Dr. Murari Mohan Kolay, Kolkata V. ITO, Ward 22(3), Kolkata, Kolkata

ITA 720/KOL/2017

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9757 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 12-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDER
• Assessee Lawyers: S M SURANA
• Keywords: Unexplained investment; Revised return
• Section: 143(3); 147; 148; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA A BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER) I.T.A NO. 720/KOL/2017 ASSESSMENT YEAR: 2010-11 I.T.A NO. 721/KOL/2017 ASSESSMENT YEAR: 2011-12 DR. MURARI MOHAN KOLAY.............................................APPELLANT 114/4/1A, TOLLYGUGNE ROAD KALIGHAT KOLKATA 700 026 [PAN : AFRPK 1976 K] INCOME TAX OFFICER, WARD-22(3), KOLKATA.......................................................................RESPONDENT APPEARANCES BY: SHRI S.M. SURANA, ADVOCATE, APPEARED ON BEHALF OF THE ASSESSEE. SHRI SANKAR HALDER, CIT, SR. D/R, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : NOVEMBER 8 TH , 2018 DATE OF PRONOUNCING THE ORDER : DECEMBER 12 TH , 2018 ORDER PER J. SUDHAKAR REDDY, AM :- BOTH THESE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE IDENTICAL ORDERS OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-6, KOLKATA, (HEREINAFTER THE LD.CIT(A)), PASSED U/S. 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 07/03/2017, FOR THE ASSESSMENT YEAR 2010-11 & 2011-12. 2. AS THE ISSUES ARISING IN BOTH THESE APPEALS ARE IDENTICAL, FOR THE SAKE OF CONVENIENCE THEY ARE HEARD TOGETHER AND DISPOSED OFF BY THE WAY OF THIS COMMON ORDER. 3. THE ASSESSEE IS AN INDIVIDUAL AND IS A DOCTOR BY PROFESSION. HE IS EMPLOYED AS A DOCTOR WITH THE GOVERNMENT OF WEST BENGAL. FOR THE ASSESSMENT YEAR 2010-11, HE FILED THE RETURN OF INCOME U/S 139 OF THE ACT, ON 30/07/2010, DECLARING TOTAL INCOME OF RS.5,55,520/- AND FOR THE ASSESSMENT YEAR 2011-12 ON 01/08/2011, DECLARING TOTAL INCOME OF RS.5,79,527/-. THE ASSESSING OFFICER ISSUED NOTICES U/S 148 OF THE ACT FOR BOTH THE ASSESSMENT YEARS RE-OPENING THE ASSESSMENTS. THE ASSESSEE FURNISHED RETURNS OF 2 I.T.A NO. 720/KOL/2017 ASSESSMENT YEAR: 2010-11 I.T.A NO. 721/KOL/2017 ASSESSMENT YEAR: 2011-12 DR. MURARI MOHAN KOLAY INCOME FOR BOTH THE ASSESSMENT YEARS, IN RESPONSE TO THESE NOTICES. FOR THE ASSESSMENT YEAR 2010-11, THE ASSESSEE DISCLOSED AN AMOUNT OF RS.37,00,000/- AS AGRICULTURAL INCOME ADMITTEDLY IN THE RETURN FURNISHED U/S 148 OF THE ACT AND FOR THE ASSESSMENT YEAR 2011-12, HE DISCLOSED ADDITIONAL AGRICULTURAL INCOME OF RS.17,15,501/- IN THE RETURN FILED TO NOTICE U/S 148 OF THE ACT. 3.1. IT HAD COME TO THE KNOWLEDGE OF THE ASSESSING OFFICER THAT THE ASSESSEE MAINTAINED A SAVINGS BANK ACCOUNT NO. 116010100002738, WITH AXIS BANK AT HOWRAH BRANCH AND THE TRANSACTIONS IN THIS ACCOUNT WERE NOT DISCLOSED. THE CASH DEPOSITS FOR THE ASSESSMENT YEAR 2010-11 WERE RS.37,75,800/- AND CLEARING DEPOSITS WAS RS.16,55,496/- ON DIFFERENT DATES. THERE WAS A INTEREST CREDIT OF RS.6,100/- DURING THE YEAR. SIMILARLY FOR THE ASSESSMENT YEAR 2011-12, THERE WAS CASH DEPOSITS OF RS.14,26,800/- AND CLEARING DEPOSITS OF RS.6,62,170/-, IN THIS BANK ACCOUNT. IN THE REVISED RETURN OF INCOME FOR BOTH THE ASSESSMENT YEARS FILED IN RESPONSE TO NOTICE U/S 148 OF THE ACT, THE ASSESSEE SOUGHT TO EXPLAIN THESE DEPOSITS AS AGRICULTURAL INCOME EARNED. THE ASSESSING OFFICER FOR THE VARIOUS REASONS GIVEN IN THIS ORDER, TREATED THE CASH DEPOSITS AS UNEXPLAINED AND ADDED AN AMOUNT OF RS.37,75,800/-, RS.16,55,496 AND INTEREST OF RS.6,100/- AS UNDISCLOSED INCOME IN ADDITION TO THE AMOUNT OF RS.37 LAKHS/- CLAIMED AS AGRICULTURAL INCOME BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2010-11 IN AN ORDER PASSED U/S 143(3) OF THE ACT. SIMILARLY FOR THE ASSESSMENT YEAR 2011-12, THE CASH AND CLEARING DEPOSITS OF RS.20,88,970/- WAS ADDED ALONG WITH THE CLAIM FOR AGRICULTURAL INCOME OF RS.17,50,501/- IN THE ASSESSEE ORDER PASSED U/S 147 R.W.S. 143(3) OF THE ACT. THE ASSESSING OFFICER RECORDED THAT THE ASSESSEE HAD SHOWN LAND OF ONLY 0.28 ACRES AND MADE A CLAIM OF EARNING AGRICULTURAL INCOME ON SUCH LAND OF RS.37 LAKHS/- FOR THE ASSESSMENT YEAR 2010-11 AND RS.17,50,501/- FOR THE ASSESSMENT YEAR 2011-12, AND THAT THIS CLAIM CANNOT BE BELIEVED. HE FURTHER RECORDS THAT THE ASSESSEE FAILED TO PRODUCE PROOF OF EXPENDITURE INCURRED ON AGRICULTURE ETC. AT PARA 7, PAGE 5 OF HIS ORDER, FOR THE ASSESSMENT YEAR 2010-11, HE HELD AS FOLLOWS:- 7. CONSIDERING THE FACTS AND MATERIALS AVAILABLE ON RECORDS, THE ASSESSEE HAS FILED TO PRODUCE THE PROPER EVIDENCES OF AGRICULTURAL INCOME AND NO SUFFICIENT AGRICULTURAL LAND IS AVAILABLE WITH THE ASSESSEE FOR CULTIVATING THE CORPS/PRODUCT FOR 3 I.T.A NO. 720/KOL/2017 ASSESSMENT YEAR: 2010-11 I.T.A NO. 721/KOL/2017 ASSESSMENT YEAR: 2011-12 DR. MURARI MOHAN KOLAY EARNING THE AGRICULTURAL INCOME OF RS.37,00,000/-. MOREOVER, THE ALLEGED INCOME HAS CLAIMED TO HAVE DERIVED IN 9 MONTHS AS PER COPY OF AGREEMENT FOR SALE OF AGRICULTURAL LAND. HENCE, THERE IS NO AGRICULTURAL INCOME OF THE ASSESSEE AND CLAIMED DEDUCTIONS AS PER PROVISIONS OF INCOME TAX ACT, 1961 IS DISALLOWED OF RS.3700000/- AND ADDED TO THE INCOME OF THE ASSESSEE. 3.2. AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL. THE LD. FIRST APPELLATE AUTHORITY DELETED THE ADDITIONS MADE OF RS.37 LAKHS/- FOR THE ASSESSMENT YEAR 2010-11 AND RS.17,50,501/- FOR THE ASSESSMENT YEAR 2011-12, ON THE GROUND THAT THIS INCOME IS ALREADY ADDED BY WAY OF UNEXPLAINED INVESTMENTS BASED ON UNEXPLAINED CASH AND CHEQUE DEPOSITS IN THE BANK ACCOUNT. AS THE CASH DEPOSITS WERE ONLY RS.14,36,800/-, FOR ASSESSMENT YEAR 2010-11, THE DIFFERENCE OF RS.3,13,701/-, WAS ADDED AS THE ASSESSEE HAS NOT FURNISHED AN EXPLANATION FOR THE DEPOSITS. THE CHEQUES DEPOSITED FOR BOTH THE ASSESSMENT YEARS, WERE ADDED. THE ASSESSING OFFICER WAS DIRECTED TO MAKE AN ADDITION OF INTEREST EARNED ON THIS BANK ACCOUNT FOR THESE YEARS. 4. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE UNDERTAKES ORGANIC FARMING AND HENCE THE RETURN OF INCOME SHOWN BY HIM OUT OF SUCH AGRICULTURAL ACTIVITY IS JUSTIFIED. HE FURTHER SUBMITTED THAT IT IS NOT CORRECT ON THE PART OF THE ASSESSING OFFICER TO HOLD THAT THE ASSESSEE ONLY HAD 0.28 ACRES OF LAND BUT THE FACTS IS THAT THE ASSESSEE HAD MORE THAN 329 SATAKS OF FAMILY CULTIVABLE LAND WHICH MEASURES TO ABOUT 15,000 SQ. FT. HE REFERRED TO THE INFORMATION FURNISHED BY THE GRAM PANCHAYAT VIDE ITS LETTER DT. 03/03/2015 AND SUBMITTED THAT THE SARPANCH CONTRADICTED HERSELF, AS IN THE FIRST PARA SHE DENIED THAT CERTIFICATE WAS ISSUED BY HER TO THE ASSESSEE AND AT THE SAME TIME SHE ALSO STATES IN THE LATTER PART OF THE LETTER THAT THE CERTIFICATE PUT UP BEFORE HER WAS SIGNED BY HER. HE SUBMITTED THAT THE ASSESSING OFFICER WHILE RELYING ON THIS SECOND LETTER HAD NOT RELIED ON THE FIRST LETTER GIVEN BY THE SARPANCH WHERE SHE CERTIFIED THE AGRICULTURAL INCOME DECLARED BY THE ASSESSEE. HE ARGUED THAT OPPORTUNITY OF CROSS-EXAMINING THE SARPANCH SHOULD BE PROVIDED TO THE ASSESSEE OR IN THE ALTERNATIVE THE CERTIFICATE GIVEN BY THE GRAM PANCHAYAT, CERTIFYING THE AGRICULTURAL INCOME HAS TO BE ACCEPTED. HE RELIED ON THE SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIES AND PRAYED THAT THE ADDITION BE DELETED. 4 I.T.A NO. 720/KOL/2017 ASSESSMENT YEAR: 2010-11 I.T.A NO. 721/KOL/2017 ASSESSMENT YEAR: 2011-12 DR. MURARI MOHAN KOLAY 5.1. THE LD. D/R, ON THE OTHER HAND, OPPOSED THE CONTENTIONS OF THE LD. COUNSEL FOR THE ASSESSEE AND SUBMITTED THAT THE UNDISCLOSED BANK ACCOUNT BELONGING TO THE ASSESSEE WAS FOUND AND THE ASSESSEE SOUGHT TO EXPLAIN THE DEPOSITS THEREIN BY CLAIMING THAT HE HAD AGRICULTURAL INCOME. HE POINTED OUT THAT BEFORE THE ASSESSING OFFICER HE PRODUCED AN AGREEMENT WHICH SHOWED THAT THE ASSESSEE HAD ONLY 6 SATAKS AND ONLY 22 SATAKS OF AGRICULTURAL LAND, WHICH ON CONVERSION WOULD BE 0.28 ACRES AND WHEREAS, WHEN THE MATTER CAME UP BEFORE THE LD. CIT(A) HE CLAIMED THAT 329 SATAKS OF LAND WAS UTILIZED BY HIM FOR AGRICULTURE. HE POINTED OUT THAT THE ASSESSEE HAS SHOWN ASTRONOMICAL FIGURES AS AGRICULTURAL INCOME WHICH IS NOT SUPPORTED WITH EVIDENCE AND THE SIZE OF THE LAND HOLDING. HE FURTHER SUBMITTED THAT THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE WHATSOEVER TO SUBSTANTIATE THE RECEIPT OF AGRICULTURAL INCOME OR TO SUBSTANTIATE THAT EXPENDITURE, THAT IS WAS CLAIMED TO HAVE BEEN INCURRED FOR THE AGRICULTURAL OPERATIONS. HE SUBMITTED THAT THE ORDER OF THE LD. CIT(A) WAS JUSTIFIED AND THE SAME SHOULD BE UPHELD. 6. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS:- 7. AN UNACCOUNTED SAVINGS BANK ACCOUNT OF THE ASSESSEE BEARING NO. 116010100002738, WITH AXIS BANK AT HOWRAH BRANCH, WAS DISCOVERED BY THE REVENUE AND THE ASSESSMENTS WERE REOPENED BASED ON THIS INFORMATION. WHEN CONFRONTED, THE ASSESSEE SOUGHT TO EXPLAIN THE DEPOSITS BY CLAIMING THAT HE HAS EARNED AGRICULTURAL INCOME RS.37 LAKHS/- FOR THE ASSESSMENT YEAR 2010-11 AND RS.17,50,501/-, FOR ASSESSMENT YEAR 2011-12. THIS CLAIM COULD NOT BE SUBSTANTIATED BY THE ASSESSEE EITHER BY WAY OF EVIDENCE OF HAVING RECEIVED AGRICULTURAL INCOME OR WITH EVIDENCES OF HAVING INCURRED EXPENDITURE TOWARDS CULTIVATION. THE SIZE OF THE AGRICULTURAL HOLDING, EVEN IF IT IS TAKEN AT 329 SATAKS, WHICH WORKS OUT TO ABOUT 3.25 ACRES OF LAND, DOES NOT JUSTIFY THE CLAIM OF AGRICULTURAL INCOME AT THIS ABNORMAL AND FANATIC FIGURE OF RS.37 LAKHS/- FOR THE ASSESSMENT YEAR 2010-11 AND RS.17,50,501/- FOR THE ASSESSMENT YEAR 2011-12. EVEN IN ORGANIC FARMING SUCH LARGE INCOMES CANNOT BE JUSTIFIES ON SUCH LAND HOLDINGS. THE LD. FIRST APPELLATE AUTHORITY AT PARA 7 TO PARA 9 OF HIS ORDER HAS, IN OUR VIEW, APPROPRIATELY 5 I.T.A NO. 720/KOL/2017 ASSESSMENT YEAR: 2010-11 I.T.A NO. 721/KOL/2017 ASSESSMENT YEAR: 2011-12 DR. MURARI MOHAN KOLAY DEALT WITH THE MATTER. HE HAS GRANTED BENEFIT TO THE ASSESSEE BY DELETING THE ADDITION MADE TOWARDS AGRICULTURAL INCOME FOR THE REASON THAT THE UNEXPLAINED CASH DEPOSITS WERE ALREADY ADDED FOR BOTH THE ASSESSMENT YEARS. THE DOUBLE ADDITION HAS BEEN DELETED. NO OTHER ISSUE HAS BEEN ARGUED BEFORE US. 7.1. WE FIND NO INFIRMITY IN THE ORDER OF THE LD.CIT(A). HENCE WE UPHOLD THE SAME AND DISMISS BOTH THE APPEALS OF THE ASSESSEE. 8. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE DISMISSED. KOLKATA, THE 12 TH DAY OF DECEMBER, 2018. SD/- SD/- [ S.S.VISWANETHRA RAVI] [ J. SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 12.12.2018 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. DR. MURARI MOHAN KOLAY 114/4/1A, TOLLYGUGNE ROAD KALIGHAT KOLKATA 700 026 2. INCOME TAX OFFICER, WARD-22(3), KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES