Md. Naimuddin, Kolkata v. ITO, Ward - 8(4), Kolkata, Kolkata

ITA 231/KOL/2016 | 2002-2003
Pronouncement Date: 22-11-2017 | Result: Partly Allowed

Appeal Details

RSA Number 23123514 RSA 2016
Assessee PAN AADFR2816C
Bench Kolkata
Appeal Number ITA 231/KOL/2016
Duration Of Justice 1 year(s) 9 month(s) 6 day(s)
Appellant Md. Naimuddin, Kolkata
Respondent ITO, Ward - 8(4), Kolkata, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 22-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 22-11-2017
Last Hearing Date 04-10-2017
First Hearing Date 04-10-2017
Assessment Year 2002-2003
Appeal Filed On 16-02-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA [BEFORE HONBLE SHRI M.BALAGANESH AM & SHRI S.S. VISWANETHRA RAVI JM] I.T.A NO. 231/KOL/201 6 ASSESSMENT YEAR : 2002-0 3 MD. NAIMUDDIN -VS- ITO WARD-8(4) KOL KATA [PAN: AADFR 2816 C] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI A.K. TIBREWAL FCA FOR THE RESPONDENT : SHRI ARINDAM BHATTACHARJ EE ADDL. CIT DATE OF HEARING : 13.11.2017 DATE OF PRONOUNCEMENT : 22.11.2017 ORDER PER M.BALAGANESH AM 1. THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE O RDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-10 KOLKATA [IN SHORT THE LD CI T(A)] IN APPEAL NO.1237/ITO.W- 45(3)/CIT(A)-21/KOL/14-15 DATED 08.12.2015 AGAINST THE ORDER PASSED BY THE ITO WARD-45(3) KOLKATA [ IN SHORT THE LD AO] UNDER SEC TION 143(3)/147 OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT) DATED 30.09.2008 F OR THE ASSESSMENT YEAR 2002-03. 2. THE GROUND NOS. 1 AND 5 RAISED BY THE ASSESSEE ARE NOT PRESSED BY THE LD. AR. THE SAME IS RECKONED AS STATEMENT FROM THE BAR AND ACCO RDINGLY GROUND NOS. 1 AND 5 ARE DISMISSED AS NOT PRESSED. 2 ITA NO.231/KOL/2016 MD. NAIMUDDIN A.YR.2002-03 2 3. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS A S TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN UPHOLDING THE ADDITION MADE IN THE SUM OF RS. 10 LACS. TOWARDS DEPOSITS MADE IN THE BANK ACCOUNT OF THE ASSESSEE IN THE FA CTS AND CIRCUMSTANCES OF THE CASE. 4. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSESS EE FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2002-03 ON 28.10.2002 DECLARING TOT AL INCOME OF RS. 81 389/-. THE ASSESSEE IS A PROPRIETOR OF M/S INDO TEEN COMPANY DEALING IN TRADING IN TIN SHEETS APART FROM DERIVING TOTAL INCOME AND INCOME FROM OT HER SOURCES. THE LD. AO IN THE COURSE OF ASSESSMENT PROCEEDINGS OBSERVED THAT THE ASSESSEE HAD MAINTAINED A BANK ACCOUNT WITH J & K BANK LTD. BEARING ACCOUNT NO. 03 25SB3444 WHEREIN THERE WAS A SINGLE CASH DEPOSIT OF RS. 10 LACS. ON 08.02.2002. THE LD. AO FURTHER OBSERVED THAT THERE WERE NO FURTHER DEPOSITS EITHER BY CASH OR BY CHEQUE IN THIS BANK ACCOUNT DURING THE FINANCIAL YEAR 2001-02 RELEVANT TO ASSESSMENT Y EAR 2002-03. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF THE SAID DEPOSIT. SINCE N O SATISFACTORY EXPLANATION WAS GIVEN BY THE ASSESSEE BEFORE THE LD. AO THE SAID CASH DE POSIT OF RS. 10 LACS. WAS TREATED AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT IN THE HA NDS OF THE ASSESSEE. THE ASSESSEE EXPLAINED BEFORE THE LD CITA THAT HE HAD ENTERED IN TO AN AGREEMENT OF SALE OF PROPERTY ON 07.02.2002 IN RESPECT OF ITS FLAT SITUATED AT 17 9 SHAKESPEARE SARANI KOLKATA AND THIS SUM OF RS. 10 LACS. WAS RECEIVED AS ADVANCE FROM TH E INTENDING PURCHASER OF THE SAID PROPERTY IN CASH AT THE TIME OF ENTERING INTO AGRE EMENT OF SALE. THE ASSESSEE ALSO PRODUCED THE AGREEMENT OF SALE DULY NOTARIZED BEFOR E THE LD. CIT(A) AS AN ADDITIONAL EVIDENCE. THE SAME WAS DIRECTED TO BE EXAMINED BY T HE LD. AO AND ACCORDINGLY REMAND REPORT WAS CALLED FOR BY THE LD. CIT(A). THE LD. AO IN THE ASSESSMENT PROCEEDINGS ISSUED SUMMONS U/S 131 OF THE ACT DATED 15.01.2014 TO M/S MRIDUHARI TRADE AND INVESTMENT LTD. (INTENDING PURCHASER). AN OTHER NOTICE WAS ALSO ISSUED TO THE SAID PARTY ON 15.07.2014 AT AN ALTERNATIVE ADDRESS AT 10 GOVT. PLACE (EAST) KOLKATA-69. BOTH THESE NOTICES RETURNED UNSERVED. THEREAFTER T HE INSPECTOR OF INCOME TAX DEPARTMENT WAS DEPUTED TO ASCERTAIN THE WHEREABOUTS OF THE SAID PARTY AND THESE EFFORTS 3 ITA NO.231/KOL/2016 MD. NAIMUDDIN A.YR.2002-03 3 WERE ALSO IN VAIN. WHEN THIS WAS PUT TO ASSESSEE IN THE REMAND PROCEEDINGS THE ASSESSEE COULD NOT OFFER ANY SATISFACTORY EXPLANATI ON BEFORE THE LD. AO. ACCORDINGLY THE LD. AO JUSTIFIED HIS ACTION OF TREATING THE SA ID AGREEMENT AS BOGUS AND JUSTIFYING HIS ACTION OF ADDING THIS SUM OF RS. 10 LACS. AS UN EXPLAINED CASH CREDIT U/S 68 OF THE ACT. THE LD. CIT(A) BY FOLLOWING THE SAID REMAND REPORT UPHELD THE ADDITION MADE BY THE LD. AO. 5. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US O N THE FOLLOWING GROUNDS: 2. THAT WITHOUT PREJUDICE ON THE FACTS AND CIRCUMS TANCES OF THE CASE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFI RMING THE ADDITION OF RS. 10 00 000 MADE BY THE ASSESSING OFFICER IN THE IMPU GNED RE-ASSESSMENT ORDER PASSED UNDER SECTION 143(3)/147 OF THE INCOME TAX A CT 1961. 3. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN AGREEING WITH THE ASSESSING OFFICER THAT THE SUM OF RS. 10 00 000 DEPOSITED IN THE BANK ACCOUNT OF THE APPELLANT HEREIN WAS UNDISCLOSED INCOME OF T HE ASSESSEE CHARGEABLE TO TAX UNDER SECTION 68 OF THE INCOME TAX ACT 1961. 4. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN CONFIRMING THE ADDITION OF RS. 10 00 000 IN TOTAL INCOME OF THE AP PELLANT SOLELY RELYING ON THE REMAND REPORT OF THE ASSESSING OFFICER WITHOUT CON SIDERING THE EVIDENCES SUBMITTED BY THE APPELLANT EXPLAINING THE SOURCE OF THE CASH DEPOSIT OF RS. 10 00 000. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS. THE LD. AR BEFORE US STATED THAT THE SAID INTENDING PURCHASER HAD INITIALLY COMPLIED WITH THE NOTICE ISSUED U/S 133(6) OF THE ACT BY THE LD. AO AND HAD CONFIRMED THE PROPERTY TRANSA CTION BEFORE THE LD. AO AND ACCORDINGLY THE SAID CASH DEPOSIT OF RS. 10 LACS. I S PROPERLY EXPLAINED BY THE ASSESSEE BY WAY OF PROPER SOURCE. HE ARGUED THAT MERELY BECAUSE THESE SUMMONS AND SUBSEQUENT NOTICES THAT COULD NOT BE SERVED ON THE SAID PARTY DURING ASSESSMENT PROCEEDINGS WOULD NOT MAKE THE TRANSACTION OF AGREEMENT OF SALE AS BO GUS. HOWEVER HE STATED THAT THIS FACT COULD BE VERIFIED BY THE LD. AO IN ORDER TO UNDERST AND THE TRUTH. IN RESPONSE TO THIS THE 4 ITA NO.231/KOL/2016 MD. NAIMUDDIN A.YR.2002-03 4 LD. DR VEHEMENTLY OBJECTED FOR SETTING ASIDE OF THI S APPEAL TO THE FILE OF THE LD. AO IN AS MUCH AS THE ASSESSEE HAS NOT EITHER PRODUCED THE PARTY IN RESPONSE TO SUMMONS U/S 131 OF THE ACT OR PRODUCE RELEVANT DOCUMENTS BEFORE THE LD. AO (BOTH IN ORIGINAL AS WELL AS REMAND PROCEEDINGS) OR BEFORE THE LD. CIT(A ). 6.1. WE FIND THAT THE SAID PARTY M/S MRIDUHARI TRAD E AND INVESTMENT LTD. HAD COMPLIED WITH TO THE NOTICE ISSUED U/S 133(6) OF THE ACT BEF ORE THE LD. AO VIDE LETTER DATED 18.04.2013 FILED BEFORE THE LD. AO ON 02.05.2013 WH EREIN IT HAD ENCLOSED THE RELEVANT DOCUMENTS CALLED FOR BY THE LD. AO. WE FIND THAT TH IS LETTER AND DOCUMENTS FILED THEREON HAD NOT BEEN CONSIDERED BY THE LD. AO. HENC E WE DEEM IT FIT AND APPROPRIATE IN THE INTEREST OF JUSTICE AND FAIR PLAY TO REMAN D THIS ISSUE TO THE FILE OF THE LD. AO FOR EXAMINATION AFRESH IN ACCORDANCE WITH LAW. THE LD . AO IF HE CONSIDERS NECESSARY MAKE NECESSARY ENQUIRIES WITH THE CONCERNED PARTIES I.E. M/S MRIDUHARI TRADE AND INVESTMENT LTD. FOR UNDERSTANDING THE FACTS OF THE CASE. THE ASSESSEE IS ALSO DIRECTED TO PRODUCE THE SAID PARTY FOR THE EXAMINATION BY THE L D. AO TO REVEAL THE FACTS. ACCORDINGLY THE GROUNDS RAISED BY THE ASSESSEE AR E ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 22.11.2017 SD/- SD/- [S.S. VISWANETHRA RAVI] [ M.BALAGA NESH ] JUDICIAL MEMBER ACCOUNTANT MEM BER DATED : 22.11.2017 SB SR. PS 5 ITA NO.231/KOL/2016 MD. NAIMUDDIN A.YR.2002-03 5 COPY OF THE ORDER FORWARDED TO: 1. MD. NAIMUDDIN 9 MITRA LANE KOLKATA-700007 2. ITO WARD-8(4) KOLKATA AAYAKAR BHAWAN P-69 C HOWRINGHEE SQUARE KOLKATA-700069. 3..C.I.T.- 4. C.I.T.- KOLKATA. 5. CIT(DR) KOLKATA BENCHES KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O. ITAT KOLKATA BENCHE S