Daya Ram Shaw, Howrah V. ITO, Ward 47(2), Kolkata, Kolkata

MA 107/KOL/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5795 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 23-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ARNIDAM BHATTACHARJEE CIT RE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C (SMC), KOLKATA [BEFORE SHRI P.M. JAGTAP, AM & SHRI S.S. VISWANETHRA RAVI, JM] M.A. NO. 107/KOL/2017 (ARISING OUT OF ITA NO. 1611/KOL/2016) ASSESSMENT YEAR: 2008-09 DAYA RAM SHAW................................................................APPELLANT 2, SANATAN MISTRY LANE, HOWRAH - 711106 [PAN: ALCPS 8789 F] INCOME TAX OFFICER...............................RESPONDENT WARD 47(2), KOLKATA 3, GOVERNMENT PLACE (WEST), KOLKATA -700001 APPEARANCES BY: SHRI ANIL KOCHAR, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. SHRI ARNIDAM BHATTACHARJEE, ADDL. CIT APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : SEPTEMBER 22, 2017 DATE OF PRONOUNCING THE ORDER : SEPTEMBER 27, 2017 O R D E R PER P.M. JAGTAP, ACCOUNTANT MEMBER: BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE IS SEEKING RECTIFICATION OF THE MISTAKES ALLEGEDLY TO HAVE CREPT IN THE ORDER OF THE TRIBUNAL DATED APRIL 28, 2017 PASSED IN ITA NO. 1611/K/2016. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. ALTHOUGH THE ASSESSEE IN THE PRESENT MISCELLANEOUS APPLICATION HAS POINTED OUT SEVERAL MISTAKES THAT HAVE BEEN ALLEGEDLY CREPT IN THE ORDER OF THE TRIBUNAL, WE FIND THAT THERE IS ACTUALLY ONLY ONE FACTUAL MISTAKE IN THE ORDER OF THE TRIBUNAL IN MENTIONING IN PARA NO. 2, THE BANK ACCOUNT OF THE ASSESSEE MAINTAINED WITH CORPORATION BANK, HOWRAH 2 M.A. NO.107/KOL/2017 (A.Y. 2008-09) DAYA RAM SHAW BRANCH AS MAINTAINED IN HIS OWN NAME INSTEAD OF JOINT NAME. SINCE THE SAID MISTAKE IS APPARENT FROM RECORD, WE RECTIFY THE SAME BY SUBSTITUTING THE EXISTING SENTENCE IN LINE NO 4 TO 8 OF PARA NO. 2 OF THE ORDER OF THE TRIBUNAL WITH THE FOLLOWING ON THE BASIS OF INFORMATION RECEIVED BY THE ASSESSING OFFICER REGARDING THE CASH DEPOSITS OF RS. 20,00,000/- MADE IN THE ACCOUNT WITH CORPORATION BANK, HOWRAH BRANCH MAINTAINED IN THE JOINT NAME OF THE ASSESSEE AND HIS WIFE, THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY. 3. AS REGARDS THE OTHER MISTAKES ALLEGEDLY POINTED OUT BY THE ASSESSEE IN THE PRESENT APPLICATION, WE FIND THAT ALL THESE ASPECTS HAVE ALREADY BEEN CONSIDERED BY THE TRIBUNAL WHILE DECIDING THE SOLITARY ISSUE INVOLVED VIDE PARAGRAPH NO 5 OF ITS ORDER DATED APRIL 20,2017 (SUPRA) WHICH READS AS UNDER: 5. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE HAS REITERATED BEFORE ME THE STAND TAKEN BY THE ASSESSEE AT LATER STAGE BEFORE THE LD. CIT (APPEALS) THAT THE DEPOSITS MADE IN CASH REPRESENTING BUSINESS TRANSACTIONS OF THE ASSESSEE CANNOT BE ENTIRELY TREATED AS INCOME OF THE ASSESSEE AND ONLY THE PROFIT ELEMENT OF THE SAME CAN REASONABLY BE ADDED AS INCOME OF THE ASSESSEE. IN ORDER TO SUPPORT AND SUBSTANTIATE THIS CONTENTION, HE HAS INVITED MY ATTENTION TO THE COPY OF THE RELEVANT BANK STATEMENTS PLACED AT PAGES 12 TO 15 OF HIS PAPER BOOK TO POINT OUT THAT THE DEBITS IN THE SAID ACCOUNT WERE ON CHEQUES ISSUED BY THE ASSESSEE TO HIS SUPPLIERS. I AM UNABLE TO ACCEPT THIS CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. IF AT ALL THE TRANSACTIONS IN THE RELEVANT BANK ACCOUNT OF THE ASSESSEE MAINTAINED WITH CORPORATION BANK REPRESENTED HIS BUSINESS TRANSACTION AS CLAIMED BY THE LD. COUNSEL FOR THE ASSESSEE AND THE DEBIT ENTRIES IN THE SAME REPRESENTED CHEQUES GIVEN BY THE ASSESSEE TO HIS REGULAR SUPPLIERS, ONE FAILS TO UNDERSTAND WHY THE SAID ACCOUNT WAS NOT DISCLOSED BY THE ASSESSEE IN HIS REGULAR BOOKS OF ACCOUNT. MOREOVER, IF AT ALL THE TRANSACTIONS REFLECTED IN THE SAID BANK ACCOUNT REPRESENTED BUSINESS TRANSACTIONS OF THE ASSESSEE, ONE FAILS TO UNDERSTAND WHAT PREVENTED THE ASSESSEE TO OFFER THIS EXPLANATION BEFORE THE ASSESSING OFFICER. ON THE OTHER HAND, THE ASSESSEE OFFERED AN ALTOGETHER DIFFERENT EXPLANATION IN THIS REGARD BEFORE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND AGAIN CHANGED THE SAME DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND 3 M.A. NO.107/KOL/2017 (A.Y. 2008-09) DAYA RAM SHAW AGAIN CHANGED THE SAME DURING THE COURSE OF REMAND PROCEEDINGS WHEN THE MATTER WAS REMANDED BY THE LD. CIT (APPEALS) TO THE ASSESSING OFFICER FOR GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE. AS RIGHTLY OBSERVED BY THE LD. CIT (APPEALS) THIS DIFFERENT STAND TAKEN BY THE ASSESSEE AT DIFFERENT STAGES CLEARLY SHOWS THAT THE ASSESSEE HAS NO MADE IN HIS BANK ACCOUNT AND IN THE ABSENCE OF ANY COGENT EVIDENCE PRODUCED BY HIM TO SUPPORT AND SUBSTANTIATE THE SAME, THE SAID DEPOSITS REMAINED UNEXPLAINED. I, THEREFORE, FIND NO INFIRMITY IN THE IMPUGNED ORDER OF THE LD. CIT (APPEALS) CONFIRMING THE ADDITION OF RS. 20,10,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF CASH DEPOSITS FOUND TO BE MADE IN THE BANK ACCOUNT OF THE ASSESSEE BY TREATING THE SAME AS UNEXPLAINED AND UPHOLDING THE SAME, I DISMISS THIS GROUND FILED BY THE ASSESSEE. 4. KEEPING IN VIEW THE OBSERVATIONS/FINDINGS RECORDED BY THE TRIBUNAL IN PARAGRAPH NO. 5 OF ITS ORDER AS REPRODUCED ABOVE, WE FIND THAT ALL THE RELEVANT ASPECTS OF THE MATTER HAVE BEEN DULY CONSIDERED BY THE TRIBUNAL WHILE DISPOSING OF THE APPEAL OF THE ASSESSEE AND THERE ARE NO MISTAKES MUCH LESS THE MISTAKES APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL CALLING FOR RECTIFICATION UNDER SECTION 254. 3. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH SEPTEMBER, 2017. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 27/09/2017 BISWAJIT, SR. PS 4 M.A. NO.107/KOL/2017 (A.Y. 2008-09) DAYA RAM SHAW COPY OF ORDER FORWARDED TO: 1. DAYA RAM SHAW, 2, SANATAN MISTRY LANE, HOWRAH 711106. 2. ITO WARD 47(2), KOLKATA, 3, GOVERNMENT PLACE (WEST), KOLKATA 700001 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, SR. P.S. / H.O.O. ITAT, KOLKATA