Anup Kumar Lakhotia, , Howrah V. DCIT, Cen. Cir. 3(2), Kolkata

ITSSA 14/KOL/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 7177 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 15-05-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 08-05-2024
• Assessment Year: 2021-2022
• Appeal Filed On: 21-02-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 250; 69A

Judgement Text

आयकर अपीलीय अधिकरण कोलकाता 'बी' पीठ, कोलकाता म ें IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘B’ BENCH, KOLKATA श्री संजय गग ग , न्याधयक सदस्य एवं श्री संजय अवस्थी, ल े खा सदस्य क े समक्ष Before SRI SANJAY GARG, JUDICIAL MEMBER & SRI SANJAY AWASTHI, ACCOUNTANT MEMBER I.T.(S.S.)A. No.: 14/KOL/2024 Assessment Year: 2021-22 Anup Kumar Lakhotia.............................................................Appellant [PAN: AAXPL 1622 L] Vs. DCIT, Cen. Cir.- 3(2), Kolkata................................................Respondent Appearances: Assessee represented by: Miraj D. Shah, A/R. Department represented by: Abhijit Kundu, CIT DR. Date of concluding the hearing : May 9 th , 2024 Date of pronouncing the order : May 16 th , 2024 ORDER Per Sanjay Awasthi, Accountant Member: The present appeal arises from the order passed u/s 250 of the Income Tax Act, 1961 (in short the 'Act') dated 27.12.2023 by the Commissioner of Income Tax (Appeals)-21, Kolkata [in short ld. 'CIT(A)'], pertaining to AY 2021- 22. 2. In this case, there are two grounds of appeal which basically agitate the addition of Rs. 8.50 Lakh by the Assessing Officer (in short ld. 'AO') u/s 69A of the Act. This action was confirmed by the ld. CIT(A) leading to the grievance which has been canvassed before us. The brief facts regarding this addition I.T.(S.S.)A. No.: 14/KOL/2024 Assessment Year: 2021-22 Anup Kumar Lakhotia. Page 2 of 4 are that purportedly there was a WhatsApp chat with one Manoj Jain, broker and the assessee through which, as alleged, a loan was purportedly negotiated. The ld. AO interpreted this conversation in a manner which presumed that such transaction had taken place and that the figure of 85 needed to be interpreted in a manner as preferred by the ld. AO. 2.1. It is seen that the ld. AO has merely mentioned in para 5 of his order that the impounded documents bearing ID Mark-LG-07/Pg 33 alleged a cash transaction of Rs. 70 Lakh on which allegedly the assessee did not file any satisfactory reply and therefore, he has presumed a suppression of three digits. After extrapolating in the figure of 85, he has made the addition of Rs. 8.50 Lakh. 2.2. At the first appellate stage, ld. CIT(A) has confirmed the addition with the following observation: “This agitates against the action of the AO in making an addition of Rs.8,50,000/- u/s 69A of the Act. The facts of the case are that during the course of search a whatsapp chat was obtained from a broker Sri Manoj Jain who offered loan of Rs. 7,00,000/- + Interest of Rs. 1,50,000/- for loan commencing from 01/08/2020 from Hira Devi Jain. I notice that the appellant has produced nothing such as any affidavit or any document has been filed before me wherein acceptance of such cash loans were denied by the appellant, which would demonstrate that such cash transactions were not undertaken by him. In the absence of any evidence or reasoning whatsoever afforded by the appellant, during appeal, I have no material before me to differ from the findings of the AO. It is a settled principle of law that the onus for showing that the action of an Assessing Officer was legally or factually incorrect, lies upon the appellant who is challenging the action. The appellant has not made any efforts to discharge this onus and therefore since there is no material before me to show that the action of the AO is incorrect, the same is confirmed. Ground 7 is general in nature and needs no adjudication.” 3. Before us, the ld. Counsel for the assessee took pains to explain that both before the ld. AO as well as ld. CIT(A), the assessee had duly explained the circumstances surrounding the WhatsApp chat message and stated that this was a transaction which never materialised and for reasons best known to the AO, the initial allegation of Rs. 70 Lakh cash transaction was brought I.T.(S.S.)A. No.: 14/KOL/2024 Assessment Year: 2021-22 Anup Kumar Lakhotia. Page 3 of 4 down to Rs. 8.50 Lakh. This was done even when the assessee protested that no such transaction ever happened. The ld. Counsel for the assessee also pointed out that the person from whom the loan was being offered being one Hira Devi Jain, from her admittedly a loan had been taken earlier and repaid through banking channels. Copy of ledger account of Smt. Hira Devi Jain was supplied to the ld. first appellate authority. 3.1. Accordingly, it has been averred that the impugned addition has been made on the basis of mere suspicion and conjecture, which has no basis in facts. 3.2. Ld. D/R relied on the order of both the ld. AO as well as ld. CIT(A). 4. It is seen from a careful perusal of the orders of both the lower authorities that the explanation supplied by the assessee has been totally disregarded and assumptions have been made not only regarding the alleged genuineness of the transaction but also about the value of 70+15=85 being to the tune of Rs. 8.50 Lakh. It is clearly visible that no effort has been made by ld. AO for proving that the transaction as alleged, actually happened. Also, the explanation offered by the assessee, with necessary documents pertaining to another transaction with Smt. Hira Devi Jain, are seen to have been casually dismissed and an arbitrary figure 8.50 Lakh has been accepted for an addition u/s 69A of the Act. Considering the totality of facts and circumstances before us, there is no hesitation in deleting the addition of Rs. 8.50 Lakh. In consequence, the grounds raised by the assessee are allowed. 5. In the result, the appeal filed by the assessee is allowed. Order pronounced in the open Court on 16 th May, 2024. Sd/- Sd/- [Sanjay Garg] [Sanjay Awasthi] Judicial Member Accountant Member Dated: 16.05.2024 Bidhan (P.S.) I.T.(S.S.)A. No.: 14/KOL/2024 Assessment Year: 2021-22 Anup Kumar Lakhotia. Page 4 of 4 Copy of the order forwarded to: 1. Anup Kumar Lakhotia, 269, G.T. Road(N), Liluah, Howrah, West Bengal, 711204. 2. DCIT, Cen. Cir.- 3(2), Kolkata. 3. CIT(A)-21, Kolkata. 4. CIT- 5. CIT(DR), Kolkata Benches, Kolkata. //True copy // By order Assistant Registrar ITAT, Kolkata Benches Kolkata