Shri Shibsankar Ghosh , Nadia V. Pr.CIT - 14, Kolkata , Kolkata

ITA 828/KOL/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 4566 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 26-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MD USMAN
• Assessee Lawyers: K M ROY FCA SHRI P S GUPTA
• Keywords: Corroborative evidences
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA [BEFORE HONBLE SHRI S.S. GODARA, JM & SHRI M.BAL AGANESH, AM ] I.T.A NO. 828/KOL/201 8 ASSESSMENT YEAR : 2013-1 4 SHRI SHIBSANKAR GHOSH -VS- PR. CIT-14, KOLKA TA [PAN: AGPPG 7784 E] (APPELLANT) (RESPOND ENT) FOR THE APPELLANT : SHRI K.M.ROY, FCA SHRI P. S. GUPTA, ADVOCATE FOR THE RESPONDENT : SHRI MD. USMAN, CIT DR DATE OF HEARING : 24.07.2018 DATE OF PRONOUNCEMENT : 01.08.2018 ORDER PER M.BALAGANESH, AM 1. THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE O RDER OF THE LEARNED PRINCIPAL COMMISSIONER OF INCOME TAX-14, KOLKATA [IN SHORT TH E LD. CIT] IN MEMO NO. PR. CIT- 14/AGPPG7784E/263/2017-18/6301-03 DATED 20.03.2018 PASSED U/S 263 OF THE ACT AGAINST THE ORDER PASSED BY THE ACIT, CIRCLE-41, NA DIA [IN SHORT THE LD. AO] UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 [IN SHOR T THE ACT] DATED 23.09.2015 FOR THE ASSESSMENT YEAR 2013-14. 2 ITA NO.828/KOL/2018 SHRI SHIBSANKAR GHOSH A.YR. 2013-14 2 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS A S TO WHETHER THE LD. CIT WAS JUSTIFIED IN INVOKING THE REVISIONARY JURISDICTION U/S 263 OF THE ACT, IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSESS EE INDIVIDUAL IS A CIVIL CONTRACTOR. THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2013-14 WA S FILED ON 09.09.2013 DECLARING TOTAL INCOME OF RS. 42,64,920/-. THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT ON 23.09.2015 ACCEPTING THE INCOME RETURNED. THE LD. A O NOTED IN THE ASSESSMENT ORDER THAT THE ASSESSEE PRODUCED THE BOOKS OF ACCOUNTS, SUPPORTING EVIDENCES AND EXPLAINED THE RETURN TOGETHER WITH THE AUDITED ACCOUNTS. THIS ASSESSMENT WAS SOUGHT TO BE REVISED BY THE LD. CIT U/S 263 OF THE ACT, THAT THE ASSESSE E WAS IN RECEIPT OF LOAN FROM SMT. SHAMPA GHOSH AMOUNTING TO RS. 10,08,000/-. THE LD. CIT OBSERVED THAT THE LD. AO HAD NOT MADE PROPER ENQUIRIES WITH REGARD TO THIS LOAN TAKEN FROM SMT. SHAMPA GHOSH IN THE SUM OF RS. 10,08,000/- WHICH MADE HIS ORDER ERR ONEOUS INASMUCH AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE AND ACCORDINGLY, THE LD. CIT PASSED AN ORDER U/S 263 OF THE ACT ON 12.03.2018 SETTING ASIDE THE ASSESSMENT ORDE R FOR VERIFICATION OF THIS SPECIFIC ISSUE WITH THE ADDITIONAL DIRECTION THAT THE LD. AO SHOULD ALSO EXAMINE THE ASSESSEES CONTENTION WHETHER THE LOAN IS BROUGHT FORWARD FROM EARLIER YEAR. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD RIVAL SUBMISSIONS. AT THE OUTSET, WE FIND THAT THE ASSESSEE HAD RECEIVED LOAN OF RS. 10,08,000/- IN THE FINANCIAL Y EAR 2011-12 RELEVANT TO ASSESSMENT YEAR 2012-13. HENCE, IT COULD BE SAFELY CONCLUDED T HAT THIS LOAN WAS NOT RECEIVED DURING THE YEAR UNDER APPEAL. THE ASSESSEE HAS SPECIFICALL Y BROUGHT THIS POINT TO THE NOTICE OF THE LD. CIT TOGETHER WITH THE DATES OF RECEIPT OF L OANS FROM SMT. SHAMPA GHOSH; SOURCES FROM WHICH SMT. SHAMPA GHOSH HAD GIVEN THIS LOAN TO THE ASSESSEE AND CIRCUMSTANCES 3 ITA NO.828/KOL/2018 SHRI SHIBSANKAR GHOSH A.YR. 2013-14 3 UNDER WHICH THE ASSESSEE WAS FORCED TO AVAIL LOANS FROM SMT. SHAMPA GHOSH. APART FROM THIS, WE ALSO FIND THAT THE ASSESSEE HAD PLACE D THE COPY OF PAN CARD, THE RELEVANT PAGE OF THE BANK STATEMENT OF SMT. SHAMPA GHOSH MAI NTAINED WITH UNITED BANK OF INDIA, CHAKDAH BRANCH BEFORE THE LD. AO TOGETHER WI TH THE COPY OF SALE DEED OF SMT. SHAMPA GHOSH EXECUTED ON 27.12.2011 EXPLAINING THE SOURCE FOR SMT. SHAMPA GHOSH TO ADVANCE LOANS TO THE ASSESSEE DURING THE EARLIER ASSESSMENT YEAR 2012-13. THESE FACTS ARE PLACED BEFORE THE LD. AO WHICH ARE ENCLOSED IN PAGES 16 TO 21 OF THE PAPER BOOK. MOREOVER, WE ALSO FIND THAT THE LD. AO HAD EXAMINED SMT. SHAMPA GHOSH ON OATH AND RECORDED SWORN STATEMENT U/S 131(1) OF THE ACT ON 0 4.09.2015 WHEREIN HE HAD CATEGORICALLY STATED THAT SHE HAD ADVANCED LOAN TO THE ASSESSEE IN THE SUM OF RS. 10.08,000/- DURING THE FINANCIAL YEAR 2011-12 AND T HAT THE SAID LOAN WAS OUTSTANDING AS ON 31.03.2013. IN THE SAID SWORN STATEMENT, SHE HAD ALSO STATED THE SOURCE FOR ADVANCING LOAN TO THE ASSESSEE. THE COPY OF THE SAID SWORN ST ATEMENT IS ENCLOSED OF PAGES 22 AND 23 OF THE PAPER BOOK. THE LD. AO AFTER EXAMINING AL L THESE FACTS BROUGHT ON RECORD HAD TAKEN A CONSCIOUS DECISION AND THE CORRECT VIEW IN THE MATTER THAT NO ADDITION IS WARRANTED TOWARDS THE LOAN AMOUNT OF RS. 10,08,000/ - IN THE CASE OF THE ASSESSEE. HENCE, THE POSSIBLE VIEW TAKEN BY THE LD. AO CANNOT BE SOUGHT TO BE DISTURBED MERELY BECAUSE THE LD. CIT IS OF A DIFFERENT VIEW. THIS IS NOTHING BUT THE LD. CIT TRYING TO SUBSTITUTE HIS VIEW OVER THE VIEW TAKEN BY THE LD. AO IN THE REVISIONARY JURISDICTION U/S 263 OF THE ACT, WHICH IN OUR CONSIDERED OPINION, IS NOT PERMISSIBLE AS PER LAW. RELIANCE IN THIS REGARD IS PLACED ON THE DECISION OF THE HON BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. GABRIEL INDIA PVT. LTD. REPORTED IN 203 ITR 108. MOREOVER, WE FIND THAT IN ANY CASE THE LOAN WAS RECEIVED BY THE ASSESSEE ONLY IN THE EARLIER ASSESSMENT YEAR 2012-13 AND NOT IN ASSESSMENT YEAR 2013-14. HENCE, IN ANY C ASE, THERE CANNOT BE ANY ADDITION THAT COULD BE MADE IN THE HANDS OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2013-14 I.E. THE YEAR UNDER APPEAL IN RESPECT OF THE SAID LOAN. HEN CE THE ORDER OF THE LD. AO CANNOT BE TREATED AS ERRONEOUS AND PREJUDICIAL TO THE INTERES T OF THE REVENUE. 4 ITA NO.828/KOL/2018 SHRI SHIBSANKAR GHOSH A.YR. 2013-14 4 5. IN VIEW OF THE AFORESAID OBSERVATIONS, IN THE FA CTS AND CIRCUMSTANCES OF THE CASE, WE HAVE NO HESITATION TO QUASH THE REVISION ORDER PASS ED BY THE LD. CIT U/S 263 OF THE ACT. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE ARE ALL OWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON 01.08.2018 SD/- SD/- [S.S. GODARA] [ M .BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEM BER DATED : 01.08.2018 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. SHRI SHIBSANKAR GHOSH, C.O. P.S. GUPTA, ADVOCATE , 100, BANK LANE, HATARPARA, P.O.- KRISHNAGAR, DIST. NADIA-741101. 2. PR. CIT-14, KOLKATA, 3 NO. GOVT. PLACE(WEST), 2 ND FLOOR, KOLKATA-700001. 3..C.I.T.(A)- 4. C.I.T .- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S