Dharohar Construction, Asansol v. ITO, Ward - 2(4), Asansol, Asansol

ITA 1351/KOL/2010 | 2006-2007
Pronouncement Date: 18-03-2011 | Result: Allowed

Appeal Details

RSA Number 135123514 RSA 2010
Assessee PAN AAFFD1645K
Bench Kolkata
Appeal Number ITA 1351/KOL/2010
Duration Of Justice 8 month(s) 18 day(s)
Appellant Dharohar Construction, Asansol
Respondent ITO, Ward - 2(4), Asansol, Asansol
Appeal Type Income Tax Appeal
Pronouncement Date 18-03-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 18-03-2011
Date Of Final Hearing 07-03-2011
Next Hearing Date 07-03-2011
Assessment Year 2006-2007
Appeal Filed On 30-06-2010
Judgment Text
SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH : KOLKATA () . . [BEFORE HONBLE SRI B.R.MITTAL JUDICIAL MEMBER] / I.T.A NO. 1351/KOL/2010 !' #$%/ ASSESSMENT YEAR : 2006-07 DHAROHAR CONSTRUCTION -VS.- INCOME TAX OFFICER/WARD-2(4) ASANSOL [PAN : AAFFD 1645 K] ASANSOL. [ '( /APPELLANT ] [ *+'(/ RESPONDENT ] '( / FOR THE APPELLANT : MISS SHREYA LOYALKA *+'( / FOR THE RESPONDENT : SHRI A.K. PRAMANICK SR. D.R. - / ORDER . . PER B. R. MITTAL J. M. THE ASSESSEE HAS FILED THIS APPEAL FOR ASSESSMENT YEAR 2006-07 AGAINST THE ORDER OF LD. CIT(A) ASANSOL DATED 26.04.2010 CONFIRMING ADDITIO N OF RS.4 97 000/- MADE BY THE ASSESSING OFFICER U/S. 68 OF THE INCOME TAX ACT. 2. THE RELEVANT FACTS GIVING RISE TO THIS APPEAL TH AT THE ASSESSEE FILED RETURN DECLARING NIL INCOME. DURING THE COURSE OF ASSESSMENT PROCE EDINGS ASSESSING OFFICER OBSERVED THAT ASSESSEE HAD SHOWN UNSECURED LOAN OF RS.4 97 000/- FROM RAM GOPAL SHARMA IN THE BALANCE SHEET. THE ASSESSING OFFICER MADE ENQUIRIES AND HAS STATED THAT SHRI RAM GOPAL SHARMA SENT A LETTER TO HIM STATING THAT THE LOAN WAS NOT ADVANCE D TO ASSESSEE-FIRM BUT ADVANCED TO SHRI SUBRATA CHATTERJEE ON 27.09.2005 & 28.09.2005 BY DI FFERENT DEMAND DRAFTS FOR PURCHASE OF THE PROPERTY. THE ASSESSING OFFICER HAS STATED THAT ENC LOSURE OF THE LETTER REVEAL THAT THE LOAN WAS NOT ADVANCED TO THE ASSESSEE BUT TO ONE SHRI SUBRAT A CHATTERJEE OF RS.4 96 000/- FOR PURCHASE OF PROPERTY ON 28.09.2005. IN VIEW OF THE ABOVE ASSES SING OFFICER CONSIDERED THE SAID UNSECURED LOAN OF RS.4 97 000/- SHOWN BY THE ASSESSEE IN THE BALANCE SHEET DUE TO SHRI RAM GOPAL ITA NO. 1351/KOL/20 10 2 SHARMA AS FICTITIOUS LIABILITY AND ACCORDINGLY ADDE D THE SAME TO THE TOTAL INCOME OF THE ASSESSEE U/S. 68 OF THE INCOME TAX ACT. BEING AGGRIEVED ASS ESSEE FILED APPEAL BEFORE THE LD. CIT(A). 3. THE LD. CIT(A) HAS STATED THAT ASSESSEE MADE HIS SUBMISSION ON THE LINES OF THE SUBMISSIONS MADE BEFORE THE ASSESSING OFFICER THAT THE DRAFTS WERE RECEIVED AS PAYMENT TOWARDS CONSIDERATION FOR PURCHASE OF LAND FROM SHR I SUBRATA CHATTERJEE AND THE ASSESSEE RECEIVED UNSECURED LOAN FROM SHRI RAM GOPAL SHARMA AND DEBITED THE SAME AS ADVANCE AGAINST PURCHASE OF LAND PAID TO SHRI SUBRATA CHATTERJEE. T HE LD. CIT(A) DID NOT AGREE WITH THE ASSESSEE AND HAS CONFIRMED THE ACTION OF THE ASSESS ING OFFICER. HENCE ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. 4. DURING THE COURSE OF HEARING LD. AUTHORISED REP RESENTATIVE FOR THE ASSESSEE REFERRED TO PAGES 4 TO 16 OF THE PAPER BOOK WHICH IS COPY OF T HE REGISTERED DEED OF CONVEYANCE DATED 2.01.2007 FOR PURCHASE OF PROPERTY BY THE ASSESSEE FROM SHRI SUBRATA CHATTERJEE & JHUMA CHATTERJEE AND SUBMITTED THAT AT PAGE 14 OF THE SAI D DEED DETAILS OF CONSIDERATION PAID TO THE AFORESAID SELLERS OF THE LAND TO THE ASSESSEE ARE M ENTIONED AND THE DETAILS OF THE DRAFT AGGREGATING RS.4 96 000/- RECEIVED FROM SHRI RAM GO PAL SHARMA TALLY WITH THE LETTER GIVEN TO ASSESSING OFFICER BY SHRI RAM GOPAL SHARMA DATED 19 .11.2008 PLACED AT PAGE 19 OF PAPER BOOK. THE LD. AUTHORISED REPRESENTATIVE FOR THE ASS ESSEE SUBMITTED THAT SHRI RAM GOPAL SHARMA SENT DRAFTS DIRECTLY IN THE NAME OF SHRI SUB RATA CHATTERJEE AND THEREFORE THE SAID LOAN HAS BEEN TREATED TO BE RECEIVED BY SHRI SUBRATA CHA TTERJEE FROM SHRI RAM GOPAL SHARMA. THAT ACTUALLY IT WAS LOAN TAKEN BY THE ASSESSEE FROM SH RI RAM GOPAL SHARMA AND THAT AMOUNT WAS PAID BY THE ASSESSEE TO SHRI SUBRATA CHATTERJEE & S MT. JHUMA CHATTERJEE AS AN ADVANCE FOR PURCHASE OF LAND. THE LD. AUTHORISED REPRESENTATIVE FOR THE ASSESSEE ALSO REFERRED TO PAGE 3 OF THE PAPER BOOK AND SUBMITTED THAT IN THE SAID BALAN CE SHEET THE AMOUNT OF RS.4 96 000/- HAS BEEN SHOWN AS ADVANCE FOR PURCHASE OF LAND. THE LD. AUTHORISED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT ASSESSEE SUBSEQUENTLY REPAI D THE LOAN BY RESALE OF A PART OF THE SAID LAND TO SHRI RAM GOPAL SHARMA AND REFERRED PAGES 20 TO 3 2 OF THE PAPER BOOK WHICH IS COPY OF REGISTERED DEED OF SALE OF PART OF LAND DATED 04.03 .2009 BY THE ASSESSEE TO SHRI RAM GOPAL SHARMA. THE LD. AUTHORISED REPRESENTATIVE FOR THE A SSESSEE FURTHER SUBMITTED THAT SHRI SUBRATA CHATTERJEE HAS ALSO FILED AFFIDAVIT CONFIRMING THAT SUM OF RS.4 96 000/- WAS RECEIVED BY HIM ITA NO. 1351/KOL/20 10 3 AND SMT. JHUMA CHATTERJEE BY DEMAND DRAFTS THE DE TAILS OF WHICH ARE ALSO GIVEN IN THE SAID AFFIDAVIT COPY PLACED AT PAGES 38 & 39 OF THE PAPE R BOOK. IN REPLY TO A QUERY LD. AUTHORISED REPRESENTATIVE FOR THE ASSESSEE CONCEDED THAT THE S AID AFFIDAVIT COULD NOT BE PLACED BEFORE THE AUTHORITIES BELOW AND IT IS A NEW PIECE OF EVIDENCE . SIMILARLY LD. AUTHORISED REPRESENTATIVE REFERRED TO PAGES 35 TO 37 OF THE PAPER BOOK WHICH IS ALSO A COPY OF THE AFFIDAVIT OF SHRI RAM GOPAL SHARMA DATED 19.01.2011 CONFIRMING THAT SUM O F RS.4 96 000/- WAS GIVEN AS LOAN TO THE ASSESSEE BY WAY OF DEMAND DRAFTS DRAWN IN FAVOUR OF SHRI SUBRATA CHATTERJEE. THE LD. AUTHORISED REPRESENTATIVE FOR THE ASSESSEE SUBMITTE D THAT THE SAID AFFIDAVIT ALSO CONTAINS DETAILS OF DRAFTS WHICH TALLY WITH THE DETAILS GIVE N IN THE SALE DEED ENTERED INTO AND ALSO LETTER WRITTEN BY SHRI RAM GOPAL SHARMA TO THE ASSESSING O FFICER DATED 19.11.2008 PLACED AT PAGE 19 OF PAPER BOOK . THE LD. AUTHORISED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE MATTER COULD BE RESTORED TO THE ASSESSING OFFICER FOR VERI FICATION OF THE FACTS AS THE ASSESSING OFFICER HAS CONSIDERED THE SAID LOAN OF RS.4 97 000/- (RS.1 000/- WAS MISCELLANEOUS EXPENSES INCURRED BY SHRI RAM GOPAL SHARMA FOR PREPARING DRAFT) ONLY ON THE GROUND THAT SHRI RAM GOPAL SHARMA STATED IN REPLY TO A LETTER FROM THE ASSESSI NG OFFICER THAT HE MADE PAYMENTS TO SHRI SUBRATA CHATTERJEE AND NOT TO THE ASSESSEE. THE LD. AUTHORISED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE SAID PAYMENTS HAVE BEEN MADE BY SHRI RAM GOPAL SHARMA TO SHRI SUBRATA CHATTERJEE ON BEHALF OF THE ASSESSEE-FIRM AGAINST P URCHASE OF LAND BY THE ASSESSEE FROM SHRI SUBRATA CHATTERJEE & SMT. JHUMA CHATTERJEE. IN REPL Y TO A QUERY FROM THE BENCH LD. AUTHORISED REPRESENTATIVE FOR THE ASSESSEE ALSO CON CEDED THAT COPY OF THE SALE DEED DATED 04.03.2009 ENTERED INTO BETWEEN THE ASSESSEE AND SH RI RAM GOPAL SHARMA STATING TO BE EXECUTED FOR SALE OF A PART OF LAND AND THE OUTSTAN DING LIABILITY OF RS.4 96 000/- WAS SQUARED UP ON EXECUTION OF SAID SALE DEED WAS NOT BEFORE AUTHO RITIES BELOW. THE LD. AUTHORISED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ADDITION MADE IS NOT JUSTIFIED. 5. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED ON TH E ORDERS OF THE REVENUE AUTHORITIES. HE FURTHER SUBMITTED THAT ASSESSEE IS RELYING ON NEW D OCUMENTS WHICH WERE NOT BEFORE THE AUTHORITIES BELOW. HE FURTHER SUBMITTED THAT IF THE SAID DOCUMENTS ARE TO BE CONSIDERED BY THE TRIBUNAL MATTER IS TO BE EXAMINED BY THE ASSESSING OFFICER. 6. THE LD. AUTHORISED REPRESENTATIVE FOR THE ASSESS EE IN HER REPLY TO THE SUBMISSION OF THE ITA NO. 1351/KOL/20 10 4 LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT SHE HAS NO OBJECTION IF THE MATTER IS RESTORED TO ASSESSING OFFICER FOR RE-EXAMINATION. SHE SUBMITTED THAT SAID ADDITIONAL DOCUMENTS VIZ. AFFIDAVIT OF SHRI RAM GOPAL SHARMA AFFIDAVIT OF SH RI SUBRATA CHATTERJEE AND COPY OF SALE DEED ENTERED INTO BETWEEN THE ASSESSEE AND SHRI RAM GOPAL CHATTERJEE ARE MATERIAL DOCUMENTS AND THE SAME MAY BE CONSIDERED IN THE INTEREST OF J USTICE. 7. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF L D. REPRESENTATIVES OF THE PARTIES AND THE AUTHORITIES BELOW. I HAVE ALSO GONE THROUGH THE PAPER BOOK FILED BY THE ASSESSEE. ON PERUSAL OF COPY OF SALE DEED ENTERED INTO BETWEEN THE ASSES SEE AS PURCHASER AND SHRI SUBRATA CHATTERJEE & SMT. JHUMA CHATTERJEE AS SELLER OF THE LAND DATED 02.01.2007 I FIND THAT IT CONTAINS THE DETAILS OF THE PAYMENTS MADE BY THE AS SESSEE-FIRM TO THE SELLER OF THE LAND AT PAGE 10 OF THE PAPER BOOK COPY OF SALE DEED (PAGE 14 OF THE PAPER BOOK). ON GOING THROUGH THE SAID DETAILS OF PAYMENTS VIS--VIS DETAILS CONTAINE D IN THE AFFIDAVIT FILED BY SHRI RAM GOPAL SHARMA DATED 19.01.2011 PLACED AT PAGES 35 TO 37 O F THE PAPER BOOK AND AFFIDAVIT BY SHRI SUBRATA CHATTERJEE DATED 01.02.2011 PLACED AT PAGE S 38 & 39 OF THE PAPER BOOK AND ALSO THE DETAILS STATED IN THE LETTER WRITTEN BY SHRI RAM GO PAL SHARMA TO THE ASSESSING OFFICER DATED 19.11.2008 PLACED AT PAGE 19 OF THE PAPER BOOK I FIND THAT THEY ARE TALLYING IN RESPECT OF DRAFTS PAYMENT MADE BY SHRI RAM GOPAL SHARMA AGGREGATING R S.4 96 000/-. I OBSERVE THAT THE ASSESSING OFFICER CONSIDERED THE SAID LOAN OF RS.4 97 000/- SHOWN BY THE ASSESSEE IN THE BALANCE SHEET AS FICTITIOUS ON THE GROUND THAT SHRI RAM GOPAL SHARMA STATED THAT THE SAID DEMAND DRAFTS WERE PAID TO SHRI SUBRATA CHATTERJEE AND NOT TO THE ASSESSEE. ON THE OTHER HAND ASSESSEE HAS STATED THAT THE SAID DEMAND DRAFTS WER E PAID BY SHRI RAM GOPAL SHARMA TO SHRI SUBRATA CHATTERJEE ON BEHALF OF THE ASSESSEE AS AN ADVANCE FOR PURCHASE OF PROPERTY AND THEREFORE ASSESSEE HAS SHOWN THE SAID AMOUNT AS LO AN FROM SHRI RAM GOPAL SHARMA. I OBSERVE THAT ASSESSEE HAS ALSO FILED A COPY OF REGISTERED S ALE DEED DATED 04.03.2009 PLACED AT PAGES 20 TO 32 OF THE PAPER BOOK ENTERED INTO BETWEEN ASSES SEE AND SHRI RAM GOPAL SHARMA FOR SUM OF RS.4 96 000/-. IT IS A FACT THAT COPIES OF AFFIDAVI TS FILED BY SHRI RAM GOPAL SHARMA & SHRI SUBRATA CHATTERJEE AS ALSO THE COPY OF SALE DEED DA TED 04.03.2009 PLACED RESPECTIVELY AT PAGES 35 TO 37 38 TO 39 AND AT PAGES 20 TO 32 OF THE PAP ER BOOK WERE NOT BEFORE THE AUTHORITIES BELOW. I AM OF THE CONSIDERED VIEW THAT IN THE INTE REST OF JUSTICE THE MATTER SHOULD BE RESTORED TO THE ASSESSING OFFICER FOR HIS FRESH CONSIDERATIO N TO DECIDE THIS ISSUE IN THE LIGHT OF THE ITA NO. 1351/KOL/20 10 5 DOCUMENTS NOW FILED BY THE ASSESSEE BEFORE THE TRIB UNAL AS ADDITIONAL EVIDENCES. HENCE I SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTO RE THE ISSUE TO THE ASSESSING OFFICER FOR HIS FRESH CONSIDERATION BY A SPEAKING ORDER AFTER GIVIN G DUE OPPORTUNITY OF HEARING TO THE ASSESSEE AND CONSIDERING SUCH DOCUMENTS AS MAY BE PLACED BEF ORE HIM. HENCE GROUNDS OF APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. - . /! 0 12 34 ORDER PRONOUNCED IN THE COURT ON 18. 03 2011. SD/- [ . . ] [B.R.MITTAL ] JU DICIAL MEMBER (34) DATED : 18. 03. 2011. [KKC #56 !78 9# /SR.PS] - : *; < ;$/ COPY OF THE ORDER FORWARDED TO: 1. '( /APPELLANT- DHAROHAR CONSTRUCTION P.C. CHATTERJE E MARKET G.T. ROAD RAMBANDHU TALLA ASANSOL-713303. 2 *+'( / RESPONDENT : INCOME TAX OFFICER WARD-2(4) 54 G .T. ROAD APCAR GARDEN (WEST) ASANSOL-713304. 3. -!/ CIT 4. -! ()/ CIT(A) KOLKATA. 5. #B0 *!/ DR KOLKATA BENCHES KOLKATA [+; */ TRUE COPY ] -!// BY ORDER 8 /ASSTT REGISTRAR.