PRASANTA K. BHATTACHARYA,HOOGHLY vs. ITO, WD-2(4), HOOGHLY, HOOGHLY

There is a delay of 15 days in filing of these appeals. After perusing the petition for condonation, we are convinced that the department was prevented by sufficient cause from filing this appeal on time. Hence the delay is condoned and appeal admitted.

The assessee is an individual and is engaged in the business of trading in potatoes and also operates and runs a saw mill as well as a cold storage. The name of the cold storage is M/s. Umesh Cold Storage . He filed his return of income u/s 139(1) of the Act, on 29/09/2009, disclosing total income of Rs.7,07,030/-. The Assessing Officer completed the assessment u/s 143(3) of the Act, on 21/12/2011, determining total 2 Assessment Year: 2009-10 Prasanta K. Bhattacharya income of the assessee at Rs.74,66,843/-. Aggrieved the assessee carried the matter in appeal. 3.1. The ld. First Appellate Authority confirmed the order of the Assessing Officer. Further aggrieved, the assessee is in appeal before us.

We have heard rival contentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, we hold as follows:- 5. The first addition in dispute is of Rs.2 Lakhs/-. The Assessing Officer has not mentioned any Section under the Act, under which he brought this amount to tax. The assessee had received an amount of Rs.10Lakhs/- on transfer from his wife Smt. Shaswati Bhattacharya. On the ground that she has shown transfer of Rs.8 Lakhs/- in her balance sheet, the balance of Rs. 2 Lakhs/- was added. The wife of the assessee Smt. Shaswati Bhattacharya filed an affidavit confirming the transfer of the amount of Rs. 10Lakhs/-. This was not accepted by the Assessing Officer. Though a confirmation affidavit was given, only Rs.8 Lakhs/- has been accepted as genuine by the Assessing Officer. When the identity, creditworthiness and genuineness of the transactions is proved, part addition of Rs. 2 Lakhs/- from out of Rs. 10 Lakhs/-, in our opinion is uncalled for. Thus we delete the addition and allow this ground of the assessee.

The second ground is against an addition of Rs.4,77,809/-, on the ground that the assessee failed to substantiate the payments made to sundry creditors, for the financial year 2008-09. The assessee explained that the amount in question was paid from out of cash in hand. Evidence was filed in form of confirmation letters from 8 creditors. Details of outstanding credits and payments to them were furnished before the Assessing Officer. The payments were documented and recorded in the books of accounts. The Assessing Officer, nowhere in the assessment order did not dispute the various receipts disclosed by the assessee. On these facts, the finding of the ld. CIT(A), that the assessee failed to substantiate the claim of existence of creditors and such discharge during the current year is factually incorrect. When the assessee has made payments during the course of his business and when he has receipts from various sources, this addition is bad in law.

Ground No. 3 & 4 are against the addition made of an amount received from Life Insurance Corporation of India (LIC), being encashment of a money bank policy. The assessee submitted that the amounts were received from LIC and that the insurance policies in question were duly disclosed in the accounts and the cheques were received and deposited in the bank account. Details of the receipt of the payment from LIC of Rs.78,848/- and Rs.3,79,200/- aggregating to Rs.4,58,049/-, were furnished before the Assessing Officer as well as the ld. CIT(A). Similarly, the assessee claimed to have received a gift from his elder sister Smt. Anjali Chakraborty of Rs.4,45,118/-. Smt. Anjali Chakraborty encashed her two short term deposit bearing receipt nos. 961576 & 961577, dt. 16/07/2007 of Rs.2 Lakhs/- each with State Bank of India, Arambagh Branch and the maturity profits of Rs.4,45,118/- were transferred to the assessee’s bank account. In support of the transactions, the assessee filed copies of income tax returns, copies of final accounts, copies of bank account statements and copies of term deposits of Smt. Anjali Chakraborty along with confirmation from her. The Assessing Officer has no evidence to controvert this claim of the assessee. 7.1. In our view, the assessee has discharged the burden of proof that lay on him as regards the gift received from Smt. Anjali Chakraborty as well as amounts received from LIC under a money back policy. The revenue could not controvert these evidences. The Assessing Officer has merely disbelieved the evidence furnished without enquiry. This is bad in law. The assessee has proved its case on these issues. Thus, these additions are hereby deleted. Ground Nos. 3 & 4 of the assessee are allowed.

The next issue in Ground Nos. 5 & 6 is the addition on account of unexplained capital introduced. The addition was made by the Assessing Officer on the ground that the source of funds were not explained. The assessee’s submission was that it had executed a memorandum of settlement dt. 26/09/2008, with Mr. Dipak Singha Roy, acting on behalf of M/s. Mallick Cold Storage Pvt. Ltd., for the transfer of 15,000 shares held by the assessee and his family members and also for withdrawal of several litigations, civil and criminal, pending in various courts etc. As per the memorandum of 4 Assessment Year: 2009-10 Prasanta K. Bhattacharya settlement, an amount of Rs.22,50,000/- was paid to the assessee by way of pay orders. These were part of the memo of consideration of the memorandum of settlement dt. 26/09/2008. The Assessing Officer acknowledged that the assessee has filed the memorandum of settlement but was not convinced with the arguments of the assessee that this explains the capital introduction. The submissions of the assessee before the ld. CIT(A) are as follows:-

Ground No. 7, is an addition against the unexplained sale of agricultural land. The assessee’s submission is that the assessee has sold agricultural land for Rs.2 lakhs/- on 20/06/2008 to one Shri Arun Kumar Mete under a duly registered deed of conveyance bearing no. I-247IP in the office of the Additional District Sub-Registrar. Disbelieving this evidence, the Assessing Officer made an addition on the ground that the assessee did not produce the bank account details, cash books etc. The ld. CIT(A) upheld the same on the ground that the sale deed was not produced. Copy of sale deed is placed at pages 79 to 82 of the paper book. In our view, the assessee has discharged the onus that lay on him. The revenue has not brought out any evidence to controvert this claim of the assessee. The evidence is a matter of Government record and cannot be discarded. Thus, this addition is deleted and Ground No. 7 of the assessee is allowed.

Ground Nos. 8 & 9 are on the ground that there were unexplained introduction of capital gain. The assessee admittedly did not disclose the bank account bearing no. 386010100007856, maintained with Axis Bank, Arambagh Branch. The Assessing Officer treated the entire deposits in the account as undisclosed income. The claim of the assessee is that only peak of this account should be added as there was circulation of funds and some of the deposits are explained by way of withdrawal. The claim of the assessee is follows:- “The deposits made in such account are set off against withdrawals and the peak of credits determined by such process is added to the total income. This unexceptionable procedure is followed by the judiciary in all cases and the submission of the appellant being totally contradictory to such immutable rationale cannot be arbitrarily refused which would be tantamount to acting in violation of law. The peak this year works out to Rs. 2,00,000/- after considering investment of Rs. 5,99,746/- separately. Since this account unfortunately remained outside the books from the last two assessment years being 2007- 2008 and 2008-2009 and identical point arose in the assessment proceedings also. The peak balance as on 01-04-2008 6 Assessment Year: 2009-10 Prasanta K. Bhattacharya came to Rs. 14,52,744/-. Since ascertainment of peak balance in the same account which continued unincorporated in the books in the instant assessment year also, without any hiatus, the peak of Rs. 2,00,000/- referable to this year has to be seen in juxtaposition with the peak of the preceding year to ascertain whether any amount is liable to be included in the total income. So considered inexorable logic dictated that since the peak of the preceding assessment year was Rs. 14,52,744/- whereas the peak of the impugned assessment year is much less, there is no amount assessable in this context and the specious approach of the Ld. Assessing Officer being wrong a priori is liable to be ruled as being in clear violation of norms and therefore not eligible.” 10.1. In our view, as has been consistently held by this Tribunal in various cases, only the peak investment should be added and telescoping benefit should be given to the assessee. The calculation of the assessee the peak credit is hereby sent to the file of the Assessing Officer for verification. The Assessing Officer is directed to bring to tax only such deposits which are not explained and to bring to tax only the peak credit after considering the explanation of the assessee. Accordingly Ground No. 9 of the assessee is allowed for statistical purposes.

Ground No. 10, is on the issue of disallowance of depreciation. The disallowance was made on an addition to buildings, electrical installations and miscellaneous fixed assets. Admittedly, there was no new asset which was put to use. The amounts in questions were additions to existing assets by way of renovations. All these amounts were capitalized. In our view, they all form an integral part of the cold storage plant and machinery. Thus, depreciation @ 15% is directed to be granted on these items. We do not understand how the Assessing Officer has granted a rate of depreciation of 5% on miscellaneous fixed assets when not such rate exists in the statute. In the result, Ground No. 10 of the assessee is allowed. In the result, appeal of the assessee is allowed in part.

Kolkata, the 12th day of December, 2018 Sd/- Sd/- [Aby T. Varkey] [J. Sudhakar Reddy] Judicial Member Accountant Member Dated : 12.12.2018 {SC SPS} Copy of the order forwarded to: 1. Prasanta K. Bhattacharya C/o. Somnath Ghosh & Associates, Advocates Seben Brothers’ Lodge P.O. Buroshibtala P.S. Chinsurah Dist. Hooghly PIN- 712 105 2. Income Tax Officer, Ward-2(4), Hooghly 3. CIT(A)- 4. CIT- , 5. CIT(DR), Kolkata Benches, Kolkata.