Swasthya Bikash Samiti, Berhampur V. DCIT, Berhampur Circle, Berhampur

ITA 7/CTK/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3882 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-04-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 28-06-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 07-01-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Keywords: Unexplained investment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK SMC BENCH, CUTTACK BEFORE SHRI N.S SAINI, ACCOUNTANT MEMBER ITA NO. 07 /CTK/2015 ASSESSMENT YEAR : 2008 - 09 INCOME TAX OFFICER, WARD - 3, ROURKELA. VS. SRI SANTOSH KUMAR AGARWAL, S/O LATE KANHAIYALAL AGARWAL, PLOT NO.AM - 44, BASANTI COLONY, ROURKELA - 12 PAN/GIR NO. ADHPA 4173 A (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : NONE REVENUE BY : SHRI D.K.PRADHAN , DR DATE OF HEARING : 03 /04 / 2017 DATE OF PRONOUNCEMENT : 03/04 / 2017 O R D E R THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) - II, BHUBANESWAR , DATED 21.10.2014, FOR THE ASSESSMENT YEAR 2008 - 09 ON THE FOLLOWING GROUND: WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT( A) IS CORRECT IN DELETING THE UNEXPLAINED INVESTMENT OF RS.25,00,000/ - WHEN IT WAS ESTABLISHED ON RECORD THROUGH CROSS VERIFICATION OF TRANSACTION DURING THE ASSESSMENT PROCEEDINGS FOR WHICH THE ASSESSEE HAS OFFERED TO PLAUSIBLE EXPLANATION. 2 ITA NO. 07/CTK/2016 ASSESSMENT YEAR :2008 - 09 2. AT THE T IME OF HEARING, AN ADJOURNMENT PETITION WAS FILED BY THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE ON THE GROUND THAT HE HAS SOME PERSONAL DIFFICULTIES. IT IS OBSERVED THAT EARLIER THE HEARING WAS ADJOURNED ON VARIOUS DATES AT THE REQUEST OF THE RESPONDE NT - ASSESSEE I.E. ON 4.10.2016,6.10.2016, 8.11.2016, 2.1.2017, 13.1.2017 AND 14.3.2017. AS THE REASON FOR SEEKING ADJOURNMENT BY LD AUTHORISED REPRESENTATIVE OF THE ASSESSEE WAS FOUND NOT CONVINCING, THE ADJOURNMENT PETITION WAS REJECTED AND THE APPEAL WAS HEARD EXPARTE AND DISPOSED OF AFTER CONSIDERING THE SUBMISSION OF LD DEPARTMENTAL REPRESENTATIVE AND MATERIALS AVAILABLE ON RECORD. 3. I HAVE HEARD LD D.R. AND PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSING OFFICER OBSERVED THAT ON EXAMINATION OF S.B. ACCOUNT NO.05782010008580 MAINTAINED BY THE ASSESSEE WITH ORIE NTAL BANK OF COMMERCE, ROURKELA, THE ASSESSEE HAD PAID RS.77,00,000/ - TO NISHA DATA COM LTD., AS UNDER: DATE CHEQUE NO. AMOUNT (RS.) 19.7.2007 586708 20,00,000.00 19.7.2007 586709 25,00,000.00 5.12.2007 586715 27,00,000.00 15.1.2008 586717 5,00,000.00 TOTAL: 77,00,000.00 4. HOWEVER, FROM THE INFORMATION RECEIVED U/S.133(6) OF THE I.T.ACT, 1961 FROM NISHA DATA CO. LTD., BASANTI COLONY, THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAD FOLLOWING TRANSACTIONS: 3 ITA NO. 07/CTK/2016 ASSESSMENT YEAR :2008 - 09 DATE CHEQUE NO. AMOUNT (RS.) 19.7.2007 586708 20,00,000.00 5.12.2007 586715 27,00,000.00 15.1.2008 586717 5,00,000.00 TOTAL: 52,00,000.00 5. FROM THE ABOVE, THE ASSESSING OFFICER OBSERVED THAT IT IS EVIDENT THAT ON 19.7.2007, THE ASSESSEE HAD MADE INVESTMENT OF RS.20,00,000/ - AND RS.25,00,000/ - AGGREGATING TO RS.45,00,000/ - BUT INVESTMENT OF RS.25,00,000/ - ON 19.7.2007 V IDE CHQUE NO.58609 IN NISHA DATA COM LTD., REMAINED UNEXPLAINED IN BOTH THE BOOKS OF ACCOUNT AND THIS UNEXPLAINED INVESTMENT OF RS.25,00,000/ - WAS ADDED TO THE INCOME OF THE ASSESSEE. 6. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, NISHA DATA COM LTD., WAS ASKED TO PRODUCE THE LEDGER ACCOUNTS COPIES OF SRI KANHAYALAL AGARWAL AS PER ITS BOOKS OF ACCOUNT U/S.133(6) OF THE ACT. IN RESPONSE TO SAME, ON 9.11.2010, NISHA DATA COM LTD., PRODUCED THE LEDGER ACCOUNT COPIES OF SRI KANHAYALAL AGARW AL WITH A FORWARDING LETTER AND IT WAS FOUND THAT RS.25,00,000/ - PAID TO NISHA DATA COM LTD., DID NOT APPEAR. THE ASSESSING O FFICER HAS OBSERVED THAT IN REPLY DATED 20.8.2013, THE ASSESSEE SUBMITTED THAT HE HAD ISSUED TWO NOS OF CHEQUE IN FAVOUR OF M/S. N ISHA DATA COM LTD., ON 19.7.2007 VIDE CHEQUE NO.586708 FOR RS.20,00,000/ - AND CHEQUE NO.586709 FOR RS.25,00,000/ - . OUT OF RS.25,00,000/ - , RS.10,00,000/ - WAS SQUARED UP DURING THE FINANCIAL YEAR BY WAY OF PAYMENT TO M/.S ISE STOCK BROKING ON 16.8.2007 VIDE CHEQUE NO.431502 AND RS.15,00,000/ - TO 4 ITA NO. 07/CTK/2016 ASSESSMENT YEAR :2008 - 09 CREDITORS FOR SHARES ON 21.7.2007 VIDE CHEQUE NO.294 850. THE ASSESSING OFFICER HAS NOT ACCEPTED THIS PLEA OF THE ASSESSEE BY HOLDING IT TO BE AN AFTERTHOUGHT. 7. ON APPEAL, THE CIT(A) DELETED THE ADDITION BY OBSER VING AS UNDER: I HAVE CAREFULLY CONSIDERED THE CONTENTS AND SUBSTANCE OF THE ASSESSMENT ORDER AND THE GROUNDS OF APPEAL PREFERRED AND THE OTHER ADDITIONAL SUBMISSIONS MADE AS ABOVE, FOLLOWING WHICH I ARRIVE AT THE FOLLOWING FINDINGS/DECISION(S): A) IN RESPECT OF THE TWO IMPUGNED AMOUNTS OF RS. 10 LAKHS AND RS. 25 LAKHS ASSESSED AS TAX, IT IS CLEAR FROM THE AVAILABLE DOCUMENTATION THAT THE AMOUNTS HAVE BEEN SQUARED UP BY M/S NDCL BY MAKING PAYMENTS ON BEHALF OF THE APPELLANT TO ITS SHARE CREDITOR (M/S TARINI TRADERS) AND TO M/S ISE STOCK BROKING(P) LTD. THE STATEMENTS OF ACCOUNTS OF THE APPELLANT TOO REFLECT THIS POSITION. CONSEQUENTLY, THE ADDITION MADE OF RS. 25 LAKHS ASSESSED AS THE APPELLANT'S TAXABLE INCOME IS DELETED. GROUND NUMBER 1 IS ALLOWED. 8. BEFORE ME, LD DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER OF THE ASSESSING OFFICER. 9. AFTER CONSIDERING THE MATERIAL ON RECORD AND THE ARGUMENTS OF LD D.R, I FIND THAT EXCEPT RELYING ON THE ORDER OF THE ASSESSING OFFICER, HE COULD NOT POINT OUT AN Y SPECIFIC ERROR IN THE ORDER OF THE CIT(A). HE COULD NOT CONTROVERT THE FINDINGS OF THE CIT(A) BY BRIN G ING ANY POSITIVE MATERIAL ON RECORD THAT IT IS CLEAR FROM THE AVAILABLE DOCUMENTATION THAT THE AMOUNT OF RS.25 LAKHS HAVE BEEN SQUARED UP BY M/S. NDCL BY MAKING PAYMENTS ON BEHALF OF THE ASSESSEE TO ITS SHARE CREDITOR M/S. TARINI TRADERS AND TO M/S. ISE STOCK BR OKING (P) LTYD.,. THE STATEMENTS OF ACCOUNT OF THE ASSESSEE TOO REFLECT THIS POSITION. THEREFORE, I DO NOT FIND ANY GOOD AND JUSTIFIABLE 5 ITA NO. 07/CTK/2016 ASSESSMENT YEAR :2008 - 09 REASON TO INTERFERE WITH THE ORDER OF THE CIT(A), WHICH IS HEREBY CONFIRMED AND GROUND OF APPEAL OF THE REVENUE IS DI SMISSED. 10. IN THE RESULT, THE APPEAL F ILED BY THE REVENUE IS DISMISSED. ORDER PRO NOUNCED IN THE OPEN COURT ON 04 /04 /2017. SD/ - ( N.S SAINI) A CCOUNTANT MEMBER CUTTACK; DATED 03/04 /2017 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANT : INCOME TAX OFFICER, WARD - 3, ROURKELA. 2. THE RESPONDENT. SRI SANTOSH KUMAR AGARWAL, S/O LATE KANHAIYALAL AGARWAL, PLOT NO.AM - 44, BASANTI COLONY, ROURKELA - 12 3. THE CIT(A) - II, BHUBANESWAR 4. CIT , SAMBALPUR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//