Sulekha Roy, Hooghly v. ITO, Ward - 1(1), Hooghly, Hooghly

ITA 1410/KOL/2010 | 2004-2005
Pronouncement Date: 22-07-2011 | Result: Allowed

Appeal Details

RSA Number 141023514 RSA 2010
Assessee PAN ACSPR9525P
Bench Kolkata
Appeal Number ITA 1410/KOL/2010
Duration Of Justice 1 year(s) 15 day(s)
Appellant Sulekha Roy, Hooghly
Respondent ITO, Ward - 1(1), Hooghly, Hooghly
Appeal Type Income Tax Appeal
Pronouncement Date 22-07-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 22-07-2011
Date Of Final Hearing 08-04-2011
Next Hearing Date 08-04-2011
Assessment Year 2004-2005
Appeal Filed On 07-07-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE /AND ! . '# . ) [BEFORE HONBLE SRI MAHAVIR SINGH JM & HONBLE SHR I C. D. RAO AM] $ $ $ $ / I.T.A NO. 1410/KOL/2010 %& '( %& '( %& '( %& '(/ // / ASSESSMENT YEAR : 2004-05 SULEKHA ROY VS. INCOME-TAX OFFICER WD-1(1) H OOGHLY (PAN ACSPR 9525 P) (*+ /APPELLANT ) ( -*+/ RESPONDENT ) FOR THE APPELLANT: SHRI SOMNATH GHOSH FOR THE RESPONDENT: SHRI A. K. PRAMANIK . / ORDER PER MAHAVIR SINGH JM ( ) THIS APPEAL BY ASSESSEE IS ARISING OUT OF THE ORDER OF CIT(A)-XXXVI KOLKATA IN APPEAL NO. 235/HGLY/CIT(A)XXXVI/ACSPR9525P/08-09 DATED 29.03.2010. THE ASSESSMENT WAS FRAMED BY ITO WARD - 1(1) HOOG HLY U/S. 147/143(3) OF THE INCOME TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT ) FOR ASSESSMENT YEAR 2004-05 VIDE HIS ORDER DATED 31.12.2008. 2. THE FIRST ISSUE REGARDING JURISDICTION U/S. 1 47 OF THE ACT THE ASSESSEE HAS RAISED THE FOLLOWING TWO GROUNDS: 1. FOR THAT THE LD. CIT(A) KOLKATA FAILED TO APPR ECIATE THAT NONE OF THE CONDITION PRECEDENT EXISTED NOR WERE SATISFIED FOR THE LD. IT O WARD-1(1) HOOGHLY FOR HIS ALLEGED ASSUMPTION OF JURISDICTION U/S. 147 OF THE I. T. ACT 1961 AND THE PURPORTED FINDINGS ON THAT BEHALF ARE ALTOGETHER INVALID ILL EGAL ULTRA VIRES VOID AB INITIO AND NULL IN LAW. 2. FOR THAT THE LD. CIT(A) KOLKATA GROSSLY ERRED I N UPHOLDING THE VALIDITY OF THE NOTICE U/S. 148 OF THE I. T. ACT 1961 ISSUED BY THE LD. I TO WARD-1(1) HOOGHLY WITHOUT CONSIDERING THAT THE ALLEGED MATERIALS IN THIS RESP ECT WERE NOT GERMANE AND DID NOT CONSTITUTE ANY VALID REASONS TO BELIEVE THAT THE PURPORTED INCOME HAS ESCAPED ASSESSMENT AND THE IMPUGNED FINDINGS ON THAT BEHALF IS WHOLLY CAPRICIOUS UNWARRANTED AND PERVERSE. 2 ITA 1410/K/2010/ SULEKHA ROY A.Y.04-05 3. AT THE OUTSET THE LD. COUNSEL FOR THE ASSESSEE STATED THAT HE HAS INSTRUCTIONS FROM ASSESSEE NOT TO PRESS THIS GROUND AND HAS ALSO ACKN OWLEDGED THE SAME ON THE GROUNDS OF APPEAL. AS THE ASSESSEE IS NOT INTERESTED IN PROSECUTING TH IS ISSUE OF JURISDICTION WE DISMISS THE SAME. 4. THE ISSUE ON MERITS IN THIS APPEAL OF THE ASSESS EE IS AS AGAINST THE ORDER OF CIT(A) CONFIRMING THE ADDITION OF BOGUS ADVANCE FROM CUST OMERS AND BOGUS UNSECURED LOANS. FOR THIS ASSESSEE HAS RAISED THE FOLLOWING GROUND NOS. 3 AND 4: 3 .FOR THAT THE LD. CIT(A) KOLKATA ACTED UNLAWFUL LY IN UPHOLDING THE IMPUGNED ADDITION OF RS.2 01 715/- MADE BY THE LD. ITO WARD -1(1) HOOGHLY ON ACCOUNT OF BOGUS ADVANCE FROM CUSTOMERS WITHOUT CONSIDERING THE FACTS IN THIS RESPECT AS SUPPORTED BY IMMACULATE EVIDENCE AND THE ALLEGED FI NDING ON THAT BEHALF IS ENTIRELY ARBITRARY UNREASONABLE AND PERVERSE. 2. FOR THAT THE ACTION OF THE LD. CIT(A) KOLKATA I N UPHOLDING THE IMPUGNED ADDITION OF RS.97 000/- MADE BY THE LD. ITO WARD-1(1) HOOG HLY ON ACCOUNT OF ALLEGED BOGUS UNSECURED LOAN WITHOUT CONSIDERING THE IMMACULATE EVIDENCE PRODUCED BEFORE HIM IN THIS RESPECT IS WHOLLY BIASED ERRONEOUS FLAWED AN D UNJUSTIFIED IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. AT THE OUTSET THE LD. COUNSEL FOR THE ASSESSEE FIRST OF ALL TOOK US TO REMAND REPORT OF THE ASSESSING OFFICER DATED 10.5.2010 AND THE SAME READ S AS UNDER: AS PER LOAN CONFIRMATIONS FILED FOR THE ASSESSEE F OR A.Y. 2004-05 IT APPEARS FROM THE RECORDS THAT THE ASSESSEE HAS TAKEN LOAN FROM HER F AMILY MEMBERS & NEAR RELATIVES AND SUBSEQUENTLY THOSE LOANS WERE CARRIED FORWARD UPTO THE A.Y. 2007-08. AS REGARDS ADVANCE FROM CUSTOMERS PAYABLE OF RS.2 0 1 715/- FOR A.Y. 2004-05 THE ASSESEE HAS FILED STATEMENT OF ADVANCES AND CPY OF BALANCE SHEET OF SHRI NARAYAN CHANDRA ROY AND SHRI NIRMAL CHANDRA ROY FROM WHOM T HOSE ADVANCES WERE TAKEN. SHRI NARAYAN CHANDRA ROY AND SHRI NIRMAL CHANDRA RO Y IS THE ASSESSEE OF THE UNDERSIGNED AND THOSE ADVANCES WERE VERIFIED FROM T HEIR RESPECTIVE I. T. ASSESSMENT RECORDS. THE ADVANCES FROM CUSTOMERS PAYABLE OF RS .2 89 396/- FOR A.Y. 2005-06 & RS.5 75 271/- FOR A.Y. 2006-07 WERE ALSO CARRIED FO RWARD UPTO THE ASSESSMENT YEAR 2007-08. 6. WE FIND THAT THE ASSESSEE HAS DISCLOSED THIS AMO UNT OF RS.97 000/- LOAN TAKEN IN HER BALANCE SHEET AND THE FACT THAT LOAN OF RS.97000/- TAKEN FROM SEVEN PERSONS WHO WERE CLOSE ASSOCIATES AND FAMILY MEMBERS. IT IS ALSO A FACT TH AT LOAN REMAINED OUTSTANDING AS ON 31.3.2004 AND THE ASSESSING OFFICER WITHOUT MAKING ANY ENQUIR Y HELD THAT TRANSACTION WAS BOGUS AND CIT(A) ALSO CONFIRMED THE SAME. SUCH LOAN CREDITO RS WERE VERIFIED DURING REMAND PROCEEDINGS BY THE ASSESSING OFFICER AND FOUND THAT LOAN SO OBTAINED FROM THESE SEVEN PERSONS ARE GENUINE AND CONTINUED TO EXIST TILL 31.3.2007. IN RESPECT TO ADVANCE RECEIVED FROM CUSTOMERS FOR A SUM OF RS.2 01 715/- WHICH COMPRIS ED OF RS.1 63 632/- RECEIVED FROM SHRI 3 ITA 1410/K/2010/ SULEKHA ROY A.Y.04-05 NARAYAN CH. ROY HUSBAND OF THE ASSESSEE AND RS.38 083/- FROM SHRI NIRMAL CH. ROY HER BROTHER IN LAW ASSESSING OFFICER WITHOUT VERIFICAT ION OF SUCH ADVANCES RECEIVED TREATED THIS AS BOGUS. THE CIT(A) CONFIRMED THE SAME. DURING REMA ND PROCEEDINGS ASSESSING OFFICER CONFIRMED THE GENUINITY OF THESE ADVANCES FROM WHE RE IT MANIFESTS THAT THESE TRADE CREDITORS ARE GENUINE. IN VIEW OF THE REMAND REPORT OF THE A SSESSING OFFICER IT IS DATED 10.5.2010 THE CIT(A) HAS NO OCCASION TO CONSIDER THIS REPORT BECA USE HE HAS PASSED THE APPELLATE ORDER ON 29.3.2010. WE FIND THAT SUBSEQUENTLY THE CIT(A) I N ASSESSMENT YEAR 2006-07 CONSIDERED THE REMAND REPORT AND FOUND THAT THE UNSECURED LOANS AN D ADVANCES FROM CUSTOMERS ARE GENUINE. SINCE THE ASSESSING OFFICER HIMSELF HAS STATED THAT AS PER LOAN CONFIRMATIONS FILED FOR THE ASSESSEE FOR A.Y. 2004-05 IT APPEARS FROM THE RECO RDS THAT THE ASSESSEE HAS TAKEN LOAN FROM HER FAMILY MEMBERS & NEAR RELATIVES AND SUBSEQUENTLY TH OSE LOANS WERE CARRIED FORWARD UPTO THE A.Y. 2007-08. AS REGARDS ADVANCE FROM CUSTOMERS PAY ABLE OF RS.2 01 715/- FOR A.Y. 2004-05 THE ASSESEE HAS FILED STATEMENT OF ADVANCES AND COP Y OF BALANCE SHEET OF SHRI NARAYAN CHANDRA ROY AND SHRI NIRMAL CHANDRA ROY FROM WHOM THOSE ADV ANCES WERE TAKEN. SHRI NARAYAN CHANDRA ROY AND SHRI NIRMAL CHANDRA ROY IS THE ASSE SSEE OF THE UNDERSIGNED AND THOSE ADVANCES WERE VERIFIED FROM THEIR RESPECTIVE I. T. ASSESSMENT RECORDS. IN OUR VIEW IF THE REMAND REPORT WAS BEFORE THE CIT(A) HE WOULD HAVE DELETED THE SAME. IT IS ALSO OBSERVED THAT NO PURPOSE WILL BE SERVED IF THE MATTER IS RESTORED TO CIT(A). IN VIEW OF SPECIFIC OBSERVATION OF ASSESSING OFFICER IN THE REMAND REPORT ADMITTING THE TRADE CREDITORS AS WELL AS UNSECURED LOANS AS GENUINE WE AT THIS STAGE DELETE THE ADDITION. A ND ALLOW THE APPEAL OF THE ASSESSEE. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED. 8. ORDER PRONOUNCED IN OPEN COURT ON 22.7.2011 SD/- SD/- . '# '#'# '# . ! (C. D. RAO) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( #! #! #! #!) )) ) DATED 22ND DAY OF JULY 2011 /0 %12 3 JD.(SR.P.S.) 4 ITA 1410/K/2010/ SULEKHA ROY A.Y.04-05 . 4 5 6 5'7- COPY OF THE ORDER FORWARDED TO: 1 . *+ / APPELLANT SMT. SULEKHA ROY C/O SHRI SOMNATH GHOS H ADVOCATE SEVEN BROTHERS LODGE P.O. BUROSHIBTALA P.S. CHINSURAH DIST. HOOGHLY PIN 712 105 2 -*+ / RESPONDENT ITO WARD-1(1) HOOGHLY . 3 . .% ( )/ THE CIT(A) KOLKATA 4. .% / CIT KOLKATA 5 . >? % / DR KOLKATA BENCHES KOLKATA -5 / TRUE COPY .%@/ BY ORDER 2 /ASSTT. REGISTRAR .