KESHAB KUMAR HALDER,BIRBHUM V. A.C.I.T., CENTRAL CIRCLE - 4(1), KOLKATA, KOLKATA

ITSSA 77/KOL/2024

AI Insights

The case involves two appeals by Keshab Kumar Halder against the orders of the Commissioner of Income Tax (Appeals), Kolkata, for the Assessment Years 2012-2013 and 2013-2014. The primary issues in the appeals were the addition of income under the head 'business income' and the addition of amounts received as bogus loans. The Tribunal found that the income was disclosed under different heads in the returns filed and that no incriminating material was found during the search for the loan additions, leading to the decision to allow the appeals.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 40210 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 4 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 29-11-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 30-10-2024
• Assessment Year: 2012-2013
• Appeal Filed On: 24-06-2024
• Other Referred Cases: Pr. CIT, Central -3 -vs.- Abhisar Buildwell (P) Ltd. [2023] 149 taxmann.com 399 (SC)
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside; Business income; Salary income; Bogus loan; Bogus
• Section: 143(3); 132; 153A

Judgement Text

" IT(SS)A No. 77/KOL/2024 (A.Y. 2012-2013) & IT(SS)A No. 78/KOL/2024 (A.Y. 2013-2014) Keshab Kumar Halder 1 THE INCOME TAX APPELLATE TRIBUNAL, ‘B’ BENCH, KOLKATA Before Shri Rajesh Kumar, Accountant Member & Shri Sonjoy Sarma, Judicial Member I.T.(SS)A. No. 77/KOL/2024 Assessment Year: 2012-2013 & I.T.(SS)A. No. 78/KOL/2024 Assessment Year: 2013-2014 Keshab Kumar Halder,……….…………………Appellant C/o. Subash Agarwal & Associates, Advocates, Siddha Gibson, 1, Gibson Lane, Suite 213, 2nd Floor, Kolkata-700069 [PAN:AAQPH3273G] -Vs.- Assistant Commissioner of Income Tax,…Respondent Central Circle-4(1), Kolkata, Aayakar Bhawan Poorva, 110, Shantipalli, E.M. Bypass, Kolkata-700107 Appearances by: Shri Siddharth Agarwal, Advocate, appeared on behalf of the assessee Shri Prakash Nath Barnwal, CIT, D.R., appeared on behalf of the Revenue Date of concluding the hearing : October 30, 2024 Date of pronouncing the order : November 29, 2024 IT(SS)A No. 77/KOL/2024 (A.Y. 2012-2013) & IT(SS)A No. 78/KOL/2024 (A.Y. 2013-2014) Keshab Kumar Halder 2 O R D E R Per Rajesh Kumar, Accountant Member:- IT(SS)A No. 77/KOL/2024. This appeal is directed at the instance of assessee against the order of ld. Commissioner of Income Tax (Appeals), Kolkata-27 dated 27th December, 2023 passed for Assessment Year 2012-13. 2. At the outset, there is a delay of 120 days in filing the appeal filed by the assessee, which was stated to be on account of non- service of the appellate order on the assessee as the person, who was handling the tax matters and entrusted with these issues was not aware of how to access the appellate order on e-mail as he was being ignorant as to the system of on-line service. It is only in 2nd week of June, 2024, when the income tax portal was checked by the accountant, it was realized that the appellate order was already passed on 27th December, 2023. Thereafter the Advocate Shri Siddharth Agarwal was approached to file the appeal and it was finally filed on 24th June, 2024. 3. On the other hand, ld. D.R. objected to this contention of the assessee and contended that the delay should not be condoned. 4. After hearing the rival contentions and perusing the material placed on record, we find that the delay in filing the appeal was happened due to bonafide reasons and accordingly the same is condoned. IT(SS)A No. 77/KOL/2024 (A.Y. 2012-2013) & IT(SS)A No. 78/KOL/2024 (A.Y. 2013-2014) Keshab Kumar Halder 3 5. The assessee has challenged in this appeal the confirmation of addition by the ld. CIT(Appeals) of Rs.11,66,358/- as made by the ld. Assessing Officer under the head “business income” without considering the explanation of the assessee that the income was offered to tax under the head “income from salary” and “income from other sources” in the return filed under section 153A. 6. The facts in brief are that a search action under section 132 of the Income Tax Act was conducted at the business as well as residential premises of Halder Group of Companies on 01.12.2015. Notice under section 153A was issued by the ld. Assessing Officer which was duly complied with by the asseessee. The assessee filed various information/details as called for by the ld. Assessing Officer. Finally, the ld. Assessing Officer added a sum of Rs.11,66,358/- under the head “profits and gains from business”, which according to the ld. Assessing Officer was disclosed in the original return but was not disclosed in the return filed in response to the notice issued under section 153A of the Act. Accordingly, the same was added to the income of the assessee in the assessment framed under section 153A read with section 143(3) of the Act dated 30.12.2017. 7. The appeal to the ld. CIT(Appeals) did not bring any relief to the assessee. IT(SS)A No. 77/KOL/2024 (A.Y. 2012-2013) & IT(SS)A No. 78/KOL/2024 (A.Y. 2013-2014) Keshab Kumar Halder 4 8. After hearing the rival contentions and perusing the relevant materials placed on record, we find that the assessee has not disclosed the said income under the head “profits and gains from business” in the return filed in response to the notice under section 153A of the Act. However, the assessee has claimed to have disclosed the income under the head of salary and other sources in the said return. Ld. Counsel for the assessee claimed that if the addition is made, then it will be the amount of double taxation of addition, which is not permissible under the law. Now comparing the income of the assessee in the original return of income, vis-à- vis the return filed under section 153A, we find that the gross total income of the assessee was also almost similar with the exception that the assessee has claimed certain expenses under the head “income from other sources”. Therefore, we find merit in the contention of the assessee that the assessee has disclosed this income in the return filed under section 153A as well but under the different heads. In our opinion, this issue is required to be examined at the level of ld. Assessing Officer. Accordingly, we set aside the order of ld. CIT(Appeals) and restore the issue to the file of ld. Assessing Officer with a direction to verify the same and frame the assessment accordingly. Needless to say, that if the assessee has declared this income under the head “salary” and “income from other sources”, then, no addition is required to be made. 9. In the result the appeal of the assessee is allowed for statistical purposes. IT(SS)A No. 77/KOL/2024 (A.Y. 2012-2013) & IT(SS)A No. 78/KOL/2024 (A.Y. 2013-2014) Keshab Kumar Halder 5 IT(SS)A No. 78/KOL/2024. 10. This appeal is directed at the instance of assessee against the order of ld. Commissioner of Income Tax (Appeals), Kolkata-27 dated 30th December, 2023 passed for Assessment Year 2013-14. 11. There is a delay of 117 days in filing the appeal filed by the assessee. The reasons for non-filing of appeal in time as stated above in IT(SS)A No. 77/KOL/2024 is also similar to this appeal. Therefore, we condone the delay and decided the appeal on merit. 12. The assessee has challenged the additions of Rs.25,00,000/- and Rs.7,036/-, which were confirmed by the ld. CIT(Appeals) upholding the assessment order, wherein the addition was made in respect of bogus loan taken by the assessee. 13. The facts in brief are that this being an unabated assessment on the date of search and no incriminating material was found during the course of search. The ld. Assessing Officer in the assessment order has noted that the assessee was found to have received accommodation entry in the garb of bogus unsecured loan from M/s. Fast Speed Commercial Pvt. Limited, a shell company, managed and operated by the entry operator Shri Ashoke Kumar Agarwal. The ld. Assessing Officer further noted that during the course of survey at the premises of M/s. Fast Speed Commercial IT(SS)A No. 77/KOL/2024 (A.Y. 2012-2013) & IT(SS)A No. 78/KOL/2024 (A.Y. 2013-2014) Keshab Kumar Halder 6 Pvt. Limited, documents were found, which showed that the assessee had taken accommodation entry of Rs.25,00,000/- from the said Company and thereafter the same was added in the hands of assessee in the assessment framed under section 153A read with section 143(3) order dated 30.12.2017. Being aggrieved, the assessee filed appeal before the ld. 1st Appellate Authority and the appeal was also dismissed. 14. After hearing the rival contentions and perusing the material placed on record, we observe that during the course of search conducted at the premises of the assessee, no incriminating material was found and seized qua the unsecured loan of Rs. 25,00,000/-. We note that it is only during the course of survey proceedings, certain documents were seized and the ld. Assessing Officer has made the addition only on the basis of documents seized in the course of survey, which cannot be treated as incriminating material found during the course of search. Accordingly, the addition made in an unabated assessment year without incriminating material seized is without jurisdiction and cannot be sustained. The case of the assessee is covered by the judgment of the Hon’ble Apex Court in the case of Pr. CIT, Central -3 -vs.- Abhisar Buildwell (P) Ltd. [2023] 149 taxmann.com 399 (SC). Considering the facts of the case, we are inclined to set aside the order of ld. CIT(Appeals) and direct the ld. Assessing Officer to delete the additions. 15. In the result, this appeal of the assessee is allowed. IT(SS)A No. 77/KOL/2024 (A.Y. 2012-2013) & IT(SS)A No. 78/KOL/2024 (A.Y. 2013-2014) Keshab Kumar Halder 7 16. To sum up, the appeal of the assessee bearing IT(SS)A No. 77/KOL/2024 is allowed for statistical purposes. The appeal bearing IT(SS)A No. 78/KOL/2024 of the assessee is allowed. Order pronounced in the open Court on 29/11/2024. Sd/- Sd/- (Sonjoy Sarma) (Rajesh Kumar) Judicial Member Accountant Member Kolkata, the 29th day of November, 2024 Copies to :(1) Keshab Kumar Halder, C/o. Subash Agarwal & Associates, Advocates, Siddha Gibson, 1, Gibson Lane, Suite 213, 2nd Floor, Kolkata-700069 (2) Assistant Commissioner of Income Tax, Central Circle-4(1), Kolkata, Aayakar Bhawan Poorva, 110, Shantipalli, E.M. Bypass, Kolkata-700107 (3) Commissioner of Income Tax (Appeals), Kolkata-27; (4) CIT - , Kolkata; (5) The Departmental Representative; (6) Guard File TRUE COPY By order Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S. "