DCIT, C.C.-XIII, Kolkata, Kolkata v. M/s. VIP Buildcon Pvt. Ltd., Kolkata

ITA 174/KOL/2009 | 2003-2004
Pronouncement Date: 18-03-2011

Appeal Details

RSA Number 17423514 RSA 2009
Assessee PAN AAACV8861D
Bench Kolkata
Appeal Number ITA 174/KOL/2009
Duration Of Justice 2 year(s) 1 month(s) 7 day(s)
Appellant DCIT, C.C.-XIII, Kolkata, Kolkata
Respondent M/s. VIP Buildcon Pvt. Ltd., Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 18-03-2011
Appeal Filed By Department
Bench Allotted C
Tribunal Order Date 18-03-2011
Date Of Final Hearing 26-02-2010
Next Hearing Date 26-02-2010
Assessment Year 2003-2004
Appeal Filed On 10-02-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BEN CH C KOLKATA () BEFORE . .. . . .. . SHRI B.R.MITTAL JUDICIAL MEMBER. /AND . .. .!' !'!' !'. .. . #$ SHRI C.D.RAO ACCOUNTANT MEMBER % % % % / ITA NO.174/KOL/2009 &' ()/ ASSESSMENT YEAR : 2003-04 (+ / APPELLANT ) D.C.I.T. CENTRAL CIRCLE-XIII KOLKATA - & - - VERSUS - . (./+ / RESPONDENT ) M/S.VIP BUILDCON PVT. LTD. KOLKATA PAN: AAACV 8861 D % % % % / ITA NO.237/KOL/2009 &' ()/ ASSESSMENT YEAR : 2003-04 (+ / APPELLANT ) M/S. VIP BUILDCON PVT. LTD. KOLKATA PAN: AAACV 8861 D - & - - VERSUS - . (./+ / RESPONDENT ) D.C.I.T. CENTRAL CIRCLE- XIII KOLKATA + 0 1 #/ FOR THE APPELLANT: MRS.ANURADHA MOOKERJEE CIT ./+ 0 1 #/ FOR THE RESPONDENT: SHRI MANISH TIWARI #2 / ORDER ( (( ( . .. .!' !'!' !'. .. . ) )) ) #$ PER SHRI C.D.RAO AM THE ABOVE CROSS APPEALS ARE FILED BY THE REVENUE A ND THE ASSESSEE AGAINST SEPARATE ORDERS DATED 21.11.2008 OF THE CIT(A)-CEN TRAL-II KOLKATA PERTAINING TO A.YR. 2003-04. 2 2 THERE IS A DELAY OF 17 DAYS IN FILING OF THE AP PEAL BY THE ASSESSEE FOR WHICH THE ASSESSEE HAS FILED A CONDONATION PETITION EXPLAININ G THE REASONS FOR SUCH DELAY. AFTER CONSIDERING THE SUBMISSIONS BY THE APPELLANT THE DE LAY IS CONDONED. THE LD. DR HAD NO OBJECTION IF THE DELAY IS CONDONED. ITA NO.174/KOL/2009 (REVENUES APPEAL) : 3. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER :- 1. THE LD. CIT(A) HAS ERRED IN LAW IN DELETING THE ADDITION OF RS.2 36 55 660/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNDISCL OSED RECEIPTS BY THE ASSESSING OFFICER IN NOT APPRECIATING THAT THE ASSE SSEE HAS FAILED TO SUBMIT THE RECONCILIATION WITH SUPPORTING DETAILS TO THE SATIS FACTION OF THE ASSESSING OFFICER. 2. THE LD.CIT(A) HAS ERRED IN LAW IN HOLDING THAT 7 0% OF THE CREDIT MUST BE ALLOWED AS BUSINESS EXPENDITURE WITHOUT ANY PLAUSIB LE REASON IN NOT APPRECIATING THAT THE ASSESSEE COULD NOT PRODUCE AN Y BOOKS OF ACCOUNTS. 3. THE LD. CIT(A) HAS ERRED IN LAW IN ALLOWING RELI EF OF RS.48 81 022/- IN HOLDING THAT ONLY NET AMOUNT CAN BE ADDED IN NOT AP PRECIATING THAT THE ASSESSEE COULD NOT PRODUCE ANY BOOKS OF ACCOUNTS TO EXPLAIN THE ENTRIES RECORDED THEREIN AND THEREFORE TOTAL TRANSACTIONS R EMAINED UNEXPLAINED. ITA NO.237/KOL/2009 (ASSESSEES APPEAL): 1. (A) THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE LD.CIT(A) WHILE DECIDING GROUND NO.1 HAS ERRED IN NOT CONSIDERING D ISCREPANCY ON ACCOUNT OF SWEEP & REVERSE SWEEP A/C WITHOUT A SPEAKING ORDE R. (B) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE OMISSION ON THE PART OF LD. CIT(A) TO ADJUDICATE THE DISCREPANCY TO WARDS SWEEP & REVERSE SWEEP A/C HAS RESULTED IN SUSTAINING ADDITION OF R S.71 14 000/-. 2. THAT THE APPELLANT CRAVES LEAVE TO ADD ALTER A DDUCE OR AMEND ANY GROUND/GROUNDS ON OR AT THE TIME OF HEARING OF THE APPEAL. 4 . THE BRIEF FACTS OF THIS ISSUE ARE THAT WHILE DOIN G THE ASSESSMENT U/S 264/143(3)/144 OF THE IT ACT THE AO ASSESSED TOTAL INCOME OF THE ASSESSEE AND WAS COMPUTED AT RS.3 86 60 560/- BY OBSERVING AS UNDER :- LOSS AS PER P & L ACCOUNT (RS.52 37 980/-) ADD: UNEXPLAINED CREDIT AS PER BANK ACCOUNTS (MODIF IED AS DISCUSSED ABOVE) RS.2 93 62 186/- ADD: UNEXPLAINED RECEIPTS AS PER HT/5 (MODIFIED AS DISCUSSED ABOVE) RS.91 76 179/- ADD: CASH AMOUNT DUE AS PER PAGE-7 OF HT/2 FOR CONV ERSION (AS DISCUSSED IN THE ORIGINAL ASSESSMENT RS.15 91 876/- 3 ADD: AMOUNT DUE FROM JAIPUR AUTO SERVICES (AS DISCU SSED IN THE ORIGINAL ASSESSMENT) RS.24 40 511/- ADD: RECEIPTS AS PER PAGE-6 OF HT/2 (AS DISCUSSED I N THE ORIGINAL ASSESSMENT) RS.12 63 145/- ADD: INTEREST ON FIXED DEPOSITS (AS DISCUSSED IN TH E ORIGINAL ASSESSMENT) RS.64 638/- TOTAL INCOME AS RECOMPUTED RS.3 86 60 555/- ROUNDED OFF U/S 288A RS.3 86 60 560/- 4.1. AS REGARDING ADDITIONS ON UNEXPLAINED CREDIT A S PER BANK STATEMENTS THE RELEVANT OBSERVATIONS ARE AS UNDER :- UNEXPLAINED RECEIPTS IN BANK ACCOUNTS : IN THE ORIGINAL ASSESSMENT MADE U/S 144 A SUM OF T RS.5 71 49 064/- WAS ADDED AS UNEXPLAINED CREDITS IN THE BOOKS OF ACCOUNT OF T HE ASSESSEE. AS PER DIRECTIONS CONTAINED IN THE ORDER U/S 264 AND THE SUBMISSIONS MADE BY THE ASSESSEE THE FOLLOWING MODIFICATION HAS BEEN MADE: TOTAL RECEIPTS AS PER ASSESSEES BANK ACCOUNTS : RS.20 87 23 859/- LESS: TOTAL RECEIPTS SHOWN IN THE RETURN : RS.15 1 5 74 795/- RS.5 71 49 064/- LESS : TOTAL VALUE OF CHEQUES RETURNED AS PER BANK STATEMENTS & DETAILS FILED BY THE ASSESS EE RS.1 53 01 340/- RS.4 18 47 724/- LESS: RECEIPTS BY WAY OF MATURITY PROCEEDS OF LCS/F DS GLOBAL TRUST BANK N.DELHI : RS.1 00 16 461/- UNION BANK OF INDIA N.DELHI RS. 24 69 077/- RS.1 24 85 538/- UNDISCLOSED RECEIPTS (NOT SHOWN IN THE RETURN) RS. 2 93 62 186/- 4.2. AS REGARDING IMPOUNDED CASH BOOK AS PER HT/5 T HE RELEVANT OBSERVATIONS ARE AS UNDER :- IMPOUNDED CASH BOOK ::::HT/5 : IN THE ASSESSMENT MADE U/S 144 IT WAS FOUND THAT T HE TOTAL RECEIPTS AFTER DEDUCTING THE DEPOSITS INTO THE BANK ACCOUNTS OF TH E ASSESSEE AS REFLECTED IN THE IMPOUNDED DOCUMENT HT/5 WAS OF RS.1 98 71 671/-. ON THE BASIS OF MATERIALS ON RECORD 30% OF THESE RECEIPTS WAS ALLOWED AS EXP ENSES AND THE BALANCE AMOUNT OF RS.1 39 10 170/- WAS ADDED AS UNEXPLAINED RECEIPTS OF THE ASSESSEE. AS PER DIRECTIONS CONTAINED IN THE ORDER U/S 264 AN D THE DETAILS FILED BY THE ASSESSEE THE TOTAL RECEIPTS AS WELL AS CONSEQU ENT UNEXPLAINED RECEIPTS WOULD COMPRISE OF THE FOLLOWING :- MONEY RECEIVED FROM PARTIES :RS.2 58 80 827/- MONEY RECEIVED FROM CAMP :RS. 32 00 000/- BANK WITHDRAWALS :RS. 2 00 000/- RS.2 92 80 827/- LESS AMOUNT GOT DEPOSITED IN THE 4 BANK ACCOUNTS RS.1 61 72 000/- RS.1 31 08 827/- LESS ESTIMATED EXPENSES @ 30% RS. 39 32 648/ - UNEXPLAINED RECEIPTS LIABLE TO BE ADDED TO INCOME RS. 91 76 179/- 4.3. AS REGARDING THE OTHER ADDITIONS THE RELEVANT OBSERVATIONS AS DISCUSSED IN THE ORIGINAL ASSESSMENT ORDER ARE AS UNDER :- (C) IMPOUNDED BOOK HT-2 (1) AS PER THE IMPOUNDED BOOK HT/2 PAGE 7 IT IS SE EN THAT THE ASSESSEE HAS SHOWN CASH AMOUNT DUE FROM VARIOUS VEHICLE OWNERS O F RS.15 91 786 AS PER THE LEDGER OF THE COMPANY. IN ABSENCE OF CLARIFICAT ION FORTHCOMING RS.15 91 876/- IS HEREBY TREATED AS UNACCOUNTED C ASH RECEIPTS OF THE ASSESSEE FROM DIFFERENT BUS OWNERS ON ACCOUNT OF CONVERSION. (2) AS PER PAGE 12 OF IMPOUNDED BOOK HT/2 A LIST O F VEHICLES DONE BY JAIPUR AUTO SERVICE HAS BEEN GIVEN. MR. L.K.PODDAR DIRECT ION WAS DURING THE COURSE OF SURVEY U/S 133A) ASKED TO EXPLAIN THE DETAILS OF TRANSACTION OF THE ASSESSEE COMPANY WITH JAIPUR AUTO SERVICE AND IT WAS CLAIMED THAT JAIPUR AUTO SERVICE WAS DOING CONVERSION CHARGES ON BEHALF OF THE ASSES SEE. HOWEVER AS MENTIONED ABOVE NO DETAILS OF TRANSACTIONS WITH JA IPUR AUTO SERVICE HAS BEEN SUBMITTED EITHER BY THE ASSESSEE OR BY JAIPUR AUTO SERVICE. IT IS SEEN THAT THE TOTAL RECEIPTS ON ACCOUNT OF VEHICLE CONVERSION ACC OUNT WAS OF RS.2 44 011/-. THIS AMOUNT ACCORDINGLY IS BEING TREATED AS UNACC OUNTED RECE8IPTS OF THE ASSESSEE AND ADDED BACK TO THE RETURNED INCOME OF T HE ASSESSEE. (3) VIDE PAGE 6 OF IMPOUNDED BOOK HT/2 IT IS SEEN THAT RS.12 63 145/- WERE REALIZED FROM DIFFERENT PERSONS WHICH ARE VEHICLE O WNERS FOR CONVERSION. IN ABSENCE OF ANY CLARIFICATION ON THIS ISSUE AS TO HO W THESE CONVERSIONS ARE REFLECTED IN THE BOOKS OF ACCOUNT OF THE ASSESEE RS .12 63 163/- IS BEING TREATED AS UNACCOUNTED RECEIPTS OF THE ASSESSEE AND ADDED B ACK TO THE RETURNED INCOME OF THE ASSESSEE. (D) INTEREST ON FIXED DEPOSITS IT IS SEEN FROM THE STATEMENT ACCOUNT WITH ORIENTAL BANK OF COMMERCE GREATER KAILASH BRANCH NEW DELHI THAT THE ASSESSEE HAD EAR NED A TOTAL INTEREST ON BANK DEPOSIT OF AN AMOUNT OF RS.1 15 693/-. HOWEVER THE ASSESSEE HAS OFFERED ONLY RS.64 638/-. ACCORDINGLY THE DIFFERENCE IN THE INT EREST FIGURE IS BEING ADDED BACK TO THE RETURNED INCOME OF THE ASSESSEE. 4. 4 . ON APPEAL THE LD. CIT(A) HAS RESTRICTED THE ADDITIO N OF RS.2 93 62 186/- AT RS.57 06 526/- AND DELETED THE BALANCE OF RS.2 36 5 5 660/-. AS REGARDING THE ADDITION OF RS.91 76 179/- HE RESTRICTED AT 70% OF THE CREDI T BY OBSERVING THAT : IN THE ABSENCE OF THE BOOKS OF ACCOUNT THE APPELLA NT IS HELPLESS AGAINST SPECULATIVE ADDITION. AT THE SAME TIME THE ESTIMAT E IS REQUIRED AS THE INCOMPLETE BOOKS OF ACCOUNT WOULD JUSTIFY IT. THE E STIMATE IN SUCH CASES SHOULD 5 BE A REASONABLE ESTIMATE. IN MY OPINION THERE IS A PRESUMPTION IS FAVOUR OF THE BOOKS OF ACCOUNT RECORDING GENUINE BUSINESS EXPENDI TURE. THE ESTIMATE IN THE FACTS OF THE CASE SHOULD WEIGH IN FAVOUR OF THE APP ELLANT WITH THIS PRESUMPTION. IN MY OPINION 70% OF THE CREDIT MUST BE ALLOWED AS BUSINESS EXPENDITURE. THE ASSESSING OFFICER IS DIRECTED TO WORK OUT 30% OF TH E CREDIT ON THE BASIS OF THE SECOND ASSESSMENT ORDER AS THE INCOME OF THE APPELL ANT. ACCORDINGLY SECOND GROUND OF APPEAL IS PARTLY ALLOWED. 4.5. AS REGARDING THE OTHER ADDITIONS BASED ON HT/2 AMOUNTING TO 52 95 532/- HE CONFIRMED THE DISALLOWANCE OF THIS TO RS.4 14 510/- AND DELETED THE BALANCE RS.48 81 022/- BY OBSERVING THAT 14. IN MY OPINION AMOUNT DUE FROM VARIOUS VEHIC LE OWNERS (RS.15 91 786/-) AND AMOUNTS REALIZED FROM DIFFERENT VEHICLE OWNERS FOR CONVERSION (RS.12 63 145/-) CAN BE TREATED AS RECEIPTS IN RESP ECT OF THE WORK CARRIED OUT BY JAIPUR AUTO SERVICES ON BEHALF OF THE APPELLANT. AS SUMING THAT THE RECEIPTS AND PAYMENTS RECEIPTS FROM VEHICLE OWNERS AND PAYMENTS TO JAIPUR AUTO SERVICES CARE NOT RECORDED IN THE BOOKS OF ACCOUNT ONLY THE NET AMOUNT CAN BE ADDED. THE NET AMOUNT IS RS.4 14 510/-. THIS MAY BE ADDED IN PLACE OF THE ADDITION CHALLENGED IN GROUND NOS.3 TO 5. 4. 6 . AGGRIEVED BY THIS NOW DEPTT. IS IN APPEAL BEFORE US IN RESPECT OF THE DELETIONS MADE BY THE LD. CIT(A) AND THE ASSESEE ALSO IS IN A PPEAL .BEFORE US IN RESPECT OF THE CONFIRMATION MADE BY THE LD. CIT(A) WHICH IS FOUND FROM THE GROUNDS OF APPEAL TAKEN BEFORE THIS TRIBUNAL. 5. AT THE TIME OF HEARING THE LD. DR APPEARING ON B EHALF OF THE REVENUE SUBMITTED THAT THE LD. CIT(A) HAS NOT PASSED A SPEAKING ORDER THOUGH DISCUSSED IN THE FACTS WHILE GIVING RELIEF TO THE ASSESSEE EITHER ON ACCOUNT OF DELETION OF RS.2 36 55 660/- OR ON ACCOUNT OF RESTRICTION OF DISALLOWANCE OF RS.91 76 179/- TO 70% OF THE SAME AND WHILE DELETING THE ADDITION OF RS.48 81 022/- MADE ON THE BASIS OF THE SEIZED DOCUMENT HT/2. THEREFORE HE REQUESTED TO SET ASIDE THE ISSU E TO THE FILE OF THE AO FOR FRESH ADJUDICATION. 6. AT THE SAME TIME THE LD. COUNSEL APPEARING ON BE HALF OF THE ASSESSEE ALSO SUBMITTED THAT THE LD. CIT(A) HAS NOT CONSIDERED TH E ACCOUNT OF SWEEP AND REVERSE SWEEP AND CONFIRMED THE BALANCE WITHOUT A SPEAKING ORDER. IT IS EVIDENT FROM THE GROUNDS TAKEN BY THE ASSESSEE BEFORE THE TRIBUNAL. IN SUPPORT OF THIS HE FILED CORROBORATIVE EVIDENCES IN THE PAPER BOOK. 6 6.1. IN VIEW OF THE ABOVE BOTH THE PARTIES FAIRLY CONCED THAT THIS REQUIRE FRESH VERIFICATION. THEREFORE WHEN THE BENCH PROPOSED TO SET ASIDE THE ENTIRE MATTER TO THE FILE OF THE AO BOTH THE PARTIES HAS NOT RAISED ANY OBJECTION. 7 . AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREFUL PERUSAL OF MATERIAL AVAILABLE ON RECORD KEEPING IN VIEW OF THE FACT THAT BOTH THE DEPARTMENT AS WELL AS THE ASSESSEE CONTENDED THAT FOR DELETING THE ADDITION OR FOR MAK ING CONFIRMATIONS THE LD. CIT(A) HAS NOT GIVEN ANY VALID REASONINGS IN OUR CONSIDER ED OPINION THIS REQUIRE FRESH VERIFICATION IN THE LIGHT OF SUBMISSIONS MADE BY T HE LD. COUNSEL ALONG WITH THE EVIDENCES FILED IN THE PAPER BOOK. THEREFORE WE SE T ASIDE THE ORDERS OF THE LD. CIT(A) AND RESTORE THE ISSUE TO THE FILE OF THE AO TO DECI DE FRESH ALL THE ISSUES RAISED IN THESE APPEALS AS PER LAW AFTER GIVING A REASONABLE OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE. 8 . IN THE RESULT BOTH THE APPEALS ARE ALLOWED FOR STAT ISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 18.03.2011. SD/- SD/- . .. . . .. . B.R.MITTAL JUDICIAL MEMBER . .. .!' !'!' !'. .. . #$ C.D.RAO ACCOUNTANT MEMBER. ( (( ('$ '$ '$ '$) )) ) DATE: 18.03.2011. #2 0 .5 6#5(7- COPY OF THE ORDER FORWARDED TO: 1. M/S. VIP BUILDCON PVT. LTD. 144A JAMUNALAL BAJAJ STREET KOLKATA- 700007. 2 THE D.C.I.T. CENTRAL CIRCLE-XIII KOLKATA. 3. THE CIT 4. THE CIT(A)-CENTRAL-II KOLKATA 5. DR KOLKATA BENCHES KOLKATA /5 ./ TRUE COPY #2&;/ BY ORDER DEPUTY /ASST. REGISTRAR ITAT KOLKATA BENCHES R.G.(.P.S.) 7