Anjan Kumar Mazumdar, Kolkata v. DCIT, Circle - 33, Kolkata, Kolkata

ITA 2/KOL/2010 | 2004-2005
Pronouncement Date: 28-01-2011

Appeal Details

RSA Number 223514 RSA 2010
Assessee PAN AJEPM3435E
Bench Kolkata
Appeal Number ITA 2/KOL/2010
Duration Of Justice 1 year(s) 27 day(s)
Appellant Anjan Kumar Mazumdar, Kolkata
Respondent DCIT, Circle - 33, Kolkata, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 28-01-2011
Appeal Filed By Assessee
Bench Allotted A
Tribunal Order Date 28-01-2011
Date Of Final Hearing 22-04-2010
Next Hearing Date 22-04-2010
Assessment Year 2004-2005
Appeal Filed On 01-01-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BEN CH A KOLKATA () BEFORE . .. . . .. . SHRI B.R.MITTAL JUDICIAL MEMBER. /AND . .. .!' !'!' !'. .. . #$ SHRI C.D.RAO ACCOUNTANT MEMBER % % % % / ITA NOS . 02 & 03/KOL/2010 &' ()/ ASSESSMENT YEARS : 2004-05 & 2006-07 (+ / APPELLANT ) SHRI ANJAN KUMAR MAZUMDAR PAN : AJEPM 3435 E - & - - VERSUS - . (./+ / RESPONDENT ) D.C.I.T. CIRCLE-33 KOLKATA + 0 1 #/ FOR THE APPELLANT: SHRI S.N.KEDIA ./+ 0 1 #/ FOR THE RESPONDENT: SHRI PIYUSH KOLHE #2 / ORDER ( (( ( . .. .!' !'!' !'. .. . ) )) ) #$ PER SHRI C.D.RAO AM THE ABOVE APPEALS ARE FILED BY THE ASSESSEE AGAINS T SEPARATE ORDERS DATED 27.10.2009 AND 21.10.2009 OF THE CIT(A)-XX KOLKATA PERTAINING TO A.YRS. 2004-05 AND 2006-07 RESPECTIVELY. ITA NO.02/KOL/2010 (A.YR.2004-05) : 2. `THE ONLY EFFECTIVE GROUND IN THIS APPEAL IS REL ATING TO CONFIRMATION OF ADDITION OF RS.3 45 225/- ON ACCOUNT OF BOGUS PURCHASE. 3. THE BRIEF FACTS OF THIS ISSUE ARE THAT WHILE DO ING THE SCRUTINY ASSESSMENT THE AO HAS OBSERVED THAT THE ASSESSEE HAS SHOWN PURCHASE O F RS.3 52 785/- FROM M/S. CHANDIKA TRADING CO.. BUT IN RESPONSE TO NOTICE U/S 133(6) THE SAID PARTY CONFIRMED PURCHASE OF RS.7 560/- ONLY. THEREFORE THE AO TREAT ED THE DIFFERENCE OF RS.3 45 225/- AS BOGUS PURCHASE IN THE ABSENCE OF ANY EVIDENCE. 2 3.1. ON APPEAL ALSO THE LD. CIT(A) HAS CONFIRMED T HE SAME BY OBSERVING THAT THE ASSESSEE FAILED TO RECONCILE EVEN BEFORE HIM AND TH E ASSESSEE HAS NOT PRODUCED ANY EVIDENCE TO SHOW THAT HE HAD MADE PURCHASE OF RS.3 45 225/- . 3.2. AGGRIEVED BY THIS THE ASSESSEE WENT IN APPEAL BEFORE US. 4. AT THE TIME OF HEARING BEFORE US THE LD. AR APP EARING ON BEHALF OF THE ASSESSEE REFERRED TO PAGES 10-17 OF THE PAPER BOOK WHICH CON TAIN PURCHASE BILLS AND COPY OF BANK STATEMENT AS PROOF OF PAYMENT OF RS.13 473/- . BASED ON THESE DOCUMENTS HE SUBMITTED THAT THE REVENUE IS NOT JUSTIFIED IN ADDI NG THE DIFFERENCE OF RS.3 45 225/-. THEREFORE HE REQUESTED TO DELETE THE SAME. 5. ON THE OTHER HAND THE LD. DR HEAVILY RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES AND FURTHER CONTENDED THAT THERE IS NO EVIDENCE ON RECORD THAT THE ABOVE MATERIALS ARE IN THE FILES OF THE REVENUE. TO THIS EFFECT HE REFERRED TO THE ORDERS OF THE AO AS WELL AS THE LD. CIT(A). 6. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CARE FUL CONSIDERATION OF THE MATERIALS AVAILABLE ON RECORD KEEPING IN VIEW OF TH E FACT THAT THE ASSESSEE HAS GIVEN CERTIFICATE THAT ALL THE DOCUMENTS PLACED IN THE PA PER BOOK AT PAGES 10-17 ARE ALREADY IN THE FILE OF THE AO AS WELL AS THE CIT(A) WE CON SIDER IT FIT TO SET ASIDE THIS ISSUE TO THE FILE OF THE AO TO VERIFY THE SAME AND DECIDE AF RESH AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT ITA NO.2/KOL/210 IS ALLOWED FOR S TATISTICAL PURPOSES. ITA NO.03/KOL/2010 (A.YR.2006-07): 8. THE ASSESSEE IN THIS APPEAL HAS RAISED THE FOLLO WING GROUNDS :- 1. THE ORDER OF THE LD. CIT(A) IS BAD IN LAW AS WE LL AS ON FACTS. 2. THE LD. CIT(A) HAS ERRED IN RECOGNIZING THE FACT S THAT ACCOUNTS OF M/S.ANJANA & COMPANY HAS BEEN AUDITED AND ALL THE T RANSACTIONS ARE VOUCHED. 3. THE LD. CIT(A) HAS ERRED IN RECOGNIZING THE REPO RT OF AUDITORS THAT TDS AMOUNTING TO RS.13 965/- HAS NOT BEEN DEDUCTED AND PAID. 4. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDIT ION OF RS.53 13 614/- PAID TO OWN LABOURS U/S 40(A)(IA). 5. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDIT ION OF RS.7 19 820/- ON ACCOUNT OF DIFFERENCE IN BALANCE OF CREDITOR. 3 6. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDIT ION OF RS.83 822/- ON ACCOUNT OF SUBSCRIPTION EXPENSES WHICH ARE EXPENDED WHOLLY FOR THE PURPOSE OF THE BUSINESS. 7. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY G ROUND OF APPEAL. 9. AT THE TIME OF HEARING THE LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE HAS NOT PRESSED GROUND NO.6 AND THE SAME IS DISMISSED. 10. GROUND NO.1 TO 3 ARE IN SUPPORT OF GROUND NO.4. THE RELEVANT FACTS OF GROUND NO.4 ARE THAT WHILE DOING SCRUTINY ASSESSMENT THE A O HAS DISALLOWED AN AMOUNT OF RS.61 35 423/- U/S 40(A)(IA) OF THE ACT BY OBSERVIN G AS UNDER :- DURING THE RELEVANT A.Y. THE ASSESSEE HAS MADE PAY MENTS TO THE FOLLOWING LABOURS WHICH ATTRACTS THE PROVISIONS OF SECTION 40 A(IA) AS TAX WAS NOT DEDUCTED AT SOURCE BY THE ASSESSEE : SL. NO. NAME OF SUB- CONTRACTOR AMOUNT (IN RS.) SL.NO. NAME OF SUB- CONTRACTOR AMOUNT (IN RS.) 48 21 831 1. BABLU JANA 11 22 725 11. SAIFUL MALIK 2 78 914 2. OHIDUR RAHAMAN 10 19 948 12. RISBAT ALI 1 16 950 3. ANIMUL SK. 9 95 958 13. ASISH HALDER 1 19 720 4. S.K.CONSTRUCTION 2 75 658 14. TECHNOMAX ENGG. 49 500 5. P.M.D.ENTERPRISE 2 39 500 15. SANJAY KOPAT 43 86 7 6. PANKAJ DHALI 4 36 251 16. FAZLU HAQUE GARAMI 60 819 7. HINDUSTHAN ENTERPRISE 1 55 350 17. BHAJAHARI BOURI 4 95 641 8. R.M.S.ENTERPRISE 1 01 801 18. YUSUF SK. 95 481 9. HASIBUL ISLAM 3 52 150 19. DIPAK 27 700 10. 1 22 831 1 22 490 20. SIDDHANTHA GHOSH 25 000 C/F 48 21 831 TOTAL 6 1 35 423 SHOW CAUSE LETTER DATED 22.12.2008 WAS ISSUED TO TH E ASSESSEE TO OFFER EXPLANATION OTHERWISE THE AMOUNTS WOULD BE ADDED BA CK TO THE TOTAL INCOME. THE ASSESSEE HAD OFFERED NO EXPLANATION IN THE WRIT TEN SUBMISSION DATED 24.12.2008. SO CONCLUSION CAN BE DRAWN THAT THE AS SESSEE HAD NOTHING TO OFFER REGARDING THE PROPOSED ADDITION. UNDER THE CIRCUMST ANCES THE SUM OF RS.61 35 423/- IS ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE U/S 40A(IA) OF THE I.T.ACT. 10.1. ON APPEAL THE LD. CIT(A) HAS CONFIRMED THE SA ME BY OBSERVING AS UNDER :- I HAVE PERUSED THE ASSESSMENT ORDER AND THE REMAND REPORTS. I HAVE ALSO CONSIDERED THE SUBMISSION OF THE APPELLANT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO ISSUED A SHOW-CAUSE NOTICE ON 2 2-12-2008 THEREBY 4 ALLOWING THE APPELLANT AN OPPORTUNITY TO EXPLAIN AS TO WHY THE PROVISIONS OF SECTION 40(A)(IA) ARE NOT ATTRACTED ON PAYMENTS OF RS.61 35 423/-. BUT THE APPELLANT OFFERED NO EXPLANATION BEFORE THE AO. THE APPELLANT WAS ALLOWED ANOTHER OPPORTUNITY DURING THE COURSE OF REMAND PRO CEEDINGS. BUT THE APPELLANT FAILED TO PRODUCE ANY EVIDENCE IN SUPPORT OF HIS CONTENTIONS. THE APPELLANT COULD BRING NOTHING ON RECORD TO SHOW THA T THE SUPERVISORS AUTHORIZED THE ACCOUNTANT OF THE APPELLANT TO APPEAR BEFORE TH E AO OR THAT THE APPELLANT WAS BED RIDDEN DURING THE RELEVANT PERIOD. COPY OF AUTHORIZATIONS OR MEDICAL CERTIFICATE WAS NOT FILED BEFORE ME. THE APPELLANT FAILED TO PRODUCE ANY EVIDENCE TO SUGGEST THAT THE ACCOUNTANT APPEARED BE FORE THE AO ON 15-09-2009. IN VIEW OF THE ABOVE I FIND NO REASONS TO INTERFER E WITH THE ORDER OF THE AO WHICH IS UPHELD. THE ADDITION OF RS.61 35 423/- IS CONFIRMED. GROUND NO.5 IS DISMISSED. FURTHER AGGRIEVED BY THIS THE ASSESSEE IS IN APPEAL BEFORE US. 11. AT THE TIME OF HEARING BEFORE US THE LD. COUNS EL APPEARING ON BEHALF OF THE ASSESSEE BY REFERRING TO THE DETAILS OF LABOUR CHAR GES WHICH WAS PLACED AT PAGE 41 OF THE PAPER BOOK AND STATEMENT SHOWING THE NATURE OF PAYMENTS AMOUNTING TO RS.61 35 423/- WHICH WAS PLACED AT PAGE 41 OF THE P APER BOOK AND SITE-WISE LABOUR WISE DETAILS PAYMENT VOUCHERS JOURNAL VOUCHERS AN D PAY SHEETS WHICH ARE PLACED AT PAGES 43 TO 543 SUBMITTED THAT THEY ARE FURNISHING A STATEMENT WHICH SHOWS THE NATURE OF PAYMENTS TOTALING TO RS.61 35 423/- WHICH THE AO HAS DISALLOWED U/S 40A(IA). FROM THE ABOVE LIST IT IS EVIDENT THAT TDS IS REQUIRED TO BE DEDUCTED FROM THE PAYMENTS TO SUB-CONTRACTORS AMOUNTING TO RS.7 72 30 9/- ONLY. THE OTHER SUB- CONTRACTOR IS PAID RS.49 500/- WHICH IS BELOW THE L IMIT PRESCRIBED U/S 194C. ALL OTHER PAYMENTS WERE MADE TO THE OWN LABOURS AT DIFFERENT SITES. MONTHLY PAYMENTS ARE MADE TO LABOURS AND CASH IS SENT TO THE SITES THROUGH EA CH LABOUR WHO SUPERVISE THE WORK OF EACH DIFFERENT NATURE. THE CASH IS DEBITED IN THE N AME OF LABOUR AT THE TIME OF PAYMENT AND WHEN HE SUBMITS ALL THE PAY SHEETS AND ACCOUNT S OF LABOUR PAYMENTS HIS ACCOUNT IS CREDITED AND LABOUR CHARGES IS DEBITED. THIS IS AS PER ACCOUNTING NORMS WHICH THE APPELLANT FOLLOWED REGULARLY. THIS IS THE REASON SU CH HUGE AMOUNT IS APPEARING AGAINST THE NAME OF INDIVIDUAL LABOUR. HE IS SUBMITTING THE LIST OF ALL THE LABOURS UNDER THE NAME OF SUPERVISOR INDICATING THE AMOUNT PAID PER M ONTH SITE WISE AND NAME WISE FOR PERUSAL. THE AMOUNT OF TDS SHOULD BE DEDUCTED FROM THE PAYMENTS TO SUB-CONTRACTORS IS RS.7878/- WHICH THE ASSESSEE HAS FAILED TO DEDUC T. HE SUBMITTED THAT AN AMOUNT OF RS.7 72 309/- IS TO BE DISALLOWED U/S 40A(IA). THE AUDITORS WHILE AUDITING THE ACCOUNTS 5 OF THE ASSESEE U/S 44AB OF THE ACT HAS MENTIONED IN THEIR REPORT THAT THE TDS AMOUNTING TO RS.13 965/- HAS NOT BEEN DEDUCTED BY T HE ASSESSEE. THE AUDITORS HAS INCLUDED RS.7878/- AS DISCUSSED ABOVE IN THIS AMOUN T. THE LD. COUNSEL SUBMITTED THAT HE IS FURNISHING THE DETAILS OF TDS NOT DEDUCTED BY THE ASSESSEE WHICH THE AUDITORS HAS CONSIDERED. THE AO HAS NOT CONSIDERED AUDITORS REPORT WHILE DISALLOWING THE PAYMENTS. THE PAYMENTS AS LABOUR CHARGES AMOUNTING TO RS.56 63 114/- BE ALLOWED. 12. ON THE OTHER HAND THE LD. DR HEAVILY RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 13. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CARE FUL CONSIDERATION OF MATERIALS AVAILABLE ON RECORD ESPECIALLY PAGE NOS. 41 AND 42 WE ARE OF THE VIEW THAT THOUGH THE STATEMENT INDICATES NAME OF THE SUB-CONTACTORS AND DETAILS OF LABOUR CHARGES FOR FINANCIAL YEAR AT PAGE 41 BUT AT THE SAME TIME AT P AGE 42 THE ASSESSEE HAS CATEGORICALLY MENTIONED THE PAYMENTS TO LABOURERS THROUGH SUPERVI SORS AND PAYMENTS TO SUB- CONTRACTORS AND FURTHER THE TAX AUDITOR HAS SPECIFI CALLY MENTIONED IN HIS TAX AUDIT REPORT THAT THE ASSESSEE HAS FAILED TO DEDUCT TDS O N AN AMOUNT OF RS.13 965/-. ALL THESE FACTS ARE FILED BEFORE THE LD. CIT(A) IN THE WRITTEN SUBMISSIONS ALONG WITH THE EVIDENCE WHICH WERE PLACED AT PAGES 546 AND 547. KE EPING IN VIEW OF THE ABOVE FACTS AND RELEVANT SUPPORTING DOCUMENTS PLACED AT PAGES43 TO 543 SINCE THE ASSESSEE HAS MADE THESE LABOUR PAYMENTS TO THE INDIVIDUAL LABOUR S THROUGH THE SARDARS THE PROVISION OF SECTION 194C OF THE ACT IS NOT APPLICA BLE IN THE FACTS OF THE PRESENT CASE. THEREFORE WE SET A SIDE THE ORDERS OF THE REVENUE AUTHORITIES ON THIS ISSUE BY CONFIRMING THE DISALLOWANCE OF RS.7 72 309/-. 14. IN THE RESULT GROUND NO.4 IS ALLOWED. 15. GROUND NO.5 IS RELATED TO CONFIRMATION OF ADDIT ION OF RS.7 19 820/- ON ACCOUNT OF DIFFERENCE IN BALANCE OF CREDITOR. 16. THE FACTS OF THIS ISSUE ARE THAT WHILE DOING TH E SCRUTINY ASSESSMENT THE AO HAS ADDED AN AMOUNT OF RS.7 19 820/- SHOWN BY THE ASSES SEE IN THE SUNDRY LIABILITY ACCOUNT IN THE NAME OF M/S.R.A.V.DRAVYA BY OBSERVIN G AS UNDER :- 6 THE ASSESSEE HAD SHOWN IN THE SUNDRY CREDITORS LIS T RS.4 91 80 400/- AS BALANCE OUTSTANDING AGAINST R.A.V.DRAVYA. REPLY REC EIVED FROM R.A.V.DRAVYA IN RESPONSE TO LETTER U./S 133(6) SHOWED THAT RS.4 99 00 220/- WAS LYING OUTSTANDING. IN REPLY TO SHOW CAUSE LETTER DATED 22 .12.2008 REGARDING DISCREPANCY OF RS.7 19 820/- NO EXPLANATION WAS OFF ERED BY THE ASSESSEE IN THE REPLY SUBMITTED ON 24.12.2008. 16.1. ON APPEAL THE LD.CIT(A) CONFIRMED THE SAME EV EN AFTER THE ASSESSEE HAS PRODUCED THE LEDGER COPY. SINCE THE AO IN THE REMA ND REPORT HAS OBJECTED TO ACCEPT THE ADDITIONAL EVIDENCE U/R 46A OF THE IT RULES. 16.2. AGGRIEVED BY THIS THE ASSESSEE IS IN APPEAL B EFORE US. 17. AT THE TIME OF HEARING THE LD. COUNSEL APPEARIN G ON BEHALF OF THE ASSESSEE BY REFERRING TO THE DETAILS OF THE SUNDRY CREDITORS AN D BANK STATEMENTS WHICH WAS ANNEXED TO THE PAPER BOOK HAS DEMONSTRATED THAT AN AMOUNT O F RS.7 19 820/- HAS BEEN SUBSEQUENTLY PAID BY THE ASSESSEE. THEREFORE NO AD DITION IS REQUIRED ON THIS ACCOUNT AND FURTHER CONTENTED THAT THE REJECTION OF THE LED GER COPY BY THE AO IN THE REMAND REPORT IS NOT JUSTIFIABLE. SO HE REQUESTED TO DELET E THE ADDITION. 18. ON THE OTHER HAND THE LD. DR HEAVILY RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 19. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CARE FUL CONSIDERATION OF THE MATERIALS AVAILABLE ON RECORD NON ACCEPTANCE OF THE LEDGER COPY AT THE REMAND STAGE BY THE AO IS NOT JUSTIFIABLE. THEREFORE WE SET ASIDE THIS ISSUE TO THE FILE OF THE AO TO VERIFY THE LEDGER COPY AND BANK STATEMENT FILED BY THE ASSESSEE AND RE-DECIDE THE SAME AFRESH AFTER GIVING A REASONABLE OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. 20. IN THE RESULT GROUND NO.5 IS ALLOWED FOR STATIS TICAL PURPOSES. 21. GROUND NO.7 BEING GENERAL IN NATURE DOES NOT R EQUIRE ANY ADJUDICATION. 7 22. IN THE RESULT APPEAL NO.03/KOL/2010 IS ALLOWED IN PART FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 28.01.2011. SD/- SD/- . .. . . .. . B.R.MITTAL JUDICIAL MEMBER . .. .!' !'!' !'. .. . #$ #$ #$ #$ C.D.RAO ACCOUNTANT MEMBER. ( (( ('$ '$ '$ '$) )) ) DATE: 28.01.2011. #2 0 .3 4#3(5- COPY OF THE ORDER FORWARDED TO: 1. SHRI ANJAN KUMAR MAZUMDAR 555 DIAMOND HARBOUR ROA D BEHALA KOLKATA-700034. 2 THE D.C.I.T. CIRCLE-33 KOLKATA. 3. THE CIT 4. THE CIT(A)-XX KOLKATA 5. DR KOLKATA BENCHES KOLKATA /3 ./ TRUE COPY #2&:/ BY ORDER DEPUTY /ASST. REGISTRAR ITAT KOLKATA BENCHES R.G.(.P.S.)