ITO, WARD - 31(1), KOLKATA, KOLKATA vs. KAUSHIK DAS, KIOLKATA

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ITA 1678/KOL/2017Status: DisposedITAT Kolkata01 October 2019AY 2007-087 pages

In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal upheld the order of the CIT(A) who had restricted the addition to 0.5% of the total deposits, considering it as commission earned for providing accommodation entries. The Tribunal followed previous judgments on similar facts.

What were the facts?

The Assessing Officer (AO) treated a large sum of cash and cheque deposits in the assessee's bank account as unexplained income. The AO issued notices under various sections of the Income Tax Act, but the assessee did not comply. The AO ultimately made an addition under Section 144 of the Act.

What were the issues?

Whether the entire amount deposited in the bank account, which was used for providing accommodation entries, should be treated as the assessee's income, or only the commission earned on such transactions.

Which sections of the Income-tax Act were involved?

Section 144,Section 147,Section 148,Section 142(1),Section 131,Section 69A

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, ‘A’ BENCH, KOLKATA

Before: Shri A.T. Varkey, J.M. & Dr.A.L.Saini, A.M.)

For Appellant: Shri S. Jhajharia, FCA, ld.AR
For Respondent: Shri A.K. Nayak, CIT &, DR Assessee by : Shri S. Jhajharia, FCA, ld.AR

Heard together (6 matters)

C.O No. 100/Kol/2017
ITA No. 1678/Kol/2017
ITA No. 1679/Kol/2017
C.O No. 101/Kol/2017
C.O No. 102/Kol/2017
ITA No. 1680/Kol/2017

Read from the judgment's own cause title. This page is filed under one of them.

ORDER Per Dr. A.L.Saini, A.M.:

The captioned three appeals filed by the Revenue and three cross objections filed by the Assessee, pertaining to assessment years 2007­08, ’08­09 & ’09­10, are directed against the orders passed by the ld. Commissioner of Income Tax (Appeals)­ 9, Kolkata, in Appeal Nos.122, 121 & 120/CIT(A)­9/Wd­31(1)/2015­16/Kol, respectively, all dated 12­04­2017, which in turn arise out of separate assessment orders passed by the Assessing Officer under section 144 r.w.s 147 of the Income­Tax Act, 1961 (in short, the ‘Act’) all dated 26.03.2015.

2.

Since, the issues involved in all the appeals and cross objections are common and identical; therefore, these appeals and cross objections have been heard together and are being disposed of by this consolidated order. For the sake of convenience, the grounds as well as the facts narrated in Revenue’s appeal in A.Y 2007­08 and C.O No.100/Kol/2017, for assessment year 2007­08, have been taken into consideration for deciding the above appeals and cross objections en masse.

3.

Grounds of appeal

raised by the Revenue in A.Y 2007­08, are as follows:­

1. The order of the ld. CIT(A) is arbitrary, illegal, perverse and bad in law

2. For that the ld. CIT(A) erred in restricting the addition made to the amount of commission earned @ 0.5% of the total deposit made in the bank accounts.

3. For that the Revenue craves leave to add, alter or amend any ground before or at the time of hearing.”

4.

Brief facts qua the issue are that assessee filed its return of income for the A.Y 2007­ 08 on 03­12­2007, declaring total income of Rs.1,34,470/­. Later on, an information was received by assessing officer from investigation wing of the Department, vide letter of DDIT(Inv), Unit 1(1), Kolkata bearing no. DDIT(Inv)/Unit 1(1)/Kol­08­09, dated 21/01/2009. The DDIT (Inv), Unit 1(1), Kolkata had informed the assessing officer that ITA No.1678/K/17 & CO No.100/K/17 A.Y 2007­08 & CO No.101/K/17 A.Y 2008­09 ITA No. 1680/K/17 & CO No.102/K/17 A.Y 2009­10 In the cases of Shri Kaushik Das

. 2 Sri Kausik Das, (PAN:­AIXPD0929L), had maintained bank accounts in Development Credit Bank, Shakespeare Sarani Branch, Kolkata vide A/ c No. 0792000003254(CAA current priviledge) in the name of M/ s Tiwari Synthetics, 5­Clive Row Ground Floor, Kolkata ­700001 from 03.10.2006. The DDIT(Inv), Unit 1(1), Kolkata has further informed assessing officer that Sri Kausik Das, has deposited huge cash and cheque in this account which were subsequently transferred to different persons but the source of Cash & cheques were not explained. He also informed that during the course of deposition, Sri Kausik Das stated that cash and cheques were received by him and the same was deposited to his bank accounts. Subsequently, he issued cheques to different persons for which he earned commission @ ½ % separately by cash. As the source cash/cheques deposit was not explained and he failed to provide names and address of the persons from whom cash/ cheques were received by him, therefore, the AO was of the view that present account holder is prima facie liable to be assessed on the cash/ cheques deposits to his bank account.

5.

The assessing officer, after taking the approval of appropriate authority, issued notice under section 133(6) of the Act to the DCB Bank for getting Bank Statement of these accounts. On perusal of the bank statement, it was noticed by the AO that during the F.Y. 2006­07, the assessee has deposited cash & cheques amounting to Rs. 4,29,25,000/­, source of which was not explained before the DDIT (Inv), Unit 1(1), Kolkata. A notice U/s. 133(6) of the I.T. Act 1961 was also issued to the assessee asking him to furnish the source of income along with the return of income for A.Y. 2007 ­08. The assessee was requested to furnish Profit & Loss account and Balance sheet for the relevant year. He was also requested to furnish source of cash and cheques deposited in the bank account as mentioned above, which was maintained by him in the Development Credit Bank, Shakespeare Sarani Branch, Kolkata. The assessee did not respond to the notice u/s. 133(6) of the Act. Therefore, source of Rs. 4,29,25,000/­ which was deposited by the assessee in the above mentioned bank accounts during the A.Y. 2007­08 remained unexplained. Therefore, the AO was of the view that during the relevant year, the ITA No.1678/K/17 & CO No.100/K/17 A.Y 2007­08 & CO No.101/K/17 A.Y 2008­09 ITA No. 1680/K/17 & CO No.102/K/17 A.Y 2009­10 In the cases of Shri Kaushik Das

. 3 assessee`s income has escaped assessment within the meaning of Section 147 of the Act, therefore, notice u/s.148 of the Act was issued to the assessee on 20.03.2014. The assessee was asked to file a return of his true income for the relevant year within 30 days from the service of the notice in the prescribed form. But the assessee did not file any return despite several reminders issued in this regard. Notice u/s 142(1) of Act was issued to the assessee seeking some information related to the income of the assessee but again no compliance made by the assessee. Finally, a summon u/s.131 of the Act and Show cause letter was issued to the assesee asking him why his assessment should not be completed u/s. 144 of the Act, but assessee did not make compliance. Under the these circumstances, the AO framed the assessment under section 144 of the I.T. Act, 1961 and entire amount of Rs.4,29,25,000/­ was treated as unexplained money of the assessee and accordingly added to the income of the assessee u/s. 69A of the I.T. Act, 1961.

6.

Aggrieved by the order of the AO, the assesse carried the matter in appeal before the ld. CIT(A), who has partly deleted the impugned addition observing the followings: “4 Conclusion: “4.2 As regards Ground No. 5,6 & 7 which contain the merit of the appeal and is against the addition Rs.4,29,25,000/-. I find that the three bank accounts pertaining to the three proprietorship firms run by the assessee have deposited of cash, cheque and then withdrawal of sums so deposited in form of cheque issue to various beneficiaries. Such cheques have been issued to the beneficiaries on the subsequent day of the deposit itself. The bank accounts so mentioned by the AO find mention in the status report so sent by the AO along with the remand report. The status report given by the investigation wing very clearly mentions that such bank accounts have been used for the purpose of providing accommodation entry to various companies so mentioned in remand report and to name a few i.e Sarowar Goods Pvt. Ltd., Chitra Goods Pvt. Ltd., Kinghsuk Niwas Pvt. Ltd and so many other as mentioned therein. The status report very clearly indicates that the bank accounts have been used for providing accommodation entry to such company/concern. The assessee had itself admitted that it had earned commission @ 0.20% - 0.25%. The contention of the assessee is acceptable in the background and in the light of the remand report and status report so placed before me and I concur with the submission so made in such respect and restrict

ITA No.1678/K/17 & CO No.100/K/17 A.Y 2007­08 & CO No.101/K/17 A.Y 2008­09 ITA No. 1680/K/17 & CO No.102/K/17 A.Y 2009­10 In the cases of Shri Kaushik Das

. 4 the addition to 0.50% of the addition so made i.e Rs.2,14,625/- for the commission earned on such sum. Hence, these grounds of the assessee are partly allowed.”

7.

Aggrieved by the order of the ld CIT(A), the Revenue is in appeal before us and assessee is in cross objection before us.

8.

We have heard both the parties and perused the material available on record. Before us, ld. DR for the Revenue has primarily reiterated the stand taken by the ld. AO, which has been already noted in our above para and is not being repeated for the sake of brevity. On the other hand, ld Counsel for the assessee defended the order passed by the ld CIT(A). We note that assessee during the course of examination u/s 131 before the DDIT (Inv), Unit ­ 1(1), Kolkata has categorically stated that such sum was deposited by him on behalf of other persons and corresponding to such deposit and cash and cheque, cheques were issued to different persons and the assessee had earned commission @ 0.5% on it. During the appellate proceedings, the ld CIT(A) obtained the remand report from the assessing officer and also perused the status report given by the investigation wing. The status report given by the investigation wing very clearly mentions that such bank accounts have been used for the purpose of providing accommodation entry to various companies so mentioned in remand report and to name a few i.e Sarowar Goods Pvt. Ltd., Chitra Goods Pvt. Ltd., Kinghsuk Niwas Pvt. Ltd and so many other as mentioned therein. The status report very clearly indicates that the bank accounts have been used for providing accommodation entry to such company/concern. The assessee had itself admitted that it had earned commission @ 0.20% + 0.25%. The ld CIT(A) accepted the contention of the assessee in the background and in the light of the remand report and status report so placed before him during appellate proceedings and therefore he restricted the addition to 0.50% of the addition of Rs.4,29,25,000/­ so made i.e Rs.2,14,625/­ for the commission earned on such sum.

9.

We note that Coordinate Bench of this Tribunal in the case of Yogesh Sharma, in for A.Y. 2012­13, order dated 30.11.2018 has restricted the addition

ITA No.1678/K/17 & CO No.100/K/17 A.Y 2007­08 & CO No.101/K/17 A.Y 2008­09 ITA No. 1680/K/17 & CO No.102/K/17 A.Y 2009­10 In the cases of Shri Kaushik Das

. 5 up to 0.5% of the commission earned on banks deposits which were belonged to other persons. Findings of the Coordinate Bench is given below: ` “6. So from a perusal of the above remand report, it is evident that AO was aware that the cash which was deposited in assessee's bank account was going by RTGS to companies named in the remand report. In such a scenario, taking into account, the facts and circumstances and the case especialty the fact that assessee was an employee of a Private Ltd. Company and drew only Rs.15,000/- per month and had only Rs.60,000/- as Fixed Deposit, cannot be saddled with the money which has been deposited in cash in his accounts and transferred immediately thereafter by cheque/RTGS to bank account of beneficiaries and when assessee has come forward and admitted that his bank. account was operated at the behest of Mr. Baid whose self serving statement was believed by AO without carrying out any enquiry to bring out the real beneficiary of the accommodation entry cannot be countenanced and when AO was aware that the money has moved out of the assessee's bank account the only inference that can be drawn is that assessee was only a name lender of these bank account for which 0.5% of commission assessee got can be only treated as his income and So taking into consideration the overall facts and circumstances of the case, for the interest of justice and fair-play, we are inclined to delete the addition as ordered by the AO/Ld. CIT(A). However, the assessee's bank account since used for deposit and transfer of cash is an activity for which a commission of 0.5% was earned, needs to be computed as the income of the assesse and for that income, the assessee has to be assessed to tax. With the aforesaid direction, we partially allow the appeal of the assessee”.

Further our view is fortified by the another judgment of this Tribunal in the case of Shri Mahendra Sethia, in to 54/Kol/2016, order dated 01.06.2018, wherein it was held as follows: “9. Be as it may, the ld. CIT(A) gone by the recommendations of the AO in the remand report that, commission income on such activity of providing accommodation entries varies from 0.20% to 0.35%. This remand report has not been negated or adversely commented upon by the Addl. Commissioner of Income Tax. Hence the Id. CITCA) accepted this report of the AO and granted relief. While doing so there is no reason as to why the AO should be aggrieved with the findings of the ld. CIT(A). Be as it may, this factual finding of the Id. CIT(A) is just on the remand report of the AO could not be ITA No.1678/K/17 & CO No.100/K/17 A.Y 2007­08 & CO No.101/K/17 A.Y 2008­09 ITA No. 1680/K/17 & CO No.102/K/17 A.Y 2009­10 In the cases of Shri Kaushik Das

. 6 controverted on facts by the Id. DR. Thus we uphold the findings of the Id. CIT(A) and dismiss all the appeals of the revenue.”

Respectfully following the judgments of the Co­ordinate benches (supra) on identical facts, we note that there is no infirmity in the order passed by the ld CIT(A). That being so, we decline to interfere in the order passed by the ld CIT(A), his order on this issue is hereby upheld and the grounds of appeal raised by the Revenue is dismissed .

10. Ld Counsel for the assessee informs the Bench that assessee does not want to press grounds/additional grounds raised in cross objections Nos.100, 101 and 102/Kol/2017, therefore, we dismiss them, as not pressed.

11.

In the result, the appeals filed by the Revenue ( in ITA No.1679/Kol/17 and ITA No. 1680/Kol/17) are dismissed, and Cross objections of Assessee are also dismissed.

Order Pronounced in the Open Court on 01­10­2019

Sd/­ Sd/­ ( A.T. Varkey ) (Dr. A.L.Saini) Judicial Member Accountant Member Dated:01­ 10­2019 *PRADIP (Sr.PS) Copy of the order forwarded to:

1. 1. The Assessee/Department: The ITO Ward 31(1), 10B Middleton Row, Kol­71 ( 4 th Floor). 2 The Respondent/Assessee: Shri Kaushik Das, S.B Das Road, Sonarpur Backside of Children Park, P.O Rajpur, Baruipur, 24 Pgs (S), Kolkata­149.

3. The CIT­, 4. The CIT(A)­, 5. DR, Kolkata Benches, Kolkata True Copy, By order, Asst. Registrar ITAT, Kolkata Benches

ITA No.1678/K/17 & CO No.100/K/17 A.Y 2007­08 & CO No.101/K/17 A.Y 2008­09 ITA No. 1680/K/17 & CO No.102/K/17 A.Y 2009­10 In the cases of Shri Kaushik Das

. 7

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