M/s Raiganj Communication, Uttar Dinajpur V. ITO,Ward-1, Raiganj, Uttar Dinajpur

ITA 847/KOL/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4710 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 18-05-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 28-05-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NILOY BARAN SOM J
• Keywords: Capital asset converted into stock in trade; Non-deduction of tax; Corroborative evidences
• Section: 43B; 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO. 847 / KOL / 2012 ASSESSMENT YEAR :2008-09 M/S RAINGANJ COMMUNICATION, N.S.RAOAD, BIDHAN NAGAR MORE, RAINGANJ, DIST. UTTAR DINAJPUR, PIN NO. 733 134 [ PAN NO.AAJFR 5361 E ] V/S . INCOME TAX OFFICER, WARD-I, KARNAJORA, RAIGANJ, UTTAR DINAJPUR-733 130 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI SOMNATH GHOSH, ADVOCATE /BY RESPONDENT SHRI NILOY BARAN SOM, JCIT-DR /DATE OF HEARING 10-05-2016 /DATE OF PRONOUNCEMENT 15-06-2016 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF ORDE R OF COMMISSIONER OF INCOME TAX (APPEALS), JALPAIGURI DATED 05.03.2012. ASSESSMENT WAS FRAMED BY ITO WARD-45(2), KOLKATA U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORD ER DATED 10.12.2010 FOR ASSESSMENT YEAR 2008-09. ASSESSEE HAS TAKEN THE FOL LOWING MODIFIED GROUNDS OF ITS APPEAL:- 1. FOR THAT ON A TRUE AND PROPER INTERPRETATION OF THE SCOPE AND AMBIT OF THE PROVISIONS OF S. 40(A)(IA) OF THE INCOME TAX AC T, 1961, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) JALPAIGURI WAS ABSOLUTELY IN ERROR IN UPHOLDING THE ACTION OF THE LD. INCOME TAX OFFICER, WARD 1, RAINGAJ IN RESORTING TO THE IMPUGNED ADDITION OF RS.52,63,871/ - ON ACCOUNT OF ALLEGED INFRINGEMENT OF S. 194H OF THE ACT AND THE PURPORTE D FINDING ON THAT ISSUE IS WHOLLY ARBITRARY, UNWARRANTED AND PERVERSE. ITA NO.847/KOL/2012 A.Y.2008-09 M/S RAIGANJ COMMUNICATION V. ITO WARD-I, RNJ PAGE 2 2. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE INSTANT CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) JALPAIGURI ACTED UNLAWFULLY IN UPHOLDING THE IMPUGNED ADDITION IN THE SUM OF RS.52 ,63,871/- RESORTED TO BY THE LD. INCOME TAX OFFICER, WARD 1, RAINGANJ WITHIN THE PROVINCE OF S. 40(A)(IA) OF THE INCOME TAX ACT, 1961 BY MISREADING THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE AND SUCH SPECIOUS FINDING REACHED ON THAT BEHALF IN VIOLATION OF THE STATUTORY PRESCRIPTION I S COMPLETELY UNFOUNDED, UNJUSTIFIED AND UNTENABLE IN LAW. 3. FOR THAT THE LD. COMMISSIONER OF INCOME TAX (APP EALS) JALPAIGURI WAS REMISS IN SUSTAINING THE PURPORTED ADDITION TO THE TUNE OF RS.2,11,770/- UNDER THE IMPLIED APPLICATION OF S. 68 OF THE ACT RESORTE D TO BY THE LD. INCOME TAX OFFICER, WARD 1, RAINGANJ BY MISREADING THE FACTS A ND CIRCUMSTANCES OF THE INSTANT CASE AND THE ADVERSE CONCLUSION REACHED ON THAT BEHALF IS TOTALLY INVALID, ILLOGICAL AND UNSUSTAINABLE IN LAW. 4. FOR THAT THE SPECIOUS APPROACH OF THE LD. COMMIS SIONER OF INCOME TAX (APPEALS) JALPAIGURI OF MISREADING EVIDENCE, CONSID ERING IMPROPER FACTS, FAILING TO CONSIDER PROPER POSITION IN LAW AND THUS COMING TO AN ERRONEOUS FINDING IN SUSTAINING THE IMPUGNED ADDITION IN THE SUM OF RS.2,11,770/- RESORTED TO BY THE LD. INCOME TAX OFFICER, WARD 1, RAIGANJ BY INVOKING THE PROVISIONS OF S. 68 OF THE ACT BASING ON EXTRANEOUS CONSIDERATIONS NOT GERMANE TO THE ISSUE IN DISPUTE IS WHOLLY ILLEGAL, ILLEGITIMATE AND INFIRM IN LAW. SHRI SOMNATH GHOSH, LD. AUTHORIZED REPRESENTATIVE A PPEARED ON BEHALF OF ASSESSEE AND SHRI NILOY BARAN SOM, LD. DEPARTMENTAL REPRESENTATIVE APPEARED ON BEHALF OF REVENUE. 2. FIRST WE TAKE UP THE ISSUE RAISED IN GROUNDS NO 1 AND 2 RAISED BY ASSESSEE ARE CLUBBED TOGETHER WHICH STATE THAT LD. CIT(A) ERRED IN CONFIRMING THE ORDER OF AO BY SUSTAINING THE DISALLOWANCE OF T HE EXPENSES CLAIMED AS INCENTIVE PAID TO RETAILERS FOR 52,63,871/- ON ACCOUNT OF ALLEGED INFRINGEMENT OF THE PROVISIONS OF SEC. 194H R.W.S. 40(A)(IA) OF THE ACT. THE FACTS OF THE CASE ARE THAT ASSESSEE IS A PARTNE RSHIP FIRM AND ENGAGED IN THE DISTRIBUTION BUSINESS OF AIRCEL PRODUCTS OF DIS HNET WIRELESS LIMITED (FOR SHORT DWL). THE ASSESSEE FOR THE YEAR HAS FILED INC OME TAX RETURN DECLARING PROFIT UNDER THE BUSINESS HEAD FOR RS.1,00,730/- ON LY. THE CASE WAS SELECTED FOR SCRUTINY UNDER SECTION 143(3) OF THE ACT THROUG H CASS SYSTEM. DURING THE ITA NO.847/KOL/2012 A.Y.2008-09 M/S RAIGANJ COMMUNICATION V. ITO WARD-I, RNJ PAGE 3 YEAR ASSESSEE HAS RECEIVED A SUM OF 61,93,897/- FROM DWL TOWARDS INCENTIVE AND SERVICE TAX AFTER THE DEDUCTION OF TA X AT SOURCE UNDER SECTION 194H OF THE ACT. AGAINST THE ABOVE RECEIPT THE ASSE SSEE CLAIMED EXPENDITURE UNDER THE HEAD INCENTIVE PAID TO RETAILER FOR AN AMOUNT OF 54,80,381/-. THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS OBSERVED THAT A SUM OF 52,63,871/- OUT OF RS.54,80,381/- HAS BEEN INCURRE D WITHOUT DEDUCTING THE TAX AT SOURCE (TDS FOR SHORT) AS CONTEMPLATED U/S.1 94H OF THE ACT. ACCORDINGLY, AO SOUGHT CLARIFICATION FROM ASSESSEE REGARDING THE INFRINGEMENT OF PROVISION OF SEC. 194H R.W.S. 40(A)(IA) OF THE A CT WITH REGARD TO THE AFORESAID EXPENSES. IN COMPLIANCE TO THE NOTICE, AS SESSEE SUBMITTED THAT PAYMENT OF INCENTIVE TO RETAILERS WAS IN THE NATURE OF TRADE DISCOUNT BUT WRONGLY SHOWN AS INCENTIVE PAID TO RETAILERS IN THE PROFIT & LOSS ACCOUNT. HOWEVER, AO DISREGARDED THE CONTENTION OF ASSESSEE ON THE GROUND THAT DISCOUNT IS DEDUCTED FROM THE GROSS SALE AMOUNT OR GIVEN BY WAY OF CREDIT NOTE. IN THE INSTANT CASE, INCENTIVE HAS BEEN PAID IN TERMS OF CASH WITHOUT DEDUCTING FROM THE SALE PRICE. THEREFORE, INCENTIVE , IN THE PRESENT CASE IS EXACTLY SIMILAR TO COMMISSION WITHIN THE MEANING OF SECTION 194H OF THE ACT. THE ASSESSING OFFICER FURTHER OBSERVED THAT THE COM PANY, DWL HAS PAID SAID COMMISSION TO THE ASSESSEE AFTER DEDUCTING TDS AND THEREFORE, ASSESSEE WAS ALSO LIABLE TO DEDUCT TDS FROM SUCH PAYMENT OF INCENTIVE PAID TO RETAILERS. ACCORDINGLY, AO DISALLOWED AN AMOUNT OF 52,63,871/- U/S 40(A)(IA) OF THE ACT AND ADDED TO THE TOTAL INCOME OF ASSESSEE. 3. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A), WHERE IT WAS SUBMITTED THAT THE ASSESSEE IS GETTING THE COMM ISSION AT FIXED RATE FROM THE DWL ON THE DISTRIBUTION CASH CARD. THE ASSESSEE USED TO PASS ON A PART OF THE COMMISSION TO THE RETAILERS IN THE FORM OF T RADE DISCOUNT. THE DWL NEVER PAID THE COMMISSION BY WAY OF CASH BUT IT WAS ALWAYS ADJUSTED AGAINST THE PURCHASE CONSIDERATION. SIMILARLY THE ASSESSEE NEVER PAID THE COMMISSION IN CASH TO THE RETAILERS BUT IT WAS ALWAYS PAID IN THE FORM OF DISCOUNT SO THE PROVISION OF SEC. 194H ON THE COMMISSION PAID TO TH E RETAILERS WAS NOT ITA NO.847/KOL/2012 A.Y.2008-09 M/S RAIGANJ COMMUNICATION V. ITO WARD-I, RNJ PAGE 4 ATTRACTED. HOWEVER, LD. CIT(A) DISREGARDED THE CLAI M OF ASSESSEE ON ACCOUNT OF FOLLOWING:- (I) OUT OF INCENTIVE RECEIPT BY ASSESSEE PART OF IT WAS GIVEN TO THE RETAILERS AS DEPICTED IN ITS PROFIT AND LOSS ACCOUNT, SO THE SUBMISSION OF THE ASSESSEE WAS CONTRADICTORY AS IT WAS THE TRADE DISC OUNT; (II) DWL HAS DEDUCTED TDS FROM THE PAYMENT OF INCEN TIVE PAID TO ASSESSEE, WHICH WAS DULY ACCOUNTED FOR IN ITS BOOKS OF ACCOUNT, SO THE ASSESSEE WAS LIABLE TO DEDUCT THE TDS. (III) THE CLAIM OF THE ASSESSEE THAT HE WAS ACTING JUST AS A MEDIUM FOR DISBURSEMENT OF INCENTIVE AMONG THE RETAILERS WAS I NCORRECT AS THE ASSESSEE WAS ALSO RETAINING SOME PART OF IT. (IV) THE ASSESSEE HAS CLAIMED THE BENEFIT OF TDS IN THE BOOKS OF ACCOUNTS AND IN INCOME TAX RETURNS, SO IT PROVES THAT THE AS SESSEE IS ENJOYING THE INCENTIVE INCOME. (V) THE ASSESSEE FAILED TO PRODUCE THE COPY OF THE AGREEMENTS OR PROSPECTUS OR OTHER DOCUMENTS ABOUT THE SCHEME OF T HE INCENTIVES. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) ASSESSE E CAME IN SECOND APPEAL BEFORE US. 4. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. LD. AR SUBMITTED PAPER BOOK WHICH IS RUNNIN G PAGES FROM 1 TO 108 AND SUBMITTED VARIOUS CASE LAWS IN FAVOUR OF ASSESS EES ISSUE. THE LD. AR STATED THAT ASSESSEE HAS GIVEN TRADE DISCOUNT TO TH E RETAILERS AND AS SUCH NO COMMISSION WAS PAID TO THE RETAILERS. THE ASSESSEE HAS CLASSIFIED THE INCENTIVE PAID TO THE RETAILERS AS AN EXPENSE BY DE BITING SAME IN PROFIT AND LOSS ACCOUNT FOR THE ACCOUNTING PURPOSE. IN THIS CO NNECTION, LD.AR DREW OUR ATTENTION AT PAGES 33 TO 41 OF THE PAPER BOOK WHERE SALES LEDGER OF ASSESSEE WAS PLACED WHICH WAS REFLECTING THE ENTRIES OF THE INCENTIVE IN THE CATEGORY OF JOURNAL ENTRIES. SIMILARLY THE DETAILS FOR THE PAYM ENT OF INCENTIVE PAID TO ITA NO.847/KOL/2012 A.Y.2008-09 M/S RAIGANJ COMMUNICATION V. ITO WARD-I, RNJ PAGE 5 RETAILERS WAS PLACED ON PAGES 49 TO 51 AND NO CASH PAYMENT WAS MADE IN THE LEDGER BUT IT WAS ADJUSTED WITH THE SALES AMOUNT BY MAKING THE JOURNAL ENTRIES. ON THE OTHER HAND, LD DR VEHEMENTLY RELIED ON THE O RDERS OF AUTHORITIES BELOW. 4.1 FROM THE AFORESAID DISCUSSION, WE FIND THAT ASS ESSEE, IN THE INSTANT CASE, HAS CLAIMED AN EXPENDITURE FOR RS.54,80,381/- AS INCENTIVE PAID TO THE RETAILERS AND OUT OF SAID SUM INCENTIVE WORTH OF 52,63,871/- WAS DISALLOWED U/S 40(A)(IA) DUE TO NON DEDUCTION OF TDS. THE SAME WAS CONFIRMED BY LD. CIT(A). WE FIND FROM THE SALES LEDGER SUBMITTED BEF ORE US THAT ASSESSEE HAS SHOWN THE SALES AMOUNT AT THE GROSS VALUE WITHOUT A DJUSTING THE SAME WITH THE TRADE DISCOUNT GIVEN TO THE RETAILERS. ACCORDIN GLY THE TRADE DISCOUNT WAS SHOWN AS AN INDEPENDENT EXPENDITURE IN THE PROFIT A ND LOSS ACCOUNT UNDER THE HEAD OF INCENTIVE PAID TO RETAILERS BUT FACTUALLY N O SUCH INCENTIVE EXPENSES WAS REQUIRED TO BE INCURRED. THE ASSESSEE IN THE IN STANT CASE HAS JUST SHOWN THE INCENTIVE PAID AS AN EXPENSE WITHOUT ADJUSTING THE SAME FROM THE SALES ACCOUNT. WE FURTHER FIND THAT IN NONE OF THE CASE, INCENTIVE HAS BEEN PAID TO THE RETAILERS IN CASH WHICH WAS JUST THE METHOD OF ACCOUNTING AND PRESENTATION THAT ASSESSEE HAS SHOWN INCENTIVES PAID TO THE RETA ILERS AS AN EXPENSE IN ITS PROFIT AND LOSS ACCOUNT. WE HAVE ALSO FOUND THE LED GER OF THE INCENTIVE PAID TO RETAILERS WHICH IS PLACED ON PAGES 49 TO 51 OF THE PAPER BOOK AND FIND THAT THE INCENTIVE IS NOTHING BUT A TRADE DISCOUNT. NOW THE QUESTION BEFORE US ARISES AS TO WHETHER THE TRADE DISCOUNT GIVEN BY ASSESSEE TO THE RETAILERS AMOUNT TO COMMISSION AND THEREFORE LIABLE TO TDS AS CONTEMPLA TED U/S 194H OF THE ACT. IN THIS CONNECTION, WE FIND ON THE SIMILAR FACTS AN D CIRCUMSTANCES THE CO- ORDINATE BENCH OF CUTTACK BENCH HAS DECIDED THIS IS SUE IN FAVOUR OF ASSESSEE AND AGAINST THE REVENUE AND WE ARE PUTTING OUR RELI ANCE IN THE ORDER OF PAREEK ELECTRICALS V. ACIT (2012) 27 TAXMANN.COM 219 (CUT), WHEREIN THE SEC. 194H, READ WITH SECT. 40(A)(IA), OF THE INCOME -TAX ACT, 1961 DEDUCTION OF TAX AT SOURCE COMMISSION TRADE DISCOUNT ASS ESSMENT YEAR 2008-09 ITA NO.847/KOL/2012 A.Y.2008-09 M/S RAIGANJ COMMUNICATION V. ITO WARD-I, RNJ PAGE 6 ASSESSEE WAS A FRANCHISE OF BSNL IT RECEIVED COMMIS SION ON GROSS VALUE OF PURCHASE AND ON SAID COMMISSION BSNL HAD DEDUCTED T AX AT SOURCE UNDER SECTION 194H IT HAS ALSO APPOINTED SUB-FRANCHISES FOR SELLING PRODUCTS OF BSNL IT OUT OF ITS OWN COMMISSION ALLOWED TRADE D ISCOUNT TO SUB-FRANCHISEES ASSESSING OFFICER TREATED TRADE DISCOUNT S COMMIS SION AND DISALLOWED SAME BY APPLYING SECTION 40(A)(IA) ON PLEA THAT ASSESSEE HAD NOT DEDUCTED TAX AT SOURCE UNDER SECTION 194H ON TRADE DISCOUNT WHETH ER TRADE DISCOUNT MADE AVAILABLE TO SUB-FRANCHISEES WAS A COMPENSATION BY FOREGOING PART OF COMMISSION ALREADY SUBJECTED TO TAX AT SOURCE BY BS NL AND IT COULD NOT HAVE SUFFERED TAXATION UNDER SECTION 194H HELD, YES WHETHER, THEREFORE, DISALLOWANCE UNDER SECTION 40(A)(IA) WAS UNJUSTIFIE D HELD, YES [PARA 4] SECTION 40(A)(IA), READ WITH SECTIONS 194-I AND 197 A OF THE INCOME-TAX ACT, 1961 BUSINESS DISALLOWANCE INTEREST, COMMISSION ETC, PAID TO RESIDENT FROM WHICH NO TAX WAS DEDUCTED AT SOURCE RENT ASSESSMENT YEAR 2008-09 ASSESSEE PAID RENT TO LAND LADY, WHICH WAS BELOW TAXABLE LIMIT, WITHOUT DEDUCTION OF TAX AT SOURCE UNDER SECTION 194-I IT FILED FORM NO. 15G BEING GIVEN BY LAND LADY ASSESSING OFFICER HAVING FOUND THAT THERE WERE INFIRMITY IN FORM NO. 15G DISALLOWED RENT PAID BY APPLYING SECTI ON 40A(A)(IA) WHETHER SINCE ASSESSEE HAD REASONS FOR NON-DEDUCTION OF TAX AT SOURCE, DISALLOWANCE UNDER SECTION 40(A)(IA) OF RENT PAID WAS UNJUSTIFIE D HELD, YES [PARA 4.1] 4.2 SIMILAR ISSUE HAS ALSO BEEN DECIDED BY THE CO-O RDINATE BENCH OF CUTTACK IN THE CASE OF DCIT V. SRI SANTIBRATA SAHA IN ITA NO. 651/KOL/2013 DATED 27.11.2013 FOR THE AY 2007-08, FOR THE SAKE O F CLARITY, THE RELEVANT EXTRACT OF PARA 4.3 WHICH IS REPRODUCED BELOW:- 4.3 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND FROM THE STATEMENT OF FACTS AND GROUNDS OF APPEAL OF THE REVENUE, THE OBSERVATIONS MADE BY THE LEARNED AO IN HIS REMAND REPORT ON THIS IMPUGNED ISSUE IS ALSO ATTACHED ALONG WITH THE APPEAL MEMO. HENCE IT IS INCORRECT ON THE PART OF THE LEARNED DR TO STATE TH AT THERE IS VIOLATION OF RULE 46A OF IT RULES. EVEN OTHERWISE WE FIND THAT THERE IS NO SPECIFIC GROUND RAISE BY THE REVENUE WITH REGARD TO VIOLATION OF RULE 46A IN THEIR GROUNDS OF APPEAL. WITH REGARD TO THE MERITS OF THE CASE, WE A RE IN TOTAL AGREEMENT WITH THE FINDING GIVEN BY THE LEARNED CIT(A) THAT THE SU BJECT MENTIONED PAYMENTS ITA NO.847/KOL/2012 A.Y.2008-09 M/S RAIGANJ COMMUNICATION V. ITO WARD-I, RNJ PAGE 7 MADE BY THE ASSESSEE ARE ONLY DISCOUNT PAID TO THE PURCHASERS OF RECHARGE COUPONS THROUGH WRONGLY CATEGORIZED AS COMMISSION O N SALES IN THE BOOKS OF ACCOUNT. WE ALSO AGREE THAT THE NOMENCLATURE IN BOO KS OF ACCOUNT WOULD NOT BE THE DETERMINATIVE FACTOR FOR UNDERSTANDING THE R EAL NATURE OF THE TRANSACTIONS AND IT IS WELL SETTLED THAT SUBSTANCE WOULD ALWAYS PREVAIL OVER ITS FORM. WE HOLD THAT IN THESE FACTS AND CIRCUMSTANCES , THE PAYMENTS MADE BY THE ASSESSEE IS IN THE CATEGORY OF PRINCIPAL TO PRI NCIPAL AND THE PROVISIONS OF SECTION 194H OF THE ACT WOULD COME INTO PLAY ONLY W HEN THE PAYMENT IS FROM PRINCIPAL TO AGENT. HENCE WE FIND NO INFIRMITY IN T HE ORDER OF THE LEARNED CIT(A) IN THIS REGARD. ACCORDINGLY, THE GROUND NO 2 RAISED BY THE REVENUE IS DISMISSED. TAKING A CONSISTENT VIEW OF THE CO-ORDINATE BENCHES OF CUTTACK AND THIS TRIBUNAL IN THE CASE OF PAREEK ELECTRICALS (SUPRA) AND IN THE CASE OF SRI SANTIBRATA SAHA (SUPRA) WE ALLOW ASSESSEES GROUND ACCORDINGLY. 5. NEXT ISSUE IN GROUND NO. 3 & 4 RAISED BY ASSESSE E ARE CLUBBED TOGETHER IS THAT LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF AO BY SUSTAINING THE ADDITION OF 2,11,770/- ON ACCOUNT OF BY INVOKING THE PROVISION S OF SEC. 68 OF THE ACT. 6. DURING THE YEAR ASSESSEE HAS SHOWN IN ITS BALANC E-SHEET ON LIABILITY SIDE AS INCENTIVE PAYABLE TO RETAILERS FOR AN AMOUN T OF 2,11,770/-. ON QUESTION RAISED BY AO ABOUT THE PAYMENT OF THE INCE NTIVE IN THE SUBSEQUENT YEAR, THE ASSESSEE SUBMITTED THAT THE DOCUMENTS WAS STOLEN FROM ITS OFFICE ON 12.10.2011 AND THEREFORE THE SUPPORTING EVIDENCES A RE NOT AVAILABLE FOR THE PURPOSE OF VERIFICATION. IN THE ABSENT OF SUCH DOCU MENTS, AO DISALLOWED THE SAME AND ADDED TO THE TOTAL INCOME OF ASSESSEE. 7. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A) WHO CONFIRMING THE ACTION OF AO BY OBSERVING AS UNDER:- REGARDING THE DISALLOWANCE OF RS.2,11,770/- IT MA Y BE SATED THAT THE GROUND TAKEN BY THE ASSESSEE WAS NOT CORRECT. THE L D. AO MADE THE DISALLOWANCE IN ABSENCE OF ANY EVIDENCE OF DISBURSE MENT OF THE SAME, NOT INVOKING THE PROVISIONS U/S. 43B OF THE ACT. AS THE ASSESSEE FAILED TO PRODUCE ANY EVIDENCE IN ANY FORM SHOWING THE DISBUR SEMENT, IT IS HELD ITA NO.847/KOL/2012 A.Y.2008-09 M/S RAIGANJ COMMUNICATION V. ITO WARD-I, RNJ PAGE 8 THAT THE AO HAS RIGHTLY DISALLOWED THE SAME. BOTH T HE DISALLOWANCES MADE BY THE AO ARE, THUS, CONFIRMED. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) ASSESSE E PREFERRED SECOND APPEAL BEFORE US. THE AR 8. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AT THE OUTSET, WE OBSERVED THAT THE LD. AR HAS NOT BROUGHT ANYTHING BEFORE US AT THE TIME OF HEARING IN SUPPORT OF HIS GROUND OF APPEAL. NO FIR WAS FILED BY THE ASSESSEE FOR THE STOLEN BOOKS OF A CCOUNTS. ACCORDINGLY, WE FIND NO INFIRMITY IN THE ORDER PASSED BY THE LOWER AUTHORITIES. HENCE ISSUE RAISED BY ASSESSEE IS DISMISSED. 9. IN THE RESULT, ASSESSEES APPEAL STANDS PARTLY ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT 15/ 06/2016 SD/- SD/- (S.S.VISWANETHRA RAVI) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 15 / 06 /201 6 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S RAIGANJ COMMUNICATION, N.S ROAD, BID HAN NAGAR MORE RAIGNJ, DIS T. UTTAR DINAJPUR-733134 2. /RESPONDENT-ITO, KARNAJORA, RAINGANJ, UTTAR DINAJPU R-733 130 3. ) *+ , , - / CONCERNED CIT KOLKATA 4. , , -- / CIT (A) KOLKATA 5. 012 33*+, , *+ , / DR, ITAT, KOLKATA 6. 267 89 / GUARD FILE. BY ORDER/ , , /TRUE COPY/ / , *+ ,