I.T.O WD - 1(4),ASANSOL, ASANSOL vs. MOON MOON SOM., BURDWAN

For the Respondent : Shri Sallong Yaden, Addl. CIT Sr. DR For the Appellant : Shri P.C. Nayak, Addl. CIT (Retired) Shri K.K. Khemka, Advocate. Date of Hearing : 01.11.2017 Date of Pronouncement : 01.12.2017 ORDER Per M.Balaganesh, AM

2 Moon Moon Som A.Yrs.2005-06 & 2006-07 2. The first common issue to be decided in this appeal is as to whether the ld CITA was justified in deleting the addition of Rs 9,65,000/- for the Asst Year 2005-06 on account of business activity, in the facts and circumstances of the case.

2.1. The brief facts of this issue is that the ld AO in course of present assessment proceeding, the assessee claimed turnover of Rs. 9,65,000/-. The nature of business was claimed as supply of building materials and no books of accounts were maintained. Although the assessee was asked to produce books or minimum documents as required in pursuance of Sec. 44AA/44AA(2), the assessee at the stage of hearing or even in course of deposition taken in pursuance of sec 131 proceeding admitted that she would neither be able to furnish any sale memo/purchase memo/cash receipt voucher/cash memo nor would be able to produce the names of the parties from/with whom the purchases or sale contracts were made. The assessee claimed that the she had derived business turnover of Rs 9,65,000/- during the Asst Year 2005-06. The ld AO observed that the assessee had not submitted the sales tax registration details, month wise trial balance / fund flow statement as called for by him and accordingly treated the said receipt of Rs 9,65,000/- as income from other sources, after observing that mere furnishing of an enlistment certificate from local authority would not render the status of her claim as ‘sacrosanct’ so far as existence of business activity. In other words, the ld AO disbelieved the fact of any business activity carried on by the assessee and accordingly treated the receipt of Rs 9,65,000/- as income from other sources.

2.2.The assessee filed affidavits from various parties to substantiate the business activities carried on by her before the ld CITA which was remanded to the ld AO for his verification and rebuttal. The assessee claimed that she was engaged in the trading business of building and construction materials under the name and style of ‘Manomit Concern’. In respect of sales made by the assessee, she filed affidavits from 4 parties. These affidavits were subject to verification by the ld AO in the remand proceedings 2

3 Moon Moon Som A.Yrs.2005-06 & 2006-07 and out of them, 2 parties denied having transactions with the assessee, one party accepted the transaction and no enquiry was sought to be made by the ld AO in respect of the other remaining party. In respect of purchases made by the assessee, she filed affidavits from 3 parties. These affidavits were subject to verification by the ld AO in the remand proceedings and out of them, on one party, notice could not be served by the ld AO ; one party denied having transaction with the assessee and no enquiry was sought to be made by the ld AO in respect of the other remaining party. The assessee also produced the sale bills and vouchers before the ld CITA which were also subject to remand proceedings.

2.3. The ld CITA also observed that the turnover of the assessee amounting to Rs 9,65,000/- was also not disputed by the ld AO. The ld CITA further observed that the assessee had submitted the trade licence issued by the concerned authority together with the purchase and sales bills to justify the existence of business activity and genuinity of the business transactions carried out by her. He observed that these suppliers and customers of the assesees had evidenced their transactions with affidavits before court of law. He further observed that except with three parties, the transactions done by the assessee with other parties had not been commented adversely by the ld AO and hence it cannot be concluded that the assessee had not carried out any business activities. He also observed that the ld AO’s findings suffer from an important lacuna, in as much as there is a lack of field enquiries whose results may have had a conclusive effect in the entire proceedings. The ld CITA observed that in the final remand report of the ld AO, the ld AO is seen to have made enquiries with the assessee’s banker also, who had confirmed holding of a current account vide Current A/c No. CA-1375 with Syndicate Bank, Burdwan. He observed that the banker had confirmed the existence of proprietory concern and the business carried on by the assessee and had also certified the capital employed by the assessee in her proprietorship concern. The ld CITA observed that the affidavits filed before the court of law has got more legal sanctity and 3

4 Moon Moon Som A.Yrs.2005-06 & 2006-07 the same had never been retracted by the suppliers and customers of the assessee. The ld CITA further observed that the amount of receipts which the assessee is showing has no controversy and the dispute is only in relation to the expenses claimed. In this regard, he opined that sales and purchases are transactions which have characteristics about them which are not merely limited to confirmations on paper. It is not in dispute that the assessee in course of remand proceedings had supplied the names of the sellers and the fact that one of the sellers had gone back on his affidavit cannot immediately lead to a finding that the other transactions are also dubious. The ld CITA observed that a contradiction is seen in the ld AO’s reasoning in asmuch as two of the parties having retracted their affidavits through letters, the said turnover should have been questioned. This has not happened. Since no books of accounts has been maintained for the purpose of business by the assessee, which fact is also acknowledged by the ld AO in his order, the resort to net profit u/s 44AF of the Act at 5% of turnover (Rs 48,250/-) would be valid and would meet the ends of justice. But since the net profit declared by the assessee was at Rs 1,24,970/- which is more than the net profit determined u/s 44AF of the Act, the offer made by the assessee is to be accepted and no further addition is called for in that account. Accordingly he deleted the addition made in the sum of Rs 9,65,000/- for the Asst Year 2005-06.

2.4. Aggrieved, the revenue is in appeal before us on the following ground:- 1. Deleting the additions of Rs 965000/- made by A.O. on account of business activity in absence of any supporting papers , so consider it as income from other source.

2.5. We have heard the rival submissions. We find from page 160 of the paper book filed by the assessee that she had obtained a trade licence to carry on the business under The West Bengal Municapl Act, 1993 from Burdwan Municipality, Burdwan. It is not in dispute that the banker had categorically confirmed that the assessee is running a proprietary concern under the name and style of ‘Manomit Concern’ and a current 4

5 Moon Moon Som A.Yrs.2005-06 & 2006-07 account is opened with Syndicate Bank, Burdwan vide Current A/c No. CA – 1375 and had further certified the capital employed by the assessee in her proprietory concern. Affidavits from suppliers and customers duly sworn in before the Court of Law had also been filed together with the copies of bills for the same. Merely because, few parties denied the transactions at the time of enquiries made by the ld AO, the mere existence of business cannot be disbelieved. It cannot be brushed aside that certain parties had also confirmed having business transactions with the assessee. We find that the ld AO had made the entire addition only on the ground that the assessee had not carried on any business. Now the aforesaid facts and the categorical findings of the ld CITA clearly prove the existence of business carried on by the assessee and hence the entire addition deserves to be deleted. Hence the ld CITA had rightly deleted the addition made for the Asst Years 2005-06 and 2006-07 in this regard. Accordingly Ground No.1 for Asst Year 2005-06 and Asst Year 2006-07 raised by the revenue is dismissed.

3.1. The brief facts of this issue is that the assessee declared agricultural income of Rs 12,50,000/- for the Asst Year 2005-06 in the return of income. The ld AO accepted only a sum of Rs 50,000/- towards agricultural income in respect of agricultural lands already held by the assessee as well as the new agricultural lands acquired by the assessee and treated the remaining sum of Rs 12,00,000/- as income from other sources. The ld AO observed that the assessee could not submit any reliable documents vis a vis requisition made by him. The assessee submitted fresh evidences before the ld CITA which was rightly remanded to the ld AO for his comments. The ld AO in his report 5

6 Moon Moon Som A.Yrs.2005-06 & 2006-07 reiterated the stand taken by him in the assessment order. The assessee furnished a confirmation letter from the purchaser of the agricultural produce before the ld AO. However, the ld AO questioned the party’s action in filing a letter to this effect and not appearing personally.

3.2. The ld CITA observed in this regard that the ld AO should have made further enquiries and enforced personal attendance of the party , if he so desired it, by issuing summons u/s 131 of the Act. The ld CITA observed that the assessee’s holding of agricultural lands are not disputed by the ld AO either at the stage of assessment or at the stage of remand report. The only controversy is with regard to extent of expenses incurred in agricultural operations, which could have been cleared up if further enquiries with the purchaser of agricultural produce had been made. Such enquiries had not been made by the ld AO and allowing Rs 50,000/- alone to be the agricultural income is absolutely without any basis. The ld CITA observed that the total agricultural lands held by the assessee is 10.39 acres . The ld CITA observed that the assessee had submitted the details of planting operations including details of purchase of fertilizer & seeds before the ld AO. He observed that if the ld AO is of the opinion that no agricultural operations were carried out by the assessee, then he ought not to have even allowed / accepted Rs 50,000/- to be agricultural income. By this, the ld AO had taken contradictory stand. The ld AO issued summons to Gram Panchayat or Pradhan who did not appear in person before the ld AO. This is one of the main reason to disbelieve the claim of agricultural income of the assessee. The ld CITA however observed from the records of earlier years and subsequent years and found that the assessee has been consistently returning agricultural income which is also accepted by the ld AO in the past as well in the future. Accordingly, he deleted the addition made towards agricultural income for the Asst Year 2005-06.

3.3. Aggrieved, the revenue is in appeal before us on the following ground:- 6

7 Moon Moon Som A.Yrs.2005-06 & 2006-07 2. Agricultural income accepted by C.I.T.(A) a which is bogus generated through some agricultural land without maintaining any transaction of sale and purchases.

3.4. We have heard the rival submissions. We find that it is not disputed that the assessee is holding 10.39 acres of agricultural lands. We find that a confirmation letter has been issued by the purchaser of agricultural produce. The ld AO had obtained information u/s 133(6) of the Act from purchaser of agricultural produce Mr SK.Mohanlal, “Dui Bhai”, Vill-Alampur, P.O.- Talit, Burdwan District who had confirmed that he had purchased paddy and straw from the assessee during the Asst Years 2005-06 and 2006-07 for Rs 12,50,000/- and Rs 12,80,000/- respectively. This is enclosed in page 162 of the paper book filed before us. The assessee also has submitted the purchase bills dated 21.5.2004 and 27.12.2004 for Rs 1,10,023/- and Rs 90,820/- respectively of agricultural produce, which are enclosed in page 164 of paper book. The ld AO had accepted agricultural income to the extent of Rs 50,000/- as against the claim of Rs 12,50,000/- made by the ld AO. We find that the assessee had claimed agricultural income as under for various asst years and the same has been accepted in the past as well as in the future as under:-

Asst Year Agricultural income claimed Remarks 2003-04 1,02,000 Accepted u/s 143(3) by the ld AO 2004-05 99,600 Accepted u/s 143(1) by the ld AO 2007-08 4,00,000 Accepted u/s 143(1) by the ld AO 2008-09 12,00,000 Accepted u/s 143(1) by the ld AO 2009-10 11,50,000 Accepted u/s 143(3) by the ld AO 2010-11 8,50,000 Accepted u/s 143(3) by the ld AO We find that the ld AO had disputed the claim of agricultural income only for Asst Years 2005-06 and 2006-07 which is without any basis. We also find that the ld AO 7

8 Moon Moon Som A.Yrs.2005-06 & 2006-07 had accepted the agricultural income at Rs 50,000/-. Having done so, he ought not to have stated that no agricultural activities were carried out by the assessee to disbelieve the balance claim of agricultural income. We find that the Gram Panchayat has been sought to be examined who had confirmed the agricultural activities carried on by the assessee in the agricultural lands owned by the assessee , eventhough he did not appear in person to the summons issued u/s 131 of the Act before the ld AO. In view of these facts and circumstances, we do not find any infirmity in the order of the ld CITA granting relief to the assessee. Hence the Ground No. 2 raised by the revenue for Asst Years 2005-06 and 2006-07 is dismissed.

4.1. The brief facts of this issue is that the ld AO observed that the assessee had made huge investments in ICICI mutual funds during the year. The assessee offered short term capital gains (in short STCG) on redemption of mutual funds for Rs 7,41,441/-. The ld AO observed that the assessee failed to disclose the mode of computation with cogent evidences. The assessee stated that the cost of acquisition was taken at estimated figure. The assessee stated that she had switched in from one fund and had invested in another fund but no proper details were filed by the assessee before the ld AO, the ld AO obtained information from CAMS and from ICICI Prudential Fund. The assessee agreed before the ld AO to opt the mode of calculation in terms of bank statements. The ld AO observed that in many cases, the ICICI Prudential account statement showed the mentioning of Corporation Bank, Durgapur, but the assessee had no account with the said bank branch. It was presumed under this circumstances that cash drafts were made 8

9 Moon Moon Som A.Yrs.2005-06 & 2006-07 from time to time through agents and the same were invested accordingly. The ld AO listed out the following situations for determination of the cost of acquisition and calculation of capital gains :- a) Where investments were made through bank, month wise investemtns during the period and sum total thereof to be added with cost of acquisition . b) Where investments were reflected in the ICICI Prudential Account statement but not reflected in the existing banks, the sum total thereof is to be added with cost of acquisition . c) Where investments were already made in previous year, the same is already incorporated in the opening balances determined by the assessee. d) Where investments have been made pursuant to maturity, the same has already been included in the closing balance of the assessee.

The ld AO worked out the STCG as follows:-

Opening Stock of instruments as on 1.4.2004 Add: New Purchases during FY 2004-05 Less: Closing stock of instruments as disclosed The resultant would be face value sold during the period On deducting the face value of the sold instruments from the incoming sale proceeds as reflected in the bank statements, the STCG was calculated by the ld AO. The ld AO mentioned that however does not accommodate the possibility of multiple consideration of sale proceeds where investments have been made pursuant to maturity and the same got again matured during the financial year under consideration. He observed that the assessee has to bear that toll as no basic books were maintained. The ld AO arrived at the STCG figure of Rs 1,56,82,569/-. 9 4.2. The assessee produced the entire mutual fund account statements together with the bank statements before the ld CITA. The assessee submitted before the ld CITA a statement pointing out the deficiencies in the workings made by the ld AO and also claimed further reduction from the STCG added by the ld AO to the tune of Rs 43,50,000/- to the extent of funds available to her. The ld AO was asked for the remand report on the detailed objections and fresh claims made by the assessee. The ld CITA observed that the ld AO ought to have considered the workings of STCG based on the entries reflected in the bank statements alone which could be corroborated with the entries in the mutual fund account statements. The ld CITA observed that the ld AO’s comment given in the remand report that the total purchase during the year as per scripts were claimed at an abnormally high figure of Rs 1,11,00,000/- has been made without actually calculating the figures of investments available from the account statements submitted at the appellate stage. He observed that the date wise investments totaled to Rs 69,50,000/- but in the total column the ld AO had entered Rs 6,95,000/- only. The ld CITA observed that adoption of the erroneous figure by the ld AO had resulted in a total of Rs 58,59,931/- in the remand report whereas adoption of the correct figure would result in total of Rs 1,21,14,931/-. In view of the error noted, the ld CITA observed that it is best to work out the purchases individually from the transaction statements which was arrived at Rs 1,08,00,000/-. The ld CITA after taking into account all the mutual fund account statements , after linking the same with the bank statements and taking into account the inability of the assessee to reconcile with proper explanations, proceeded to work out the short term capital gains as under :-

Opening Balance 71,77,958 Add: Investments during the year a) Out of Bank Statements 1,20,50,000 b) As observed from MF account stmts 1,08,00,000 ------------------ 2,28,50,000 10 Less : Total Sale Proceeds 3,01,45,527 ------------------ Gains 45,57,569 Less: Allowances given by the ld AO as per Assessment order 1,00,000 ------------------ Short Term Capital Gains (STCG) 44,57,569 ------------------ 4.2.1. The ld CITA directed the ld AO to adopt this figure of STCG while calculating the tax liability of the assessee. He observed from the transaction statements, Securities Transaction Tax (STT) is deducted on redemption. The Redemption figure has been taken from the bank statements. He observed that there is no dispute that there are no cash deposits within this figure. Furthermore, apart from investments in ICICI Prudential Mutual Funds, no other investments have been suggested either at the assessment or at the remand stage. Therefore, it would be logical to hold that STT has been charged on the proceeds of the entire redemption. Accordingly he directed the ld AO to adopt STCG figure at Rs 44,57,569/-. Aggrieved, the revenue is in appeal before us on the following ground:- 3. Short term capital gain calculated by C.I.T.(A) Rs 4457569 without any consideration of statement of CAMS/ICICI.

4.3. We have heard the rival submissions. It is not in dispute that the assessee had not maintained proper details to substantiate the STCG workings returned by her. Hence there is no other option but to rework the STCG based on the entries in the bank statements by corroborating the same with the mutual fund account statements. We find that there is no dispute on the opening stock of mutual funds. There is no dispute on the 11

12 Moon Moon Som A.Yrs.2005-06 & 2006-07 redemption proceeds received during the year as the same has been duly reflected in the bank statements. There is no dispute on the closing stock of mutual funds. The only dispute is with regard to the investments made during the year. The total figure of investments based on bank statements have been rightly arrived at Rs 1,20,50,000/- and Rs 1,08,00,000/- has been rightly arrived based on the transactions in the mutual fund account statements. There is no dispute that the entire investments have been properly sourced and explained by the assessee in the instant case as admittedly the ld AO in the final remand report submitted had not given any adverse inference regarding the sources of making investments. Hence the only dispute with regard to determination of investments made during the year had been properly considered by the ld CITA at Rs 1,20,50,000/ -and Rs 1,08,00,000/- as stated above. Accordingly, the STCG has been arrived at Rs 44,57,569/- which has been accepted by the assessee by not preferring further appeal before us. We find that the ld CITA had arrived at this STCG by reworking the entire figures as the workings made by the ld AO contained various deficiencies. The workings done by the ld CITA had not been controverted by the revenue before us. Hence we do not deem it fit to interfere with the said order of the ld CITA in this regard. Accordingly, the Ground No. 3 for Asst Year 2005-06 is dismissed.

4.4. We find for the Asst Year 2006-07, the dispute is with regard to determination of redemption proceeds . The assessee adopted the redemption proceeds at Rs 95,66,730/- which is corroborated with entries in the bank statements. The ld AO however adopted the redemption proceeds figure at Rs 1,41,83,296/- which is without any basis. The opening balance is adopted at Rs 44,40,000/- ; investments made during the year adopted at Rs 1,17,59,000/- and closing balance was adopted at Rs 90,40,000/- both by the ld AO as well as by the ld CITA. We find that the ld CITA had arrived at the STCG for Asst Year 2006-07 as under:-

Add: Investments during the year 1,17,59,000 ----------------- 1,61,99,000 Less: Closing Balance 90,40,000 ------------------ Cost of investment of instruments sold 71,59,000 Less : Total Sale Proceeds 95,66,730 ------------------ Gains 24,07,730 Less: Allowances given by the ld AO as per Assessment order 40,000 ------------------ Short Term Capital Gains (STCG) 23,67,730 ------------------ We find that the redemption proceeds figures are corroborated with the bank statements by the ld CITA and hence we do not deem it fit to interfere with the said workings made by the ld CITA in determination of STCG. Accordingly, the Ground No. 3 for Asst Year 2006-07 is dismissed.

5.1. The brief facts of this issue is that the assessee was in receipt of gift from Smt Meera Som, Mother in law of the assessee, in the sums of Rs 4,00,000/- for the Asst 13

14 Moon Moon Som A.Yrs.2005-06 & 2006-07 Year 2005-06 and Rs 3,00,000/- for the Asst Year 2006-07. The assessee was also in receipt of gift from her mother Smt Sipra Hazra during the Asst Year 2006-07 amounting to Rs 4,00,000/-. The ld AO issued summons u/s 131 of the Act to Smt Meera Som (mother in law) who appeared in person before the ld AO and confirmed the fact of giving gifts to the assessee in both the years. Smt. Meera Som had stated that she had income from family pension, interest and agricultural income. The ld AO observed that the genuinity of claims made by Smt Meera Som was not verifiable in the absence of convincing documents. The ld AO did not believe the statement of Smt Meera Som that she had sufficient cash balance in her books to give gifts to the assessee. The ld AO observed that on 30.4.2004, Smt Meera Som had received Rs 6.50 lacs as advance from the assessee through bank and hence the claim of Smt Meera Som that she had sufficient cash saving as on 29.4.2004 does not stand bonafide. Accordingly he added the gift received from Smt Meera Som to the total income of the assessee for the Asst Years 2005-06 and 2006-07.

5.1.1. With regard to the gift received from Smt Sipra Hazra (mother) during the Asst Year 2006-07, the ld AO observed that the said donor refused to appear in person before him in response to summons issued u/s 131 of the Act and accordingly treated the same as income of the assessee.

5.2. The ld CITA observed that the donor (Smt Meera Som) had confirmed in person the fact of having given the gift to the assessee in cash out of sufficient cash balances held by her. The ld CITA observed that the donor is duly assessed to income tax and the details of the same were in possession of the ld AO and the veracity of the gifts could have been cross verified by the ld AO with the AO of the donor. He further observed that what the ld AO meant by ‘convincing documents’ had not been amplified at any stage in his order. However, since the ld AO had doubted the creditworthiness of the donor to make the gift to the assessee, he directed the ld AO to verify the 14

15 Moon Moon Som A.Yrs.2005-06 & 2006-07 creditworthiness of the gifts based on cash flow statement of the donor , while giving effect to the appellate order. He further observed that the identity and genuineness of the transactions could not be doubted in the instant case as the gift has been given by mother in law to daughter in law (assessee). Similar direction was given for the Asst Year 2006-07 also by the ld CITA.

5.2.1. With regard to the gift received from Smt Sipra Hazra (mother of the assessee) by the assessee , as per the documents filed before the ld CITA , these amounts were paid as a result of the decision of the Hon’ble Calcutta High Court dated 9.2.2005 in C/W TS 6 of 2003 with PLA 140 of 1996 (original side0. The ld CITA observed that no adverse remarks were made by the ld AO in the remand report submitted along with other disputed issues. Accordingly based on the court order and in view of the fact that no adverse remarks were made by the ld AO in the remand report, the ld CITA deleted the gift given by mother to the assessee for the Asst Year 2006-07.

5.3. Aggrieved, the revenue is in appeal before us on the following grounds :- for Assessment Year- 2005-06 4. Bogus cash gift received from meera som

4. Bogus cash gift received from Meera Som and Sipra Hazra.

5.4. We have heard the rival submissions. We find as far as the gifts received from Smt Meera Som (mother in law), the ld CITA had only directed the ld AO to verify the veracity of the same based on the creditworthiness to be established from the cash flow statement of the donor. Hence there cannot be any grievance for the revenue at this stage. No other arguments were advanced by the revenue before us in this regard. Hence we do not find any infirmity in the order of the ld CITA in this regard.

16 Moon Moon Som A.Yrs.2005-06 & 2006-07 5.4.1. With regard to the gift received from mother of the assessee, the same is supported by the Hon’ble Calcutta High Court Order and hence the ld CITA after taking into account the same and in view of the fact that no adverse remarks were given by the ld AO in the remand report, he had directed the ld AO to delete the same. No infirmity could be found in the said action of the ld CITA.

5.4.2. Accordingly, the Ground No. 4 raised by the revenue for the Asst Years 2005-06 and 2006-07 are dismissed.

Order pronounced in the Court on 01.12.2017