Anil Chandra Saha, Kolkata v. I.T.O..,Ward-4(3), Kolkata

ITA 1702/KOL/2019 | 2008-2009
Pronouncement Date: 28-02-2020 | Result: Partly Allowed

Appeal Details

RSA Number 170223514 RSA 2019
Assessee PAN ALPPS2798P
Bench Kolkata
Appeal Number ITA 1702/KOL/2019
Duration Of Justice 7 month(s) 10 day(s)
Appellant Anil Chandra Saha, Kolkata
Respondent I.T.O..,Ward-4(3), Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 28-02-2020
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted SMC
Tribunal Order Date 28-02-2020
Date Of Final Hearing 19-12-2019
Next Hearing Date 19-12-2019
Last Hearing Date 28-11-2019
First Hearing Date 28-11-2019
Assessment Year 2008-2009
Appeal Filed On 18-07-2019
Judgment Text
1 I.T.A NO. 1702/KOL/2019 A.Y 2008-09 I.T.A NO. 1703/KOL/2019 AY 2011-12 IN THE INCOME TAX APPELLATE TRIBUNAL A-SMC BENCH : KOLKATA [BEFORE SHRI A. T. VARKEY JM ] I.TA NO. 1702/KOL/2019 A.Y 2008-09 I.TA NO. 1703/KOL/2019 A.Y 2011-12 ANIL CHANDRA SAHA PAN: ALPPS2798P VS. I.T.O. WARD 4(3) KOLKATA APPELLANT RESPONDENT DATE OF HEARING 19-12-2019 DATE OF PRONOUNCEMENT 28.02.2020 FOR THE APPELLANT SHRI SUBASH AGARWAL ADVOCATE L D.AR FOR THE RESPONDENT SHRI JAYANTA KHANNA JCIT LD. S R.DR ORDER THESE APPEALS ARE PREFERRED BY THE ASSESSEE AGAINS T THE SEPARATE ORDERS OF LD. CIT (APPEALS) 2 KOLKATA WHICH ARE BOTH DATED 13- 05-2019 FOR THE ASSESSMENT YEARS 2008-09 AND 2011-12. ITA NO. 1702/KOL/2019 A.Y 2008-09 ( BY THE ASSESSE E) 2. FIRST OF ALL I WILL CONSIDER THE APPEAL IN IT A NO. 1702/KOL/2019 FOR THE A.Y 2008- 09. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOL LOWING REVISED GROUNDS OF APPEAL:- 1. FOR THAT THE LD. CIT(A) OUGHT TO HAVE QUASHED TH E REASSESSMENT PROCEEDINGS SINCE THE REASSESSMENT FRAMED VIDE OR DER DATED 25.02.2016 IS BAD IN THE EYES OF LAW. 2. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ACTION OF THE LD. A.O. IN MAKING AN ESTIMATED ADDITION OF RS.L 00 000/- BEI NG 5% OF THE ALLEGED TURNOVER OF RS.20 00 0001- BY WRONGLY TREATING THE SAME AS DEEMED INCOME ON NOTIONAL BASIS. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD ALTER OR DELETE ALL OR ANY OF THE GROUNDS OF APPEAL. 3. THE LD. AR OF ASSESSEE HAS NOT PRESSED GROUND NO. 1. HENCE THE SAME IS DISMISSED. 2 I.T.A NO. 1702/KOL/2019 A.Y 2008-09 I.T.A NO. 1703/KOL/2019 AY 2011-12 4. GROUND NO.2 OF REVISED GROUNDS OF APPEAL IS AGAI NST THE ACTION OF THE LD. CIT(A) IN CONFIRMING THE ACTION OF THE AO IN MAKING AN ESTIMATED ADDITION OF RS. 1 00 000/- BEING 5% OF THE ALLEGED TURNOVER OF RS. 20 00 000/-. 5. BRIEF FACTS OF THE CASE AS NOTED BY THE AO ARE T HAT HE GOT INFORMATION FROM ITO ( I & C1)-III KOLKATA THAT THE ASSESSEE HAD MA DE CASH DEPOSITS IN VIJAYA BANK SALT LAKE BRANCH (A/C NO. 722601011000074) IN THE F Y (2010-11) RELEVANT AY (2011-12) UNDER CONSIDERATION. THEREFORE HE ISSUE D SUMMONS U/S. 131 OF THE INCOME- TAX ACT 1961 ( IN SHORT HEREINAFTER THE ACT) A ND FOUND THAT THE ASSESSEE HAD DEPOSITED AND WITHDRAWN CASH FROM TIME TO TIME; AND WAS HAVING CASH BALANCE OF RS. 66 40 614/- AS ON 01-04-2007. WHEN ASKED BY THE AO TO EXPLAIN THESE CASH TRANSACTIONS THE ASSESSEE REPLIED THAT HE FREQUENT LY DEPOSITED/WITHDREW THE CASH FROM HIS SAID SAVING BANK ACCOUNT. ACCORDING TO ASSESSEE IN ORDER TO BUY AN IMMOVABLE PROPERTY HE REQUIRED LOAN FROM THE BANK AND AS PER THE ADVICE OF THE BANK (VERBAL) IN ORDER TO AVAIL THE LOAN FACILITY HE WAS REQUIRED TO SHOW SUFFICIENT BANK BALANCE AND FOR THAT HE VENTURED INTO THE FREQUENT DEPOSIT/WITHDREW OF HIS MONEY IN ORDER TO INFLATE THE BANK BALANCE TO AVAIL HOUSE BUILDING LOAN/PURCHASE OF AN IMMOVABLE PROPERTY. THE AO NOTES THAT THIS EXPLANATION OF ASSESSEE IS NOT SUPP ORTED BY ANY EVIDENCE BECAUSE THE ASSESSEE HAS NOT AVAILED ANY LOAN. THEREFORE HE W AS OF THE OPINION THAT THE DIFFERENCE IN THE OPENING BALANCE AND CLOSING BALANCE NEED TO BE TREATED AS TURNOVER OF THE BUSINESS OF THE ASSESSEE WHICH ASSESSEE HAS NOT DI SCLOSED. THEREAFTER HE WORKS OUT THE DIFFERENCE AT RS. 22 62 226/- [ RS. 34 97 597 RS.12 35 371/-]. THEREAFTER HE ROUNDED OFF THE DIFFERENCE TO RS. 20 00 000/- AND M ADE THE ADDITION OF RS. 1 00 000/- I.E 5% OF RS. 20 00 000/-. AGGRIEVED THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO WAS PLEASED TO CONFIRM THE SAME. AGGRIE VED THE ASSESSEE IS BEFORE US. 6. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECORD I NOTE THAT THE ASSESSEE IS A SALARIED PERSON WHO IS INDULGING FREQUENTLY IN DEPOSITING AND WITHDRAWING CASH FROM HIS BANK ACCOUNT. ACCORDI NG TO THE LD. AR THE ASSESSEE HAD OPENING BALANCE AS ON 1-4-2007 RS. 66 40 614/- WHICH HE HAD BEEN FREQUENTLY WITHDRAWING AND THEREAFTER DEPOSITING THE SAME. FOR THAT ACTIVITY HE HAS BEEN HAULED UP BY THE DEPARTMENT AND THE AO HAS ERRED IN TAKING NOTE OF EVEN THE CORRECT 3 I.T.A NO. 1702/KOL/2019 A.Y 2008-09 I.T.A NO. 1703/KOL/2019 AY 2011-12 DIFFERENCE IN OPENING AND CLOSING BALANCE WHILE MAK ING THE NOTIONAL/ESTIMATED ADDITION WHICH ACCORDING TO HIM IS NOT SUSTAINABLE IN THE EYES OF LAW. 7. THE LD. DR VEHEMENTLY SUPPORTED THE ACTIONS OF T HE AO AND THE LD. CIT(A). HE DOES NOT WANT TO INTERFERE WITH THE IMPUGNED ORD ER. I NOTE THAT THE ASSESSEE HAD AN OPENING BALANCE ON 1/4/2007 TO THE TUNE OF RS.66 40 614/- AND CLOSING BALANCE AS ON 31-03-2008 TO THE TUNE OF RS. 72 07 699/-. THEREFOR E THE AO HAS ERRED IN TAKING NOTE OF THE CORRECT OPENING/CLOSING BALANCE WHICH IS DI SCERNIBLE AT PAGES 8 TO 19 OF THE P/B. THE DIFFERENCE BETWEEN THE OPENING/CLOSING BALANCE IS OF RS. 5 67 083/-. THEREFORE USING THE SAME METHODOLOGY ADOPTED BY THE AO I AM OF THE OPINION THAT 5% OF RS.5 67 083/- I.E RS.28 354/- ONLY NEED BE SUSTAINE D. THEREFORE I SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(A) AND DIRECT RESTRIC TING THE ADDITION AT RS. 28 354/- IN PLACE OF RS 1 LAKHS AS MADE BY THE AO AND CONFIRMED BY THE LD.CIT(A). 8. COMING TO AY 2011-12 (ITA NO. 1703/KOL/2019) I NOTE THAT THE AO HAS AGAIN MADE THE ADDITION BASED ON THE FREQUENT DEPOS ITS AND WITHDRAWAL MADE BY THE ASSESSEE TO THE TUNE OF RS. 89 76 557/- AND THIS AC CORDING TO HIM IS THE TURNOVER OF THE ASSESSEES UNDISCLOSED BUSINESS AND THEREFORE MADE AN ESTIMATED ADDITION OF 5% OF RS. 89 76 557/- WHICH COMES TO RS.4 48 827/- (ROUN DED TO RS.4 45 000/-). AGGRIEVED THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT (A) WHO WAS PLEASED TO CONFIRM THE SAME. AGGRIEVED THE ASSESSEE IS BEFORE US. 9. I NOTE THAT IN THIS AY THE ASSESSEE HAD OPENING BALANCE OF RS. 54 76 621/- AND A CLOSING BALANCE IN THE CASH BOOK OF RS. 8 85 445/-. THE AO HAS MADE THE ADDITION TAKING NOTE OF THE CASH DEPOSITS OF RS.89 76 557/- AND HAS MADE AN ESTIMATED ADDITION TO 5% ON IT I.E AT (RS.4 48 827/- ROUNDE D TO RS.4 45 000/-). ACCORDING TO ME THE AO COULD NOT HAVE MADE ANY ADDITION SIMPLY BECA USE THE ASSESSEE HAS MADE FREQUENT DEPOSITS AND WITHDRAWAL OF HIS OWN MONEY. I NOTE THERE IS NO PROHIBITION/BAR IN LAW REGARDING FREQUENT WITHDRAWAL/DEPOSIT OF THE AMOUNT FROM HIS DISCLOSED BANK ACCOUNT. IT IS NOTED THAT THE BANK ACCOUNT FROM WH ICH THE ASSESSEE HAD DEPOSITED/WITHDRAWN THE AMOUNTS AS ALLEGED BY THE AO IS HIS DISCLOSED BANK ACCOUNT. IT IS ALSO NOTED THAT THE AO HAS NOT BEEN ABLE TO S HOW THAT THE MONEY SO WITHDRAWN BY THE ASSESSEE HAS BEEN UTILISED FOR MAKING ANY EXPEN DITURE/INVESTMENT. IT IS ALSO NOT THE CASE OF THE AO THAT THE ASSESSEE HAD ANY OTHER SOUR CES OF INCOME. IN SUCH A SCENARIO I AM OF THE CONSIDERED OPINION THAT NO ADDITION IN TH IS ASSESSMENT YEAR WAS WARRANTED. 4 I.T.A NO. 1702/KOL/2019 A.Y 2008-09 I.T.A NO. 1703/KOL/2019 AY 2011-12 THEREFORE I AM INCLINED TO DELETE THE IMPUGNED ADD ITION OF RS. 4 45 000/- MADE ON THIS ISSUE AND ALLOW THIS GROUND OF ASSESSEES APPE AL. 10. IN THE RESULT THE APPEAL OF ASSESSEE (ITA N O. 1702/KOL/2019 FOR THE AY 2008-09 IS PARTLY ALLOWED AND APPEAL OF ASSESSEE (I TA NO. 1703/KOL/2019 FOR THE A.Y 2011-12) IS ALLOWED AS STATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 28-02-2020 SD/- A.T. VARKEY JU DICIAL MEMBER D ATED : 28-02-2020 PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT/ASSESSEE: SHRI ANIL CHANDRA SAHA HB 100 SALT LAKE CITY SECTOR-3 SALT LAKE KOLKATA-700 106. 2 RESPONDENT/REVENUE: THE I.T.O. WARD 4(3) P-7 CHOW RINGHEE SQ. 8 TH FL. KOLKATA-700 069. 3. CIT 4. CIT(A) KOLKATA. 5. DR KOLKATA BENCHES KOLKATA **PP/SPS TRUE COPY BY BY ORDER ASSISTANT REGISTRAR ITAT KOLKATA