Shri Dipak Roychowdhury, Kolkata v. ITO, Ward - 52(2), Kolkata, Kolkata

ITA 418/KOL/2010 | 2004-2005
Pronouncement Date: 04-11-2011

Appeal Details

RSA Number 41823514 RSA 2010
Assessee PAN AGJPR8437M
Bench Kolkata
Appeal Number ITA 418/KOL/2010
Duration Of Justice 1 year(s) 8 month(s) 7 day(s)
Appellant Shri Dipak Roychowdhury, Kolkata
Respondent ITO, Ward - 52(2), Kolkata, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 04-11-2011
Appeal Filed By Assessee
Bench Allotted A
Tribunal Order Date 04-11-2011
Date Of Final Hearing 24-06-2011
Next Hearing Date 24-06-2011
Assessment Year 2004-2005
Appeal Filed On 25-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE /AND . ! . '# ) [BEFORE SRI MAHAVIR SINGH JM & SHRI C. D. RAO AM] $ $ $ $ / I.T.A NO. 419/KOL/2010 %& '( %& '( %& '( %& '(/ // / ASSESSMENT YEAR: 2004-05 SMT. MOU ROY CHOWDHURY VS. INCOME-TAX OFFICER W D-52(4) KOLKATA (PAN:AGJPR 8437 M) (*+ /APPELLANT ) ( -*+/ RESPONDENT ) & $ $ $ $ / I.T.A NO. 418/KOL/2010 %& '( %& '( %& '( %& '(/ // / ASSESSMENT YEAR: 2004-05 SMT. DIPAK ROY CHOWDHURY VS. INCOME-TAX OFFICER WD-52(4) KOLKATA (PAN:AGJPR 8436 L) (*+ /APPELLANT ) ( -*+/ RESPONDENT ) DATE OF HEARING: 28.10.2011 DATE OF PRONOUNCEMENT: 04.11.2011 FOR THE APPELLANT: S/SHRI SOUMITRA CHOUDHURY & T. K. CHAKRABORTY FOR THE RESPONDENT: SHRI S. K. ROY '. / ORDER PER MAHAVIR SINGH JM ( ) THESE TWO APPEALS BY ASSESSEE ARE ARISING OUT OF SE PARATE ORDER OF CIT(A)-XXXIII KOLKATA IN APPEAL NOS.316 & 317/CIT(A)-XXXIII/WD-52 (4)/06-07 VIDE DATED 21.10.2009. ASSESSMENTS WERE FRAMED BY ITO WD-52(4) KOLKATA F OR ASSESSMENT YEARS 2004-05 U/S. 143(3) OF THE INCOME TAX ACT 1961 (HEREINAFTER REF ERRED TO AS THE ACT) VIDE HIS SEPARATE ORDERS BOTH DATED 28.12.2006. 2. FIRST WE WILL TAKE UP ITA NO. 419/KOL/2010. TH IS APPEAL OF ASSESSEE IS TIME BARRED BY 18 DAYS AND CONDONATION PETITION HAS BEEN FILED PRA YING FOR CONDONATION OF DELAY. THE REASONS FOR DELAY AS EXPLAINED BY THE ASSESSEE ARE THAT HUS BAND OF ASSESSEE SHRI DIPAK ROY CHOWDHURY HAD FALLEN ILL SOME TIMES IN THE FIRST WEEK OF DECE MBER 2009 AND HAD TO TAKE HOSPITALIZATION IN APOLLO HOSPITAL IN TAMIL NADU FOR TREATMENT. HER H USBAND RELEASED FROM THE HOSPITAL ON 23 RD JANUARY 2010 AND THEREAFTER SHE RETURNED TO KOLKA TA ALONG WITH HER HUSBAND AND THE CONDITION OF HER HUSBAND WAS NOT GOOD. HENCE SHE COULD NOT GIVE HER ATTENTION TO ANYTHING INCLUDING 2 ITA 418-419/K/2010 SMT. MOU ROY CHOUDHURY & SHRI DIPAK ROY CHOUDHURY. A.Y.04-05 BUSINESS DURING THIS PERIOD. HOWEVER THE APPELLAT E ORDER REACHED HER ON 1 ST WEEK OF FEBRUARY 2010 AND RECEIVED BY SOME OF HER FAMILY MEMBER. AS SOON AS SHE RECEIVED THE ORDER SHE IMMEDIATELY TOOK NECESSARY STEPS TO FILE AN APPEAL. SHE ALSO FILED AN AFFIDAVIT SWEARING THIS FACT. HENCE SHE PRAYED TO CONDONE THE DELAY AND AD MIT THE APPEAL FOR HEARING. LD. DR APPEARING FOR REVENUE ALTHOUGH OPPOSED THE PRAYER O F ASSESSEE BUT DID NOT RAISE MUCH OBJECTION TO CONDONE THE DELAY. AFTER CONSIDERING THE SUBMIS SIONS OF BOTH THE SIDES WE FIND THAT THERE IS REASONABLE CAUSE FOR DELAY IN FILING THE APPEAL. H ENCE THE DELAY OF 18 DAYS IS CONDONED AND THE APPEAL IS TAKING UP FOR HEARING. 3. THE FIRST ISSUE IN THIS APPEAL OF ASSESSEE IS AG AINST THE ORDER OF CIT(A) CONFIRMING THE ACTION OF ASSESSING OFFICER IN TREATING THE ASSESSE E AS BENAMIDAR OF HER HUSBAND CONFIRMING THE FINDINGS THAT ACTUAL OWNER OF HER BUSINESS IS HER H USBAND AND NOT ASSESSEE. FOR THIS ASSESSEE RAISED FOLLOWING GROUND NO.1: FOR THAT LD. CIT(A) ERRED BOTH IN LAW AND IN FACT BY TREATING THE APPELLANT AS BENAMIDAR OF HER HUSBAND AND CONFIRMING THE FINDING OF THE ASSESSING OFFICER THAT ACTUAL OWNER OF HER BUSINESS IS HER HUSBAND AND THE BUSINE SS BELONGS TO HER HUSBAND ONLY. THIS FINDING HAS GOT NO BASIS AND PRACTICAL REASON TO CO ME TO SUCH CONCLUSION AND THEREBY ADDING THE INCOME EARNED BY THE APPELLANT IN THE HA NDS OF HER HUSBAND. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H FACTS AND CIRCUMSTANCES OF THE CASE. WE HAVE GONE THROUGH THE ASSESSMENT ORDER AND FOUND THAT THE SURVEY U/S. 133A WAS CONDUCTED ON THE BUSINESS PREMISE OF THE ASSESSEE AND FROM TH E SURVEY REPORT IT WAS NOTED THAT ASSESSEE HAD NO TRADE LICENCE FOR CABLE BUSINESS AND ALL REC EIPTS WERE MADE UNDER THE BILLING OF M/S. CABLE VISSION I.E. BUSINESS CONCERN OF ASSESSEES HUSBAND. ACCORDINGLY HE TREATED THE BUSINESS OF THE ASSESSEE AS BUSINESS OF HER HUSBAND SHRI DEEPAK ROY CHOWDHURY. AGGRIEVED ASSESSEE PREFERRED APPEAL BEFORE CIT(A) WHO ALSO C ONFIRMED THE ACTION TO ASSESSING OFFICER BY STATING THAT NOTHING HAS BEEN BROUGHT ON RECORD TO SHOW THAT THE ASSESSEE WAS CARRYING OUT CABLE BUSINESS INDEPENDENTLY FROM HER HUSBAND. AGG RIEVED ASSESSEE CAME IN SECOND APPEAL BEFORE US. 5. WE FIND FROM THE ASSESSMENT ORDER AND THE ORDER OF CIT(A) THAT THE ASSESSEE STATED THAT SHE HAS BEEN SHOWING INCOME FROM CABLE OPERATOR FOR MORE THAN SIX YEARS AND EVEN IN SUBSEQUENT YEAR I.E. ASSESSMENT YEAR 2006-07 I.E. I N THE YEAR OF SURVEY CONDUCTED U/S. 133A OF THE ACT ON 24.06.2005 THE ASSESSEES INCOME FROM C ABLE OPERATOR BUSINESS WAS ASSESSED AS SUCH U/S 143(3) OF THE ACT AND SHE WAS NOT TREATED AS BENAMIDAR OF HER HUSBAND. IN VIEW OF ABOVE FACTS WHETHER REVENUE HAS DISCHARGED THE BUR DEN OF SHOWING THE TRANSACTIONS OF CABLE 3 ITA 418-419/K/2010 SMT. MOU ROY CHOUDHURY & SHRI DIPAK ROY CHOUDHURY. A.Y.04-05 BUSINESS BEING BENAMI OF ASSESSEES HUSBAND. IN OU R VIEW THE BURDEN OF SHOWING THAT A PARTICULAR TRANSACTION IS BENAMI AND THE OWNER IS N OT THE REAL OWNER ALWAYS RESTS ON THE PERSON ASSERTING IT TO BE SO AND THIS BURDEN HAS TO BE STR ICTLY DISCHARGED BY ADDUCING LEGAL EVIDENCE OF A DEFINITE CHARACTER WHICH WOULD EITHER DIRECTLY P ROVES THE FACT OF BENAMI OR ESTABLISH CIRCUMSTANCES UNERRINGLY AND REASONABLE RAISING AN INFERENCE OF THAT FACT. THE ESSENCE OF BENAMI IS THE INTENTION OF THE PARTIES AND NOT UNOF TEN SUCH INTENTION IS SHROUDED IN A THICK VEIL WHICH CANNOT BE EASILY PIERCED THROUGH. BUT SUCH DI FFICULTIES DO NOT RELIEVE THE PERSON ASSERTING THE TRANSACTION TO BE BENAMI OF THE SERIOUS ONUS TH AT RESTS ON HIM NOR JUSTIFY THE ACCEPTANCE OF MERE CONJECTURE OR SURMISES AS A SUBSTITUTE FOR PRO OF. IT IS NOT ENOUGH MERELY TO SHOW CIRCUMSTANCES IT MIGHT CREATE SUSPICION BUT COURTS CANNOT DECIDED ON THE BASIS OF SUSPICION. HOWEVER WE ARE OF THE VIEW THAT ALTHOUGH THE ONUS OF ESTABLISHING THAT A TRANSACTION IS BENAMI IS ON THE PERSON WHO SO ALLEGES BUT WHERE IT IS NO T POSSIBLE TO OBTAIN EVIDENCE WHICH CONCLUSIVELY ESTABLISHES OR REBUT THE ALLEGATION I N THAT CASE THE CASE MAY BE DEALT WITH REASONABLE PROBABILITY AND LEGAL INFERENCE ARISING FROM THE PROOF OR ADMITTED FACTS. IN THE PRESENT CASE BEFORE US THE REVENUE COULD NOT SHOW FROM MATERIAL ON RECORD THAT THE SOURCE OF CAPITAL FOR THE BUSINESS OF CABLE CAME FROM ASSESSE ES HUSBAND AND THE CONTROL AND MANAGEMENT ENJOYED BY ASSESSEES HUSBAND AND EVEN THE USUFRUCT IS ALSO ENJOYED BY ASSESSEES HUSBAND WHEREIN IT CAN BE HELD THAT ASSESSEES HUSBAND IS T HE REAL OWNER OF CABLE BUSINESS. IT IS NOT THE CASE OF THE REVENUE. HENCE TREATING BENAMI TO ASS ESSEES OF HER HUSBAND IS WITHOUT ANY BASIS AND NO REASONABLE PERSON WILL DRAW THIS INFERENCE. IN THE GIVEN FACTS AND CIRCUMSTANCES WE HOLD THAT ASSESSEE IS THE REAL OWNER OF THE BUSINES S AND REVERSE THE FINDINGS OF THE LOWER AUTHORITIES. THIS ISSUE OF ASSESSEES APPEAL IS AL LOWED. 6. THE NEXT ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE ORDER OF CIT(A) CONFIRMING THE ADDITION OF RS. 1 LAC AS UNEXPLAINED INVESTMENT. F OR THIS THE ASSESSEE HAS RAISED FOLLOWING GROUND NO.2: FOR THAT THE LD. CIT ERRED BOTH IN LAW AND IN FACT BY CONFIRMING THE ADDITION OF RS.1 LAKH AS UNEXPLAINED INVESTMENT IN THE HANDS OF THE APPEL LANT WITHOUT ANY PROPER REASON AND BASIS. 7. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT ASSESSING OFFICER NOTED FROM THE COPY OF BANK STATEMENT FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS THAT THE ASSESSEE HAS PAI D A SUM OF RS.1 LAKH TO SHRI DEEPAK ROY CHOWDHURY ON 26.12.2005 AND ACCORDING TO HIM THIS W AS UNEXPLAINED INVESTMENT AND HE ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. CIT( A) ALSO CONFIRMED THE ACTION OF ASSESSING OFFICER BY HOLDING THAT THE SAME IS NOT REFLECTED I N THE BALANCE SHEET OF THE ASSESSEE. BEFORE US 4 ITA 418-419/K/2010 SMT. MOU ROY CHOUDHURY & SHRI DIPAK ROY CHOUDHURY. A.Y.04-05 ALSO THE LD. COUNSEL FOR THE ASSESSEE FILED COPIES OF BANK ACCOUNT OF UBI JODHPUR BRANCH S/B ACCOUNT NO. 3174 WHEREIN THE ASSESSEE HAS ISSUED CH EQUE OF RS.1 LAKH ON 26.02.2003 TO SHRI DEEPAK ROY CHOWDHURY WHICH IS OUT OF HER SAVINGS A ND VARIOUS OTHER DEPOSITS I.E. TRANSFERRED FROM RIP OR OTHER DEPOSITS. WE FIND THAT THE SOURC ES ARE PROPERLY EXPLAINED AND THIS CANNOT BE TREATED AS UNEXPLAINED INVESTMENT. ACCORDINGLY WE DELETE THE ADDITION AND REVERSE THE FINDING OF THE LOWER AUTHORITIES. 8. NOW WE TAKE UP ITA NO.418/K/2010. FIRST ISSUE I N THIS APPEAL OF ASSESSEE IS AGAINST THE ORDER OF CIT(A) CONFIRMING THE DISALLOWANCE OF 20% OF EXPENSES AMOUNTING TO RS.81 175/-. FOR THIS ASSESSEE HAS RAISED FOLLOWING GROUND NO.1 : 1. FOR THAT THE LD. CIT(A) ERRED BOTH IN LAW AND I N FACT BY CONFIRMING THE DISALLOWANCE OF 20% OF EXPENSES AMOUNTING TO RS.81 175/- WITHOUT APPRECIATING THE FACTS OF THE CASE. 9. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT ASSESSING OFFICER DISALLOWED A SUM OF RS.81 175/- BEING 20% OF TOTAL EXPENSES CLAIMED ON ESTIMATE BASIS AS ASSESSEE COULD NOT FIL E ANY SUPPORTING EVIDENCE/DOCUMENTS IN RESPECT OF EXPENSES. CIT(A) UPHELD THE ACTION OF AS SESSING OFFICER ON THE SIMILAR REASONS. SINCE ON ESTIMATE BASIS ASSESSING OFFICER MADE THE DISALLOWANCE AND CONFIRMED THE SAME BY CIT(A) AND FURTHER THE EXPENSES CLAIMED ON ACCOUNT OF SERVICE CHARGES PAID RENT ELECTRICITY TELEPHONE AND SALARY ACCOUNT WE RESTRICT THE DISAL LOWANCE TO 10% IN THE INTEREST OF NATURAL JUSTICE. ASSESSING OFFICER IS DIRECTED TO COMPUTE THE DISALLOWANCE ACCORDINGLY. THIS GROUND OF ASSESSEES APPEAL IS PARTLY ALLOWED. 10. THE NEXT ISSUE IN THIS APPEAL OF ASSESSEE IS AG AINST THE ORDER OF CIT(A) CONFIRMING THE ADDITION OF RS. 68 393/- OF DIRECT EXPENSES ON ACCO UNT OF SERVICES GIVEN TO THE CONSUMER AND EXPENSES. FOR THIS THE ASSESSEE HAS RAISED FOLLOW ING GROUND NO.2: 1. FOR THAT THE LD. CIT(A) ERRED BOTH IN LAW AND I N FACT BY CONFIRMING THE ADDITION TO THE EXTENT OF RS.68 393/- OF INDIRECT EXPENSES ON A CCOUNT OF SERVICES GIVEN TO THE CONSUMER AND EXPENSES INCURRED THEREON. 11. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE AO HAS BASED THIS ADDITION ON THE BASIS OF SURVEY CONDUCTED U/S. 133A OF THE ACT ON 24.6.2005 I.E IN ASSESSMENT YEAR 2006-07 AND NOT IN THIS AY 2004-05. ACCORDING TO AO THE ASSESSEE HAS SHOWN RECEIPT AT RS.4 58 995/- FOR 218 CUSTOMERS. ACCORDING TO AO INCREASE IN CONSUMER CARD HOLDERS IN ONE YEAR IS 19 4 AND THEREFORE HE ESTIMATED THAT THE RECEIPT FROM 70 CUSTOMERS WERE SUPPRESSED AND ACCOR DINGLY HE ESTIMATED THE SUPPRESSED GROSS RECEIPT AT RS.1 47 000/-. THE CIT(A) HOWEVER RED UCED THE ESTIMATE AT RS.68 393/- BY STATING 5 ITA 418-419/K/2010 SMT. MOU ROY CHOUDHURY & SHRI DIPAK ROY CHOUDHURY. A.Y.04-05 THAT THE DIRECT EXPENSES ARE REQUIRED TO BE ALLOWED WHICH ARE IN THE NATURE OF SERVICE CHARGES FROM ADDITIONAL 70 CUSTOMERS. WE ARE OF THE VIEW T HAT NO EVIDENCE WHATSOEVER WAS BROUGHT ON RECORD EITHER BY AO OR BY CIT(A) TO SUBSTANTIATE TH E ADDITION. EVEN NOW BEFORE US THE LD. DR COULD NOT POINT OUT WHAT IS THE BASIS OF THIS ADDIT ION MADE BY AO ON ESTIMATE THAT THE ASSESSEE HAS SUPPRESSED RECEIPT FROM 70 CUSTOMERS. EVEN DUR ING THE COURSE OF SURVEY ON ASSESSEE NOTHING WAS FOUND WHICH SUGGEST THAT THE ASSESSEE H AS SUPPRESSED GROSS RECEIPT. THERE IS NO IOTA OF EVIDENCE ON RECORDS WHICH SUGGESTS THAT TH E ASSESSEE HAS CONCEALED HIS INCOME EVEN THOUGH SURVEY WAS CONDUCTED ON ASSESSEE IN AY 2006- 07. ACCORDINGLY WE ARE OF THE VIEW THAT THE ADDITION MADE IS WITHOUT ANY BASIS AND ON ESTIM ATES THEREFORE IT IS BASED ON CONJECTURES AND SURMISES. HENCE WE DELETE THE SAME. THIS ISS UE OF ASSESSEES APPEAL IS ALLOWED. 12. THE NEXT ISSUE IN THIS APPEAL OF ASSESSEE IS AG AINST THE ORDER OF CIT(A) TREATING THE WIFE OF ASSESSEE AS HIS BENAMDAR AND THEREBY TAKING THE ENTIRE INCOME OF WIFE IN THE HANDS OF ASSESSEE. FOR THIS ASSESSEE HAS RAISED FOLLOWING GROUND NO.3: 3.FOR THAT THE LD. CIT(A) ERRED BOTH IN LAW AND IN FACT BY TREATING THE WIFE OF THE APPELLANT AS HIS BENAMDAR AND THEREBY TAKING THE EN TIRE INCOME OF THE WIFE IN HIS HANDS WITHOUT ANY PROPER REASON AND/OR BASIS. 13. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H FACTS AND CIRCUMSTANCES OF THE CASE. SINCE WE HAVE DECIDED THE ISSUE VIDE PARA 5 OF THIS ORDER HOLDING THAT ASSESSEES WIFE IS HAVING INDEPENDENT BUSINESS AND SHE IS NOT BENAMIDAR OF HE R HUSBAND I.E. THE PRESENT ASSESSEE THIS ADDITION OF INCOME CANNOT BE TAXED IN THE HANDS OF ASSESSEE. THIS GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 14. IN THE RESULT THE APPEAL OF ASSESSEE IN ITA NO .419/K/2010 IS ALLOWED AND ASSESSEES APPEAL IN ITA NO. 418/K/2010 IS PARTLY ALLOWED. 15. ORDER PRONOUNCED IN OPEN COURT ON 04.11.2011. SD/- SD/- . ! . '# (C. D. RAO) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( !# !# !# !#) )) ) DATED 4TH NOVEMBER 2011 /0 %12 3 JD.(SR.P.S.) 6 ITA 418-419/K/2010 SMT. MOU ROY CHOUDHURY & SHRI DIPAK ROY CHOUDHURY. A.Y.04-05 '. 4 5 6'5'7- COPY OF THE ORDER FORWARDED TO: 1 . *+ / APPELLANT SHRI DIPAK ROY CHOWDHURY 167 JODHPUR PARK KOLKATA-700 068. SMT. MOU ROY CHOWDHURY E/104 BAG HAJATIN KOLKATA-56 2 -*+ / RESPONDENT- ITO WARD-52(4) KOLKATA. 3 . .% ( )/ THE CIT(A) KOLKATA 4. .% / CIT KOLKATA 5 . >? % / DR KOLKATA BENCHES KOLKATA -5 / TRUE COPY '.%@/ BY ORDER 2 /ASSTT. REGISTRAR .