Susanta Biswas, Kolkata V. ITO, Ward - 1(1), Durgapur, Durgapur

ITA 745/KOL/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8138 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 16-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUJIT KUMAR SR DR PER
• Assessee Lawyers: H S BHATTACHARJEE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA [BEFORE SHRI C.D.RAO, A.M. & SHRI GEORGE MATHAN, J. M. ] I.T.A. NO.745/KOL/2011 ASSESSMENT YEAR :2005-06 SUSANTA BISWAS VS- I.T.O., WARD-1(1), DURGAPUR PRIYADARSHINI APARTMENT, (INDRADEEP HOUSING COMPLEX) BLOCK-B,F1, NO.GD, DUM DUM ROAD, KOLKATA 700 002 (PAN:AGEPB 8054D) ( APPELLANT ) ( RESPONDENT ) DATE OF CONCLUDING THE HEARING : 10.09.2012 DATE OF PRONOUNCING THE ORDER : 10.09.2012 APPEARANCES : FOR THE APPELLANT : SHRI H.S.B HATTACHARJEE : FOR THE RESPONDENT : SHRI SUJIT KUMAR, SR.(DR) O R D E R PER SHRI GEORGE MATHAN,J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A),DURGAPUR IN APPEAL NO.111/CIT(A)/DGP/2009-10 DATED 16 TH MARCH, 2011 FOR THE ASSESSMENT YEAR 2005-06. 2. SHRI H.S.BHATTACHARJEE, FCA REPRESENTED ON BEHAL F OF THE ASSESSEE AND SHRI SUJIT KUMAR REPRESENTED ON BEHALF OF THE REVENUE. 3. IN THE ASSESSEES APPEAL, THE ASSESSEE HAS RAISE D THE FOLLOWING GROUNDS: 1. THAT THE ORDER OF THE LEARNED COMMISSIONER OF I NCOME TAX (APPEALS) IS ABINITIO VOID AND UNLAWFUL. 2. THAT THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS) HAS ERRED IN LAW AS WELL AS IN FACT IN UPHOLDING THE TREATMENT O F RETENTION MONEY OF RS.11,68,929/- AS UNDISCLOSED INVESTMENT MADE BY TH E ASSESSING OFFICER. 2 ITA NO.745/KOL/2011 SUSANTA BISWAS ASSESSMENT YEAR: 2005-06 3. THAT THE DISALLOWANCE OF RS.11,68,929/- REFERRE D TO IN GROUND NO.2 ABOVE SHOULD BE ALLOWED IN FULL. 4. THAT THE APPELLANT CRAVES LEAVE TO SUPPLEMENT, CANCEL OR OTHERWISE AMEND ANY OF THE GROUNDS HEREINABOVE AT THE TIME OF OR BEFORE THE HEARING OF THE APPEAL . 4. IT WAS SUBMITTED BY THE LD. A.R. THAT THE ASSESS EE WAS DOING CONTRACT WORK FOR SIMPLEX INFRASTRUCTURES LTD. IT WAS THE SUBMISS ION THAT ON THE WORK DONE FOR SIMPLEX INFRASTRUCTURES LTD., SIMPLEX HAD BEEN HOLD ING BACK THE RETENTION MONEY. IT WAS SUBMISSION THAT AS ON 31.03.2005, THE RETENT ION MONEY WITHHELD BY SIMPLEX INFRASTRUCTURES LTD. WAS RS.11,68,929/-. IT WAS SUB MISSION THAT THIS AMOUNT WAS SUBSEQUENTLY GIVEN TO THE ASSESSEE DURING THE PERIO D 01.04.2005 TO 31.03.2006. IT WAS SUBMISSION THAT THIS AMOUNT HAD ALSO BEEN OFFER ED TO TAX FOR THE YEAR ENDED 31 ST MARCH, 2005 AS PER THE TDS CERTIFICATE FROM M/S. S IMPLEX. THE LD. A.R. DREW OUR ATTENTION TO PAGES 61 TO 63 OF THE PAPER BOOK, WHICH WERE THE COPIES OF THE TDS CERTIFICATES, WHEREIN THE AMOUNT AS MENTIONED I N THE LETTER DATED 07.07.2011 FROM M/S. SIMPLEX INFRASTRUCTURES LTD. WAS CATEGORI CALLY SHOWN. THE LD. A.R. ALSO DREW OUR ATTENTION TO PAGE 18 OF THE PAPER BOOK, WH ICH IS A COPY OF THE P&L A/C. FOR THE YEAR ENDED 31 ST MARCH, 2005 WHEREIN THE RECEIPTS, AS PER TDS CERTI FICATE, WERE ALSO DISCLOSED. THE LD. A.R. ALSO DREW OUR ATT ENTION TO THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2005-06 DATED 28.01.2007 WH EREIN THE VALUE OF THE WORK DONE HAS BEEN SHOWN AT RS.1,02,91,767/- IN RESPECT OF SIMPLEX CONCRETE PILES (INDIA) LTD. WAS TALLIED WITH THE AMOUNT AS SHOWN I N THE TDS CERTIFICATE NO.EZ/CON/2004-05/1038 FOR THE PERIOD 01.04.2004 TO 31.03.2005, WHICH INCLUDED THE AMOUNT OF RS.11,68,929/-. IT WAS, HOWE VER, FAIRLY ADMITTED BY THE LD. A.R. THAT THE LEDGER FROM SIMPLEX INFRASTRUCTURES L TD. DATED 07.07.2011 WAS NOT BEFORE THE AO. IT WAS SUBMISSION THAT AS THE AMOUNT OF RS.11,68,929/- HAD BEEN OFFERED BY THE ASSESSEE AS HIS INCOME, THE SAID RET ENTION AMOUNT HELD BY SIMPLEX INFRASTRUCTURES LTD. WAS NOT LIABLE TO BE TREATED A S UNDISCLOSED INCOME OF THE ASSESSEE. 3 ITA NO.745/KOL/2011 SUSANTA BISWAS ASSESSMENT YEAR: 2005-06 5. IN REPLY, THE LD. D.R. SUBMITTED THAT THE LETTER DATED 07.07.2011 HAVING NOT BEEN PLACED BEFORE THE AO, THE SAME WAS LIABLE TO B E RESTORED TO THE AO FOR VERIFICATION. HE VEHEMENTLY SUPPORTED THE ORDERS OF THE AO AND THE CIT(A). 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. ADMITT EDLY, ON PERUSAL OF THE LETTER DATED 07.07.2011 OF M/S. SIMPLEX INFRASTRUCT URES LTD. WHEN COMPARED WITH THE TDS CERTIFICATE FOR THE YEAR ENDED 31.03.2005, WHICH HAS BEEN SHOWN BY THE ASSESSEE AT PAGES 61 TO 63 OF THE PAPER BOOK AND IS TALLIED WITH THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2005-06 DATED 28.12.2 007 WOULD CLEARLY SHOW THAT THE AMOUNT OF RS.11,68,929/- HAS BEEN OFFERED BY TH E ASSESSEE WHEN COMPUTING ITS INCOME FOR THE RELEVANT ASSESSMENT YEAR. HOWEVER, A S IT HAS BEEN CATEGORICALLY SPECIFIED BY THE AO IN HIS ASSESSMENT ORDER AND HAS ALSO BEEN SPECIFICALLY ADMITTED TO BY THE LD. A.R. AND RELIED UPON BY THE LD. D.R. THAT THE LETTER DATED 07.07.2011 WHICH GIVES THE BREAK-UP OF THE RETENTIO N AMOUNT OF RS.11,68,929/- WHICH HAS BEEN TALLIED WITH THE TDS CERTIFICATE WAS NOT BEFORE THE AO, WE ARE OF THE VIEW THAT THIS ISSUE IS LIABLE TO BE RESTORED T O THE FILE OF THE AO FOR VERIFICATION AND WE DO SO. IN THE CIRCUMSTANCES, THE AO IS DIREC TED TO VERIFY THE AMOUNTS AS MENTIONED IN THE LETTER DATED 07.07.2011 FROM SIMPL EX INFRASTRUCTURES LTD. HAD BEEN OFFERED TO TAX AS PER THE TDS CERTIFICATE FOR THE PERIOD 01.04.2004 TO 31.03.2005. IF THE AMOUNT HAD BEEN OFFERED, AS PER THE TDS CERTIFICATE, THEN OBVIOUSLY THE SAID AMOUNT CANNOT BE TREATED AS THE UNDISCLOSED INCOME OF THE ASSESSEE. WITH THIS DIRECTION, THE APPEAL OF THE AS SESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON 10 TH SEPTEMBER, 2012. SD/- SD/- (C.D.RAO) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 10 TH SEPTEMBER, 2012 4 ITA NO.745/KOL/2011 SUSANTA BISWAS ASSESSMENT YEAR: 2005-06 COPY OF THE ORDER FORWARDED TO: 1. SUSANTA BISWAS, PRIYADARSHINI APARTMENT, (INDRADEEP HOUSING COMPLEX), BLOCK-B,F1, NO.GD, DUM DUM ROAD, KOLKATA 700 002 2 I.T.O., WARD-1(1), DURGAPUR 3. THE CIT(A), KOLKATA 4. CIT, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, ASSTT. REGISTRAR , ITAT, KOLKATA TALUKDAR(SR.P.S.)