT O F WHICH GROUNDS NO. 1 & 9 ARE GENERAL, THEREFORE, NEED NO ADJUDICATION. 3. THROUGH ITS GROUNDS NO. 2 TO 4, ASSESSEE IS AGGR IEVED ON AN ADDITION OF RS.57,00,000/- MADE BY THE ASSESSING OFFICER, WH ICH WAS CONFIRMED BY THE LD. CIT(APPEALS). 4. FACTS APROPOS ARE THAT ASSESSEE, A CIVIL CONTRAC TOR, ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION, HAD FILED HIS RETU RN FOR THE IMPUGNED ASSESSMENT YEAR DECLARING INCOME OF RS.8,85,284/-. DURING THE COURSE OF I.T.A. NO.: 658/KOL./2013 ASSESSMENT YEAR : 2009-10 PAGE 1 TO 10 2 HEARING, ASSESSEE WAS REQUIRED TO PRODUCE DETAILS O F PURCHASES AND BOOKS OF ACCOUNTS. ON 12.09.2011, ASSESSEES REPRESENTATI VE SHRI DEB KUMAR BASU, AN ACCOUNTANT APPEARED AND PRODUCED A COPY OF BANK ACCOUNT AND LATER ON 23.11.2011 PRODUCED A CASH BOOK. FROM SUCH CASH BOOK, THE ASSESSING OFFICER FOUND THAT ASSESSEE HAD TAKEN UNS ECURED LOANS TOTALLING TO RS.57,00,000/- DURING THE PERIOD 21.08.2008 TO 3 1.03.2009. THE REPRESENTATIVE OF THE ASSESSEE STATED THAT LOANS WE RE RECEIVED FROM FRIENDS/ RELATIVES FOR THE PURPOSE OF BUSINESS. HOW EVER, IT SEEMS THAT ASSESSEE DID NOT PROVIDE DETAILS OF LOAN CREDITORS. 5. ON 30.11.2011, ASSESSEE APPEARED HIMSELF ALONGWI TH A NEW REPRESENTATIVE, NAMELY ADVOCATE SHRI ALOKESH KUNDU. IN THE LETTER FILED BY ADVOCATE ALOKESH KUNDU, IT WAS STATED THAT ASSES SEE HAD NOT TAKEN ANY UNSECURED LOAN WHATSOEVER. AS PER THE ASSESSEE, THE CASH BOOK PRODUCED ON 23.11.2011 WAS NOT OF HIS PROPRIETARY CONCERN. A SSESSEE ALSO PRODUCED A NEW CASH BOOK. ASSESSEE ALSO MENTIONED THAT AUDIT ED ACCOUNTS FILED ALONGWITH THE RETURN, DID NOT REFLECT ANY UNSECURED LOAN. HOWEVER, ASSESSING OFFICER FOUND THAT BOTH THE OLD CASH BOOK AS WELL AS NEW CASH BOOK WERE HAVING THE SAME OPENING CASH BALANCE. REC EIPTS FROM VARIOUS SUNDRY DEBTORS ON VARIOUS DATES WERE ALSO IDENTICAL . AS PER THE ASSESSING OFFICER, IN THE CASH BOOK PRODUCED ON 23.11.2011 PU RCHASES WERE DIRECTLY ENTERED WHICH NECESSITATED REQUIREMENT OF CASH. SUC H CASH WAS BROUGHT IN BOOKS BY SHOWING UNSECURED LOANS. HOWEVER, IN TH E FRESH CASH BOOK SUBMITTED ON 30.11.2011, PAYMENTS FOR THE PURCHASES WERE FRAGMENTED THROUGH VARIOUS SMALL PAYMENTS SPREAD OVER A LONG P ERIOD, THEREBY AVOIDING THE CASH CRUNCH. 6. ASSESSING OFFICER REQUIRED THE ASSESSEE TO PRODU CE DETAILS OF PURCHASES, CASH FLOW STATEMENT AND CONFIRMATIONS FR OM THE SELLERS FOR SUBSTANTIATING THE PURCHASES AND PAYMENTS EFFECTED. ASSESSEE FILED COPIES OF LEDGER PAGES OF SOME OF THE PARTIES, THOUGH IT W AS UNABLE TO PRODUCE THE BILLS. ASSESSEE, HOWEVER, FURNISHED ON 07.12.20 11, NAMES AND I.T.A. NO.: 658/KOL./2013 ASSESSMENT YEAR : 2009-10 PAGE 1 TO 10 3 ADDRESSES OF THE PARTIES FROM WHOM MATERIAL WAS PUR CHASED. DEPARTMENTAL INSPECTORS WERE DEPUTED TO VERIFY THE GENUINITY OF PURCHASES AND AFTER ENQUIRY DEPARTMENTAL INSPECTORS REPORTED THAT SOME OF THE PARTIES WERE NOT RELATED TO THE BUSINESS OF ASSESSEE FOR SUPPLYING ANY MATERIALS, AND SOME OTHERS COULD NOT BE FOUND I N THE GIVEN ADDRESS. LATER ON, ASSESSEE PRODUCED COPIES OF HIS ACCOUNT A S APPEARING IN THE LEDGERS OF THE SELLERS, BUT THE ASSESSING OFFICER W AS RELUCTANT TO ACCEPT IT. ACCORDING TO HIM, HANDWRITINGS IN THESE LEDGER ACCO UNTS WERE SIMILAR TO THE HANDWRITING OF SHRI GURUPADA DUTTA, ACCOUNTANT OF THE ASSESSEE. ONE OF THE SUNDRY CREDITORS, NAMELY SHRI GURUPADA DUTTA SUMMONED BY THE ASSESSING OFFICER, MENTIONED THAT THE CONFIRMATION LETTER PRODUCED BY THE ASSESSEE WAS NOT THAT OF HIS BUSINESS. IT SEEMS, HE ALSO DENIED THE SIGNATURE. IN A NUTSHELL ASSESSING OFFICER DECLINED TO ACCEPT THE EXPLANATION GIVEN BY THE ASSESSEE AND DECLINED TO C ONSIDER THE CASH BOOK PRODUCED BY THE ASSESSEE ON 30.11.2011. REASONS GI VEN BY THE ASSESSING OFFICER, AS APPEARING IN THE ASSESSMENT ORDER ARE R EPRODUCED HEREUNDER:- (1) THE ASSESSEE FAILED TO PRODUCE ANY DOCUMENTARY EVIDENCE FOR HIS CLAIM THAT THE ORIGINAL CASH BOOK PRODUCED PERTAINS TO M/S. RAMEN KUNDU AS THE ENTRIE S IN THE CASH BOOK ARE IDENTICAL TO ENTRIES IN THE CASH BOOK OF SHRI RAMEN KUNDU, INDIVIDUAL. CASH BOOKS OF A FIRM AND THOSE OF AN INDIVIDUAL BY NO CHANCE CAN HAVE SUCH A NUMBER OF IDENTICAL ENTRIES. (2) THE OPENING BALANCE OF THE NEW CASH BOOK AND OL D CASH BOOK IS SAME I.E. RS.17,262/-. (3) RECEIPTS FROM SUNDRY DEBTORS ON VARIOUS DATES A RE ALSO IDENTICAL AND TALLIES. (4) IN THE ORIGINAL CASH BOOK PURCHASES HAVE BEEN D IRECTLY ENTERED THEREBY NECESSITATING CASH BALANCE WHICH HA VE BEEN MADE UP BY UNSECURED LOANS, WHERE AS IN THE PR ESENT CASH BOOK THE PURCHASES HAVE BEEN FRAGMENTED THROUG H VARIOUS SMALL PAYMENTS THEREBY NEGATING AVAILABILIT Y OF CASH. (5) CONFIRMATIONS PRODUCED ON 16.12.2011 BY THE ASS ESSEE AS SUPPORTING EVIDENCE OF PURCHASE ARE OF SAME HAND WRITING, PURPORTEDLY WRITTEN BY THE ACCOUNTANT OF T HE ASSESSEE SHRI GURUPADA DUTTA. THUS ALL CONFIRMATION S ARE AT THE INSTANCE OF THE ASSESSEE AND DULY PREPARED B Y HIS ACCOUNTANT. THERE IS NOT A SINGLE INSTANCE WHERE OR IGINAL PURCHASE BILLS COULD BE PRODUCED. I.T.A. NO.: 658/KOL./2013 ASSESSMENT YEAR : 2009-10 PAGE 1 TO 10 4 (6) CONFIRMATIONS OF PURCHASES COLLECTED DIRECTLY F ROM THE PARTIES BY ISSUING NOTICE U/S. 133(6) OF THE ACT, A RE NOT IDENTICAL WITH THOSE SUBMITTED ON 16.12.2011. (7) FURTHER, FOLLOWING DIFFERENCES APPEAR FROM CROS S VERIFICATION OF NEW CASH BOOK AND REPLIES RECEIVED AGAINST NOTICE U/S. 133(6) OF THE ACT WHICH IS STATED BELOW :- (A) IN THE CASE OF SAMIR KUNDU AS PER LEDGER AS PER NEW CA SH BOOK DATE AMOUNT RECEIVED FROM RAMEN KUNDU DATE AMOUNT 18.08.08 RS.10,000 18.8.0 8 NO SUCH ENTRY 22.08.08 RS.10,000 22.08. 08 NO SUCH ENTRY 10.09.08 RS.10,000 10.09. 08 NO SUCH ENTRY 15.09.08 RS.10,000 15.09. 08 NO SUCH ENTRY 28.02.09 RS.10,000 28.02. 09 NO SUCH ENTRY 31.03.09 RS.15,250/- 31.03. 09 NO SUCH ENTRY (B) IN THE CASE OF MINATI CONSTRUCTION AS PER LEDGER AS PER NEW CA SH BOOK DATE AMOUNT RECEIVED FROM RAMEN KUNDU DATE AMOUNT 24.08.08 RS.10,000 24.08. 08 NO SUCH ENTRY 26.08.08 RS.10,000 26.08. 08 NO SUCH ENTRY 05.12.08 RS.10,000 05.12. 08 NO SUCH ENTRY 05.02.09 RS.10,000 05.02. 09 NO SUCH ENTRY (C) IN THE CASE OF TARUN KHAN AS PER LEDGER AS PER NEW CA SH BOOK I.T.A. NO.: 658/KOL./2013 ASSESSMENT YEAR : 2009-10 PAGE 1 TO 10 5 DATE AMOUNT RECEIVED FROM RAMEN KUNDU DATE AMOUNT 15.08.08 RS.10,000 15.08. 08 NO SUCH ENTRY 16.09.08 RS.8,000 16.09. 08 NO SUCH ENTRY 18.10.08 RS.8,000 18.10. 08 NO SUCH ENTRY 05.03.09 RS.12,000 05.03. 09 NO SUCH ENTRY 31.03.09 RS.10,800 31.03. 09 RS.10,0 00/ - (D) IN THE CASE OF GULJAR HOSSAIN AS PER LEDGER AS PER NEW CA SH BOOK DATE AMOUNT RECEIVED FROM RAMEN KUNDU DATE AMOUNT 24.08.08 RS.5,000 24.08. 08 NO SUCH ENTRY 26.08.08 RS.5,000 26.08. 08 NO SUCH ENTRY 27.08.08 RS.5,000 27.08. 08 RS.10,0 00/- 15.09.08 RS.5,000 15.09. 08 NO SUCH ENTRY 31.03.09 RS.5,800 31.03. 09 NO SUCH ENTRY FOR THESE REASONS, ASSESSING OFFICER WENT BY THE CA SH BOOK PRODUCED BY THE ASSESSEES REPRESENTATIVE ON 23.11.2011 AND LOA NS OF RS.57 LAKHS SHOWN THEREIN WAS ADDED AS HIS INCOME. 7. IN APPEAL FILED BEFORE THE LD. CIT(APPEALS), ARG UMENT OF THE ASSESSEE WAS THAT THERE WERE NO UNSECURED LOANS AT ALL IN THE AUDITED BOOKS OF ACCOUNTS. AS PER THE ASSESSEE THE CASH BOO K ORIGINALLY PRODUCED BY HIM ON 23.11.2011 HAD A NUMBER OF TYPOGRAPHICAL MISTAKE, AND ENTRIES PERTAINING TO A PARTNERSHIP BUSINESS WERE ALSO APPE ARING THEREIN. AS PER I.T.A. NO.: 658/KOL./2013 ASSESSMENT YEAR : 2009-10 PAGE 1 TO 10 6 THE ASSESSEE, THE LEDGER ALSO DID NOT SHOW ANY UNSE CURED LOANS. FURTHER AS PER THE ASSESSEE, DETAILS OF PAN, INCOME TAX RET URNS, VOTER I-CARD OF VENDORS, WERE ALL PRODUCED FOR PROVING THE GENUINEN ESS OF THE ENTRIES. HOWEVER, LD. CIT(APPEALS) WAS NOT APPRECIATIVE OF T HESE CONTENTIONS. ACCORDING TO HIM, CASH EXPENSES BOTH SMALL AS WELL AS BIG WERE SHOWN ALL ALONG IN THE CASH BOOK PRODUCED ON 23.11.2011, WHER EAS IN THE SUBSEQUENT CASH BOOK THE EXPENDITURES WERE SPREAD O VER A LIMITED PERIOD COVERING DECEMBER, 2008 TO MARCH, 2009. AS PER LD. CIT(APPEALS), THE EVIDENCE PRODUCED DID NOT SHOW THAT ANY ENTRIES REL ATING TO ANY PARTNERSHIP FIRM WERE MIXED UP IN ITS CASH BOOK. AS SESSEE ALSO FAILED TO PRODUCE THE AUDITOR DESPITE BEING DIRECTED TO DO SO . HE, THEREFORE, CONCLUDED THAT ASSESSING OFFICER WAS JUSTIFIED IN T REATING THE CASH BOOK PRODUCED ON 23.11.2011 AS THE CORRECT ONE. ASSESSEE HAVING FAILED TO SUBSTANTIATE THE UNSECURED LOANS OF RS.57,00,000/- APPEARING THEREIN, THE ADDITION ACCORDING TO HIM WAS RIGHTLY DONE BY THE A SSESSING OFFICER. 8. NOW BEFORE US, LD. AR STRONGLY ASSAILING THE ORD ERS OF THE AUTHORITIES BELOW SUBMITTED THAT THE CASH BOOK FURN ISHED BY HIS REPRESENTATIVE ON 23.11.2011 WAS OF A DIFFERENT ENT ITY. ACCORDING TO HIM, ASSESSEE HIMSELF HAD APPEARED BEFORE THE ASSESSING OFFICER ON 30.11.2011 AND PRODUCED THE CORRECT CASH BOOK. ALL PURCHASES A S WELL AS ALL PAYMENTS WERE CORRECTLY SHOWN THEREIN. TRADE CREDITORS HAD C ONFIRMED THE RECEIPT OF PAYMENTS. ASSESSEE HAD ALSO PRODUCED CONFIRMATIO NS FROM THE TRADE CREDITORS FOR THE SALES AFFECTED BY THEM TO HIM AND THE PAYMENTS GIVEN BY HIM TO THEM. THEREFORE, ACCORDING TO HIM, NON-CONSI DERATION OF THE CASH BOOK PRODUCED ON 30.11.2011 WAS UNJUSTIFIED AND ARB ITRARY. RELYING ON PAPER BOOK PAGE NO. 11, LD. AR SUBMITTED THAT THE C ONTRACT WORK OF THE ASSESSEE COMMENCED ONLY DURING THE RELEVANT PREVIOU S YEAR, I.E. IN THE PERIOD 07.04.2008 TO 17.08.2008. IT WAS NOT THE CAS E OF AN ASSESSEE, WHO WAS CARRYING OUT ANY ONGOING WORKS. TOTAL RECEIPT O F THE ASSESSEE, UNDISPUTEDLY WAS ONLY RS.1,08,80,470/-. ALL THE WOR K UNDERTAKEN BY THE ASSESSEE DURING THE RELEVANT PREVIOUS YEAR WERE COM PLETED BY I.T.A. NO.: 658/KOL./2013 ASSESSMENT YEAR : 2009-10 PAGE 1 TO 10 7 09.08.2009. AGAINST A TOTAL CONTRACT RECEIPT OF RS. 1,08,80,470/- ADDITION OF RS.57,00,000/- WAS UNFAIR AND UNJUSTIFIED. ACCOR DING TO LD. AR, IN SUPPORT OF THE CASH BOOK PRODUCED ON 30.11.2011, AS SESESE HAD PRODUCED COPIES OF CONFIRMATIONS GIVEN BY VARIOUS PARTIES. R ELYING ON SUCH COPIES AND CONFIRMATIONS PLACED AT PAGES 177 TO 244, LD. A R SUBMITTED THAT ALL THESE PARTIES WERE EXISTING. ALL THESE PARTIES HAD CONFIRMED THE ACCOUNT OF THE ASSESESE AS APPEARING IN THEIR RESPECTIVE BO OKS OF ACCOUNTS. SALE EFFECTED BY THEM TO THE ASSESSEE AND THE PAYMENTS E FFECTED BY THE ASSESSEE TO THEM WERE CORRECTLY REFLECTED THEREIN A ND TALLIED WITH THE CASH BOOK PRODUCED ON 30.11.2011. ACCORDING TO HIM, THE DIFFERENCE POINTED OUT BY THE ASSESSING OFFICER IN A FEW NUMBE R OF CASES WERE INSIGNIFICANT. THIS AT THE BEST WERE ISOLATED INSTA NCES WHERE THE PARTIES FAILED TO SHOW THE RECEIPT OF THE SUMS FROM ASSESSE E. THIS WOULD NOT MAKE THE CASH BOOK PRODUCED BY THE ASSESSEE UNBELIEVABLE . IN ANY CASE, ACCORDING TO HIM, IF SOME OF THE AMOUNTS PAID BY TH E ASSESSEE TO SHRI SAMIR KUNDU, MINATI CONSTRUCTION, TARUN KHAN AND GU LJAR HOSSAIN WERE FOUND BY THE ASSESSING OFFICER TO BE NOT TALLYING W ITH THE CONFIRMATIONS GIVEN BY SUCH PARTIES, IT CANNOT BE A REASON FOR MA KING AN ADDITION OF RS.57 LAKHS AS UNEXPLAINED UNSECURED LOANS. ASSESSE E HAD NOT TAKEN ANY UNSECURED LOANS AND, THEREFORE, ADDITION MADE WAS T OTALLY INCORRECT. 9. PER CONTRA, LD. D.R. STRONGLY SUPPORTING THE ORD ER OF LD. CIT(APPEALS) SUBMITTED THAT ASSESSEE HAD PRODUCED T WO SETS OF CASH BOOKS. OPENING CASH BALANCE IN BOTH SETS WERE SAME. VARIOUS DEBTORS ALSO TALLIED. WHAT HAPPENED WAS THAT IN ORIGINAL CASH BO OK ASSESSEE HAD MADE PURCHASES AND PAID FOR IT THEN AND THERE. SINCE THE RE WAS NO CASH BALANCE AVAILABLE, IT HAD SHOWN PERSONAL LOANS. LATER ON, W HEN THE ASSESSING OFFICER REQUIRED DETAILS OF PERSONAL LOANS, ASSESSE E FRAGMENTED THE PAYMENTS TO SUCH PARTIES AND POSTPONED IT TO DATES SUBSEQUENT TO THE RECEIPT OF CONTRACT PAYMENTS. EFFECTIVELY ASSESSEE HAD JUGGLED ITS ACCOUNTS TO AVOID PERSONAL LOANS. ASSESSEE COULD NO T SHOW ANY COGENT REASON AS TO WHY ORIGINAL CASH BOOK SHOULD BE DISBE LIEVED. I.T.A. NO.: 658/KOL./2013 ASSESSMENT YEAR : 2009-10 PAGE 1 TO 10 8 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. SHORT QUESTION BEFORE US IS WHETHER CASH BO OK PRODUCED ON 23.11.2011 OR CASH BOOK PRODUCED ON 30.11.2011 IS T O BE BELIEVED. IF THE CASH BOOK PRODUCED ON 30.11.2011 IS BELIEVED, THEN THERE IS NO QUESTION OF ANY UNSECURED LOANS, SINCE SUCH CASH BOOK ADMITT EDLY DID NOT REFLECT ANY SUCH LOANS. ON THE OTHER HAND, IF THE CASH BOOK PRODUCED ON 23.11.2011 IS ACCEPTED AS CORRECT ONE, THERE INDEED ENTERED IN IT ARE ENTRIES SHOWING UNSECURED LOANS OF RS.57,00,000/-, WHICH REMAINED UNEXPLAINED. WHAT WE NOTICE IS THAT ON 23.11.2011, ASSESSEE WAS REPRESENTED BY ITS REPRESENTATIVE WHEREAS ON 30.11. 2011 ASSESSEE HIMSELF HAD APPEARED PERSONALLY. THE GAP BETWEEN 23 .11.2011 AND 30.11.2011 WAS ONLY A WEEK. THEREFORE, WITHIN THE S HORT GAP OF TIME IT WOULD HAVE BEEN VERY DIFFICULT FOR THE ASSESSEE TO FRAME A FRESH SET OF BOOKS OF ACCOUNTS AVOIDING ALL THE CASH LOANS SHOWN EARLIER. HENCE, PREPONDERANCE OF PROBABILITY TILTS TO ASSESEES SID E AND ITS EXPLANATION THAT THE BOOK PRODUCED ON 23.11.2011 WAS NOT THE CO RRECT ONE CANNOT BE BRUSHED ASIDE. ASSESSEE HAD IN SUPPORT OF THE CASH BOOK PRODUCED ON 30.11.2011, FURNISHED CONFIRMATION FROM VARIOUS PAR TIES FROM WHOM IT HAD PURCHASED THE MATERIALS, COPIES OF WHICH HAVE B EEN PLACED AT PAPER BOOK PAGES 177 TO 244. ACCOUNT OF THE ASSESSEE AS A PPEARING IN LEDGERS OF VARIOUS PARTIES WERE PRODUCED BEORE CIT(APPEALS). A SSESSING OFFICER HAS IN HIS REMAND REPORT BEEN ABLE TO POINT OUT ONLY A FEW DISCREPANCIES LISTED AT PARA 6 ABOVE, IN SUCH ACCOUNTS, WHEN COMP ARED WITH THE CASH BOOK PRODUCED BY THE ASSESSEE ON 30.11.2011. LD. CI T(APPEALS) DURING THE COURSE OF APPEAL PROCEEDINGS, HAD, NO DOUBT, RE QUIRED THE ASSESSEE TO PRODUCE THE AUDITOR OF THE ASSESSEE. THOUGH THE AUD ITOR DID NOT APPEAR, IN HIS LETTER DATED 16.12.2011 ADDRESSED TO THE LD. CIT(APPEALS), HE CERTIFIED THAT THERE WERE NO PERSONAL LOANS IN THE BOOKS AUDITED BY HIM. HE ALSO FILED A FULL COPY OF CASH BOOK AUDITED BY H IM, WHICH WAS ALSO CERTIFIED BY HIM ON EVERY PAGE. HE ALSO MENTIONED T HAT CASH BOOK WAS GENUINE AND THERE WAS NO FRAGMENTATION OF ENTRIES. WE DO NOT FIND ANY I.T.A. NO.: 658/KOL./2013 ASSESSMENT YEAR : 2009-10 PAGE 1 TO 10 9 REASON TO DISBELIEVE THE CERTIFICATE AND CERTIFICAT ION DONE BY THE AUDITORS. ATTENDANT CIRCUMSTANCES, IN OUR OPINION, SHOW THAT LOWER AUTHORITIES OUGHT NOT HAVE BRUSHED ASIDE THE CASH BOOK PRODUCED BY THE ASSESSEE ON 30.11.2011. WHEN THERE WERE NO UNSECURED LOANS APPE ARING THEREIN THERE WAS NO QUESTION OF ANY ADDITION BEING MADE ON THE G ROUND OF ANY UNSECURED LOAN. SUCH ADDITION, THEREFORE, STANDS DE LETED. GROUNDS NO. 2 TO 4 STAND ALLOWED. 11. VIDE HIS GROUNDS NO. 5 TO 7, GRIEVANCE RAISED T O THE ASSESSEE IS THAT LD. CIT(APPEALS) MADE A DISALLOWANCE OF RS.48,77,83 5/- UNDER SECTION 40A(3). WE FIND FROM THE ORDER OF LD. CIT(APPEALS) THAT HE HAD MADE THE DISALLOWANCE RELYING ON THE CASH BOOK PRODUCED BY T HE ASSESSEE ON 23.11.2011. LIST OF PAYMENTS WHICH EXCEEDED RS.20,0 00/- WERE COMPLIED BY THE LD. CIT(APPEALS) FROM SUCH CASH BOOK FOR APP LYING SECTION 40A(3). WE HAVE ALREADY HELD IN RELATION TO ASSESSEES GROU NDS NO. 2 TO 4 THAT THE CASH BOOK PRODUCED BY THE ASSESSEE ON 30.11.2011 OU GHT HAVE BEEN CONSIDERED. IT IS ALSO NOTED THAT IN THE ORIGINAL A SSESSMENT, ASSESSING OFFICER HAD MADE AN ADDITION UNDER SECTION 40A(3) C ONSIDERING WITHDRAWALS FROM THE BANK ACCOUNT, WHICH WAS DELETE D BY THE LD. CIT(APPEALS), BUT SUBSTITUTED BY HIM WITH THE CHART COMPILED FROM THE CASH BOOK PRODUCED ON 23.11.2011. WE ARE OF THE OPI NION THAT NEITHER ANY WITHDRAWAL FROM BANK A/C. COULD BE CONSIDERED AS EX PENDITURE FOR THE PURPOSE OF APPLYING SECTION 40A(3) OF THE ACT, NOR THE PAYMENT SHOWN IN THE CASH BOOK PRODUCED ON 23.11.2011 FOR THE PURPOS E OF APPLYING SECTION 40A(3) OF THE ACT. THE ADDITION OF RS.48,77 ,835/- HAS NO LEGS TO STAND. SUCH ADDITION ALSO STANDS DELETED. GROUNDS N O. 5 TO 7 ARE ALLOWED. 12. GROUND NO. 8 IS CONSEQUENTIAL IN NATURE. 13. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH DAY OF DECEMBER, 2013. SD/- SD/- MAHAVIR SINGH ABRAHAM P. GEORGE (JUDICIAL MEMBER) (ACC OUNTANT MEMBER) KOLKATA, THE 19 TH DAY OF DECEMBER, 2013 I.T.A. NO.: 658/KOL./2013 ASSESSMENT YEAR : 2009-10 PAGE 1 TO 10 10 COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.