Ito Wd 32 2 Kolkata Kolkata v. M S Peiping Restaurant Kolkata

In The Income Tax Appellate Tribunal Kolkata A Bench Kolkata Before Sri J Sudhakar Reddy Honble A Ccountant M Ember Sri S S Viswanethra Ravi Honble Judicial Member I T A No 440 Kol 201 6 Assessment Year 20 11 12 Income Tax Officer Ward 32 2 Kolkata Appellant Principal Commissioner Of Income Tax 10 B Middleton Row 3 Rd Floor Kolkata 700 0 71 M S Peiping Restaurant Respondent 14 Mullen Street Kolkata 7000 20 Pan Aadfp 4903 G Appearances By Shri Sanjay Bhattacharya Advocate Appear Ed On Behalf Of The Assessee Shri Sallong Yaden Addl Cit Dr Appearing On Behalf Of The Revenue Date Of Concluding The Hearing November 11 Th 2017 Date Of Pronouncing The Order December 15 Th 2017 O R D E R Per J Sudhakar Reddy This Appeal Filed By The Revenue Is Directed Against The Order Of The Ld Commissioner Of Income Tax Appeals 9 Kolkata Hereinafter The Ld Cit A Passed U S 250 Of The Income Tax Act 1961 The Act Dt 31 12 201 5 For The Assessment Year 20 11 12 2 The Assessee Is A Partnership Firm And Is In The Business Of Running A Restaurant At Park Street Kolkata Duri Ng The Course Of Survey Certain Material Was Impounded The Assessing Officer In His Order Passed U S 143 3 Of The Act Came To The Conclusion That The Assessee Had Supressed His Sales The Undisclosed Sales Were Added As Income The Amount Added Was Rs 46 24 230 Further The Assessing Officer Was Of The View That The Assessee Had Collected Sales Tax From The Customers And Has Not Deposited The Same With The Government And This Resulted In A Profit To The Assessee He Made An Addition Of Rs 8 71 058 Further Disallowance Was Made U S 40 A Ia 2 I T A No 440 Kol 2016 Assessment Year 2011 12 M S Peiping Restaurant 2 1 Aggrieved The Assessee Carried The Matter In Appeal 3 The Ld First Appellate Authority Held That The Entire Turnover Cannot Be Treated As Income He Directed The Assessing Officer To Apply The Net Profit Rate Disclosed By The Assessee In Its Regular Books Of Account On Its Recorded Sales To This Supressed Turnover He Rejected The Contenti On Of The Assessee That The Assessing Officer Has Not Followed The Correct Procedure While Taking Out The Printout From The Impounded Computers Etc On The Addition Made On Account Of Sales Tax Calculated On Supressed Turnover And Not Remitting The Same T O The Government The Ld Cit A Directed The Assessing Officer To Calculate The Net Profit On The Same As In The Case Of Unaccounted Sales And Increase The Same By Another 2 Per Cent 3 1 Aggrieved The Revenue Is In Appeal Before Us 4 After Hearing R Ival Contentions We Uphold The Finding Of The Ld Cit A To The Extent That The Entire Undisclosed Turnover Cannot Be Treated As Income Only A Percentage Of Profit On This Undisclosed Turnover Should Be The Income Of The Assessee Thus Ground No 1 2 Of The Revenues Appeal Is Dismissed 5 Ground No 3 4 Are Against The Finding On The Sales Tax Calculated By The Assessee On Undisclosed Turnover The Ld Counsel For The Assessee Vehemently Contended That No Sales Tax Is Collected On Supressed Turn Over He Filed Certain Papers In Support Of His Contention 5 1 We Find That The Assessing Officer After Examining The Impounded Material Books Of Account And Contentions Of The Assessee Came To A Conclusion That The Total Taxes Received By The Assesse E From The Customers Stands At Rs 13 56 468 Out Of This Only Rs 4 85 410 Has Been Paid By The Assessee To The Government The Difference Of Rs 8 71 058 Is Added As Income Of The Assessee The Argument Of The Assessee That No Sales Tax Has Been Co Llected By The Assessee Is Not Supported By Any Document Or Any Evidence Thus This Contention Of The Assessee Is Rejected The Ld Cit A In Our View Was In Error In Holding That Only A Percentage Of Such Sales Tax Collected Should Be Treated As Inco Me Of The Assessee The Sales Tax As And When Paid Would Be Allowed As An Expenditure The Decision To Tax Only A Small Percentage Of The 3 I T A No 440 Kol 2016 Assessment Year 2011 12 M S Peiping Restaurant Sales Tax Collected As Income Of The Assessee Is Factually Incorrect Thus We Reverse The Finding Of The Ld Cit A A Nd Allow Ground No 3 4 Of The Revenue 6 In The Result Appeal Of The Revenue Is Allowed In Part Kolkata The 15 Th Day Of December 2017 Sd Sd S S Viswanethra Ravi J Sudhakar Reddy Judicial Member Accountant Member Dated 15 1 2 2017 Sc Sps Copy Of The Order Forwarded To 1 Income Tax Officer Ward 32 2 Kolkata Principal Commissioner Of Income Tax 10 B Middleton Row 3 Rd Floor Kolkata 700 071 2 M S Peiping Restaurant 14 Mullen Street Kolkata 7000 20 3 Cit A 4 Cit 5 Cit Dr Kolkata Benches Kolkata True Copy By Order Senior Private Secretary Head Of Office D D O Itat Kolkata Benches