A.C.I.T.,Ward-23(1), Hooghly V. Sona Kumar Show, Hooghly

MA 192/KOL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3165 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-11-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 16-09-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAUL J
• Keywords: Business income; Peak credit; Capital Gains

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER (MISC. APPLICATION) M.ANO.192/KOL/2019 (ARISING OUT ITA NO.93/KOL/2019) / ASSESSMENT YEAR:2014-15 ACIT, WARD-23(1), AAYAKAR BHAWAN, G.T. ROAD,KHADINA MORE, P.O.&P.S.CHINSURAH, DIST.HOOGHLY-712101 / V/S . SONA KUMAR SHOW C/O S.N.GHOSH & ASSOCIATES, ADVOCATES SEVEN BROTHERS LODGE P.O. BUROSHIBTALA, P.S. CHINSURAH, DIST.HOOGHLY-712105 [ PAN NO.AKAPS 5712 R ] /APPLICANT .. /RESPONDENT ITA NO.93/KOL/2019 / ASSESSMENT YEAR:2014-15 SONA KUMAR SHOW C/O S.N.GHOSH & ASSOCIATES, ADVOCATES SEVEN BROTHERSLODGE P.O. BUROSHIBTALA, P.S. CHINSURAH, DIST. HOOGHLY- 712105 [ PAN NO.AKAPS 5712 R ] / V/S . ACIT, WARD-23(1), AAYKAR BHAWAN, G.T. ROAD, KHADINA MORE, P.O.&P.S. CHINSURAH, DIST.HOOGHLY-712101 /APPELLANT .. /RESPONDENT /BY ASSESSEE SHRI SOMNATH GHOSH, ADVOCATE /BY REVENUE SHRI SUPRIYO PAUL, JCIT-DR $ /DATE OF HEARING 15-11-2019 $ /DATE OF PRONOUNCEMENT 15-11-2019 MA NO.192/KOL/2019 & ITA NO.93/KOL/2019 A.Y. 20 14-15 ACIT WD-23(1), HGY. VS. SONA KR. SHOW PAGE 2 /O R D E R THIS REVENUES MISCELLANEOUS PETITION FILED U/S 254 (2) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT SEEKS TO RE-CALL / RECTIFY THE TRIBUNALS ORDER DATED 28.06.2019 ALLOWING THE MAIN APPEAL ON THE PRETEXT THAT THE SO LE ISSUE INVOLVED IN THE MAIN LIS WAS THAT OF BOGUS LONG TERM CAPITAL GAINS. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. IT TRANSPIRES DURING THE COURSE OF HEARING THAT THE TRIBUNALS ORDER HAS ERRED IN TREATING THE MAIN APPEAL TO BE INVOLVING ONLY BOGUS LTCG ISSUE SINCE THE SAME NOWHERE EMANATES FROM THE CASE FILE. BOTH THE LEARN ED REPRESENTATIVES ARE AD IDEM TO THIS EFFECT. I THEREFORE RE-CALL THE TRIBUNALS ORD ER DATED 26.06.2019 FOR THIS PRECISE REASON ALONE. THIS REVENUES MISCELLANEOUS APPLICATION MA NO.192/ KOL/2019 IS ALLOWED. 3. WITH THE CONSENT OF BOTH THE PARTIES, I NOW PROC EED TO TAKE UP ASSESSEES APPEAL ITA NO.93/KOL/2019 ITSELF FOR ADJUDICATION WHEREIN THE ASSESSING OFFICER AS WELL AS CIT(A) HAVE ADDED AN AMOUNT OF 12,97,900/- PERTAINING TO PEAK CREDIT IN ASSESSEES UNDISCLOSED BANK ACCOUNT INVOLVING 75 LAC DEPOSITS . MR. GHOSH INVITES MY ATTENTION TO PAGE 7 AND 49 OF THE PAPER BOOK INDICATING THE A SSESSEES TOTAL DEPOSITS IN THE RELEVANT PREVIOUS YEAR OF 2.28 CRORES AS AGAINST THE TOTAL SALES OF 26,016,520/- AS PER HIS AUDITED BALANCE-SHEET. HIS CASE THEREFORE IS TH AT ASSESSEE UNDISCLOSED DEPOSITS HAVE COME FROM THE SAID SALES AMOUNT ONLY. THE REVENUE O N THE OTHER HAND STRONGLY SUPPORTS BOTH THE LOWER AUTHORITIES ACTION UNDER CH ALLENGE ADDING PEAK CREDIT IN ISSUE OF 12,97,900/-. 4. I HAVE GIVEN MY THOUGHTFUL CONSIDERATION TO RIVA L CONTENTIONS. I FIND THAT NEITHER PARTYS ARGUMENTS DESERVE TO BE ACCEPTED IN ENTIRETY. THE FACT REMAINS THAT THE ASSESSEE HAS NOT DISCHARGED HIS ONE-TO-ONE NEXUS WI TH THE DEPOSITS AND SALES AND THE REVENUE HAS ALSO NOT REBUTTED THE CLINCHING FACT OF THE FOREGOING SALES FIGURES. FACED WITH THIS PECULIAR SITUATION, I DEEM IT APPROPRIATE TO RESTRICT THE IMPUGNED ADDITION OF MA NO.192/KOL/2019 & ITA NO.93/KOL/2019 A.Y. 20 14-15 ACIT WD-23(1), HGY. VS. SONA KR. SHOW PAGE 3 12,97,900/- TO LUMP SUM OF 50,000/- WITH A RIDER THAT SAME SHALL NOT BE TREATE D AS PRECEDENT IN ANY OTHER YEAR. THE ASSESSEE GETS PART RELIEF OF 12,97,900/- THEREFORE. CONSEQUENTIAL COMPUTATION TO FOLLOW AS PER LAW. THE ASSESSEES APPEAL IS PARTLY ALLOWED. 5. THE REVENUES MISCELLANEOUS APPLICATION MA NO.192/KOL/2019 IS ALLOWED AND ASSESSEES MAIN APPEAL ITA NO.93/KOL/2019 IS PARTLY ALLOWED IN ABOVE TERMS. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE H EARING ON 15 TH NOVEMBER, FRIDAY 2019 SD/- (S.S. GODARA) JUDICIAL MEMBE R KOLKATA, *DKP/SR.PS ( - 15/11/2019 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-SONA KR. SHOW C/O S.N.GHOSH & ASSOCIATES, ADVOCATES SEVEN BROTHERS LODGE P.O. BUROSHIBTALA, P.S. CHINSURAH, DIST. HOOGHLY 2. /REVENUE-ACIT, WD-23(1), AAYKAR BHAWAN, G.T. ROAD, KHADINA MORE, P.O. & P.S. CHINSURAH, DIS T. HOOGHLY-712101 3. + , / CONCERNED CIT 4. , - / CIT (A) 5. + , $ + / DR, ITAT, KOLKATA 6. / GUARD FILE. BY ORDER/ , $ +,