Shri Hara Prasad Banerjee, Kolkata v. DCIT, C ircle- 33, Kolkata, Kolkata

ITA 1088/KOL/2010 | 2006-2007
Pronouncement Date: 28-01-2011

Appeal Details

RSA Number 108823514 RSA 2010
Assessee PAN AGUPB5726C
Bench Kolkata
Appeal Number ITA 1088/KOL/2010
Duration Of Justice 8 month(s)
Appellant Shri Hara Prasad Banerjee, Kolkata
Respondent DCIT, C ircle- 33, Kolkata, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 28-01-2011
Appeal Filed By Assessee
Bench Allotted A
Tribunal Order Date 28-01-2011
Date Of Final Hearing 28-01-2011
Next Hearing Date 28-01-2011
Assessment Year 2006-2007
Appeal Filed On 28-05-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BENCH : KOLKATA () BEFORE . . . . . . . . !' !' !' !' /AND . .. . . .. .! !! ! # ) [BEFORE HONBLE SRI D. K. TYAGI JM & HONBLE SRI C . D. RAO AM] '$ '$ '$ '$ / I.T.A NO. 1088/KOL/2010 %&' !() %&' !() %&' !() %&' !()/ // / ASSESSMENT YEAR : 2006-07 SRI HARA PRASAD BANERJEE -VS- DEPUTY COMMISSION ER OF INCOME-TAX (PA NO.AGUPB 5726 C) CIRCLE-33 KOLKATA. ( + /APPELLANT ) (-+ / RESPONDENT ) FOR THE APPELLANT : SRI D. K. BANDYOPADHYAY FOR THE RESPONDENT : SRI S. K. MALAKAR . / ORDER PER D. K. TYAGI JM ( . . . . . . . . ) THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE LD. CIT(A) KOLKATA DATED 05.02.2010 FOR ASSESSMENT YEARS 2006-07 ON THE FOLLOWING GROUNDS : 1. FOR THAT THE LD. CIT(A)-XX KOLKATA HAS ERRED IN LAW AND IN FACT BY CONFIRMING THE ADDITION OF RS.10 07 925/- AS UNEXPLAINED CASH DEP OSIT WHICH IS VERY MUCH ARBITRARY UNLAWFUL AND UNJUST. 2. FOR THAT THE LD. CIT(A) KOLKATA OUGHT TO HAVE CONSIDERED THE CORRECT FACT WITH REGARD TO SOURCE OF CASH DEPOSIT BEING RECEIPTS OU T OF THE LORRY ACCOUNT AS EXPLAINED BEFORE HIM THROUGH THE REMAND PROCEEDING S AND WITHOUT EXAMINING SUCH FACT WITH REGARD TO THE DOCUMENTS PRODUCED SHOWING INCO ME BEING NEGATIVE FIGURE DUE TO APPLICATION OF INTEREST AND DEPRECIATION. HENCE THERE IS INFIRMITY IN THE ORDER OF THE LD. CIT(A) KOLKATA ON THIS ISSUE AND ALSO THERE IS DE NIAL OF NATURAL JUSTICE. 3. FOR THAT THE LD. CIT(A) KOLKATA OUGHT TO HAVE BEEN JUDICIOUS IN GIVING DIRECTION TO THE LD. DCIT KOLKATA BY CONSIDERING THE INCOME FROM 04 LORRIES OWNED BY THE APPELLANT AND USED FOR THE PURPOSE OF BUSINESS ON PRESUMPTIVE BASIS BY RESORTING TO SECTION 44AE OF I. T. ACT 1961 BY TAKING INCOME @ RS.3 500/- P.M. FOR EACH LORRY I.E. RS.1 68 000/- P.A. FOR 04 LORRIES TOGETHER AS INCOME FROM LORRY HIRE CHARGES IN LIEU OF CONFIRMING THE ADDITION OF RS.1 0 07 925/- AS UNEXPLAINED CASH DEPOSIT TO THE DISCLOSED BANK ACCOUNT OF THE APPE LLANT. 2. THE APPEAL IS DELAYED BY 13 DAYS AND A CONDONAT ION PETITION HAS BEEN FILED BY THE ASSESSEE. AFTER HARING BOTH THE PARTIES AND PE RUSING THE CONDONATION PETITION WE 2 FIND THAT THERE IS REASONABLE CAUSE FOR FILING THE APPEAL DELAYED BY 13 DAYS. HENCE WE CONDONE THE DELAY AND THE APPEAL IS TAKEN UP FOR HE ARING. 3. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSING OFFICER FOUND THAT THE ASSESSEES PERSONAL CAPITAL ACCOUNT HAS BEEN CREDI TED WITH TOTAL CASH AMOUNT OF RS.10 07 925/- AND TOTAL CHEQUE AMOUNT OF RS.21 27 196/-. IT WAS EXPLAINED BEFORE THE ASSESSING OFFICER THAT AN AMOUNT OF RS.2 00 000/- W AS RECEIVED AS LOAN FROM SHRI TAPAN CHATTERJEE AND THE BALANCE OF RS.19 27 196/- WAS CO NTRACTUAL RECEIPTS WHICH PERTAINED TO THE EARLIER YEARS. BUT NO CONFIRMATION FROM THE LOAN CREDITOR WAS FILED AND THEREFORE THE ASSESSING OFFICER HELD THAT THE ASSESSEE HAS FA ILED TO ESTABLISH THE GENUINENESS OF THE LOAN. THE ASSESSING OFFICER ALSO FOUND THAT THE CO NTRACTUAL RECEIPTS OF RS.19 27 196/- WERE NOT SHOWN IN THE EARLIER YEARS. THE ASSESSING OFFICER ALSO ISSUED NOTICE U/S. 144(6) TO THE BARANAGAR MUNICIPALITY. IN REPLY THE MUNICIPAL AUTHORITY INFORMED THE ASSESSING OFFICER THAT THE ASSESSEE HAS RECEIVED CO NTRACTUAL PAYMENTS OF RS.7 10 760/- DURING THE RELEVANT YEAR. THE ASSESSING OFFICER AL SO ISSUED NOTICE TO THE INDIAN STATISTICAL INSTITUTE. IN REPLY THE INDIAN STATIS TICAL INSTITUTE INFORMED THE ASSESSING OFFICER THAT CONTRACTUAL RECEIPTS OF RS.3 37 391/- PERTAINED TO THE PRECEDING YEAR. THE ASSESSING OFFICER THEN ADDED THE CASH DEPOSIT OF RS .10 07 925/- AND CHEQUE DEPOSITS OF RS.17 89 805/- IN THE PERSONAL CAPITAL ACCOUNT TO T HE INCOME OF THE ASSESSEE. 4. BEING AGGRIEVED THE ASSESSEE WENT IN APPEAL BEF ORE THE LD. CIT(A). BEFORE THE LD. CIT(A) THE ASSESSEE FILED ADDITIONAL EVIDENCE I N THE FORM OF CASH FLOW STATEMENT AND BALANCE SHEET ON WHICH REMAND REPORT WAS CALLED FOR. AT THE TIME OF REMAND PROCEEDINGS THE ASSESSING OFFICER IGNORED THAT ADD ITIONAL EVIDENCE SINCE IT WAS NOT BEFORE HIM AT THE TIME OF ASSESSMENT PROCEEDINGS. A FTER CONSIDERING THE REMAND REPORT AND THE ASSESSEES SUBMISSIONS THE LD. CIT(A) CONF IRMED THE ADDITION OF RS.10 07 925/-. 5. AGGRIEVED BY THE SAID ORDER NOW THE ASSESSEE IS IN APPEAL BEFORE US PLACING RELIANCE ON THE SAME ADDITIONAL EVIDENCE WHICH WERE PRODUCED BEFORE THE LD. CIT(A) AND PRAYED BEFORE THE BENCH AFTER CONSIDERING THE S AME THE ADDITION MAY BE DELETED IN FULL. 6. ON THE OTHER HAND THE LD. DR PLACED HEAVY RELIA NCE ON THE ORDER OF THE LD. CIT(A) AND URGED BEFORE THE BENCH TO CONFIRM THE SA ME. 3 7. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECORD WE FIND THAT THE ASSESSEE FILED SOME ADDITIONAL EVIDEN CE E.G. CASH FLOW STATEMENT BALANCE SHEET ETC. WHICH WERE NOT EXAMINED BY THE ASSESSIN G OFFICER AT THE REMAND STAGE. SINCE THE ASSESSING OFFICER DID NOT CONSIDER THE AD DITIONAL EVIDENCE WHILE PREPARING HIS REMAND REPORT IN THE INTEREST OF NATURAL JUSTICE A ND FAIR PLAY WE RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER TO PASS A FRESH ORDER IN THE LIGHT OF THE ADDITIONAL EVIDENCE PRODUCED BEFORE US AND ALSO BEFORE THE FIRST APPELL ATE AUTHORITY AS PER LAW AND AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD T O THE ASSESSEE. THE APPEAL OF THE ASSESSEE IS THEREFORE ALLOWED FOR STATISTICAL PUR POSES. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 9. THE ORDER WAS ANNOUNCED IN THE OPEN COURT. SD/- SD/- . . ! # . . (C. D. RAO) (D. K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER ( # # # #) )) ) DATED : 28 TH JANUARY 2011 !/0 %&12 %3! JD.(SR.P.S.) . 4 -%%5 65(7- COPY OF THE ORDER FORWARDED TO: 1 . + / APPELLANT SRI HARA PRASAD BANERJEE C/O M/S. D. K. BANDYOPADHYAY & CO. CHARTERED ACCOUNTANTS 87 LENI N SARANI 2ND FLOOR KOLKATA-13. 2 -+ / RESPONDENT DCIT CIRCLE-33 KOLKATA. 3 . %.& / THE CIT KOLKATA. 4. %.& ( )/ THE CIT(A) KOLKATA. 5 . !=% -%& / DR KOLKATA BENCHES KOLKATA 5 -%/ TRUE COPY .&>/ BY ORDER ? '2 /DEPUTY REGISTRAR .