Imran Khan, Talcher V. ACIT, Central Circle-1, Bhubaneswar

ITSSA 13/CTK/2018

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3723 (ITAT-CUTTACK)
• Duration Of Justice: 2 month(s) 25 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 16-04-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-04-2018
• Assessment Year: 2008-2009
• Appeal Filed On: 22-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PIYUSH KOLHE
• Assessee Lawyers: D K SHETH
• Keywords: Unexplained investment; Business income; Search and seizure; Document seized; Documents seized
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH , CUTTACK BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER & PAVAN KUMAR GADALE, JUDICIAL MEMBER IT(SS)A NOS.06 TO 12/CTK/2018 ASSESSMENT YEARS :2008 - 2009 TO 2014 - 15 TAYAB KHAN, GHANTAPADA, NEW FISH GODOWN , NEAR RAILWAY STATION, TALCHER, ANGUL VS. ITO, WARD - 2, DENKANAL PAN/GIR NO. AJRPK 1265 H (APPELLANT ) .. ( RESPONDENT ) IT (SS) A NOS. 13 TO 18 /CTK/2018 AND ITA NO. 34/ CTK/201 8 ASSESSMENT YEARS : 2008 - 2009 TO 2014 - 15 IMRAN KHAN, GHANTAPADA, NEW FISH GODOWN, NEAR RAILWAY STATION, TALCHER, ANGUL. VS. ITO, WARD - 2, DENKANAL PAN/GIR NO.ARQPK 3999 P (APPELLANT ) .. ( RESPONDENT ) IT (SS) A NOS. 19 TO 25 /CTK/201 8 ASSESSMENT YEARS : 2008 - 2009 TO 2014 - 15 KHUSIDA BIBI, GHANTAPADA, NEW FISH GODOWN , NEAR RAILWAY STATION, TALCHER, ANGUL. VS. ITO, WARD - 2, DENKANAL PAN/GIR NO. AGNPB 8072 A .. ( RESPONDENT ) ASSESSEE BY : SHRI D.K.SHETH REVENUE BY : SHRI PIYUSH KOLHE, CIT DR DATE OF HEARING : 04 /04/ 2018 DATE OF PRONOUNCEMENT : 16 /04/ 2018 2 IT(SS)A NOS.06 TO 12/CTK/2018 IT(SS)A NOS.13 TO 18/CTK/2018 AND ITA NO. 34/CTK/2018 IT(SS)A NOS.19 TO 25/CTK/2018 ASSESSMENT YEARS :2008 - 2009 TO 2014 - 15 PER BENCH O R D E R THESE ARE APPEALS FILED BY THE DIFFERENT ASSESSEES AGAINST THE SEPARATE ORDERS OF LD CIT(A) - 2, BHUBANESWAR, ALL DATED 29.11.2017 FOR THE ASSESSMENT YEARS 2008 - 2009 TO 2014 - 15 , RESPECTIVELY. 2. SINCE IN ALL THESE APPEALS SOME COMMON ISSUES ARE INVOLVED, THEY WERE HEARD TOGETHER AND FOR THE SAKE OF CONVENIENCE, THEY ARE DISPOSED OF BY THIS COMMON CONSOLIDATED ORDER . 3 . IN GROUND NO.1 IN ALL THE SE APPEALS, THE GRIEVANCE OF THE ASSESSEE IS THAT THE CIT(A) ERRED IN CONFIRMING THE NET PROFIT AT 6 % ON THE TURNOVER DETERMINED BY THE ASSESSING OFFICER , WHICH IS UNJUSTIFIED AND OTHERWISE HIGHLY EXCESSIVE , EXCEPT IN ITA NO.34/CTK/2018 (IMRAN KHAN) FOR THE ASSESSMENT YEAR 2014 - 15. 4. FOR THE SAKE OF CONVENIENCE, WE SHALL CONSIDER THE FACTS IN THE CASE OF TAYAB KHAN IN IT(SS)A NOS.06/CTK/2018 FOR THE ASSESSMENT YEAR 2008 - 2009 AND IS ADJUDICATED AND THE DECISION WILL APPLY MUTATIS - MUTANDIS TO OTHER APPEALS OF THE ASSESSEES. 5 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS IN THE BUSINESS OF FISH TRADING AND FILED THE R ETURN OF INCOME ORIGINALLY ON 31.7.2008 DISCLOSING TOTAL INCOME OF RS.1,15,500/ - . A SEARCH AND SEIZURE OPERATION 3 IT(SS)A NOS.06 TO 12/CTK/2018 IT(SS)A NOS.13 TO 18/CTK/2018 AND ITA NO. 34/CTK/2018 IT(SS)A NOS.19 TO 25/CTK/2018 ASSESSMENT YEARS :2008 - 2009 TO 2014 - 15 WAS CONDUCTED IN THE RESIDENCE - CUM - BUSINESS PREMISES OF THE ASSESSEE AND GROUP CONCERNS AT TALCHER ON 8.10.2013 IN PURSUANCE TO WARRANT OF AUTHORISATION U/S.132 OF THE I.T.ACT, 1961 ISSUED BY THE DIRECTOR OF INCOME TAX (INV), BHUBANESWAR. SUBSEQUENTLY, NO TICE U/S.153A OF THE I.T.ACT WAS ISSUED ON 16.3.2015 AND IN COMPLIANCE TO NOTICE, THE ASSESSEE HAS FILED THE RETURN OF INCOME SHOWING TOTAL INCOME OF RS.1,81,640/ - ON 27.8.2015 . NOTICE S U/S.143(2) AND 142(1) WITH QUESTIONNAIRE W ERE ALSO ISSUED. IN IN RES PONSE TO NOTICES, LD A.R. OF THE ASSESSEE APPEARED FROM TIME TO TIME AND FURNISHED DETAILS. A SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE TO EXPLAIN AS TO WHY THE PROFIT ON SALE/TRADING OF FISH SHALL NOT BE TAKEN AT 6%. THE ASSESSEE FILED WRITTEN SUBMIS SION, WHICH HAS BEEN EXTRACTED AT PAGE 3 OF THE ASSESSMENT ORDER. THE ASSESSING OFFICER CONSIDERED THE EXPLANATION OF THE ASSESSEE AND OBSERVED THAT IN THE COURSE OF SEARCH, IT WAS FOUND THAT TRANSACTIONS OF FISH TRADING ARE NOTED IN SAME REGISTER/NOTE BO OKS - IDENTIFICATION MARK TKR - 1 TO TKR - 34 AND ALSO THERE IS NO DISTINCTION OF SALE AND PURCHASE MADE BY THE ASSESSEE. WHEREAS THE BUSINESS WAS CONDUCTED IN ASSOCIATION WITH OTHER FAMILY MEMBERS MRS KHUSIDA BIBI AND MR IMRAN KHAN AND THEIR STATEMENTS WERE A LSO RECORDED. AS PER THE STATEMENT, THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE GETS COMMISSION OF 0.6% ON FISH TRADING WHEREAS THERE WAS CONTRADICTORY IDENTIFICATION AS IDENTIFIED BY THE REVENUE AS TKR - 31 TO TKR - 32, COMPUTED AT 6 TO 7% AND O N CONFRONTED, THE ASSESSEE EXPLAINED THAT THE COMMISSION ON FISH FROM 4 IT(SS)A NOS.06 TO 12/CTK/2018 IT(SS)A NOS.13 TO 18/CTK/2018 AND ITA NO. 34/CTK/2018 IT(SS)A NOS.19 TO 25/CTK/2018 ASSESSMENT YEARS :2008 - 2009 TO 2014 - 15 ANDHRA PRADESH IS LOWER AND COULD NOT FURNISH DOCUMENT IN SUPPORT OF LESSER RATE OF PROFIT ON FISH FROM ANDHRA PRADESH. THE CONTENTION OF THE ASSESSEE IS THAT EARLIER TO SEARCH, A SSESSME NTS FOR ASSESSMENT YEARS 2009 - 2010 TO 2011 - 12 HAVE BEEN COMPLETED U/S.143 ( 3)/147 OF THE ACT DATED 26.3.2013 AND THE INCOME OF THE ASSESSEE WAS ESTIMATED AT 5% WHEREAS IN THE YEAR UNDER CONSIDERATION, THE RETURN OF INCOME FILED U/S.153A, THE INCOME SHOWN BY THE ASSESSEE IS MEAGRE AS COMPARED TO TURNOVER. THEREFORE, THE ASSESSING OFFICER RELIED ON THE SEIZED DOCUMENTS AND DETERMINED THE RECEIPT OF COMMISSION AT 6% AS REASONABLE. THE ASSESSING OFFICER HAS OBSERVED THAT THE TURNOVER OF THE ASSESSEE IS AROUND RS.3,40,56,283/ - BUT THE ASSESSEE HAS SHOWN TURNOVER OF RS.30,37,820/ - AND HAS NOT COMPLIED THE PROVISIONS OF SECTION 44AB OF THE ACT. THEREFORE, THE ASSESSING OFFICER BASED ON THE DEPOSITS IN THE BANK ACCOUNT HAS ESTIMATED THE INCOME AT 6% OF THE FISH TR ADING, WHICH WORKS OUT TO RS.20,43,376/ - AND MADE OTHER ADDITIONS AND PASSED ORDER U/S.153A/144 OF THE ACT DATED 28.3.2016. 6. ON APPEAL, THE CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER IN RESPECT OF ESTIMATING THE NET PROFIT AT 6% OF THE TURNOVER . 7. BEFORE US LD A.R. SUBMITTED THAT THE ASSESSEE HAS BEEN OFFERING THE INCOME REGULARLY ON PERCENTAGE BASIS AND THE ASSESSEE IS NOT MAINTAINING PROPER BOOKS OF ACCOUNT. WHEREAS THE ASSESSING OFFICER HAS ESTIMATED THE INCOME AT 6% WHICH IS VERY MUCH HIGHER AND NOT PRACTICALLY POSSIBLE 5 IT(SS)A NOS.06 TO 12/CTK/2018 IT(SS)A NOS.13 TO 18/CTK/2018 AND ITA NO. 34/CTK/2018 IT(SS)A NOS.19 TO 25/CTK/2018 ASSESSMENT YEARS :2008 - 2009 TO 2014 - 15 TO EARN IN THE FISHING TRADING BUSINESS. LD A.R. SUBMITTED THAT IN THE ORIGINAL ASSESSMENT, THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 2009 - 2010 TO 2011 - 12 HAS DETERMINED NET PROFIT @ 2% AND PRAYED TH AT SAME BASIS BE ADOPTED. 8. LD D.R. SUBMITTED THAT THE ASSESSEE HAS FILED THE ORIGINAL RETURN OF INCOME OF RS.1,15,500/ - AND SUBSEQUENTLY IN RESPONSE TO NOTICE U/S.153A OF THE ACT, AN INCOME OF RS.1,81,640/ - WAS DECLARED AND THERE IS NO COMPLIANCE OF PROVISIONS OF SECTION 44AB OF THE ACT. THE FACT THAT THE ASSESSING OFFICER RELIED ON SEIZED MATERIAL AND THE CONTENTION OF THE ASSESSEE IS THAT THE COMMISSION IS 0.6% CANNOT BE ACCEP T ED AND PRAYED FOR DISMISSAL OF THE APPEAL. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. THE SOLE DISPUTE IS WITH RESPECT TO DETERMINATION OF NET PROFIT ON THE TURNOVER. THE ASSESSEE IS CONSISTENTLY OFFERING ITS INCOME FROM EARLIER YEARS ON COMMISSION BASIS. THE ASSESSING OFFICER IN THE ASSESSMENT ORDER HAS REFERRED ONLY ON THE SEIZED DOCUMENTS IN RESPECT OF COMMISSION RANGES BETWEEN 6 TO 7%. THE CONTENTION OF THE ASSESSEE IS THAT IT IS NOT REALISTIC THAT THE ASSESSEE GETS COMMISS ION ALL THE TIME AND THERE IS RISK IN THE FISH TRADING BUSINESS AND THE PERCENTAGE OF COMMISSION DEPENDS ON THE SEASON AND ON DEMAND AND SUPPLY. WHEREAS, THE CIT(A) MADE ELABORATE DISCUSSION IN HIS ORDER AND CONFIRMED THE ADDITION. THE ASSESSEE IN THE STATEMENT RECORDED BY THE 6 IT(SS)A NOS.06 TO 12/CTK/2018 IT(SS)A NOS.13 TO 18/CTK/2018 AND ITA NO. 34/CTK/2018 IT(SS)A NOS.19 TO 25/CTK/2018 ASSESSMENT YEARS :2008 - 2009 TO 2014 - 15 REVENUE STATED THAT IN CASE OF SEA FISH RECEIVED FROM PARADEEP, THE ASSESSEE GETS COMMISSION @ 6% & 7% BUT IN CASE OF FISH RECEIVED FROM ANDHRA PRADESH, GETS COMMISSION @ 0.6%. HENCE, THE VIEW TAKEN BY THE A SSESSING OFFICER AS A WHOLE O N FISH TRADING BUSINESS @ 6% IS HIGHER AND NOT CONVINCING. FURTHER ANALYSIS IN THE FISH TRADING AND TO EARN THE PROFIT OUT OF IT, THE ASSESSEE HAS TO VISIT WHOLESALE MARKETS TO GET STOCK OF THE PRICE IS A REGULAR PRACTICE AN D FURTHER THE PRICE AND DEMAND KEEP FLUCTUATING , DEPENDS ON SEASON AND THE ASSESSEE HAS TO CONTACT AS MANY SUPPLIERS AS POSSIBLE TO SUPPLY THE FISH OR ELSE, THE FISH BEING PERISHABLE ITEM, THERE IS HIGHER POSSIBILITY OF INCURRING LOSS. LIKEWISE, THE ASSE SSEE NEED TO SUPPLY THE FISH TO SUPPLIERS ON COMPETITIVE RATES TO ATTRACT MORE CUSTOMERS. . WE ARE OF THE OPINION THAT THE ASSESSING OFFICER SHOULD HAVE MADE PROPER ENQUIRY AND BROUGHT COMPARABLE CASES ON THE CHARGEABILITY OF COMMISSION AT 6% AND INDUSTRY PRACTICE . EVEN BEFORE US, LD D.R. COULD NOT BRING ANY MATERIAL TO SHOW THAT THE PERCENTAGE OF NET PROFIT AT 6% IS ALLOWABLE IN THE FISH TRADING BUSINESS. IN THE ORIGINAL ASSESSMENT, THE ASSESSING OFFICER HAS DETERMINED THE PROFIT AT 5% AND ON APPEAL, TH E TRIBUNAL HAS DETERMINED NET PROFIT AT 2%. WHEREAS, THE ASSESSING OFFICER HAS DETERMINED THE NET PROFIT AT 6% ON THE BASIS OF NOTINGS IN THE SEIZED MATERIAL FOUND DURING THE COURSE OF SEARCH WITHOUT ANY BASIS. CONSIDERING THE TOTALITY OF THE FACTS AND C IRCUMSTANCES OF THE CASE, TO MEET THE ENDS OF JUSTICE, WE ARE OF THE SUBSTANTIVE VIEW THAT THE DETERMINATION OF INCOME AT 6% IS SLIGHTLY ON HIGHER SIDE IN THE FISH TRADING 7 IT(SS)A NOS.06 TO 12/CTK/2018 IT(SS)A NOS.13 TO 18/CTK/2018 AND ITA NO. 34/CTK/2018 IT(SS)A NOS.19 TO 25/CTK/2018 ASSESSMENT YEARS :2008 - 2009 TO 2014 - 15 BUSINESS AND, T HEREFORE, WE RESTRICT THE NET PROFIT TO 5 % ON THE TURNOVER. ACCORDINGLY, GROUND NO.1 OF APPEAL FOR ALL THE ASSESSMENT YEARS OF THE ASSESSES IS PARTLY ALLOWED. 10. GROUND NO.2 FOR THE ASSESSMENT YEARS 2010 - 11 TO 2014 - 15 IN IT(SS) A NOS.06 TO 12/CTK/2018 IN THE CASE OF TAYAB KHAN AND GROUND NOS.2 OF APPEAL FOR THE ASSESSMENT YEARS 2010 - 2011 TO 2014 - 15 IN THE CASE OF KHUSIDA BIBI IN IT(SS) A NO.19 TO 25/CTK/2018 RELATES TO ADDITION MADE UNDER THE HEAD UNDISCLOSED BANK DEPOSITS. 11. THE FACTS IN BRIEF FOR THE ASSESSMENT YEAR 2010 - 2011 ARE THAT THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOUND THAT THE ASSESSEE HAS MAINTAINED VARIOUS BANK ACCOUNTS AND ON EXAMINATION OF ASSE SSEES CC BANK ACCOUNT NO.154 IN ODISHA GRAMYA BANK, TALCHER , THE ASSESSING OFFICER FOUN D THAT SUBSTANTIAL AMOUNT HAS BEEN REPAID IN CASH AND THE CASH DEPOSITS DOES NOT COMMENSURATE WITH THE DISCLOSED SOURCES FROM THE ASSESSEES BUSINESS INCOME. WHEREAS THE CONTENTION OF THE ASSESSEE IS THAT THE DEPOSITS MADE IN THE CC ACCOUNT ARE OUT OF SAL E PROCEEDS AND DOES NOT REPRESENT ANY REPAYMENT OF LOAN. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS NOT FURNISHED ANY DETAILS AND CLARIFIED THE SOURCE OF DEPOSIT AND, THEREFORE DID NOT ACCEPT THE SUBMISSION OF THE ASSESSEE A ND ALSO THE PROVISIONS OF SECTION 44AB OF THE ACT WAS NOT COMPLIED. HENCE, T HE ASSESSING OFFICER MADE ADDITION OF RS.46,43,800/ - . 8 IT(SS)A NOS.06 TO 12/CTK/2018 IT(SS)A NOS.13 TO 18/CTK/2018 AND ITA NO. 34/CTK/2018 IT(SS)A NOS.19 TO 25/CTK/2018 ASSESSMENT YEARS :2008 - 2009 TO 2014 - 15 12. ON APPEAL, THE CIT(A) CONFIRMED THE ADDITION. 13. BEFORE US, LD A.R. SUBMITTED THAT THESE CASH DEPOSITS ARE OUT OF THE TURNOVER OF THE ASSESSEE AND, THEREFORE, IT IS NOT IN THE NATURE OF UNDISCLOSED INCOM E AND SHALL FORM PART OF ASSESSEES TRADING BUSINESS. FURTHER, LD A.R. SUBMITTED THAT SINCE THE ASSESSEE IS MAINTAIN ING VARIOUS BANK ACCOUNTS AND THE DEPOSITS ARE OUT OF WITHDRAW ALS FROM OTHER BANK ACCOUNTS. 14. CONTRA, LD D.R. RELIED ON THE ORDERS OF LOWER AUTHORITIES AND SUBMITTED THAT THE ASSESSING OFFICER AT PAGE 4 OF THE ASSESSMENT ORDER, HAS REFERRED TO THE BANK ACCOUNTS MAINTAINED BY THE ASSESSEE IN INDIAN OVERSEAS BANK, ST ATE BANK OF INDIA AND THE TURNOVER HAS BEEN DETERMINED BASED ON DEPOSITS IN THE ASSESSMENT YEAR 2009 - 2010. LD D.R. SUBMITTED THAT THE DEPOSITS MADE IN THE ODISHA GRAMYA BANK DO NOT FORM PART OF THE TURNOVER AS PER THE FINDINGS OF THE ASSESSING OFFICER AND THE ASSESSEE COULD NOT FILE EXPLANATIONS. 15. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. THE UNDISPUTED FACTS OF THIS CASE ARE THAT THE ASSESSEE HAD MADE DEPOSITS OF RS.46,43,800/ - IN THE ODISHA GRAMYA BANK BUT COULD NOT EXPLAIN THE SOURCE OF DEPOSITS BEFORE THE LOWER AUTHORITIES. EVEN BEFORE US, LD A.R. HAS MENTIONED THAT THE DEPOSITS MADE IN ODISHA GRAMYA BANK ARE OUT OF THE WITHDRAWALS OF OTHER BANK ACCOUNTS BUT COULD NOT SUBSTAN TIATE WITH ANY COGENT MATERIAL THAT 9 IT(SS)A NOS.06 TO 12/CTK/2018 IT(SS)A NOS.13 TO 18/CTK/2018 AND ITA NO. 34/CTK/2018 IT(SS)A NOS.19 TO 25/CTK/2018 ASSESSMENT YEARS :2008 - 2009 TO 2014 - 15 THE DEPOSITS FORM PART OF ASSESSEES TURNOVER. FURTHER, T HE ASSESSEE HAS ADMITTED THE FACT OF NON - MAINTENANCE OF BOOKS OF ACCOUNT . CONSIDERING THE OVERALL FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED V IEW THAT THE ASSESSEE IS UNABLE TO SUBSTANTIATE HIS CASE ON THE SOURCE OF DEPOSITS AND, THEREFORE, THE LOWER AUTHORITIES ARE FULLY JUSTIFIED IN MAKING THE ADDITION AND CONSIDERING THE SAME, WE UPHOLD THE FINDINGS OF THE CIT(A) ON THE GROUND OF APPEAL. GR OUND NO.2 FOR ALL THE ASSESSMENT YEARS IN THE CASE OF TAYAB KHAN AND KHUSIDA BIBI ARE DISMISSED. 16. GROUND NO.3 OF APPEAL FOR THE ASSESSMENT YEAR 2011 - 12 IN THE CASE OF TAYAB KHAN IS AS UNDER: FOR THAT THE ADDITION OF RS.4,81,755/ - AS MADE UNDER THE HEAD UNEXPLAINED INVESTMENT IN HOUSE CONSTRUCTION IS UNCALLED FOR AND UNJUSTIFIED. MOREOVER, THE AO FAILED TO CONSIDER THAT THE HOUSE WAS UNDER CONSTRUCTION. 17. AT THE TIME OF HEARING, LD A.R. OF THE ASSESSEE SUBMITTED THAT HE IS NOT PRESSING THIS GROUND OF APPEAL AND ALSO MADE AN ENDORSEMENT TO THIS EFFECT TO THE GROUNDS OF APPEAL APPENDED TO FORM NO.36 OF THE APPEAL MEMO FILED BEFORE THE TRIBUNAL. HENCE, GROUND NO.3 OF APPEAL IS DISMISSED AS NOT PRESSED. 18. GROUND NO.4 OF APPEAL FOR THE ASSESSMENT YEAR 2011 - 12 IN THE CASE OF TAYAB KHAN RELATES TO ADDITION OF RS.2,28,025/ - ON ACCOUNT OF BOGUS LIABILITY. 10 IT(SS)A NOS.06 TO 12/CTK/2018 IT(SS)A NOS.13 TO 18/CTK/2018 AND ITA NO. 34/CTK/2018 IT(SS)A NOS.19 TO 25/CTK/2018 ASSESSMENT YEARS :2008 - 2009 TO 2014 - 15 19. THE ASSESSING OFFICER, ON PERUSAL OF BALANCE SHEET DURING THE ASSESSMENT PROCEEDINGS U/S.143(3)/147 FOUND THAT THE ASSESSEE HAS SHOWN FIXED DEPOSITS WITH ACCRUED INTEREST AT RS.1,14,500/ - AND THE LIABILITY AT RS.2,28,025/ - . HOWEVER, DURING THE CURRENT ASS ESSMENT PROCEEDINGS, IN THE BALANCE SHEET, THE ASSESSEE HAS SHOWN FIXED DEPOSIT AT RS.2,25,136/ - AND RS.1,40,086/ - AND LIABILITY AT NIL. IN VIEW OF ABOVE, THE ASSESSING OFFICER OBSERVED THAT FD OF RS.2,25,136/ - HAS BEEN ADJUSTED AGAINST THE LIABILITY SHOW N AT RS.2,28,025/ - AND THE LIABILITY SHOWN EARLIER AT RS.2,28,025/ - IS CONSIDERED BOGUS. 20. ON APPEAL, THE CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 21. BEFORE US, LD A.R. OF THE ASSESSEE COULD NOT FILE ANY DETAILS TO SUBSTANTIATE THAT THE LIA BILITY IS NOT BOGUS. HENCE, WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) ON THESE ADDITIONS , WHICH IS HEREBY CONFIRMED AND GROUND NO.4 OF APPEAL IS DISMISSED. 2 2 . AT THE TIME OF HEARING, LD A.R. FILED A PETITION AND SOUGHT TO WITHDRAW THE APPEAL FILED IN ITA NO.34/CTK/2018 FOR THE ASSESSMENT YEAR 2014 - 15, TO WHICH, LD D.R. HAD NO OBJECTION. 23. IN VIEW OF ABOVE, WE ACCEDED TO THE REQUEST OF LD A.R. OF THE ASSESSEE AND PERMIT TO WITHDRAW THE APPEAL. 24. HENCE, THE APPEAL FOR ASSESSMENT YEAR 2014 - 15 IN ITA NO.34/CTK/2018 IS DISMISSED AS WITHDRAWN. 11 IT(SS)A NOS.06 TO 12/CTK/2018 IT(SS)A NOS.13 TO 18/CTK/2018 AND ITA NO. 34/CTK/2018 IT(SS)A NOS.19 TO 25/CTK/2018 ASSESSMENT YEARS :2008 - 2009 TO 2014 - 15 25. GROUND NO.3 OF APPEAL FOR THE ASSESSMENT YEAR 2009 - 2010 AND 2010 - 2011 , 2013 - 14 IN IT(SS) A NO.20 & 21/CTK/2018 AND IT (SS) A NO.24/CTK/2018 AND GROUND NO.4 FOR THE ASSESSMENT YEAR 2011 - 12 IN IT(SS) A NO.22 /CTK/2018 IN THE CASE OF KHUSIDA BIBI IS AS UNDER: FOR THAT THE INCOME DETERMINED OF RS.2,50,224/ - IN (AY 2009 - 10) RS. 1 ,63,800(IN AY 2010 - 2011)AND RS.3,39,000/ - ION ( AY 2011 - 12 ) AND RS.4,20,000/ - IN (AY 2013 - 14) UNDER THE HEAD INCOME FROM TRUCK PLYING BY APPLYING PROVISIONS OF SECTION 44AE IS ARBITRARY AND IMPROPER AND THE INCOME RETUNED SHOULD HAVE BEEN ACCEPTED. 26 . AT THE TIME OF HEARING, LD A.R. OF THE ASSESSEE SUBMITTED THAT HE IS NOT PRESSING THIS GROUND OF APPEAL AND ALSO MADE AN ENDORSEMENT TO THIS EFFECT TO THE GROUNDS OF APPEAL APPENDED TO FORM NO.36 OF THE APPEAL MEMO FILED BEFORE THE TRIBUNAL. HENCE, THE ABOVE GROUNDS ARE DISMISSED AS NOT PRESSED. 27. GROUND NO.3 OF APPEAL FOR THE ASSESSMENT YEAR 2011 - 12 IN IT(SS)A NO.22/CTK/2018 RELATES TO ADDITION OF RS.1,05,000/ - MADE UNDER THE HEAD UNDISCLOSED INVESTMENT. 28. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS MADE INVESTMENT OF RS.30,10,100/ - FOR PURCHASE OF THREE TRUCKS, OUT OF WHICH, AN A MOUNT OF RS.29,05,500/ - WAS AVAILED BY WAY OF LOAN. THEREFORE, THE ASSESSING OFFICER CONSIDERED THE DIFFERENTIAL AMOUNT OF RS.1,05,000/ - AS UNDISCLOSED INVESTMENT. 12 IT(SS)A NOS.06 TO 12/CTK/2018 IT(SS)A NOS.13 TO 18/CTK/2018 AND ITA NO. 34/CTK/2018 IT(SS)A NOS.19 TO 25/CTK/2018 ASSESSMENT YEARS :2008 - 2009 TO 2014 - 15 29. ON APPEAL, THE CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER ON THE GROUND THAT THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF INVESTMENT OF RS.1,05,000/ - . 30. BEFORE US, LD A.R. SUBMITTED THAT THE AMOUNT OF RS.1,05,000/ - INVESTED BY THE ASSESSEE IN THE PURCHASE OF THREE TRUCKS IS ON ACCOUNT OF INITIAL PAYMENT. THE ASSESSEE HAS INVESTE D THE AMOUNT OUT OF CASH AVAILABLE WITH HER FROM THE FISH TRADING BUSINESS. 31. LD D.R. SUPPORTED THE ORDERS OF LOWER AUTHORITIES. 32. AFTER HEARING THE RIVAL SUBMISSIONS AND PERUSING THE ORDERS OF LOWER AUTHORITIES, WE FIND THAT THE ASSESSEE HAS MADE CASH PAYMENT OF RS.1,05,000/ - FOR PURCHASE OF ONE MINI TRUCK AND TWO TRUCKS AS INITIAL PAYMENT AND FOR THE BALANCE PAYMENT, LOAN OF RS.29,05,500/ - WAS AVAILABLE. WE ALSO FIND THAT THE ASSESSEE IS IN THE BUSINESS OF FISH TRADING AND THE ASSESSEE COULD HAVE INV ESTED THE AMOUNT FROM THE INCOME EARNED OUT OF FISH TRADING. MOREOVER, WHEN THE ASSESSEE HAD MADE HUGE TURNOVER , WE ARE OF THE CONSIDERED VIEW THAT THE AUTHORITIES BELOW SHOULD NOT HAVE DOUBTED THE SOURCE OF INVESTMENT OF RS.1,05,000/ - BY THE ASSESSEE. HENCE, WE DELETE RS.1,05,000/ - AND ALLOW THIS GROUND OF APPEAL OF THE ASSESSEE. 33. GROUND NO.3 FOR THE ASSESSMENT YEAR 2012 - 13 IN IT(SS) A NO.23/CTK/2018 IN THE CASE OF KHUSIDA BIBI RELATES TO ADDITION OF RS.1,41,845/ - UNDER THE HEAD UNEXPLAINED PERSONAL EXPENDITURE. 13 IT(SS)A NOS.06 TO 12/CTK/2018 IT(SS)A NOS.13 TO 18/CTK/2018 AND ITA NO. 34/CTK/2018 IT(SS)A NOS.19 TO 25/CTK/2018 ASSESSMENT YEARS :2008 - 2009 TO 2014 - 15 34. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. THE UNDISPUTED FACTS OF THE CASE ARE THAT DURING THE COURSE OF SEARCH, DOCUMENT IDENTIFIED AS TKR - 36 WAS FOUND IN WHICH MARR IAGE EXPENSES OF RS.2,52,345/ - WERE RECORDED. IN THE CAPITAL ACCOUNT, THE ASSESSEE HAS SHOWN DRAWINGS OF RS.1,10,500/ - AND THE ASSESSING OFFICER MADE ADDITION OF RS.1,41,845/ - AS THE ASSESSEE COULD NOT EXPLAIN THE SOURCE AND THE CIT(A) HAS CONFIRMED THE ACTION OF THE ASSESSING OFFICER . BEFORE US, LD A.R. EXPLAINED THAT THE ASSESSEE HAS PA S T SAVINGS AND THE SOURCE OF INCOME IS FROM FISH TRADING AND HAS BEEN OFFER ING THE SAME. IN THE PRESENT ASSESSMENT YEAR, THE ASSESSEE HAS DERIVED TOTAL INCOME AND SOURCE WHICH CAN SUBSTANTIATE THE PERSONAL EXPENDITURE ON WHICH LD D.R. COULD NOT CONTROVERT. WE FIND FORCE IN THE ARGUMENTS OF THE ASSESSEE AND CONSIDERING THE FAMILY BUSINESS AND THE SOURCE OF INCOME, WE ALLOW THIS GROUND OF APPEAL OF THE A SSESSEE. 35. IN THE RESULT, APPEAL IN ITA NO.34/CTK/2018 IS DISMISSED AND ALL OTHER APPEALS OF THE ASSESSEES ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 / 04 /201 8 . S D/ - SD/ - (N.S SAINI) ( PAVAN KUMAR GADALE) A CCOUNTANT MEMBER JUDICIALMEMBER CUTTACK; DATED 16 /0 4 /201 8 B.K.PARIDA, SPS 14 IT(SS)A NOS.06 TO 12/CTK/2018 IT(SS)A NOS.13 TO 18/CTK/2018 AND ITA NO. 34/CTK/2018 IT(SS)A NOS.19 TO 25/CTK/2018 ASSESSMENT YEARS :2008 - 2009 TO 2014 - 15 COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANTS CONCERNED : 2. THE RESPONDENT: ITO, WARD - 2, DENKANAL 3. THE CIT(A)2 BHUBANESWAR 4. PR.CIT - 2, BHUBANESWAR, 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//