D.C.I.T CC - XX,Kolkata, Kolkata V. M/s Arjun Associates Pvt Ltd, Kolkata

ITA 917/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4940 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 28-03-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 23-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G MALLIKARJUNA
• Assessee Lawyers: S K TULSIYAN
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO. 917 / KOL / 2013 ASSESSMENT YEAR :204-05 DCIT CENTRAL CIRCLE-XX, 110, SHANTIPALLI, AAYAKAR BHAVAN POORVA, 5 TH FLOOR, KOLKATA-107 V/S . M/S ARJUN ASSOCIATES PVT. LTD., 9/1, MIDDLETON STREET, KOLAKTA-700 071 [ PAN NO.AABCA 9223 F ] /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI G.MALLIKARJUNA, CIT-DR /BY RESPONDENT SHRI S.K.TULSIYAN, ADVOCATE /DATE OF HEARING 28-03-2016 /DATE OF PRONOUNCEMENT 27-04-2016 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), CENTRAL-III, KOLKATA DATED 24 .12.2012. ASSESSMENT WAS FRAMED BY JCIT(OSD), CC-XX, KOLKATA U/S 143(3)/ 153A OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) VIDE HIS ORDER DATED 02.12.2011 FOR ASSESSMENT YEAR 2004-05. EFFECTIVE G ROUNDS RAISED BY REVENUE ARE REPRODUCED BELOW:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.1,64,117/- ON ACCOUNT OF SHORT CREDIT OF INCOME AS THE ASSESSEE HAD FAILED TO SUBSTANTIATE THE CLAIM OF RE LATED EXPENDITURE BY PRODUCING WRITTEN AGREEMENT FOR CAR-PARKING SPACE A ND MAINTENANCE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. C IT(A) ERRED IN DELETING THE ADDITION OF RS.42,50,000/- MADE ON ACCOUNT OF UNDI SCLOSED LOAN TRANSACTIONS, WITHOUT APPRECIATING THE FACT THAT ASSESSEE HAD FAI LED TO PRODUCE THE RELEVANT ITA NO.917/KOL/2013 A.Y. 2004-05 DCIT CC-XX KOL. V. M/S ARJUN ASSOCIATES PVT. LTD. PAGE 2 ORIGINAL LEDGER-BOOK AT THE TIME OF ASSESSEE PROCEE DINGS AS WELL AS REMAND PROCEEDINGS THEREBY RENDERING IT NOT POSSIBLE TO VE RIFY THE LEDGER BY THE AO. SHRI S.K.TULSIYAN LD. AUTHORIZED REPRESENTATIVE APP EARING ON BEHALF OF ASSESSEE AND SHRI G.MALLIKARJUNA, LD. DEPARTMENTAL REPRESENTATIVE APPEARING ON BEHALF OF REVENUE. 2. FIRST ISSUE RAISED BY REVENUE IN ITS APPEAL IS T HAT THE LD CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER FOR RS.1,64,117/- ON ACCOUNT OF SHORT CREDIT OF INCOME AS THE ASSESSEE F AILED TO SUBSTANTIATE THE CLAIM OF THE RELATED EXPENDITURE. 3. AT THE OUTSET WE OBSERVED THAT THE ISSUE IS ALRE ADY COVERED IN FAVOUR OF ASSESSEE IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 2009-10 AND 2010-11 IN ITA NO. 550 & 551/KOL/2013 VIDE ORDER DATED 18.12.2015 WHEREIN IT WAS HELD AS UNDER : BUT THE AO IN THE REMAND REPORT FOR ASSESSMENT YEA R 2010-11 ADMITTED THAT THE ASSESSEE HAS PRODUCED A REIMBURSEMENT AGREEMENT FOR CAR PARKING SPACE AND MAINTENANCE IN SUPPORT OF SUCH REIMBURSEM ENT. THE LD. CIT(A) IN VIEW OF THESE REASONS DELETED THIS ADDITION. WE FIN D NO INFIRMITY IN THE ORDER OF LD. CIT(A) AND ACCORDINGLY, THE SAME IS CONFIRMED. TAKING A CONSISTENT VIEW OF THIS TRIBUNAL IN ASSESS EES OWN CASE (SUPRA) WE UPHOLD THE ORDER OF LD. CIT(A) THIS GROUND OF APPEA L OF REVENUE IS DISMISSED. 4. NEXT ISSUE RAISED BY REVENUE IN ITS APPEAL IS TH AT THE LD CIT(A) ERRED IN DELETING THE ADDITION MADE BY AO FOR RS. 42.50 LACS ON ACCOUNT OF UNDISCLOSED LOAN TRANSACTION. 5. FACTS OF THE CASE ARE THAT ASSESSEE IS A PRIVATE LIMITED COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956 AND ENGAGE D IN THE BUSINESS OF MATERIAL HANDLING, TRANSPORTATION, SUPERVISION OF C OAL RAKE MOVEMENT, DEVELOPING COAL MINES AND COAL BLOCKS ALLOCATED BY COAL INDIA LTD. AND IN MONEY LENDING BUSINESS. DURING THE YEAR ASSESSEE HA S MADE THE INVESTMENT IN THE SHARES OF M/S GLOBAL COAL & MINING PRIVATE L IMITED FOR A SUM OF RS. 42.50 LACS ON DATED 27.11.2003. THE PAYMENT FOR THE AFORESAID PURCHASE OF ITA NO.917/KOL/2013 A.Y. 2004-05 DCIT CC-XX KOL. V. M/S ARJUN ASSOCIATES PVT. LTD. PAGE 3 SHARES WAS MADE BY M/S NARESH KUMAR & CO. PVT. LTD ON BEHALF OF THE ASSESSEE. THE AO DURING ASSESSMENT PROCEEDINGS FOUN D THAT THE AMOUNT OF SUCH LOAN HAS NEITHER BEEN REFUNDED NOR IT IS APPEA RING IN THE BALANCE SHEET OF THE ASSESSEE. THEREFORE THE AO TREATED THE SAME AS UNDISCLOSED INCOME AND ACCORDINGLY MADE THE ADDITION TO THE TOTAL INCO ME OF ASSESSEE. 6. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO LD. CI T() WHO HAS DELETED THE ADDITION MADE BY AO BY OBSERVING AS UNDER:- PAG E 17 OF CITA IT IS OBSERVED THAT A COPY OF THE LEDGER ACCOUNT O F M/S NARESH KUMAR & CO. PVT. LTD. IN THE BOOKS OF THE APPELLANT WAS SUBMITT ED BY THE APPELLANT AT PAGES 54 TO 63 IN THE PAPER BOOK FILED BY THE APPELLANT A LONG WITH ITS WRITTEN SUBMISSIONS DURING THE APPELLATE PROCEEDINGS. THE P APER BOOK WAS ALSO SENT TO THE AO IN THE REMAND PROCEEDINGS ALONG WITH THE APPELLANTS WRITTEN SUBMISSIONS ON WHICH THE AO SUBMITTED HIS REMAND RE PORT. IN THE SAID LEDGER ACCOUNT THE SAID AMOUNT OF RS.42,50,000/- IS DULY R EFLECTED ON PAGE 59 OF THE PAPER BOOK. AFTER THE TRANSACTION THERE ARE VARIOUS TRANSACTIONS OF RECEIPT OF CO-ORDINATION CHARGES, RENT, SERVICE CHARGES ETC., RECORDED IN THAT LEDGER ACCOUNT. AT THE END OF THE RELEVANT YEAR THERE IS A NET DEBIT BALANCE OF RS.49,109/- IN THAT ACCOUNT. THIS FACT CLEARLY CORR OBORATES THE EXPLANATION OFFERED BY THE APPELLANT THAT THE LOAN OF RS.42,50, 000/- WAS DULY RECORDED IN ITS BOOKS OF ACCOUNT AND RECEIPTS / RECEIVABLE FROM M/S NARESH KUMAR & CO. PVT. LT., WERE ADJUSTED AGAINST THAT LOAN. THEREFOR E, THE ADDITION MADE BY THE AO ON ACCOUNT OF REPAYMENT OF LOAN OUT OF UNEXPLAIN ED SOURCES IS FOUND TO BE ERRONEOUS AND DESERVES TO BE DELETED. HENCE, THE AD DITION OF RS.42,500/- IS DELETED . BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) REVENUE IS IN APPEAL BEFORE US. 7. BEFORE US BOTH THE PARTIES RELIED ON THE ORDERS OF AUTHORITIES BELOW AS FAVOURABLE TO THEM. LD. AR DREW OUR ATTENTION ON PA GE 34 OF THE PAPER BOOK WHERE THE TRANSACTION FOR THE PURCHASE OF THE SHARE S WAS DULY RECORDED. THE LD. AR FURTHER SUBMITTED THAT THE LOAN AMOUNT OF M/ S NARESH KUMAR & CO. PVT. LTD. WAS NOT THE PAID DURING THE YEAR BUT IT W AS ADJUSTED AGAINST THE VARIOUS TRANSACTIONS SUCH AS COORDINATION CHARGES, RENT AND SERVICE CHARGES ETC. THE LEDGER COPY OF M/S NARESH KUMAR & CO. PVT. LTD. WAS REFLECTING ALL THESE DIRECTIONS WHICH ARE PLACED ON PAGE 23 TO 33 OF THE PAPER BOOK. LD. DR LEFT THE ISSUE TO THE DISCRETION OF THE BENCH. ITA NO.917/KOL/2013 A.Y. 2004-05 DCIT CC-XX KOL. V. M/S ARJUN ASSOCIATES PVT. LTD. PAGE 4 8. WE HAVE HEARD RIVAL CONTENTIONS AND THE PERUSED MATERIALS AVAILABLE ON RECORD. BEFORE US LD. AR SUBMITTED PAPER BOOK WHICH IS RUNNING PAGES FROM 1 TO 79. THE ISSUE INVOLVED IN THIS APPEAL IS THAT TH E AO FOUND THAT THE LOAN TAKEN BY THE ASSESSEE FOR THE PURCHASE OF THE SHARE S WAS NOT REFLECTING IN THE BALANCE SHEET. ACCORDINGLY THE AO OPINED THAT THE ASSESSEE HAS REPAID THE SAME DURING THE YEAR OUT OF ITS UNDISCLOSED INCOME SO THE ADDITION WAS MADE. HOWEVER, FROM THE ARGUMENT MADE BY LD. AR OF THE AS SESSEE ON THE BASIS OF THE DOCUMENTS BEFORE US, WE ARE OF THE CONSIDERED V IEW THAT THE TRANSACTION HAS DULY BEEN RECORDED IN THE BOOKS OF THE ASSESSEE . THE LEARNED THE DR HAS NOT BROUGHT ANYTHING ON RECORD CONTRARY TO THE ARGU MENT OF THE LD. AR. IN VIEW OF ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE AR E INCLINED TO UPHOLD THE ORDER OF LD. CIT(A) AND GROUND RAISED BY REVENUE IS DISMISSED. 9. IN THE RESULT, REVENUES APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 27/ 04/2016 SD/- SD/- (S.S.VISHWANETHRA RAVI) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 27 / 04 /201 6 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-DCIT, CC-XX 110, SHANTIPALLI, AAYAKAR BH AVN, POORVA, 5 TH FL.KOL-107 2. /RESPONDENT-M/S ARJUN ASSOCIATES PVT. LTD., 9/1, MI DDLETON STREET, KOLKATA-71 3. ) *+ , , - / CONCERNED CIT KOLKATA 4. , , -- / CIT (A) KOLKATA 5. 012 33*+, , *+ , / DR, ITAT, KOLKATA 6. 267 89 / GUARD FILE. BY ORDER/ , , /TRUE COPY/ / , *+ ,