Shri Dulal Chandra Roy, Malda v. ITO, Ward - 1, Malda, Malda

ITA 633/KOL/2011 | 2005-2006
Pronouncement Date: 08-07-2011 | Result: Partly Allowed

Appeal Details

RSA Number 63323514 RSA 2011
Assessee PAN ACYPR0600H
Bench Kolkata
Appeal Number ITA 633/KOL/2011
Duration Of Justice 2 month(s) 13 day(s)
Appellant Shri Dulal Chandra Roy, Malda
Respondent ITO, Ward - 1, Malda, Malda
Appeal Type Income Tax Appeal
Pronouncement Date 08-07-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted SMC
Tribunal Order Date 08-07-2011
Assessment Year 2005-2006
Appeal Filed On 25-04-2011
Judgment Text
.. IN THE INCOME TAX APPELLATE TRIBUNAL BENCH SMC KOLKATA () BEFORE . .. . . .. . SHRI C.D.RAO ACCOUNTANT MEMBER !' !' !' !' / ITA NO . 633/KOL/2011 #$% &'/ ASSESSMENT YEAR : 2005-06 ()* / APPELLANT ) SHRI DULAL CHANDRA ROY KOLKATA (PAN: ACYPR 0600 H) - $ - - VERSUS - . ( -)*/ RESPONDENT ) I.T.O. WARD-1 MALDA.. )* . / / FOR THE APPELLANT: SHRI JAGDISH AGARWAL -)* . / / FOR THE RESPONDENT: SHRI N.DUTTA GUPTA SR.DR 0 / ORDER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER DATED 21.01.2011 OF THE CIT(A)-JALPAIGURI PERTAINING TO A.YR. 2005-06. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GRO UNDS OF APPEAL :- 1. THE LD. ASSESSING OFFICER WAS WRONG AND BAD IN LAW IN ADDING BACK A SUM OF RS.1 00 000/- ON ACCOUNT OF GIFT RECEIVED FROM F ATHER-IN-LAW AS UNEXPLAINED CREDIT. THE LD. CIT(A) WAS WRONG AND BAD IN LAW IN CONFIRMING THE SAID ADDITION WITHOUT PROPERLY CONSIDERING THE MATERIAL ON RECORD AND FACT AND CIRCUMSTANCES OF THE CASE. HENCE THIS ADDITION NEED S TO BE DELETED. 2. THE LD. A.O. WAS WRONG AND BAD IN LAW IN ADDING A SUM OF RS.64480/- ON ACCOUNT OF ALLEGED BONUS SUNDRY CREDITORS WITHOUT G IVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. CIT(A) WAS WRONG AND BAD IN LAW IN CONFIRMING THE SAID ADDITION WITHOUT PROP ERLY CONSIDERING THE MATERIAL ON RECORD AND FACT AND CIRCUMSTANCES OF TH E CASE. HENCE THIS ADDITION NEEDS TO BE DELETED. 3. THE LD. AO WAS WRONG AND BAD IN LAW ON ADDING A SUM OF RS.24600/- ON ACCOUNT OF LOW DRAWINGS ON ESTIMATE. THE LD. CIT(A) HAS ERRED AND WAS WRONG AND BAD IN LAW IN CONFIRMING THE ADDITION FOR A SUM OF RS.15000/- ON ESTIMATE. HENCE THIS ADDITION NEEDS TO BE DELETED. 4. THE APPELLANT CRAVES LEAVE TO ADD ALTER AND/OR DELETE ANY GROUND(S). 2 3. THE FACTS IN RESPECT OF GROUND NO.1 RELATIN G TO THE ADDITION OF RS.1 00 000/- ON ACCOUNT OF GIFT RECEIVED FROM FATHER-IN-LAW AS UNEX PLAINED CREDIT ARE THAT THE AO HAS DISBELIEVED THE CONTENTION OF THE ASSESSEE THAT HE HAS RECEIVED AN AMOUNT OF RS.1 00 000/- FROM HIS FATHER-IN-LAW BY OBSERVING T HAT THE FATHER-IN-LAW IS NOT HAVING CREDITWORTHINESS WHO CAN GIVE AN AMOUNT OF RS.1 00 000/- TO THE ASSESSEE. THE LD. CIT(A) HAS CONFIRMED THE SAME BY STATING THAT THE A SSESSEE HAS FAILED TO ESTABLISH THE GENUINENESS OF THE GIFT. 3.1. AGGRIEVED BY THIS THE ASSESSEE IS IN APPE AL BEFORE US. 4. AT THE TIME OF HEARING BEFORE US THE LD. CO UNSEL APPEARING ON BEHALF OF THE ASSESSEE HAS REITERATED THE SUBMISSIONS MADE BEFORE THE REVENUE AUTHORITIES THAT THE FATHER-IN-LAW OF THE ASSESSEE WHO RETIRED AS A SCHO OL TEACHER AND WAS AGED 82 YEARS OLD IS CAPABLE OF GIVING RS.1 00 000/- TO THE SON-I N-LAW (ASSESSEE.) AND THE DONOR HAS NOT MAINTAINED ANY BANK ACCOUNT IN ORDER TO GIVE TH E SAME BY ACCOUNT PAYEE CHEQUE. HOWEVER THE LD. AR FILED AN AFFIDAVIT OF THE DONOR DATED 30.7.2009 BY STATING THE VARIOUS CIRCUMSTANCES AND CONFIRMING THE GIFT MADE BY THE DONOR. THEREFORE HE REQUESTED TO SET ASIDE THE ORDERS OF THE REVENUE AU THORITIES AND DELETE THE ADDITION OF RS.1 00 000/- 5. ON THE OTHER HAND THE LD. DR APPEARING ON BEHALF OF THE REVENUE RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 6. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREFUL PERUSAL OF MATERIALS AVAILABLE ON RECORD IT IS OBSERVED THAT THE LD. AR HAS FILED A COPY OF THE AFFIDAVIT OF THE DONOR DATED 30.07.2009 WHICH IS APPARENT FORM THE SUBMISS IONS MADE BY THE LD. AR RECORDED BY THE LD. CIT(A). IN THIS CASE THE ONLY D ISPUTE ON THE PART OF THE REVENUE IS THAT SINCE THE GIFT WAS MADE IN CASH THE REVENUE HA S DOUBTED THE CREDITWORTHINESS AS WELL AS GENUINENESS OF THE TRANSACTIONS. BUT IN MY CONSIDERED OPINION MERELY BECAUSE THE GIFT WAS MADE IN CASH THE SAME CANNOT BE SAID T O BE INGENUINE WHEN ONCE THE ASSESSEE HAS FILED THE AFFIDAVIT OF THE DONOR WITH OUT CONTRADICTING THE CONTENTS OF THE 3 AFFIDAVIT. THEREFORE I SET ASIDE THE ORDERS OF THE REVENUE AUTHORITIES ON THIS ISSUE AND DIRECT THE AO TO DELETE THE ADDITION OF RS.1 00 000 /-. GROUND NO.1 OF THE ASSESSEES APPEAL IS ALLOWED. 7. THE SECOND ISSUE RAISED BY THE ASSESSEE IS RELATING TO ADDITION OF RS.64 480/- ON ACCOUNT OF ALLEGED BOGUS SUNDRY CREDITORS. 8. AT THE TIME OF HEARING THE LD. COUNSEL APPEA RING ON BEHALF OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE MADE THE PURCHASES ON C REDIT AND OUT OF THE TOTAL CREDIT PURCHASES THE ASSESSEE HAS PRODUCED ALL THE CREDITO RS EXCEPT TWO CREDITORS. THE SAID FACT HAS BEEN CONFIRMED BY THE AO HIMSELF BY STATIN G THAT ON BEING ASKED TO PRODUCE THE CREDITORS FOR EXAMINATION THE ASSESSEE PRODUCED ALL THE CREDITORS EXCEPT TWO CREDITORS NAMELY SHRI JAGANNATH SARKAR AND SHRI SHY AMAL BISWAS. THEREFORE THE TOTAL CREDIT APPEARING IN THEIR NAMES AMOUNTING TO RS.64 480/- HAS BEEN ADDED AND THE LD. CIT(A) HAS CONFIRMED THE SAME. HE FURTHER SUBMITTED THAT THE REVENUE HAS NOT DISPUTED THAT THE ASSESSEE HAS MADE THE PURCHASES A ND RECORDED IN THE BOOKS OF ACCOUNTS AND RELATING SALES HAS BEEN INCORPORATED I N THE BOOKS OF ACCOUNTS SIMPLY BECAUSE FOR NON PRODUCTION OF THE CREDITORS BEFORE THE AO THE REVENUE CANNOT DISBELIEVE THE TRANSACTION AND ADDED THE SAME. THER EFORE HE REQUESTED TO DELETE THE SAME. IN SUPPORT OF HIS SUBMISSIONS HE FILED COPY O F THE VOTERS ID WHICH WAS PLACED AT PAGES 13 TO 14 OF THE PAPER BOOK IN ORDER TO ESTABL ISH THE EXISTENCE OF THE PERSONS. 9. ON THE OTHER HAND THE LD. DR APPEARING ON B EHALF OF THE REVENUE RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 10. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREFUL PERUSAL OF MATERIALS AVAILABLE ON RECORD KEEPING IN VIEW OF THE FACT THAT THE ASS ESSEE HAS BEEN ABLE TO PRODUCE ALL THE CREDITORS EXCEPT THESE TWO AND THE SAID PURCHASE/SA LES ARE RECORDED IN THE BOOKS OF ACCOUNTS AND THE REVENUE HAS NOT DISPUTED THE SAME . I AM OF THE CONSIDERED VIEW THAT THE ADDITION MADE BY THE AO IS NOT SUSTAINABLE IN T HE EYES OF LAW SINCE THE REVENUE 4 HAS NOT DISPUTED THE PURCHASES/SALES ENTERED INTO T HE BOOKS OF ACCOUNTS. THEREFORE I DELETE THE ADDITION OF RS.64 480/- AND GROUND NO.2 OF THE APPEAL IS ALLOWED. 11. GROUND NO.3 IS RELATING TO THE ADDITION MA DE ON ACCOUNT OF .LOW DRAWINGS. 12. THE LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE HAS BY REFERRING TO THE ORDER SHEET PAGES WHICH WAS PLACED IN THE PAPER BOO KS AT PAGES 1 TO 6 SUBMITTED THAT THE LD. COUNSEL FOR THE ASSESSEE HAS NEVER ACCEPTED FOR THE LOW DRAWINGS. HOWEVER THE AO HAS ADDED AN AMOUNT OF RS.24 600/- AND THE L D. CIT(A) HAS SUSTAINED. THUS A SUM OF RS.15 000/- WHICH IS NOT WARRANTED IN THE FA CTS AND CIRCUMSTANCES OF THE CASE. THEREFORE HE REQUESTED TO DELETE THE SAME. 13. ON THE OTHER HAND THE LD. DR APPEARING ON BEHALF OF THE REVENUE RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 14. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREFUL PERUSAL OF MATERIALS AVAILABLE ON RECORD IT IS OBSERVED THAT THE CONTEN TION OF THE LD. COUNSEL THAT HE HAS NOT ACCEPTED THE LOW FAMILY DRAWINGS IS NOT ACCEPTABLE IN VIEW OF THE FOLLOWING CATEGORICAL OBSERVATIONS MADE BY THE AO IN THE ASSE SSMENT ORDER. :- FOODING EXP. FOR THREE MEMBERS @ RS.1000/- PER HE AD - RS.36 000/- TELEPHONE EXPENSES @ RS.300/ PM RS. 3 600/- ELECTRICITY EXPENSES RS. 6 000/- MEDICAL EXPENSES RS. 3 000/- EXPENSES ON CLOTHES OF THREE PERSONS RS. 3 000/- EXPENSES ON POCKET MONEY @RS.100 PM FOR TWO EARNING MEMBERS AND RS.500/PM FOR OTHER RS.30 000/- TOTAL FAMILY EXPENSES ESTIMATED RS.81 600/- THIS WORK OUT OF ASSESSES FAMILY EXPENSES WAS PUT B EFORE A/R AND HE WAS ASKED FOR HIS COMMENTS AND HE ACCEPTED THE FAMILY EXPENSE S AS CALCULATED. HENCE RS.24 600/-(DIFF.) IS ADDED IN HIS TOTAL INCOME FOR LOW DRAWING. IN VIEW OF THE ABOVE I CONSIDER THAT THE ADDITION OF RS.15 000/- SUSTAINED BY THE LD. CIT(A) IS JUSTIFIED AND REQUIRES NO INTERFERENCE. G ROUND NO.3 OF THE APPEAL IS DISMISSED. 5 15. IN THE RESULT THE APPEAL OF THE ASSESSE E IS ALLOWED IN PART. ORDER PRONOUNCED IN THE COURT ON 08.07.2011 S D/- . .. . . .. . C.D.RAO ACCOUNTANT MEMBER /DATE : 08.07.2011. R.G./PS 0 . ##1 21&3- COPY OF THE ORDER FORWARDED TO: 1. SHRI DULAL CHANDRA ROY VILL.RANGAVITA PETROL PUMP MORE P.O.GAZOLE MALDA.. 2 THE I.T.O. WARD-1 MALDA. 3. THE CIT 4. THE CIT(A)-JALPAIGURI. 5. DR KOLKATA BENCHES KOLKATA -1 #/ TRUE COPY 0$8/ BY ORDER DEPUTY /ASST. REGISTRAR ITAT KOLKATA BENCHES