Ram Kamal Agarwal, Kolkata v. ITO, WD-56(3), KOLKATA, Kolkata

ITA 1830/KOL/2014 | 2008-2009
Pronouncement Date: 28-09-2016

Appeal Details

RSA Number 183023514 RSA 2014
Assessee PAN ADCPA3717F
Bench Kolkata
Appeal Number ITA 1830/KOL/2014
Duration Of Justice 2 year(s) 3 day(s)
Appellant Ram Kamal Agarwal, Kolkata
Respondent ITO, WD-56(3), KOLKATA, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 28-09-2016
Appeal Filed By Assessee
Bench Allotted SMC
Tribunal Order Date 28-09-2016
Date Of Final Hearing 21-07-2016
Next Hearing Date 21-07-2016
Assessment Year 2008-2009
Appeal Filed On 25-09-2014
Judgment Text
I.T.A. NO. 1830/KOL./2014 ASSESSMENT YEAR: 2008-2009 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA A(SMC) BENCH KOLKATA BEFORE SHRI P.M. JAGTAP ACCOUNTANT MEMBER I.T.A. NO. 1830 /KOL/ 2014 ASSESSMENT YEAR: 2008-2009 RAM KUMAR AGARWAL ................................. ....................................APPELLANT BHAGWATI CHAMBERS 2 ND FLOOR 3 PRINCEP LANE KOLKATA-700 072 [PAN: ADCPA 3717 F] -VS.- INCOME TAX OFFICER ................................ ......................................RESPONDENT WARD-56(3) KOLKATA 3 GOVERNMENT PLACE (WEST) KOLKATA-700 001 APPEARANCES BY: SHRI SUBASH AGARWAL ADVOCATE FOR THE ASSESSEE SHRI RAJAT KUMAR KUREEL JCIT D.R. FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : JULY 21 2016 DATE OF PRONOUNCING THE ORDER : SEPTEMBER 28 2016 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXXVI KOLKATA DATED 30.06.2014 AND THE GROUNDS RAISED BY THE ASSESSEE THEREIN READ AS UNDER:- (1) FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ORDER OF THE LD. ITO U/S 143(3) DATED 31.12.2010. (2) FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT (A) HAS ERRED IN LAW IN PASSING THE ORD ER WITHOUT GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. (3) FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE ADDITION OF TOTAL CASH DEPOSITS MADE IN THE UND ISCLOSED BANK A/C OF THE ASSESSEE INCLUDING INTEREST THERE ON U/S. 69 OF THE INCOME TAX ACT 1961 AMOUNTING TO RS.I0 93 032/ - INSTEAD OF DISALLOWING THE PEAK CREDIT IN THE BANK ALC AMOU NTING TO RS.4 42 141/- IS BAD IN LAW. I.T.A. NO. 1830/KOL./2014 ASSESSMENT YEAR: 2008-2009 PAGE 2 OF 4 (4) FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE DISALLOWANCE OF INTEREST AMOUNTING TO RS.3 83 3 10/- FOR NON-DEDUCTION OF TDS U/S 40(A)(IA) WITHOUT GIVING A N OPPORTUNITY TO THE ASSESSEE OF BEING HEARD AND WITH OUT TAKING INTO ACCOUNT FORM 15G SUBMITTED BY THE PAYEE IS BA D IN LAW. 2. GROUNDS NO. 1 & 5 RAISED BY THE ASSESSEE IN THIS APPEAL ARE GENERAL IN NATURE WHICH DO NOT CALL FOR ANY SPECIFIC ADJUD ICATION. 3. GROUND NO. 2 RAISED BY THE ASSESSEE IN THIS APPE AL HAS NOT BEEN PRESSED BY THE LD. COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING. THE SAME IS ACCORDINGLY DISMISSED AS NOT PRESSED. 4. THE FACTS APROPOS THE ISSUE INVOLVED IN GROUND N O. 3 ARE THAT THE ASSESSEE IS AN INDIVIDUAL WHO IS ENGAGED IN THE BU SINESS OF TRADING OF COMPUTER ACCESSORIES. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY HIM ON 30.09.2009 DECLAR ING TOTAL INCOME OF RS.2 12 740/-. DURING THE COURSE OF ASSESSMENT PROC EEDINGS IT WAS NOTICED BY THE ASSESSING OFFICER THAT THE SAVINGS B ANK ACCOUNT MAINTAINED BY THE ASSESSEE WITH ICICI BANK HAD NOT BEEN DISCLOSED IN THE BOOKS OF ACCOUNT. SINCE THE CASH DEPOSITS MADE IN T HE SAID ACCOUNT AGGREGATING TO RS.10 85 445/- COULD NOT BE EXPLAINE D BY THE ASSESSEE SATISFACTORILY THE ASSESSING OFFICER HELD THAT THE SAID DEPOSITS WERE MADE BY THE ASSESSEE OUT OF HIS UNDISCLOSED INCOME. ACCO RDINGLY THE CASH DEPOSITS TO RS.10 85 445/- MADE BY THE ASSESSEE IN HIS BANK ACCOUNT WITH ICICI BANK WERE TREATED BY THE ASSESSING OFFICER AS HIS UNEXPLAINED INVESTMENT AND THE SAME WAS ADDED BY HIM TO THE TOT AL INCOME OF THE ASSESSEE UNDER SECTION 69. 5. THE ADDITION MADE BY THE ASSESSING OFFICER UNDER SECTION 69 ON ACCOUNT OF UNEXPLAINED DEPOSITS FOUND TO BE MADE IN HIS BANK ACCOUNT WAS CHALLENGED BY THE ASSESSEE IN THE APPEAL FILED BEFORE THE LD. CIT(APPEALS) AND IT WAS PLEADED BY THE ASSESSEE BEF ORE THE LD. CIT(APPEALS) THAT THE ADDITION ON ACCOUNT OF UNEXPL AINED CASH DEPOSITS I.T.A. NO. 1830/KOL./2014 ASSESSMENT YEAR: 2008-2009 PAGE 3 OF 4 FOUND TO BE MADE IN HIS BANK ACCOUNT SHOULD BE QUAN TIFIED ON THE BASIS OF PEAK CREDIT. THIS PLEA OF THE ASSESSEE WAS NOT FOUN D ACCEPTABLE BY THE LD. CIT(APPEALS). ACCORDING TO HIM PEAK CREDIT WAS NOT A PROPOSITION OF LAW AND THE SAME COULD NOT BE ADOPTED WHEN WITHDRAWALS FROM THE BANK ACCOUNT WERE UTILIZED FOR MAKING INVESTMENT OR PERS ONAL EXPENSES. 6. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS POINTED O UT BY THE LD. COUNSEL FOR THE ASSESSEE FROM THE COPY OF THE RELEVANT BANK ACCOUNT MAINTAINED WITH ICICI BANK PLACED AT PAGE NO. 1 TO 6 OF HIS PA PER BOOK THERE WERE SUBSTANTIAL CASH WITHDRAWALS MADE FROM THE SAID ACC OUNT DURING THE YEAR UNDER CONSIDERATION. THIS BEING SO THE AMOUNTS WIT HDRAWN BY THE ASSESSEE FROM THE BANK ACCOUNT AS AVAILABLE AT THE TIME OF CORRESPONDING DEPOSITS MADE IN CASH IN THE SAME BANK ACCOUNT CAN GO TO EXPLAIN THE SOURCE OF SUCH DEPOSITS PROVIDED SUCH WITHDRAWALS A RE NOT UTILIZED BY THE ASSESSEE FOR MAKING ANY INVESTMENT OR FOR MEETING A NY PERSONAL EXPENSES. AS RIGHTLY CONTENDED BY THE LD. D.R. THI S ASPECT HOWEVER REQUIRES VERIFICATION AND SINCE THE SAME HAS NOT BE EN DONE EITHER BY THE ASSESSING OFFICER OR BY THE LD. CIT(APPEALS) I CON SIDER IT JUST AND PROPER TO RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH AFTER SUCH VERIFICATION. GROUND NO. 3 I S ACCORDINGLY TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 7. AS REGARDS THE ISSUE INVOLVED IN GROUND NO. 4 RE LATING TO THE DISALLOWANCE OF RS.3 83 310/- MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(APPEALS) UNDER SECTION 40( A)(IA) OF THE ACT IT IS OBSERVED THAT THE SAID DISALLOWANCE WAS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF INTEREST PAID BY THE ASSESSEE WITHOUT DE DUCTION OF TAX AT SOURCE. THE LD. CIT(APPEALS) ALSO CONFIRMED THE SAI D DISALLOWANCE AS THE ASSESSEE COULD NOT PRODUCE ANY EVIDENCE TO SUPPORT AND SUBSTANTIATE HIS CLAIM THAT THE DECLARATIONS IN FORM NO. 15-G WERE O BTAINED FROM THE CONCERNED PARTIES AND THE SAME WERE FILED WITH THE OFFICE OF THE CONCERNED LD. CIT WITHIN THE DUE DATE. AT THE TIME OF HEARING THE ASSESSEE I.T.A. NO. 1830/KOL./2014 ASSESSMENT YEAR: 2008-2009 PAGE 4 OF 4 HAS FILED BEFORE ME THE COPIES OF RELEVANT DECLARAT IONS OBTAINED IN FORM NO. 15G ALONG WITH THE PROOF OF FILING THE SAME BEF ORE THE CONCERNED LD. CIT WITHIN THE DUE DATE AS ADDITIONAL EVIDENCE. HE HAS ALSO FILED AN APPLICATION SEEKING ADMISSION OF THE SAID ADDITIONA L EVIDENCE AND KEEPING IN VIEW THE REASONS GIVEN THEREIN AS WELL AS TAKING INTO CONSIDERATION THE RELEVANCE OF THE ADDITIONAL EVIDENCE FILED BY THE A SSESSEE I ADMIT THE SAME. SINCE THE SAID ADDITIONAL EVIDENCE REQUIRES V ERIFICATION BY THE ASSESSING OFFICER AS RIGHTLY CONTENDED BY THE LD. D .R. I RESTORE THIS ISSUE ALSO TO THE FILE OF THE ASSESSING OFFICER FOR DECID ING THE SAME AFRESH AFTER VERIFYING THE ADDITIONAL EVIDENCE FILED BY THE ASSE SSEE. GROUND NO. 4 IS ACCORDINGLY TREATED AS ALLOWED FOR STATISTICAL PURP OSES. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS TRE ATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON SEPTEMBER 28 2016. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA THE 28 TH DAY OF SEPTEMBER 2016 COPIES TO : (1) SHRI RAM KUMAR AGARWAL BHAGWATI CHAMBERS 2 ND FLOOR 3 PRINCEP LANE KOLKATA-700 072 (2) INCOME TAX OFFICER WARD-56(3) KOLKATA 3 GOVERNMENT PLACE (WEST) KOLKATA-700 001 (3) COMMISSIONER OF INCOME TAX (APPEALS)-XXXVI K OLKATA; (4) COMMISSIONER OF INCOME TAX- (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES KOLKATA LAHA/SR. P.S.