ITO,Ward-5(4), Kolkata, Kolkata V. M/s Balailal Mukherjee & Co.Pvt. Ltd., Kolkata

ITA 743/KOL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74981 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2014
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 10-05-2012
• Court: TRIBUNAL
• Department Lawyers: P K CHAKRABORTY
• Assessee Lawyers: D S DAMLE
• Keywords: Unexplained cash credit; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [BEFORE HONBLE SRI ABRAHAM P.GEORGE, AM & HONBL E SRI GEORGE MATHAN, JM] ITA NO.743/KOL/2012 ASSESSMENT YEAR : 2007-08 ( APPELLANT ) (RESPONDENT) I.T.O., WARD-5(4) -VS- M/S.BALAILAL MUKHERJEE C O. KOLKATA PVT. LTD., KOLKATA (PAN: AABCB 0985 F) FOR THE APPELLANT SHRI P.K.CHAKRABORTY, JCIT, SR.DR FOR THE RESPONDENT: SHRI D.S.DAMLE, FCA DATE OF HEARING : 16.01.2014 DATE OF PRONOUNCEMENT : 17. 01.2014. ORDER PER SHRI GEORGE MATHAN, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. C.I.T(A)-VI,.- KOLKATA- IN APPEAL .NO.933/CIT(A)-VI/WD-5(3)/09-10/ KOL DATED 21-02-2012 FOR ASSESSMENT YEAR 2007-08. 2. SHRI P.K.CHAKRABORTY, JCIT,SR.DR REPRESENTED O N BEHALF OF THE REVENUE AND SHRI D.S.DAMLE, FCA REPRESENTED ON BEHALF OF THE ASSESSEE. 3. IN THE REVENUES APPEAL THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , LD. CIT(A) ERRED IN LAW IN DELETING THE ADDITION BY ACCEPTING THE SUBMISSION OF THE ASS ESSEE DURING THE APPEAL STAGE, WHICH THE ASSESSEE FAILED TO PRODUCE DURING THE ASSESSMEN T PROCEEDINGS. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) ERRED IN LAW IN DELETING THE ADDITIONS MADE BY THE A.O. U/S 68 OF THE I.T.AC T, 1961 ON ACCOUNT OF UNEXPLAINED CASH CREDITS, THEREBY VIOLATING THE OBJECTIVES OF S ECTION 68 BY LD.CITA) AS THE SUM SO ADDED IN THE TOTAL INCOME OF THE ASSESSEE WAS FOUND CREDITED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE AND ASSESSEE FAILED TO OFFER ANY REASO NABLE SOURCE DURING THE ASSESSMENT PROCEEDINGS. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) ERRED IN LAW IN DELETING THE ADDITION WITHOUT CONSIDERING THE FACT THAT THE GENUINENESS AND CREDITWORTHINESS OF ITA NO.743/KOL/2012 M/S.BALAILAL MUKHERJEE & CO.PV.LTD. A.YR.2007-08 2 THE ADVANCE PAYERS WAS NOT PROVED EITHER IN THE ASS ESSMENT STAGE OR DURING THE APPELLATE PROCEEDINGS. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) ERRED IN LAW IN CONSIDERING THE ASSESSEES SUBMISSION AND /OR EXPLA NATION FURNISHED DURING APPEAL STAGE AS FRESH/ADDITIONAL EVIDENCE IS CONTRARY TO T HE PROVISIONS AS LAID DOWN IN RULE 46A OF THE INCOME TAX RULES, 1957. 5. THAT THE APPELLANT CRAVES FOR LEAVE TO ADD, DELE TE OR MODIFY ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 4. IT WAS SUBMITTED BY THE LD. SR.DR THAT IN THE CO URSE OF ASSESSMENT THE AO HAD ASKED SPECIFICALLY FOR THE VARIOUS DETAILS IN RESPE CT OF THE AMOUNTS RECEIVED BY THE ASSESSEE FOR FOREIGN COMPANIES IN RESPECT OF THE EX PENSES TO BE INCURRED ON THEIR BEHALF. IT WAS THE SUBMISSION THAT THE ASSESSEE WAS A STEAMER AGENT. IT WAS THE SUBMISSION THAT AS THE ASSESSEE DID NOT PROVIDE THE NAMES AND ADDRESSES AND CONFIRMATION FROM ALL THE PERSONS THE AO HAD DISALL OWED THE AMOUNTS SHOWN AS OUTSTANDING IN RESPECT OF THE CREDITORS TO THE EXTE NT OF RS.82,20,933/-. IT WAS THE SUBMISSION THAT ON APPEAL THE LD. CIT(A)ADMITTED FR ESH EVIDENCES AND HAD DELETED THE ADDITIONS. IT WAS THE SUBMISSION THAT THE ISSUES MA Y BE RESTORED TO THE FILE OF THE AO FOR RE-ADJUDICATION. 5. IN REPLY THE LD. AR DREW OUR ATTENTION TO PARA 5 OF THE ORDER OF THE LD. CIT(A). IT WAS THE SUBMISSION THAT ADMITTEDLY FRESH EVIDENC ES WERE PRODUCED BEFORE THE LD. CIT(A). IT WAS THE SUBMISSION THAT HOWEVER ALL THE DETAILS PRODUCED WERE SENT TO THE AO FOR REMAND REPORT. IT WAS THE SUBMISSION THAT IT WAS ONLY AFTER RECEIVING THE REMAND REPORT THE LD. CIT(A) HAD EXAMINED THE EVIDE NCES ALONG WITH THE REMAND REPORT AND DELETED THE ADDITIONS. IT WAS THE FURTHE R SUBMISSION THAT THE CREDITORS WHICH HAVE BEEN DISALLOWED BY THE AO WERE IN FACT THE SHI PPING COMPANIES WHO USED TO MAKE PAYMENTS TO THE ASSESSEE FOR THE EXPENSES TO B E INCURRED ON THEIR BEHALF BY THE ASSESSEE IN INDIA. IT WAS THE SUBMISSION THAT THE T RANSACTIONS WHICH THE CREDITORS WHO ARE IN FACT THE PRINCIPAL ON WHOSE BEHALF THE ASSES SEE WAS DOING STEAMER BUSINESS WAS A CONTINUOUS ACCOUNT AND THE INCOME FROM THE TRANSA CTIONS HAVE BEEN ACCEPTED BY THE AO AS OFFERED BY THE ASSESSEE. THE AO HAVING ACCEPT ED THE INCOME IN RESPECT OF THE TRANSACTIONS WITH THE SHIPPING COMPANIES NOW TREATI NG THE BALANCE OUTSTANDING REPRESENTING THE CREDITORS AS INCOME OF THE ASSESSE E BY HOLDING THAT THE ASSESSEE HAS ITA NO.743/KOL/2012 M/S.BALAILAL MUKHERJEE & CO.PV.LTD. A.YR.2007-08 3 NOT PROVED THE IDENTITY AND THE CREDITWORTHINESS OF THE CREDITORS WAS UNCALLED FOR. THE LD. AR VEHEMENTLY SUPPORTED THE ORDER OF THE LD. CI T(A). 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. ADMITT EDLY THE ASSESSEE IS HAVING TRANSACTIONS WITH VARIOUS CREDITORS WHO ARE NONE OT HER THAN VARIOUS SHIPPING COMPANIES. THE TRANSACTIONS WITH THE SHIPPING COMPA NIES WHICH HAS RESULTED IN THE ASSESSEE RECEIVING COMMISSION FEE HAS ALSO BEEN OFF ERED TO TAX. CONSEQUENTLY THE PICTURE IS THAT THE CREDITORS ARE GENUINE. HOWEVER, A PERUSAL OF THE ASSESSMENT ORDER AS ALSO THE REMAND REPORT OF THE AO SHOWS THAT THE AO IS ASKING FOR CONFIRMATION OF THE CLAIM OF CREDITS IN THE NAMES OF THE SHIPPING C OMPANIES. THOUGH THE ASSESSEE HAS PRODUCED CERTAIN CONFIRMATION ACCOUNTS BEFORE THE L D. CIT(A) ALONG WITH THE LEDGER ACCOUNTS THE SAME ADMITTEDLY WAS NOT BEFORE THE AO FOR HIS PROPER EXAMINATION. THIS IS BECAUSE THE AO DID NOT HAVE ADEQUATE TIME TO EXA MINE THESE EVIDENCES. IN THE CIRCUMSTANCES WE ARE OF THE VIEW THAT THE ISSUES IN THIS APPEAL MUST BE RESTORED TO THE FILE OF THE AO FOR RE-ADJUDICATION AFTER GRANTING T HE ASSESSEE ADEQUATE OPPORTUNITY TO SUBSTANTIATE ITS CASE. IN THE CIRCUMSTANCES THE ISS UES IN THIS APPEAL STAND RESTORED TO THE FILE OF THE AO FOR RE-ADJUDICATION. THE ASSESSEE SH ALL AT LIBERTY TO PRODUCE ALL SUCH EVIDENCES TO SUBSTANTIATE ITS CASE BEFORE THE AO. 7. IN THE RESULT THE APPEAL OF THE REVENUE STANDS P ARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 17.01.2014. SD/- SD/- [ABRAHAM P.GEORGE] [ GEORGE MATHAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 17.01.2014. R.G.(.P.S.) ITA NO.743/KOL/2012 M/S.BALAILAL MUKHERJEE & CO.PV.LTD. A.YR.2007-08 4 COPY OF THE ORDER FORWARDED TO: 1. M/S.BALAILAL MUKHERJEE CO.PVT. LTD., 25, SWALLOW LA NE, 1 ST FLOOR, KOLKATA-1. 2 I.T.O., WARD-5(4), KOLKATA 3 . CIT(A)- VI, KOLKATA 4. CIT - KOLKATA. 5. CIT(A)DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES