ITO, Wd-33(2), kolkata, Kolkata V. Shri Hara Prasad Benerjee, Kolkata

ITA 838/KOL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0627 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 23-05-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 02-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: I BAN ERJEE
• Keywords: Bogus purchase
• Section: 40A(3); 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA A BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY, A CCOUNTANT M EMBER & SRI S.S. VISWANETHRA RAVI , JUDICIAL MEMBER ] I .T .A. NO. 838 / KOL /201 4 ASSESSMENT YEAR : 20 08 - 09 INCOME TAX OFFICER, WARD 33(2), KOLKATA .. . . .. APPELLANT 10B, MIDDLETON ROW 3 RD FLOOR KOLKATA 700 071 SHRI HARA PRASAD BANERJEE .. .. RESPONDENT 87, LENIN SARANI 2 ND FLOOR KOLKATA - 13 [PAN : AGUPB 5726 C ] APPEARANCES BY: SHRI SALLONG YADEN, ADDL. CIT , APPEAR ED ON BEHALF OF THE ASSESSEE. SHRI I. BANERJEE , FCA, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : NOVEMBER 2 8 , 2017 DATE OF PRONOUNCING THE ORDER : DECEMBER 15 TH , 2017 O R D E R PER J. SUDHAKAR REDDY : - THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) CENTRAL - XIX , KOLKATA (HEREINAFTER THE LD. CIT (A)), PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 19 /0 2 /201 4 , FOR THE ASSESSMENT YEAR 20 0 8 - 0 9 . 2. AFTER HEARING RIVAL SUBMISSION, WE HOLD AS FOLLOWS: - 2.1 GROUND NO. 1, OF THE REVENUE IS ON THE ISSUE, AS TO WHETHER THE DIFFERENCE OF TURNOVER BETWEEN THE TDS CERTIFICATES AND THAT DISCLOSED BY THE ASSESSEE SHOULD BE ADDED AS INCOME OR THE LD. CIT(A) WAS RIGHT IN DETERMINING A PERCENTAGE OF SUCH TURNOVER AS INC OME. THE TURNOVER AS PER THE TDS CERTIFICATES WAS RS. 69,48,274/ - , AND THE TURNOVER DISCLOSED BY THE ASSESSEE OF RS.67,47,677/ - . THE ASSESSING OFFICER ADDED THE DIFFERENCE OF RS.2,00,597/ - . THE LD. CIT(A) HELD THAT THE ENTIRE TURNOVER CANNOT BE TREATED AS INCOME AND ONLY 8 PER CENT OF THE SAME WAS CONSIDERED AS INCOME. 2.1.1. WE FIND NO INFIRMITY IN THE SAME. THUS, GROUND NO. 1 OF THE REVENUE IS DISMISSED. 2 I.T.A. NO. 838/KOL/2014 ASSESSMENT YEAR: 2008 - 09 SHRI HARA PRASAD BANERJEE 3. GROUND NO. 2 IS AGAINST THE DELETION OF ADDITION MADE ON ACCOUNT OF BOGUS PURCHASE. THE LD. CIT( A) HELD THAT THE ASSESSING OFFICER HAS NOT GIVEN AN OPPORTUNITY TO THE ASSESSEE TO DEMONSTRATE THAT THE PURCHASES WERE GENUINE. HE FURTHER RECORDS THAT A TEST CHECK WAS DONE AND NO DISCREPANCY WAS FOUND IN THE PURCHASES. THESE FACTUAL FINDINGS COULD NOT BE CONTROVERTED BY THE LD. DR. UNDER THESE CIRCUMSTANCES, HE DELETED THE ADDITION. 3.1. WE FIND NO INFIRMITY IN SUCH FINDINGS. ACCORDINGLY, GROUND NO. 2 OF THE REVENUE IS DISMISSED. 4. GROUND NO. 3, IS AGAINST THE DELETION OF AN ADDITION MADE U/S 40(A)(IA) ON ACCOUNT OF VIOLATION OF SECTION 194C OF THE ACT. THE LD. CIT(A) HAD TABULATED THE AMOUNT OF MATERIALS GIVEN TO THE PARTIES AND LABOUR CHARGES PAID SEPARATELY AT PARA 7.2. OF HIS ORDER AND CAME TO A FACTUAL CONCLUSION THAT THE VIO LATION U/S 40(A)(IA) OF THE ACT, WAS ONLY FOR AN AMOUNT OF RS.2,42,535/ - . 4.1. THE LD. DR, COULD NOT CONTROVERT THIS FACTUAL FINDINGS OF THE LD. FIRST APPELLATE AUTHORITY, HENCE THIS GROUND OF THE REVENUE IS DISMISSED. 5. GROUND NO. 4, IS AGAINST THE DISALLOWANCE MADE U/S 40A( 3) OF THE ACT. THE LD. CIT(A) RECORDS THAT HE HAS EXAMINED THE LEDGER COPIES OF THE PARTIES AND HAS COME TO THE CONCLUSION THAT EACH PAYMENTS MADE HAVE NOT EXCEEDED RS.20,000/ - , VIOLATING SECTION 40A(3) OF THE ACT . HE DELETED THE ADDITION. THIS FACTUAL FIN DING OF THE LD. CIT(A) COULD NOT BE CONTROVERTED BY THE LD. DR. HENCE THE SAME IS DISMISSED. 6. GROUND NO. 5, IS AGAINST THE DELETION OF RS.2,17,000/ - , CLAIMED ALSO MACHINERY HIRE CHARGES. THIS WAS DELETED BY THE LD. CIT(A) ON THE GROUND THAT THE CONCLUSI ON OF THE ASSESSING OFFICER THAT THE PARTIES ARE NOT GENUINE WAS NOT CORRECT. AT PARA 9.3. OF HIS ORDER, HE RECORDS THAT HE HAS CHECKED THE LEDGER ACCOUNTS, BILLS ETC. OF THESE PARTIES. HE CAME TO THE CONCLUSION THAT THE PAYMENTS ARE GENUINE. THIS FACTUAL FINDING OF THE LD. CIT(A), IS HEREBY UPHELD AND THIS GROUND OF THE REVENUE IS DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. KOLKATA, THE 15 TH DAY OF DEC EMBER , 2017. SD/ - SD/ - [ S.S. VISWANETHRA RAVI ] [ J. SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 15 .1 2 .2017 {SC SPS} 3 I.T.A. NO. 838/KOL/2014 ASSESSMENT YEAR: 2008 - 09 SHRI HARA PRASAD BANERJEE COPY OF THE ORDER FORWARDED TO: 1. INCOME TAX OFFICER, WARD 33(2), KOLKATA 10B, MIDDLETON ROW 3 RD FLOOR KOLKATA 700 071 2. SHRI HARA PRASAD BANERJEE 87, LENIN SARANI 2 ND FLOOR KOLKATA - 13 3. CIT(A) - 4. CIT - , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D .D.O. ITAT, KOLKATA BENCHES