M/s Dhameja Mining, Sikkim V. ITO, WD-2(4), ASANSOL, Asansol

ITA 701/KOL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4087 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 08-09-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 21-05-2015
• Result in Favour of: Set Aside
• Court: TRIBUNAL
• Assessee Lawyers: U DASGUPTA ADOVCATE
• Keywords: Business income; Charitable institution; Non-deduction of tax
• Section: 142(1); 133(6); 143(2); 40(a)(ia); 194A; 194K; 194L; 194LA; 69A

Judgement Text

ITA NO. 701/KOL/15 M/S. DHAMEJA MINING . 1 IN THE INCOME TAX APPELLATE TRIBUNAL,D BENCH KOLKATA BEFORE : SHRI M.BALAGANESH, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 701/KOL/2015 A.Y: 2010-11 M/S. DHAMEJA MINING VS. I.T.O., W 2(4), ASAN SOL PAN: AAFFD 6501A (APPELLANT) (RESPONDENT) APPEARANCES BY: SHRI U. DASGUPTA, ADV OCATE, LD.AR NONE APPEARED FOR TH E REVENUE DATE OF HEARING : 01-11-2016 DATE OF PRONOUNCEMENT : 21-12-2016 O R D E R SHRI S.S. VISWANETHRA RAVI, JM :- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 16-03-2015 PASSED BY THE COMMISSIONER OF INCO ME TAX(APPEALS),ASANSOL FOR THE ASSESSMENT YEAR 2010-1 1. 2. NONE APPEARED FOR RESPONDENT REVENUE. REVENUE HA D SOUGHT ADJOURNMENT IN 14 CASES OUT OF 16 CASES LISTED FOR HEARING TODAY. HENCE, ADJOURNMENT APPLICATION OF REVENUE WAS REJEC TED. THEREFORE, WE PROCEED TO DISPOSE OFF THE APPEAL AFTER HEARING THE LD. AR OF THE ASSESSEE AND BASED ON THE MATERIAL AVAILABLE ON REC ORD. 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. FOR THAT ON THE FACTS OF THE CASE THE LD. CIT(A ) WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION OF RS.23,72,327/- U/S. 40(A)(IA) OF TH E ACT61, WHEN THE PROVISIONS OF THE SECTION IS NOT ATTRACTED AND THE ADDITION MAY PLEAS E BE DELETED. ITA NO. 701/KOL/15 M/S. DHAMEJA MINING . 2 2. FOR THAT ON THE FACTS OF THE CASE THE LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION OF RS.2,05,102/- U/S.69A OF THE ACT61 , AND THE ADDITION MAY PLEASE BE DELETED. 3. FOR THAT ON THE FACTS OF THE CASE THE ASSESSMENT ORDER DATED 26/03/2013, REMAINED IN THE CUSTODY AND IN CONTROL OF THE A.O B EYOND THE TIME BARRING LIMIT, TILL 19 TH APRIL, 2013, IS BARRED BY LIMITATION, AND MAY PLEA SE BE CANCELLED. 4. FOR THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTE R, AMEND ANY FURTHER GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 4. IT WAS SUBMITTED BY THE LD.AR THAT NO ORDERS ARE REQUIRED IN GROUND NO-3 AND ACCORDINGLY, IT IS DISMISSED AS NOT PRESSE D. 5. GROUND NO-1 IS RELATES TO DISALLOWANCE OF EXPEN DITURE U/S. 40(A)(IA) OF THE ACT. 6. THE ASSESSEE IS A FIRM, DOES WORK UNDER CONTRACT AND CONDUCTS ITS BUSINESS IN THE NAME AND STYLE AS DHAMEJA MINING. T HE ASSESSEE FILED ITS RETURN DECLARING A TOTAL INCOME OF RS,1,36,904/- ON 28-03-2012 AND UNDER SCRUTINY NOTICES U/SECTION 143(2) AND 142(1) OF THE ACT WERE ISSUED, IN RESPONSE TO WHICH, THE ASSESSEE PRODUCED RELEVANT D OCUMENTS AS SOUGHT. THE AO FOUND THE ASSESSEE DEBITED AN EXPENDITURE OF RS.25,59,525 UNDER THE HEAD MACHINE HIRE CHARGES IN THE PROFIT & LOS S ACCOUNT AND NOT DEDUCTED ANY TAX FROM THE PAYMENT MADE TO FOLLOWING PARTIES: SL. NO. NAME OF THE PARTY AMOUNT ( IN RS.) 1. OTIF 3,00,000 2. BARON KR MONDAL 5,97,000 3. ASHOK KR CHANDAK 9,12,975 4. MUKESH KR. SINGH 1,35,000 5. SOHAN LAL RUPRAI 4,27,352 TOTAL 23,72,327 ITA NO. 701/KOL/15 M/S. DHAMEJA MINING . 3 7. IN EXPLANATION, THE ASSESSEE SUBMITTED WRITTEN S UBMISSIONS ON 18.12.2012 AS UNDER: 'THE ASSESSEE FIRM HAVE PAID RS. 25,59,52 AS 'MACHI NE HIRE CHARGES TO VARIOUS PARTIES, THE DETAILS OF WHICH IS ALREADY FURNISHED TO YOU GOOD O FFICES. NO AMOUNT OF MACHINE HIRE CHARGES IS OUTSTANDING AS ON 31 ST MARCH,2010. THE ASSESSEE FIRM HAS NOT DEDUCTED ANY TAX AT SOURCE. BUT FAILURE TO DEDUCT TAX AT SOURCE ON MACHINE HIRE CHA RGES SHOULD NOT QUALIFY FOR DISALLOWANCE OF THE ENTIRE EXPENDITURE WHICH HAS ALREADY BEEN PAID. IN SUPPORT OF THIS I ON BEHALF OF MY CLIENT SUBMITT ING BEFORE YOU THE JUDGMENT OF ITAT, VISHAKHAPATNAM BENCH, VISHAKHAPATNAM IN THE CASE OF M/S MARILYN SHIPPING & TRANSPORTERS, VISHAKHAPATNAM, WHICH IS SELF-EXPLANATORY.( ITA NO - 477/VIZAG 12008)' 8. THE AO REJECTED THE CONTENTION OF THE ASSESSEE I N VIEW OF INTERIM ORDER BY THE HON'BLE HIGH COURT OF ANDHRA PRADESH I N I.T.A. NO.384 OF 2012 PREFERRED APPEAL AGAINST THE ORDER OF THE VISHAKHA PATNAM BENCH OF TRIBUNAL IN THE CASE OF M/S MERILYN SHIPPING & TRAN SPORT AND TREATED THE PAYMENT OF RS. 23,72,327/- IN CONTRAVENTION OF SECT ION 194 I OF THE ACT AND DISALLOWED AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE UNDER SECTION 40(A) (IA) OF THE ACT. THE CIT-A CONFIRMED THE ADDITION BY OBSERVING AS UNDER: 7. THE EFFECT OF NON ADMISSION OF SLP IS AS UNDER: A. REJECTION OF SLP DOES NOT MEAN THAT DECISION OF HC HAS BEEN APPROVED.[CIT VS QUALITY (PAT) 224 ITR 77,CIT VS SHREE MANJUNATHESWARA PACKING PRODUCTS & CAMPHOR WORKS (SC) 231 ITR 53,J.K CHARITABLE TRUST VS WTO & ORS. (ALL) 222 ITR 523] B. SPECIAL LEAVE PETITION DISMISSED WITH SPEAKING O RDER IS DECLARATION OF LAW BY SUPREME COURT - AFTER REJECTION OF SLP, LOWER COURTS CAN REVIEW ITS ORDER - ONCE SLP IS ADMITTED, LOWER COURTS HAVE NO JURISDICTION TO REVIEW THE ORDER [KUNHAYAMMED & ORS . VS STATE OF KERALA & ANR. (SC) 245 ITR 360] IT CAN BE SEEN IN THE INSTANT CASE, THERE IS NO DET AILED ORDER AND FURTHER REJECTION OF SLP DOES NOT M EAN DECISION OF HIGH COURT IS APPROVED. FURTHER THE DEC ISION OF HON. HIGH COURT OF ALLAHABAD IS NOT FINAL AS THE POWER TO SEEK REVIEW EXISTS. 8. IN THE DECISIONS REPORTED IN CIT V. CRESCENT EXP ORT SYNDICATE [2013] 33 TAXMANN.COM 250 (CAL), CIT V. MD. JAKIR HOSSAIN MANDAL [2013] 33 TAXMANN.COM 1 23 (CAL) AND CIT V.SIKANDARKHAN N. TUNVAR [2013] 33 TAXMANN.COM 133 (GUJ) HAVE GIVEN REASONED RULING DISTINGUISHING THE DECISION OF MERILYN SHIPPING & TRANSPORT. THE HIGH COURTS HAVE HELD THA T THE VIEWS EXPRESSED IN THE CASE OF MERILYN SHIPPING & TRANSPORTS ARE NOT ACCEPTABLE. IN VIEW O F DISCUSSION ABOVE THE DECISION OF HON. HIGH COURT OF ALLAHABAD IS TO BE COMPARED WITH THAT OF HON. HIGH COURT OF KOLKOTA . THE LATTER IS THE JURISDICTIONAL HIGH COURT AND ITS DECISION HAS TO PREVAIL. THE DECISION OF JURISDICTIONAL HIGH COURT IS THAT THE DECISION IN MERILYN SHIPPING & TRANSPORTS V. ACIT [2012] 20 TAX MANN.COM 244(VISAKHAPATNAM) (SB) IS NOT ACCEPTABLE. THIS BEING THE CASE, THE RELIANCE BY AU THORISED REPRESENTATIVE OF THE ASSESSEE TO DECISION IN MERILYN SHIPPING & TRANSPORTS V. ACIT [2012] 20 TAX MANN.COM 244(VISAKHAPATNAM) (SB) IN THE CASE IS NOT ACCEPTED BY ME. HENCE GROUND 2 IS DISMISSED. ITA NO. 701/KOL/15 M/S. DHAMEJA MINING . 4 9. BEFORE US THE LD.AR SUBMITS THAT THE ASSESSEE GA THERED INFORMATION REGARDING THE PAYEE DISCLOSING SUCH PAYMENT AS INCO ME IN RETURN OF INCOME AND THE SAME WAS BROUGHT TO THE NOTICE OF CIT-A. HE ALSO SUBMITS THAT THE RELIANCE WAS PLACED ON IN THE CASE OF MERLYN SHIPPI NG & TRANSPORT REPORTED IN 20 TAXMANN.COM 244(VISAG)(SB). INSPITE OF WHICH THE CIT-A DISMISSED THE GROUND INVOLVING THE SAME. 10. HEARD THE LD.AR AND PERUSED THE MATERIAL AVAILA BLE ON RECORD. WE FIND THAT THE ASSESSEE RELIED ON THE DECISION OF A SPECI AL BENCH IN THE CASE OF MERILYN SHIPPING & TRANSPORTS HELD THAT IF ALL THE AMOUNTS HAVE BEEN PAID, NO ADDITION SHALL BE MADE. THE CIT-A AFTER GOING THRO UGH THE VARIOUS DECISIONS AS RELIED ON BY THE ASSESSEE FOUND THE PRINCIPLE LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT OF CALCUTTA IN THE CASE O F CIT VS. CRESCENT EXPORT SYNDICATE REPORTED IN (2013) 33 TAXMANN.COM 250(CAL ) IS BINDING ON HIM AND APPLIED THE RATIO THEREIN TO THE FACTS OF THE PRESE NT ISSUE. THE HONBLE JURISDICTIONAL HIGH COURT OF CALCUTTA IN THE CASE O F CIT VS. CRESCENT EXPORT SYNDICATE DID NOT AGREE WITH THE FINDING OF THE SPECIAL BENC H THAT THE ASSESSING OFFICER CAN DISALLOW ONLY WHEN IF ANY AMO UNT IS FOUND TO BE PAYABLE AS ON THE YEAR END AND WAS PLEASED TO HOLD THE PRO VISIONS OF SECTION 40(A)(IA) OF THE ACT ARE APPLICABLE NOT ONLY TO THE AMOUNT W HICH IS SHOWN AS PAYABLE ON THE DATE OF BALANCE-SHEET, BUT IT IS APPLICABLE TO SUCH EXPENDITURE, WHICH BECOME PAYABLE AT ANY TIME DURING THE RELEVANT PREV IOUS YEAR AND WAS ACTUALLY PAID WITHIN THE PREVIOUS YEAR. WE FIND THA T THE ISSUE IN HAND IS SQUARELY COVERED BY THE DECISION SUPRA. IN THE PRESENT CASE, THE ONLY WORD PUT IN THE PROVI SION OF SECTION 40(A)(IA) OF THE ACT IS 'PAYABLE' AND NOT 'PAID' OR 'CREDITED', RATHER LEGI SLATURE CONSCIOUSLY REPLACED THE WORDS 'AMOUNTS CREDITED OR PAID' WITH THE WORD 'PAYABLE' IN THE FINAL ENACTMENT AND SUCH CHANGE WAS DONE WITH A PURPOSE. I AM OF THE VIEW THAT PRES UMPTION THAT ENACTMENT BROUGHT IN BY THE LEGISLATURE IS WELL-THOUGHT OFF AND PROPERLY WORDED IN ORDER TO GIVE MEANING TO ITS INTENT. THE LEGISLATURE BY CONSCIOUSLY REPLACING THE WORDS FROM 'CREDITED' OR 'PAID' OR 'PAYABLE', THE INTENT HAS BEEN MADE CLEAR THAT ONLY THE OUTSTANDING AMOUN T OR THE PROVISION FOR EXPENSES ARE LIABLE FOR TDS ARE TO BE DISALLOWED IN THE EVENT THERE IS DEFAULT IN NOT FOLLOWING THE TDS PROVISIONS UNDER CHAPTER XVII-B OF THE ACT. NO DOUBT THE OBJEC T OF SECTION 40(A)(IA) OF THE ACT IS TO ENSURE THAT THE TDS PROVISION AS PROVIDED IN CHAPTE R XVII-B IS IMPLEMENTED WITHOUT ANY DEFAULT. AS PER SECTION 40(A)(IA) OF THE ACT ANY IN TEREST, COMMISSION OR BROKERAGE, RENT, ITA NO. 701/KOL/15 M/S. DHAMEJA MINING . 5 ROYALTY, FEES FOR PROFESSIONAL SERVICES OR FEES FOR TECHNICAL SERVICES 'PAYABLE' ON WHICH TAX IS NOT DEDUCTED OR THE TAX IS DEDUCTED BUT THE SAME IS NOT PAID WITHIN THE TIME ALLOWED SUCH AMOUNT SHALL BE DISALLOWED WHILE COMPUTING THE INCO ME. THE SUB-SECTION SPEAKS OF THE AMOUNT 'PAYABLE' ON WHICH THE TAX IS NOT DEDUCTED AND THER EFORE IT SHOULD APPLY ONLY IF ANY AMOUNT IS 'PAYABLE', BUT IF THE AMOUNT IS ALREADY PAID THE PR OVISIONS OF THIS SECTION SHOULD NOT APPLY. THE CRUCIAL WORD IS 'PAYABLE'. THE QUESTION ARISES 'WHE THER PAYABLE MEANS PAYABLE AT THE END OF THE YEAR OR PAYABLE AT ANY TIME DURING THE YEAR THO UGH PAID DURING THE YEAR ITSELF? IF ONE LOOKS INTO THE TDS PROVISIONS FROM SECTIONS 194A TO 194K, IT WILL BE APPARENT THAT AS PER THE LANGUAGE OF THOSE SECTIONS, TAX IS TO BE DEDUCTED A T THE TIME THE AMOUNT IS PAID OR AT THE TIME WHEN THE AMOUNT IS CREDITED, I.E. WHEN THE LIABILIT Y IS ADMITTED AND IT BECOMES PAYABLE. THEREFORE WHEREVER THE PAYMENT IS COVERED BY AFORES AID SECTIONS WHETHER PAID OR CREDITED, TAX HAS TO BE DEDUCTED. SECTIONS 194 L AND 194 LA MAY A LSO BE LOOKED INTO WHICH SAYS THAT TAX HAS TO BE DEDUCTED ONLY AT THE TIME OF PAYMENT. THE LANGUAGE IN THESE SECTIONS THEREFORE SHOWS THAT THE LEGISLATURE HAS USED DIFFERENT LANGU AGE IN DIFFERENT SECTIONS. IT IS TRITE LAW THAT EACH AND EVERY WORD OF THE SECTION HAS ITS OWN MEAN ING AND WHILE DRAFTING SECTION 40(A)(IA) WAS MEANT TO BE APPLICABLE ONLY IF THE AMOUNTS COVE RED THEREIN WAS 'PAYABLE' AT THE END OF THE YEAR. REFERENCE MAY BE MADE, FOR THE SCOPE AND EFFECT OF SECTION 40(A)(IA) AS CLARIFIED BY CBDT IN CIRCULAR NO.5 OF 2005, DATE 15TH JULY, 2005 TO SHOW THAT THE INTENTION TO INTRODUCE THIS PROVISION WAS BROUGHT TO CURB BOGUS PAYMENTS BY CRE ATING BOGUS LIABILITY.' 12.4 IN OUR CONSIDERED OPINION, THERE IS NO AMBIGUI TY IN THE SECTION AND TERM 'PAYABLE' CANNOT BE ASCRIBED NARROW INTERPRETATION AS CONTENDED BY A SSESSEE. HAD THE INTENTIONS OF THE LEGISLATURE WERE TO DISALLOW ONLY ITEMS OUTSTANDING AS ON 31ST MARCH, THEN THE TERM 'PAYABLE' WOULD HAVE BEEN QUALIFIED BY THE PHRASE AS OUTSTAND ING ON 31ST MARCH. HOWEVER, NO SUCH QUALIFICATION IS THERE IN THE SECTION AND, THEREFOR E, THE SAME CANNOT BE READ INTO THE SECTION AS CONTENDED BY THE ASSESSE WHEN WE EXAMINE SECTION 40(A)(IA) IN THE BACKDROP O F THESE SECTIONS, WE FIND THAT IT REFERS TO THE AMOUNT 'PAYABLE' 'ON WHICH TAX WAS DEDUCTIBLE A T SOURCE UNDER CHAPTER XVII-B'. APPLYING THE PRINCIPLES OF EUJESDEM GENERIS, IT CAN EASILY B E INFERRED THAT TERM 'PAYABLE' IN SECTION 40(A)(IA) HAS TO BE INTERPRETED IN THE LIGHT OF SUM REFERRED TO IN VARIOUS SECTIONS CONTAINED IN CHAPTER XVII-B NOTED ABOVE, ON WHICH TAX WAS DEDUCT IBLE AND, THEREFORE, THE TERM 'PAYABLE' IN SECTION 40(A)(IA) REFERS TO ENTIRE AMOUNT ON WHICH TAX WAS REQUIRED TO BE DEDUCTED. KEEPING IN VIEW THE PRINCIPLES OF HARMONIOUS CONSTRUCTION, THE TERM 'PAYABLE' IN SECTION 40(A)(IA) CANNOT BE READ SEPARATELY FROM THE PROVISIONS RELATING TO TDS AS PLEADED ON BEHALF OF ASSESSEE. IN OUR OPINION, LD. CIT (APPEALS) HAS RIGHTLY OBSERVED THA T TAKING THE SPIRIT OF TDS PROVISION INTO ACCOUNT AND SECTION 40(A)(IA) BEING DIRECTLY RELATE D TO SUCH TDS PROVISION, A HARMONIOUS CONSTRUCTION OF THE WORD 'PAYABLE' LEADS TO INEVITA BLE CONCLUSION THAT THE SAID WORD ALSO INCLUDES THE 'PAID' AMOUNT. 21. IN VIEW OF ABOVE DISCUSSION, WE ANSWER THE QUES TION AS UNDER:- THE PROVISIONS OF SECTION 40(A)(IA) OF THE INCOME T AX ACT, 1961, ARE APPLICABLE NOT ONLY TO THE AMOUNT WHICH IS SHOWN AS PAYABLE ON THE DATE OF BAL ANCE-SHEET, BUT IT IS APPLICABLE TO SUCH EXPENDITURE, WHICH BECOME PAYABLE AT ANY TIME DURIN G THE RELEVANT PREVIOUS YEAR AND WAS ACTUALLY PAID WITHIN THE PREVIOUS YEAR. IN THE RESU LT THE QUESTION IS DECIDED IN FAVOUR OF REVENUE AND AGAINST THE ASSESSEE.' 11. HENCE, RESPECTFULLY FOLLOWING THE DECISION OF T HE HONBLE CALCUTTA HIGH COURT IN THE CASE OF SUPRA WE DISMISS THE PLEA OF THE ASSESSEE THAT PROVISIONS OF SECTION 40(A)(IA) OF THE ACT CANNOT BE MADE APPL ICABLE IN RESPECT OF AMOUNTS PAID BEFORE THE END OF THE PREVIOUS YEAR. 12. HOWEVER, THE ASSESSEE HAD SUBMITTED THE INFORMA TION BEFORE THE CIT-A THAT THE PAYEES HAVE DULY REFLECTED THIS SUBJECT ME NTIONED RECEIPTS IN THEIR RETURNS OF INCOME AND PAID TAXES THEREON. WE FIND T HAT THE AMENDMENT IN ITA NO. 701/KOL/15 M/S. DHAMEJA MINING . 6 SECTION 40(A)(IA) OF THE ACT HAS BEEN HELD TO BE RE TROSPECTIVE IN OPERATION IN THE LIGHT OF THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ANSAL LAND MARK TOWNSHIP (P) LTD REPORTED IN 377 IT R 635 (DEL). RESPECTFULLY FOLLOWING THE SAID DECISION, WE DEEM IT FIT AND PRO PER AND IN THE INTEREST OF JUSTICE AND FAIR PLAY SET ASIDE THIS ISSUE TO THE FILE OF THE AO FOR EXAMINATION OF SUBJECT MENTIONED RECEIPTS IN THE HANDS OF THE RESP ECTIVE PAYEES BASED ON DETAILS PROVIDED TO THAT EFFECT BY THE ASSESSEE. ON CE, IF IT IS PROVED TO BE CORRECT THEN NO DISALLOWANCE U/S. 40(A)(IA) OF THE ACT WOULD BE OPERATIVE IN THE HANDS OF THE ASSESSEE. ACCORDINGLY, GROUND NO.1 OF ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 13. GROUND NO. 2 IS RELATING TO ADDITION OF RS.2,05 ,102/- BEING THE INCOME FROM UNDISCLOSED SOURCE U/S. 69A OF THE ACT. 14. DURING THE COURSE OF ASSESSMENT THE AO OBTAINED INFORMATION FROM M/S. S.K ENTERPRISES, BOKARO STEEL CITY, JHARKHAND U/S. 133(6) OF THE ACT. ON VERIFICATION OF SUCH INFORMATION THE AO FOUND THAT THE CLOSING BALANCE OF ASSESSEE IN THE BOOKS OF SAID M/S. S.K ENTERPRISES. BUT THE SAME WAS NOT REFLECTED IN ASSESSEES AUDITED BALANCE SHEET. FURT HER HE FOUND THAT THE SAID AMOUNT WAS CLEARED ON 14-04-2010 THROUGH CHEQUE REL EVANT TO FY 2009-10. THE AO TREATED THE SAME AS INCOME FROM UNDISCLOSED SOURCE FOR NOT REFLECTING THE SAME IN THE BALANCE SHEET OF THE ASSESSEE U/S. 69A OF THE ACT AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. 15. BEFORE THE CIT-A THE ASSESSEE SUBMITTED THAT IT HAS RECEIVED THE ENTIRE PAYMENTS AND NOTHING WAS REMAINED PAYABLE DURING TH E YEAR. THE SUBMISSIONS OF WHICH IS REPRODUCED HEREIN BELOW:- AS PER THE BOOKS OF M/S.S.K ENTERPRISE THE CLOSING ENTRY OF RS.2,05,102/- RESULTING THEREBY THAT OUT OF TOTAL BILLS RAISED AMOUNTING TO RS.62,72,102 , THE PAYMENTS WERE RECEIVED TO THE EXTENT OF RS.60,67,000/- AND A SUM OF RS.2,05,102/- WAS YET TO BE PAID. A GOOD AMOUNT OF CASH PAYMENT WAS MADE BY S.K ENTE RPRISE, WHICH PAYMENT MIGHT HAVE NOT BEEN CORRECTLY. SINCE THE ASSESSEE IS CLAIMING THAT HE HAS RECEIVED THE ENTIRE PAYMENTS DURING THE YEAR AND THERE WAS NOTHING RECEIVABLE, THERE IS NO QUESTION OF ANY DOUBTS TO BE RAISED AS ALL ITA NO. 701/KOL/15 M/S. DHAMEJA MINING . 7 GROSS BILL HAVE BEEN DISCLOSED AND OFFERED FOR TAXA TION. THERE IS NO REASON TO DISBELIEVE THE APPELLANTS BOOKS AND RELIED ON THE BOOKS OF S.K EN TERPRISE, WHICH ENTRY HAVE BEEN MADE SUITING TO HIS CONVENIENCE. 16. THE CIT-A DOUBTED THE VERACITY OF THE SUBMISSIO N WHETHER IT WAS TAKEN INTO PROFIT AND LOSS ACCOUNT AND TAXED THERE ON OR NOT CONSIDERING THE ABOVE SUBMISSIONS OF THE ASSESSEE IN RESPECT OF GROSS BIL L WAS DISCLOSED AND OFFERED FOR TAXATION AND CONFIRMED THE ADDITION MADE BY THE AO IN THIS REGARD. THE OBSERVATION OF WHICH IS REPRODUCED HEREIN BELOW:- 11. THE EXPLANATION OFFERED BY THE APPELLANT HAS BEEN CONSIDERED. THE FACT IS THAT THE FINDING OF THE ASSESSING OFFICER THAT TH E SUM RECEIVED BY CHEQUE AFTER THE END OF THE FINANCIAL YEAR AGAINST BUSINESS RECEIAVA BLES AT THE END OF FINANCIAL YEAR IS NOT FIGURING IN THE BALANCE SHEET. THUS AN INCONTRO VERTIBLE FACT OF AN ASSET NOT RECORDED IN THE BOOKS OF ACCOUNT EXISTS. THIS FACT IS INDEPENDENT OF WHETHER THE SUM IS INCLUDED AS A BUSINESS RECEIPT OR NOT. THE FAC T OF EXISTENCE OF UNACCOUNTED ASSETS IN THE FORM OF BUSINESS RECEIVABLES STANDS SUBSTANT IATED. THIS IS INDEPENDENT OF WHETHER IT IS ALREADY TAKEN TO PROFIT AND LOSS ACCO UNT AND PROFIT ELEMENT OF SAME IS TAXED OR NOT. HENCE, I UPHOLD THE ADDITION MADE BY THE ASSESSING OFFICER. 17. THE LD.AR SUBMITS THAT THE CONTENTION OF THE AS SESSEE WAS THAT HE DID NOT RECEIVE SUCH AMOUNT. THE CHEQUE WAS FILED BEFOR E THE CIT-A TO PROVE THAT THE SAID CHEQUE WAS NEVER RECEIVED BY THE ASSESSEE. WITHOUT CONSIDERING THE SAME THE CIT-A CONFIRMED THE IMPUGNED ADDITION MADE BY THE AO. THE CIT-A ALSO OBSERVED THAT THE EXPLANATION OFFERED BY THE A SSESSEE BEFORE HIM WAS INDEPENDENT AND DOUBTED WHETHER IT WAS TAKEN TO PRO FIT AND LOSS ACCOUNT AND OFFERED TO TAX OR NOT. IN SUCH CIRCUMSTANCES, THE L D.AR SUBMITS THAT THE ASSESSEE UNDERTAKES TO APPEAR BEFORE THE AO FOR VER IFICATION OF SUCH DETAILS AND URGED TO REMAND THE ISSUE TO THE AO. 18. HEARD THE LD.AR AND PERUSED THE MATERIAL AVAILA BLE ON RECORD. WE FIND THAT THE AO ADDED THE IMPUGNED ADDITION FOR NOT DIS CLOSING THE SAME IN THE BALANCE SHEET AND BY OBSERVING THE SAME WAS SETTLED THROUGH CHEQUE ON 14- 04-2010. ADMITTEDLY, THE SUBMISSION AS MADE BY THE ASSESSEE BEFORE THE CIT- A THAT ASSESSEE HAS TAKEN INTO CONSIDERATION THE G ROSS BILL, WHICH WAS DISCLOSED AND OFFERED FOR TAXATION, WHEREIN THE SAI D IMPUGNED AMOUNT IS PART ITA NO. 701/KOL/15 M/S. DHAMEJA MINING . 8 AND PARCEL OF SAID GROSS BILL. THE CIT-A FOUND THE SAME AS INDEPENDENT AND DOUBTED THE SAME IS TAXED OR NOT. IN VIEW OF SUCH O BSERVATIONS AND TAKING INTO CONSIDERATIONS THE SUBMISSION AS ADVANCED BY THE LD .AR OF THE ASSESSEE, WE ARE OF THE VIEW THAT THE ISSUE REQUIRES FRESH EXAMI NATION IN TERMS OF THE CONTENTION OF THE ASSESSEE THE GROSS BILL AMOUNT HA VE BEEN DISCLOSED AND OFFERED THE TAX OR NOT. HENCE, AO IS DIRECTED TO DE CIDE THIS ISSUE AFRESH IN ACCORDANCE WITH LAW, UNINFLUENCED BY EARLIER DECISI ON AND DECISION OF CIT-A IN THIS REGARD. THEREFORE, GROUND NO. 2 OF ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 19. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 21-12- 2016 SD/- SD/- M.BALAGANESH S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 21/12/ 2016 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT/ ASSESSEE : M/S. DHAMEJA MINING 276 SARADA PALLY, SANTADANGAL, PIN 713325. 2 THE RESPONDENT/ REVENUE : INCOME TAX OFFICER WARD 2(4), PARMAR BUILDING G.T ROAD, ASANSOL 713304 . 3 / THE CIT(A) 4.THE CIT 5. DR, ITAT, KOLKATA BENCH 6 . GUARD FILE . **PP/SPS TRUE COPY, BY ORDER, ASSTT REGISTR AR ITA NO. 701/KOL/15 M/S. DHAMEJA MINING . 9 ITA NO. 701/KOL/15 M/S. DHAMEJA MINING . 10