Dalia Investments Pvt. Ltd., Kolkata V. ITO, Ward - 12(1), Kolkata, Kolkata

ITA 963/KOL/2010

• Counselvise Citation: 96323514 RSA 2010
• Duration Of Justice: 1 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2011
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 10-05-2010
• Court: TRIBUNAL
• Department Lawyers: M BHATTACHARYA
• Assessee Lawyers: SOUMITRA CHOW DHURY; T K CHAKRABORTY
• Keywords: Opportunity of being heard
• Section: 68

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH A, KOLKATA () BEFORE , ,, , , SHRI MAHAVIR SINGH, JUDICIAL MEMBER. /AND . .. . ! ! ! !. .. . , '# SHRI C.D.RAO, ACCOUNTANT MEMBER $ $ $ $ / ITA NO . 963/KOL/2010 %& '(/ ASSESSMENT YEAR : 2004-05 (*+ / APPELLANT ) DALIA INVESTMENTS PVT. LTD., KOLKATA (PAN : AABCD 0139 M) - % - - VERSUS - . (-.*+/ RESPONDENT ) I.T.O., WARD-12(1), KOLKATA *+ / 0 '/ FOR THE APPELLANT: SHRI SOUMITRA CHOWDHURY & SHRI T.K.CHAKRABORTY -.*+ / 0 '/ FOR THE RESPONDENT: SHRI M.BHATTACHARYA 1%2 / !# /DATE OF HEARING : 25.10.2011. 3' / !# /DATE OF PRONOUNCEMENT : '4 / ORDER ( (( ( . .. . ! ! ! !. .. . ) )) ), , , , '# PER SHRI C.D.RAO, AM THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 04.02.2010 OF THE LD. CIT(A)-XXXII, KOLKATA PERTAINING TO A.YR. 2004-05. 2. THE ONLY ISSUE RAISED BY ASSESEE IS RELATING TO CONFIRMATION OF ADDITION OF RS.25,22,000/- ON ACCOUNT OF CREDIT ENTRIES MADE IN THE BOOKS OF ACCOUNTS OF ASSESSEE ON ACCOUNT OF SALE OF TREES. 3. THE BRIEF FACTS OF THE ISSUE ARE THAT WHILE DOI NG THE SCRUTINY ASSESSMENT ASSESSING OFFICER HAS MADE AN ADDITION OF RS.25,22, 000/- BY OBSERVING THAT ASSESSEE COULD NOT SUPPLY THE DETAIL STATEMENT OF THE NAMES ALONG WITH ADDRESSES OF THE PARTIES 2 TO WHOM THE TREES HAVE BEEN SOLD DURING THE FINANCI AL YEAR 2003-04 TO WHICH ASSESSEE IS IN POSSESSION OF THE TREES. 3.1. ON APPEAL LD. CIT(A) ALSO CONFIRMED THE SAID A DDITION BY OBSERVING AS UNDER :- I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORDER A ND THE SUBMISSIONS OF THE A.R. IT IS A FACT THAT AN AMOUNT OF CASH OF RS.25,22,000/- HAS BEEN CREDITED BY THE ASSESSEE IN ITS BOOKS OF ACCOUNT. SUCH CASH IS REQUIRED TO PASS THE TEST OF REQUIREMENTS OF SECTION 68 OF THE ACT. AS PER THE PROVISIONS OF SECTION 68, TH E ASSESSEE AHS TO PROVE THE SOURCE AND NATURE OF THE AMOUNT FOUND CREDITED IN ITS BOOK S IN A PREVIOUS YEAR, AND IF, HE FAILS TO PROVE THE SAME TO THE SATISFACTION OF THE A.O., THE SUM FOUND SO CREDITED IN THE BOOKS SHALL BE DEEMED TO BE HIS INCOME CHARGEABLE T O INCOME TAX. IT IS WELL SETTLED BY THE CATENA OF CASES THAT THE ONUS TO EXPLAIN THE SOURCE AND NATURE OF SUM OF MONEY THAT IS FOUND CREDITED IN THE BOOKS OF THE ASSESSEE IS UPON HIM. IT IS ALSO WELL SETTLED THAT IN ORDER TO DISCHARGE THE ONUS, THE ASSESSEE M UST PROVE THE FOLLOWING : I) IDENTITY OF THE CREDITOR. II) THE CAPACITY OF THE CREDITOR TO ADVANCE SUCH MO NEY AND (III)THE GENUINENESS OF THE TRANSACTIONS. IN THE INSTANT CASE, THE APPELLANT HAS FAILED IN H IS DUTY TO DISCHARGE SUCH ONUS. IT COULD NOT ESTABLISH THE IDENTITY OF THE PERSONS FROM WHOM THE CASH OF RS.25,22,000/- WAS RECEIVED. THE APPELLANT ONLY FUR NISHED A FEW NAMES WITHOUT ANY ADDRESSES OR AN OTHER EVIDENCE IN SUPPORT OF THE ID ENTITY OF THOSE NAMES. ALSO, IT FAILED TO PROVE CREDITWORTHINESS OF THOSE PERSONS TO EXTEN D SUCH A SUM OF MONEY TO THE APPELLANT AS CLAIMED BY HIM. THE APPELLANTS CLAIM OF HAVING SOLD ANY TREES DURING THE RELEVANT FINANCIAL YEAR ALSO REMAINED UNVERIFIED. T HE APPELLANT WAS NOT ABLE TO SHOW WITH THE HELP OF COGENT EVIDENCE THAT IT HAD IN FAC T SOLD ANY TREES DURING THE RELEVANT FINANCIAL YEAR. THEREFORE, IT HAD FAILED TO ESTABLI SH THE GENUINENESS OF THE TRANSACTIONS ALSO. IN THE LIGHT OF THE ABOVE FACTS, SINCE THE AP PELLANT AHS FAILED TO DISCHARGE ITS ONUS SATISFACTORILY TO PROVE (I) IDENTITY OF THE CREDITO R, (II) THE CREDITWORTHINESS OF THE CREDITOR TO ADVANCE SUCH MONEY AND (III) THE GENUIN ENESS OF THE TRANSACTIONS, THEREFORE, THE ADDITION OF RS.25,22,000/- HAS BEEN RIGHTLY AND CORRECTLY MADE BY THE A.O. ACCORDINGLY, THE ADDITION OF RS.25,22,000/- IS CONFIRMED. 3.2. AGGRIEVED BY THIS ASSESSEE IS IN APPEAL BEFORE US. 4. AT THE TIME OF HEARING, THE LD. COUNSEL APP EARING ON BEHALF OF THE ASSESSEE HAS REITERATED THE SUBMISSIONS MADE BEFORE THE REVENUE AUTHORITIES AND FURTHER CONTENDED THAT IN THE CASE OF ONE OF THE DIRECTORS OF ASSESSE E COMPANY LD. CIT(A) HAS GIVEN RELIEF TO THE DIRECTOR ON THE SAME ISSUE BY OBSERVING THAT FROM THE RECORDS IT COULD BE SEEN THAT THE DEPARTMENT HAS ACCEPTED THE AGRICULTURAL I NCOME DISCLOSED EARLIER. THEREFORE ASSESSEE ALSO ASSERTS THAT THE NAMES AND ADDRESSES OF THE BUYERS, RATE OF SALES AND THE PAYMENT DETAILS ARE BEFORE ASSESSING OFFICER. THERE FORE, HE REQUESTED TO ALLOW THE 3 APPEAL OF ASSESSEE SINCE THE FACTS ON THIS ISSUE AR E IDENTICAL TO THAT OF THE ONE DECIDED BY LD. CIT(A) AGAINST WHICH THE REVENUE IS NOT IN A PPEAL. 5 .ON THE OTHER HAND, THE LD. DR APPEARING ON BEHAL F OF THE REVENUE CONTENDED THAT IN THIS CASE ASSESSEE HAS NOT GIVEN DETAILS OF THE NAMES AND ADDRESSES OF THE BUYERS WHEREAS IN THE LEDGER ACCOUNT ONLY THE NAMES HAVE BEEN MENTIONED WITHOUT ANY ADDRESSES. HE FURTHER POINTED OUT THAT NO AGRIC ULTURAL INCOME HAS BEEN DECLARED IN THIS CASE. THEREFORE THE FACTS OF ONE OF THE DIRECT ORS ON THIS ISSUE IS NOT APPLICABLE TO THE PRESENT FACTS OF THE CASE. HENCE, HE REQUESTED TO UPHELD THE ACTION OF THE REVENUE AUTHORITIES. 6. IN THE REBUTTAL THE LD. COUNSEL FOR ASSESSEE HAS SUBMITTED THAT ASSESSEE COMPANY ALSO IS IN A POSITION TO GIVE ALL THE ADDRESSES OF THE BUYERS, IF THE MATTER IS RESTORED TO THE FILE OF AO THEN THE ASSESSEE WILL BE IN A POSIT ION TO GIVE THE DETAILS OF THE ADDRESSES OF THE BUYERS/OTHER INFORMATION IN ORDER TO SUBSTANTIATE THE CLAIM OF ASSESSEE. THEREFORE HE REQUESTED TO SET ASIDE THIS ISSUE TO THE FILE OF AO FOR FRESH ADJUDICATION. 7. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF MATERIALS AVAILABLE ON RECORD, IT IS OBSERVED THAT THE FACTS OF ASSESSEES CASE IS SIMILAR TO THAT OF ONE OF THE DIRECTORS OF ASSESSEE COMPANY BUT HOWEVE R, THE ONLY DIFFERENCE IS THAT IN THE CASE OF THE DIRECTOR ASSESSEE IS ABLE TO SUBSTA NTIATE HIS CLAIM BY PROVIDING THE NAME AND ADDRESS OF THE BUYER OF TREES, RATE OF SAL ES AND PAYMENT DETAILS BEFORE AO WHERE AS IN THE PRESENT CASE THE SAME ARE NOT AVAIL ABLE. SINCE THE LD. COUNSEL FOR ASSESSEE HAS GIVEN AN UNDERTAKING THAT HE WILL BE I N A POSITION TO GIVE THE DETAILS, IN THE INTEREST OF JUSTICE WE RESTORE THIS ISSUE TO TH E FILE OF AO TO DECIDE THE SAME AFRESH AS PER LAW AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE. 4 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 28.10.2011. SD/- SD/- , , , , MAHAVIR SINGH, JUDICIAL MEMBER . .. . ! ! ! !. .. . , , , , '# '# '# '# , C.D.RAO, ACCOUNTANT MEMBER. ( (( (!# !# !# !#) )) ) DATE: 28.10.2011. '4 / -5 6'5'7- COPY OF THE ORDER FORWARDED TO: 1. DALIA INVESTMENTS LTD., C/O D.K.SINHA, 34/2A, BALLY GUNJ CIRCULAR ROAD, KOLKATA-700019. 2 THE I.T.O., WARD-12(1), KOLKATA. 3. THE CIT, 4. THE CIT(A)-XXXII, KOLKATA. 5. DR, KOLKATA BENCHES, KOLKATA .5 -/ TRUE COPY, '4%1/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES R.G.(.P.S.)