M/s. Vijaypath Management Pvt. Ltd., , Kolkata V. DCIT, Central Circle - 3(3), Kolkata , Kolkata

ITSSA 63/KOL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6998 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 06-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 13-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: IMOKABA JAMIR
• Assessee Lawyers: S M SURANA
• Keywords: TDS
• Section: 153A; 143(1); 143(2); 64; 153; 139

Judgement Text

1 IT(SS)A NO.63/KOL/2018 VIJAYPATH MANAGEMENT PVT. LTD. , AY- 2012-13 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA ().. , .. !,'#$) [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT (KZ) & SHR I A. T. VARKEY, JM] IT(SS)A NO.63/KOL/2018 ASSESSMENT YEAR: 2012-13 M/S. VIJAYPATH MANAGEMENT PVT. LTD. (PAN: AAACV8930F) VS. DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-3(3), KOLKATA. APPELLANT RESPONDENT DATE OF HEARING 22.01.2020 DATE OF PRONOUNCEMENT 06.02.2020 FOR THE APPELLANT SHRI S. M. SURANA, ADVOCATE FOR THE RESPONDENT SHRI IMOKABA JAMIR, CIT, DR ORDER PER A. T. VARKEY, JM: THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-21, KOLKATA DATED 02-07-2018 FOR THE ASSESSMENT YEAR 2012-13. 2. GROUND NOS. 1 AND 2 OF THE ASSESSEES APP EAL IS AGAINST THE ACTION OF LD. CIT(A) IN CONFIRMING ADDITION OF AN AMOUNT OF RS.1,35,615/- A S PER THE ORDER OF AO PASSED U/S. 143(3)/153A OF THE INCOME-TAX ACT, 1961 (HEREINAFTE R REFERRED TO AS THE ACT) 3. BRIEFLY STATED FACTS AS NOTED BY AO ARE THAT A SEARCH OPERATION U/S. 132(1) OF THE ACT WAS CONDUCTED ON 08.03.2016 AND ON SUBSEQUENT DATES IN THE RESIDENCES AND OFFICE PREMISES OF PATNI GROUP OF CASES. ACCORDING TO AO, NOTICE U/ S. 153A OF THE ACT WAS ISSUED AND SERVED UPON THE ASSESSEE. AND IN RESPONSE TO NOTICE U/S. 153A OF THE ACT, ASSESSEE FILED RETURN OF INCOME ON 25.10.2016 AT A TOTAL INCOME OF RS. (-)5,81,090/- AND THE AO OBSERVES THAT THE ASSESSEE HAD FILED ORIGINAL RETURN OF INCO ME U/S. 139 ON 24.09.2012 AT A TOTAL INCOME OF RS. (-)5,77,860/-. THEREFORE, AO TAKING NOTE OF THE DIFFERENCE OF RS.(-)5,77,860/- AND RS. (-) 5,81,090/- = RS.3,230/- ADDED THE SAME TO THE TOTAL INCOME WHICH ACTION OF AO HAS BEEN CONFIRMED BY LD. CIT(A) AND IS NOT CHALLENGED BEFORE US AND SO IS CONFIRMED. THEREAFTER, THE AO OBSERVES THAT IN RESPONSE TO THE STATUTORY NOTICES, THE ASSESSEE SUBMITTED DOCUMENTS, EXPLANATION ETC. AND THE AO FOUND FROM I TS DETAILS OF AY 2012-13 OF THE 2 IT(SS)A NO.63/KOL/2018 VIJAYPATH MANAGEMENT PVT. LTD. , AY- 2012-13 ASSESSEE COMPANY THAT THERE WAS UNDISCLOSED TDS OF RS.13,562/-. ACCORDING TO AO, THE CORRESPONDING UNDISCLOSED INTEREST INCOME FROM M/S. INVESCO FINANCE PVT. LTD. OF RS.1,35,615/- HAS NOT BEEN ADDED TO THE TOTAL INCOM E. AND SINCE THE LD. AR COULD NOT SUBMIT ANY EXPLANATIONS AND ACCEPTED THE DISCREPANC Y, THE AO ADDED THE UNDISCLOSED INTEREST INCOME OF RS.1,35,615/- TO THE TOTAL INCOM E OF THE ASSESSEE. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A), WHO CONF IRMED THE AOS ACTION BY OBSERVING AS UNDER: 1. I HAVE CAREFULLY EXAMINED THE ADD ITION MADE BY THE LD. AO WHILE COMPLETING THE ASSESSMENT IN THE CASE OF THE APPELLANT. THE FI RST ADDITION RELATES TO AN AMOUNT OF RS.3,230/- WHICH WAS ADDED BACK BY THE LD. AO TO TH E RETURNED INCOME. THE LD. AO HAS RECORDED THAT IN RESPONSE TO NOTICE U/S 153A, THE A SSESSEE-COMPANY FILED RETURN OF INCOME ON 25.10.2016 AT A TOTAL INCOME OF RS. (-) 5,81,090 /-, AND THAT EARLIER THE ASSESSEE HAD FILED ORIGINAL RETURN OF INCOME U/S 139 ON 24.09.2012 AT A TOTAL INCOME OF RS (-)5,77,860/-. THEREFORE THE LD. AO ADDED BACK THE DIFFERENCE OF R S. (-)5,77,860/- AND RS. (-)5,81,090/- WHICH COMES TO RS. 3,230/- TO THE TOTAL INCOME OF T HE ASSESSEE. IT APPEARS THAT THIS ADDITION HAS NOT BEEN CONTESTED BY THE APPELLANT IN THE WRIT TEN SUBMISSIONS FILED IN THIS FORUM. THIS BEING THE EMERGENT FACT, SUCH ACTION OF THE LD. AO IS CONFIRMED. 2. THE OTHER ADDITION MADE BY THE LD. AO IS THE IMP UGNED SUM OF RS.1,25,615/-. THE LD. AO NOTICED FROM THE ITS DETAILS OF FY 2011-12 OF TH E ASSESSEE COMPANY, THAT THERE IS UNDISCLOSED TDS OF RS.13,562/-, AND THAT THE CORRES PONDING UNDISCLOSED INTEREST INCOME FROM M/S. INVESCO FINANCE PVT. LTD. OF RS.1,35,615/ - HAS NOT BEEN ADDED TO THE TOTAL INCOME BY THE ASSESSEE WHILE COMPUTING THE SAME. T HE LD. AO HAS RECORDED THAT WHEN FRONTED IN THE MATTER, THE LD. A.R FOR THE APPELLAN T WAS UNABLE TO FURNISH ANY EXPLANATION IN THE MATTER AND HAD ACCEPTED THE DIFFERENCE. THE LD. AO THEREFORE ADDED BACK THE 'UNDISCLOSED INTEREST INCOME' OF RS. 1,35,615/- TO THE TOTAL INCOME OF THE ASSESSEE. IN APPEAL, IT HAS BEEN PLEADED BY THE APPELLANT THAT S UCH FINDING BY THE LD. AO IS NOT BASED ON INCRIMINATING MATERIALS, AND THEREFORE CANNOT BE SU STAINED. THE APPELLANT HAS RELIED UPON A CATENA OF JUDICIAL CASES TO SUPPORT ITS CONTENTIO N. HOWEVER, IN MY CONSIDERED VIEW OF THE MATTER, IT IS TO BE STATED THAT ITS DETAILS ARE A M ATTER OF DO KNOWLEDGE OF BOTH THE LD. AO AS WELL AS THE ASSESSEE, AND THEREFORE THE QUESTION OF ANY INCRIMINATING DOCUMENTS CANNOT BE ENTERTAINED. IN ANY CASE EVEN IN APPEAL, I FIND THA T THE APPELLANT HAS NOT COME UP WITH ANY EXPLANATION REGARDING THE TDS ON INTEREST, THE AMOU NT BEING RS.1,35,615/- BEING THE INTEREST RECEIVED AND THE EQUIVALENT TDS BEING RS.1 3,562/-. IT IS ALSO TO BE STATED THAT THE ASSESSEE-COMPANY WAS WELL AWARE OF THE TDS DETAILS AND THEREFORE IT IS NOT KNOWN AS TO WHY IT WAS DENIED BY THE ASSESSEE. SINCE THE PARTY DEDUCTING THE E IMPUGNED TDS WAS WELL KNOWN TO THE ASSESSEE, THERE OUGHT TO BE AT LEAST S OME CORRESPONDENCE IN THE MATTER WITH THAT PARTY FROM THE SIDE OF THE ASSESSEE, BEFORE IT DENIES THAT HERE WAS NO TRANSACTION OF EARNING INTEREST. I THEREFORE FIND NO REASON TO INT ERFERE WITH THE FINDINGS OF THE LD. AO, WHICH STAND CONFIRMED. HOWEVER, THE ASSESSEE WOULD ALSO BE ELIGIBLE FOR THE TDS WHEN THE CORRESPONDING INCOME IS BEING CONSIDERED BY THE LD. AO FOR ADDITION. THIS GROUND THEREFORE STANDS PARTLY ALLOWED. 4. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND GON E THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT IN THIS CASE A SEARCH TOOK PLACE ON 08.03.2016 AND CONSEQUENTLY ASSESSMENT U/S. 153A OF THE ACT WAS RESORTED TO FOR THIS AY 2016-17. WE NOTE THAT THE ONLY 3 IT(SS)A NO.63/KOL/2018 VIJAYPATH MANAGEMENT PVT. LTD. , AY- 2012-13 ADDITION AO MADE WAS BASED ON THE MISMATCH BETWEEN THE TDS CERTIFICATE AND INCOME OFFERED BY THE ASSESSEE AND THUS THE ADDITION OF RS . 1,35,615/- WAS MADE AGAINST THE ASSESSEE. WE NOTE THAT INITIALLY THE RETURN OF INC OME (ROI) WAS PROCESSED U/S. 143(1) OF THE ACT AND NO NOTICE U/S. 143(2) OF THE ACT WAS I SSUED BY THE AO BEFORE THE EXPIRY OF THE STATUTORY LIMITATION PRESCRIBED IN THIS RESPECT. T HEREFORE, ON THE DATE OF SEARCH ON 08.03.2016, ASSESSMENT FOR THIS ASSESSMENT YEAR WAS NOT PENDING BEFORE THE AO, SO IT IS AN UNABATED ASSESSMENT. SINCE IT IS AN UNABATED ASSES SMENT, IT IS TRITE LAW THAT NO ADDITION SHOULD HAVE BEEN MADE WITHOUT THE AID OF INCRIMINAT ING MATERIAL UNEARTHED DURING SEARCH AS HELD BY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA (2015) 380 ITR 573 (DEL.) AND THE SLP OF DEPARTMENT HAS BEEN DISMI SSED BY THE HONBLE SUPREME COURT IN 380 ITR (ST.) 64 AND WHICH DECISION HAS BEEN APPROV ED BY THE HONBLE CALCUTTA HIGH COURT THOUGH IN SEC. 153 C PROCEEDINGS OF THE ACT IN CIT VS. VEERPRABHU MARKETING LTD. 388 ITR 574 (CAL). THEREFORE, THE APPEAL OF ASSESSEE IS AL LOWED. 6. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOW ED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 6 TH FEBRUARY, 2020. SD/- (P. M. JAGTAP) SD/-(ABY. T. VARKEY) VICE PRESIDENT JUDICIAL MEMBER DATED : 6 TH FEBRUARY, 2020 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. VIJAYPATH MANAGEMENT PVT. LTD, FLAT 3C, TRINITY BUILDING, 226/1, A.J.C. BOSE ROAD, KOLKATA-700 020. 2 RESPONDENT DCIT, CENTRAL CIRCLE-3(3), KOLKATA. 3. 4. 5. CIT(A)-21, KOLKATA (SENT THROUGH E-MAIL) CIT- , KOLKATA. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) BY ORDER, / TRUE COPY, ASSISTANT REGISTRAR