Bijan Saha, North 24 Parganas v. ITO, Ward - 50(2), Kolkata, Kolkata

ITA 1976/KOL/2010 | 2006-2007
Pronouncement Date: 25-11-2011 | Result: Allowed

Appeal Details

RSA Number 197623514 RSA 2010
Assessee PAN ANMPS1995F
Bench Kolkata
Appeal Number ITA 1976/KOL/2010
Duration Of Justice 1 year(s) 27 day(s)
Appellant Bijan Saha, North 24 Parganas
Respondent ITO, Ward - 50(2), Kolkata, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 25-11-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 25-11-2011
Assessment Year 2006-2007
Appeal Filed On 28-10-2010
Judgment Text
' IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA ( ) . . ) [BEFORE SRI S.V. MEHROTRA A.M. & SRI MAHAVIR SING H J.M.] ! ! ! ! / I.T.A NO. 1976/KOL/2010 ASSESSMENT YEAR : 2006-2007 BIJAN SAHA NORTH 24-PARGANAS -VS.- I NCOME TAX OFFICER WARD-50(2) KOLKATA (PAN : ANMPS 1995 F) ( '# /APPELLANT ) ( $%'# / RESPONDENT ) FOR THE APPELLANT ( '# ) : SHRI SUBASH AGARWAL A.R. FOR THE RESPONDENT ( $%'# ) : SHRI S.K. ROY D.R. &' ( ) * &' ( ) * &' ( ) * &' ( ) * /DATE OF HEARING : 25.11.2011 + ) * + ) * + ) * + ) * /DATE OF PRONOUNCEMENT : 25.11.2011 - / ORDER PER SHRI S.V. MEHROTRA ACCOUNTANT MEMBER/ . . :- THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER OF LD. COMMISSIONER OF INCOME- TAX (APPEALS)-XXXII KOLKATA DATED 25.08.2010 FOR T HE ASSESSMENT YEAR 2006-07. 2. THE ASSESSEE INDIVIDUAL IN THE RELEVANT ASSESSME NT YEAR WAS CARRYING ON THE BUSINESS AS EXPORTER. IN THE RETURN OF INCOME HE HAD DECLARED TOTAL INCOME OF RS.1 45 934/-. THE ASSESSMENT WAS COMPLETED AT A TOTAL INCOME OF RS.15 32 780/-. THE ASSESSING OFFICER HAD ALSO INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)( C). THE ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(APPEALS) WHO HAD ENHANCED THE ADDITION OF RS.1 3 86 844/- BY AN AMOUNT OF RS.67 86 967/- OBSERVING AS UNDER :- IN THE LIGHT OF THE ABOVE DISCUSSION SINCE THE AS SESSEE HAS NOT BEEN SATISFACTORILY ABLE TO EXPLAIN THE SOURCES OF THE F UNDS FOUND DEPOSITED IN THE SAID BANK ACCOUNT WITH STANDARD CHARTERED BANK CHO WRINGHEE BRANCH SUCH DEPOSITS ARE HE1D TO BE INCOME OF THE ASSESSEE . SINCE THE TOTAL DEPOSITS FOUND DEPOSITED DURING THE RELEVANT YEAR IN THE SAI D BANK ACCOUNT WERE TO THE TUNE OF RS.81 72 811/- THEREFORE THIS AMOUNT IS TREATED AS UNEXPLAINED INCOME OF THE ASSESSEE. HOWEVER AS MENTIONED IN TH E ENHANCEMENT NOTICE ISSUED BY ME WHICH HAS BEEN REPRODUCED ABOVE SINC E ADDITION TO THE TUNE OF RS.13 86 844/ HAS ALREADY BEEN MADE BY THE A.O. ASSESSMENT ORDER THAT ADDITION IS TREATED TO BE INCLUDED IN THE ADDITION OF R.S.81 72 811/. AS A ITA NO. 1976/KOL./2010 2 RESULT THE INCOME OF THE ASSESSEE IS ENHANCED BY AN AMOUNT OF RS.67 86 967/ OVER AND ABOVE THE ADDITION OF RS.13 86 844/- MADE BY THE A.O. IN THE ASSESSMENT ORDER. AS A RESULT THE APPEAL OF THE ASSESSEE IS DISMISSE D AND THE INCOME IS ENHANCED BY AN AMOUNT OF RS.67 86 967/-. IN THE LIGHT OF THE ABOVE DISCUSSION IT IS ABUNDAUN TLY CLEAR THAT THE ASSESSEE HAD CONCEALED HIS PARTICULARS OF INCOME IN AS MUCH AS THE INCOME ENHANCED AS ABOVE HAS NOT BEEN DISCLOSED IN HIS RETURN OF IN COME FOR THE RELEVANT ASSESSMENT YEAR. THEREFORE I AM SATISFIED THAT PEN ALTY ULS.271(1)(C) IS LEVIABLE IN THIS CASE. ACCORDINGLY PENALTY PROCEED INGS U/S.271(L)(C) ARE INITIATED. THE REQUISITE NOTICE U/S.274 READ WITH S ECTION 271 OF THE ACT IS ENCLOSED. 3. THE ASSESSEE PREFERRED APPEAL BEFORE THE TRIBUNA L AND THE TRIBUNAL VIDE ITS ORDER DATED 18.08.2011 IN ITA NO. 1319/KOL./2010 OBSERVED IN PA RA 6 AS UNDER :- 6. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAR EFUL PERUSAL OF MATERIALS AVAILABLE ON RECORD WE ACCEPT THE SUBMISSIONS OF T HE LD. COUNSEL FOR THE ASSESSEE THAT ANY BANK ACCOUNT WHICH IS NOT DISCLOS ED BY THE ASSESSEE IN REGULAR BOOKS OF ACCOUNT AND THE EXPLANATION OF THE ASSESSEE IS NOT ACCEPTABLE TO THE REVENUE AUTHORITIES WE ARE OF THE VIEW THAT THE ONLY PEAK CREDIT APPEARED IN THE SAID BANK ACCOUNT IS TO BE TREATED AS UNEXPL AINED INVESTMENT. IN THIS CASE THE PEAK CREDIT AS PER BANK STATEMENT APPEARI NG AT PAGE NO.9 OF THE PAPER BOOK ON 2 ND SEPTEMBER 2005 IS RS.9 53 147.35 WHEREAS IN THE COMPUTATION OF PEAK BALANCE WHICH WAS PLACED AT PAGE 22 OF THE PAP ER BOOK ASSESSEE HAS SHOWN PEAK BALANCE OF RS.9 15 000/-ON 12TH MAY 200 5. THEREFORE WE SET ASIDE THIS ISSUE TO THE FILE OF AO TO VERIFY THE SA ME FROM THE ORIGINAL BANK STATEMENT AND ADD THE PEAK CREDIT APPEARING IN THE SAID UNDISCLOSED BANK ACCOUNT. THUS ADDITION FOR WHICH PENALTY PROCEEDINGS HAD B EEN INITIATED HAD BEEN RESTORED BACK TO THE FILE OF ASSESSING OFFICER. 4. LD. CIT(APPEALS) IMPOSED THE PENALTY AT 100% OF TOTAL INCOME INTER ALIA OBSERVING AS UNDER :- SINCE IT WAS CLEARLY FOUND THAT THE ASSESSEE HAD C ONCEALED PARTICULARS OF HIS INCOME IN AS MUCH AS THE SAME HAD NOT BEEN D ISCLOSED BY HIM IN HIS RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR AND HE H AD OFFERED AN EXPLANATION WHICH HE WAS NOT ABLE TO SUBSTANTIATE PENALTY PROC EEDINGS U/S.271(1)(C) WERE INITIATED. A NOTICE U/S.274 READ WITH SECTION 271 O F THE ACT WAS ALSO ISSUED TO THE ASSESSEE TO SHOW CAUSE ON OR BEFORE 11/05/2010 AS T O WHY PENALTY U/S.271(1)(C) MAY NOT BE IMPOSED IN RESPECT .OF THE INCOME AS MEN TIONED IN THE APPELLATE ORDER DATED 18/02/2010 IN APPEAL NO.298/CIT(A)-XXX II/08-09/50(2)/KOL. THE APPELLATE ORDER AND THE SAID NOTICE ULS.274 READ WI TH SECTION 271 WERE DULY SERVED THROUGH RPAD. HOWEVER NO REPLY HAS BEEN REC EIVED FROM THE ASSESSEE IN THIS OFFICE IN RESPONSE TO THE SAID SHOW CAUSE NOTI CE. SINCE THE ASSESSEE HAS FAILED ITA NO. 1976/KOL./2010 3 TO OFFER ANY EXPLANATION TO THE SHOW CAUSE NOTICE U /S.274 READ WITH 271 OF THE ACT THE AMOUNT OF INCOME ADDED WHILE PASSING THE A PPELLATE ORDER DATED 18.02.2010 FOR THE PURPOSES OF CLAUSE (C) OF SECTIO N 271(1) IS TO BE DEEMED TO REPRESENT THE INCOME IN RESPECT OF WHICH PARTICULAR S HAVE BEEN CONCEALED. BEING AGGRIEVED WITH THE ORDER OF LD. CIT(APPEALS) THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING GROUNDS :- (1) FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE LD. CIT(A.) ERRED BOTH ON FACTS AND IN LAW IN INITIATING THE PR OCEEDING UNDER SECTION 271(1)(C). (2) FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE LD. CIT(A.) WAS NOT JUSTIFIED IN IMPOSING A PENALTY UNDER SECTI ON 271(1)(C) FOR RS.22 84 494/-. (3) FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE IMPOSITION OF PENALTY UNDER SECTION. 271(1)(C) AT RS.22 84 494/- IS OTHERWISE BAD-IN-LAW UNJUST WRONG UNLAWFUL AND INCORRECT. 5. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT SINCE THE QUANTUM ADDITION HAS ALREADY BEEN RESTORED BACK TO THE FILE OF ASSESSING OFFICER THEREFORE THE ORDER OF LD. CIT(APPEALS) IMPOSING PENALTY BE SET ASIDE AND THE MATTER MAY BE RESTORED BACK TO THE FILE OF ASSESSING OFFICER TO DECIDE THE ISSUE AFRESH IN REG ARD TO PENALTY PROCEEDINGS IN ACCORDANCE WITH LAW. 6. LEARNED DEPARTMENTAL REPRESENTATIVE DID NOT OPPO SE TO IT. 7. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND HAVE PERUSED THE RECORDS OF THE CASE. AS NOTED EARLIER THE QUANTUM ADDITION HA S BEEN RESTORED BACK TO THE FILE OF ASSESSING OFFICER BY TRIBUNAL VIDE ITS ORDER DATED 18.08.2011 IN ITA NO. 1319/KOL./2010 THEREFORE WE SET ASIDE THE ORDER OF LD. CIT(APPEALS) IN IMPOSING PENALTY UNDER SECTION 271(1)(C) ANDRESTORE THE MATTER BACK TO THE FILE OF ASSESSING OFFICER TO DECIDE PENALTY PROCEEDINGS IN ACCORDANCE WITH LAW AFTER COMPLETING THE ASSESSMENT IN PURSUAN CE TO TRIBUNALS ORDER. 8 IN THE RESULT THE APPEAL FILED BY THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25/ 11/2011. & . / - 25/11/2011. SD/- SD/- [ MAHAVIR SINGH / ] [S.V. MEHROTRA/ ( . . )] JUDICIAL MEMBER/ ACCOUNTANT MEMBER/ DATED : 25/ 11/ 2011 ITA NO. 1976/KOL./2010 4 COPY OF THE ORDER FORWARDED TO: 1. SHRI BIJAN SAHA AMRIT BHAWAN RADHA RANI PARK SR EEPUR HABRA NORTH 24-PARGANAS-74326311. 2 ITO WARD-50(2) KOLKATA 169 AJC BOSE ROAD KOLKA TA-14 3. COMMISSIONER OF INCOME-TAX (APPEALS)- KOLKATA 4. CIT- KOLKATA 5. DR KOLKATA BENCHES KOLKATA (TRUE COPY) BY ORDER ASSISTANT REGISTRAR I.T.A.T. KOLKATA LAHA SR. P.S.