M/s. A.C. Construction, Kolkata V. I.T.O., Ward - 41(1), Kolkata, Kolkata

ITA 947/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6710 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 09-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHARY
• Keywords: Depreciation
• Section: 44AD; 143(3); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.947/KOL/2018 ASSESSMENT YEAR:2010-11 M/S A.C. CONSTRUCTION 22/1, BALARAM GHOSH STREET, KOLKATA-004 [ PAN NO.AAKFA 8508 K ] / V/S . INCOME TAX OFFICER, WARD-41(1), 3, GOVT. PLACE (WEST), KOLKATA-001 /APPELLANT .. /RESPONDENT /BY APPELLANT NONE /BY RESPONDENT SHRI ARINDAM BHATTACHARY, ADDL. CIT-DR /DATE OF HEARING 01-01-2019 /DATE OF PRONOUNCEMENT 23-01-2019 /O R D E R THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2010-11 , ARISES AGAINST THE COMMISSIONER OF INCOME-TAX (APPEALS)-13, KOLKATAS ORDER DATED 09.03.2018 PASSED IN CASE NO.452/CIT(A)-13/KOL/2014-15 INVOLVING PRO CEEDINGS U/S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. CASE CALLED TWICE. NONE APPEARS AT ASSESSEES BEHES T. THE REGISTRY HAS ALREADY SENT AN RPAD NOTICE DATED 10.05.2018. I THUS PROCEE D EX PARTE AGAINST APPELLANT / ASSESSEE IN THE INSTANT CASE. 2. HEARD LEARNED DEPARTMENTAL REPRESENTATIVE AND ASSESSEES WRITTEN SUBMISSION STAND PERUSED. THE ASSESSEE HAS RAISED TWO SUBSTANT IVE GROUNDS IN THE INSTANT APPEAL AS FOLLOWS:- 3. THAT, THE LD. COMMISSIONER OF INCOME TAX (APPEA LS) ERRED IN NOT APPRECIATING THAT THE ADDITION OF RS.5,08,437/- MA DE BY THE ASSESSING OFFICER UNDER SECTION 69 OF THE INCOME TAX ACT, 1961, WERE ARBITRARY, ILLEGAL AS THE ITA NO.947/KOL/2018 A.Y. 201 0-11 M/S A.C. CONSTRUCTION VS. ITO WD-41(1), K OL. PAGE 2 AMOUNT INCLUDES SECURITY DEPOSITS AND INCOME TAX RE FUND FOR VARIOUS YEAR RECEIVED BY THE ASSESSEE. 4. THAT, THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) ERRED IN NOT APPRECIATING THAT THE ADDITION OF RS.8,840/- AS A P ROFIT OF THE AMOUNT RECEIVED OF RS.95,000/- BY THE ASSESSING OFFICER WAS ARBITRA RY AND ILLEGAL AS PER 26AS THE AMOUNT CONTRACTUAL RECEIVED DURING THE YEAR WAS R.56,800.00. 3. MR. BHATTACHARY VEHEMENTLY CONTENDS DURING THE C OURSE OF HEARING THAT BOTH THE LOWER AUTHORITIES HAVE RIGHTLY MADE THE IMPUGNED AD DITION(S) SINCE THE ASSESSEE FAILED TO SUBSTANTIATE ITS EXPLANATION DURING ASSESSMENT A S WELL AS LOWER APPELLATE PROCEEDINGS. 4. I FIND NO MERIT TO SUSTAIN BOTH THE IMPUGNED ADD ITION(S). THE ASSESSEE HAS PLACED ON RECORD ITS WRITTEN SUBMISSION ALONG WITH RELEVANT FORM 26AS STATEMENT, ITS CAPITAL ACCOUNT, SECURED LOAN FIXED DEPOSIT, CASH-I N-HAND AND CURRENT LIABILITY SCHEDULE GOODS TO THE BALANCE-SHEET AS ON 31.03.2009 AS FOLL OWS:- FROM THE SAID ASSESSMENT ORDER AND FORM 26AS (ENC LOSED] IT IS CLEAR THAT THE LD. ASSESSING OFFICER WRONGFULLY ADDED R.142595.00 WHICH INCLUDES INCOME TAX REFUND. DETAILS AS UNDER: DATE OF DEPOSIT AMOUNT DEPOSITED BANK & BRANCH NATURE OF DEPOSIT 06.05.2009 29400.00 SYNDICATE ESP ITREF 2007-08 13.04.2009 25525.00 SYNDICATE ESP ITREF 2006-07 22.04.2009 87670.00 SYNDICATE ESP ITEF 2005-06 TOTAL 142595.00 THE AFORESAID AMOUNT OF RS.142595.00 IS NOT AN INCO ME AND HENCE THE AMOUNT SHOULD BE DELETED. FROM THE ENCLOSED 26AS IT IS EVIDENT AND CLEAR THAT TOTAL CONTRACTUAL RECEIPTS WAS RS.56800.00 AND THE NET AMOUNT WAS CREDITED TO THE BANK ACCOUNT THE DETAILS OF WHICH IS AS UNDER. DATE OF DEPOSIT AMOUNT DEPOSITED BANK & BRANCH NATURE OF DEPOSIT 24.02.2010 4900[5000-TDS 100] SYNDICATE ESP CONTRA CT AMT 18.03.2010 28420 [29000-TDS 580] SYNDICATE ESP CONT RACT AMT. TOTAL 33320.00 THAT, AS PER FORM 26AS IT REVEALS THAT THE TOTAL GR OSS CONTRACTUAL TURNOVER DURING THE YEAR IS RS.56800.00 8% PROFIT AS PER SECTION 44AD COMES TO RS.4544.00 BUT THE LD. ASSESSING OFFICER TAKEN THE GROSS TOTAL INCOME AT RS.95000.00 AND DET ERMINED PROFIT @ 8% RS.7840.00.. SO THE ADDITION MADE BY THE LD. ASSESSING OFFICER AND CONF IRMED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) SHOULD BE DELETED AND PROPER RELIEF B E GRANTED. DURING THE FINANCIAL YEAR 2008-2009 RELEVANT TO ASS ESSMENT YEAR 2009-10 THERE WAS AN AMOUNT RECEIVABLE FROM PEERLESS DEVELOPERS TOWARDS SECURITY DEPOSIT AMOUNTING TO RS.700000.95 OUT OF THE SAID SECURITY DEPOSIT RECEIVABLE FROM PE ERLESS DEVELOPERS THE FOLLOWING SUMS WERE RECEIVED AND WAS CREDITED TO SYNDICATE BANK, ESPLAN ADE BRANCH AND LAKE GARDENS BRANCH ITA NO.947/KOL/2018 A.Y. 201 0-11 M/S A.C. CONSTRUCTION VS. ITO WD-41(1), K OL. PAGE 3 DATE OF DEPOSIT AMOUNT DEPOSITED BANK & BRANCH NATURE OF DEPOSIT 18.03.2010 25000.00 SYNDICATE ESP SEC. DEP. REFUD 17.06.2009 31000.00 SYNDICAT LAKE GARDENS SEC. DEP. REFUND 16.05.2009 95006.00 SYNDICATE LAKE GARDENS SEC. DEP . REFUND 17.06.2009 13200.00 SYNDICATE LAKE GARDENS SEC. DEP .REFUND 29.09.2009 45000.00 SYNDICATE LAKE GARDENS SEC. DEP . REFUND 29.09.2009 45000.00 SSSYNDICTE LAKE GARDENS SEC DEPRECIATION. REFUND 10.12.2009 5000.00 SYNDICATE LAKE GARDENS SEC. DEP. REFUND 31.12.2009 113322.00 SYNDICATE LAKE GARDENS SEC. DE P. REFUND 11.03.2010 20000.00 SYNDICATE LAKE GARDENS SEC. DEP . REFUND 11.03.2010 20000.00 SYNDICATE LAKE GARDENS SEC. DEP . REFUND 26.03.2010 25000.00 SYNDICATE LAKE GARDENS SEC. DEP . REFUND THE REVENUE FAILS TO DISPUTE THE ABOVE DETAILED PAR TICULARS DURING THE COURSE OF HEARING. I THEREFORE DIRECT THE ASSESSING OFFICER T O DELETE THE IMPUGNED ADDITION AFTER NECESSARY FACTUAL VERIFICATION AND FINALIZE FRESH C OMPUTATION A PER LAW. 5. THIS ASSESSEES APPEAL IS PARTLY ALLOWED FOR STA TISTICAL PURPOSES IN ABOVE TERMS. ORDER PRONOUNCED IN OPEN COURT ON 23/01/2019 SD/- (S.S. GODARA) JUDICIAL MEMBER KOLKATA, *DKP/SR.PS - 23/01/2019 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S A.C. CONSTRUCTION 22/1, BALARAM GHOS H ST. KOLKATA-004 2. /RESPONDENT-ITO WARD-41(1), 3, GOVT. PLACE (WEST), KOLKATA-001 3. ' % / CONCERNED CIT 4. % - / CIT (A) 5. & ))' , ' / DR, ITAT, KOLKATA 6. + / GUARD FILE. BY ORDER/ , /TRUE COPY/ / ',