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Income Tax Appellate Tribunal, “B” BENCH: KOLKATA
ORDER
Per Shri A.T.Varkey, JM
This is an appeal filed by the assessee against the order of Ld. CIT(A)-15, Kolkata dated 19.02.2015 for AY 2008-09.
At the outset itself, the Ld. Counsel for the assessee drew our attention to the fact that in ground no.1 there are two components of which there is an addition of Rs.9,524/- on the basis of difference of loan taken from State Bank of India which the assessee does not wish to press and, therefore, it stands dismissed. 3. Coming to the next component in ground no. 1, which is against the disallowance of labour charges of Rs.1,08,799/-. Brief facts of the case are that assessee is in the business of book binding for the Govt. of West Bengal undertaking M/s. Saraswati Press Ltd. The assessee runs the business of book binding under the name and style of M/s. Shiva Shakti Binders. The assessee undertook a job work for Rs.49.68 lacs out of which job valuing Rs.11,52,105/- was debited under the head ‘outside labour charges’. The AO observed that out of the said payment of Rs.11,52,105/-, an amount of Rs.10,87,985/- was paid to the outside labourers. The AO acknowledges that the assessee produced some of the outside labourers before him and on scrutiny of the payment vouchers to those labourers, according 2 Shri Bhikari Charan Pradhan, AY 2008-09 to AO, the payments appear to be excessive and most of the payments have been made through cash and self made vouchers. Since the AR of the assessee could not explain the unsigned vouchers 10% of the said expenditure of Rs.10,87,985/- which comes to Rs.1,08,799/- was disallowed and added to the returned income of the assessee. Aggrieved, the assessee preferred an appeal before the Ld. CIT(A), who confirmed it. Aggrieved, the assessee is before us.
We have heard rival submissions and gone through facts and circumstances of the case. We note that the assessee is a book binder and performs his task through M/s. Shiva Shakti Binders. The assessee mainly is engaged in the book binding work of M/s. Saraswati Press Ltd., a Govt. of West Bengal Undertaking. The assessee in this assessment year has undertaken outside work of M/s. New Makali Binding to the tune of Rs.24,730/-. The assessee used to work from the space allotted to it in the premises of M/s. Saraswati Press Ltd., (a Govt. undertaking). However, due to more work and insufficient space for carrying out the work, the assessee had started another business centre under the name and style of M/s. Sarada Enterprise at 7, Antony Bagan Lane, Kolkata-700 009. According to the assessee, out of the book binding job undertaken of Rs.49.68 lacs, job valuing Rs.11,52,007/- was allocated to M/s. Sarada Enterprise. The assessee through Shiva Shakti Binders had advanced from 07.04.2007 to 11.03.2008 a total amount of Rs.18,24,189 to M/s. Sarada Enterprise. The Ld. AR drew our attention to pages 12 and 13 of the paper book from which this fact is evident and page no. 13 reveals that an amount of Rs.11,52,105/- was disbursed as labour charges and Rs.6,72,084/- was the balance amount. In order to prove the veracity of the claim of disbursement of labour charges, the AO had asked the assessee to produce some of the labourers and the AO acknowledges the fact that the assessee had in fact produced some labourers before him. According to the AO, certain bills were not signed and the payments were made mostly in cash, therefore, he made an estimated disallowance of 10% which comes to Rs.1,08,799/-. The Ld. CIT(A) was also not convinced with the assessee’s aforesaid pleas and according to him, it was a bogus claim. We do not subscribe to such a finding for the simple reason that the AO could not make a finding that the entire claim was a bogus claim. The assessee has produced labourers who has been questioned by the AO and the AO only found fault with certain bills/vouchers and, therefore, made an estimated disallowance of Rs.1,08,799/-. We note that the AO has not 3 Shri Bhikari Charan Pradhan, AY 2008-09 rejected the books of account and has simply made the addition based on few defects in few vouchers. The AO’s justification to make estimation appears to be the expenditure is excessive, which action of the AO cannot be sustained without any material to suggest that the assessee’s claim is not correct or bogus when the labourers were produced before him. The genuineness of the claim on account of labour charges cannot be discarded without any material to make an adverse finding. We do not find any such reason other than an arbitrary disallowance of 10% which cannot be sustained and, therefore, we direct deletion of the same.
Ground no. 2 is against the action of the Ld. CIT(A) in confirming an amount of Rs.10,05,000/- from savings bank account of Union Bank of India. Brief facts of the case are that the AO noted that on verification of ITS details that an amount of cash of Rs.10,05,000/- has been debited in the S.B. Account of Union Bank of India. According to AO, since the Ld. AR of the assessee failed to explain the cash deposit, he treated the same as undisclosed income and added the same to the returned income of the assessee. Aggrieved, the assessee preferred an appeal before the ld. CIT(A), who was pleased to confirm the same and dismissed the appeal of the assessee. Aggrieved, the assessee is before us.
We have heard rival submissions and gone through facts and circumstances of the case. As we had earlier noted that the assessee is a book binder and used to perform the task in the name and style of M/s. Shiv Sakti Binders from the premise of M/s. Saraswati Press Ltd. However, during this year, since there was an increase in workload, the assessee started another business for execution of extra work under the name and style of M/s. Sarada Enterprise at 7, Antony Bagan Lane, Kolkata. According to assessee, in the relevant assessment year, M/s. Shiva Shakti Binders undertook job work for Rs.49.68 lacs, out of which job work of Rs.11,52,000/- was allocated to M/s. Sarada Enterprise. According to the assessee, in order to raise money for running business in the new business centre M/s. Sarada Enterprise the assessee had sold some jewellery worth about Rs.2,02,199/-. The AO noted that on verification of the ITS details that the assessee had deposited an amount of Rs.10,05,000/- in the S.B. Account with Union Bank of India. According to the AO, since the Ld. AR of the assessee failed to explain the cash deposited in Union Bank of India, the same was added as income from undisclosed sources. On appeal, the Ld. CIT(A)
4 Shri Bhikari Charan Pradhan, AY 2008-09 disbelieved the claim of the assessee that he raised Rs.2,20,199/- through sale of gold and the Ld. CIT(A) wondered as to how the assessee would be getting for the old un hall marked jewellery of 22 ct. price fixed on that day. The AO in the remand report also found fault with the bills produced by the assessee showing the sale consideration of Rs.2,02,199/- by finding fault with the bill nos. We note that according to AO, during remand proceeding, the entire bills were produced before him in respect to sale of jewellery. The Ld. AR drew our attention to the bills placed from pages 2 to 11 of the paper book which shows the transaction between the assessee and Baral Jewellery House, 275, Vivekananda Road, Kolkata-700 006. We note that the AO found fault after examination of these bills. According to AO, from a perusal of the bills he observed that the number on the bill as No. BJH-92 on 05.04.2007 and it was in order upto bill No. BJH-100 dated 30.06.2007. However, the AO notes that the subsequent bills dated 16.08.2007 bearing bill no. BJH-31 and so on upto last bill dated 16.09.2007 he found discrepancy. Thus, according to AO, though he found bills to be in order from Bill No. BJH-92 dated 15.04.2007 to Bill No. BJH-100 dated 30.06.2007, the discrepancy which AO noted was that when the number was 100 how come again bill number could be 31 onwards which arose suspicion in him. We note that the Ld. CIT(A) has not mentioned anything on this count. However, the Ld. AR drew our attention to the bills which we note from a perusal of page 11 of the paper book wherein bill dated 05.04.2007 is placed where the bill no. is given as BJH-92. Thereafter, we find the bill dated 08.05.2007 wherein the bill no. is given as BJH-94. The next bill is dated 25.05.2007 the bill no. is BJH-96. Thereafter on 15.06.2007 bill no. is BJH-97 and on 30.06.2007 bill no. is BJH-100. Thereafter there are only four bills which start from 27.08.2007 wherein number is given as BJH-34 and 07.09.2007 bill no. is given BJH-41 and next bill dated 15.09.2007 bill no. is BJH-45. Thus, we note that discrepancy if any is only regarding the last four bill numbers only because AO himself states in his remand report that other bills are in order. On being asked to explain the discrepancy the Ld. AR stated that after bill no. BJH-100 was over the gold shop took the new book which again starts from number 1 and this is possibly based on the volume of the bill book vis-à-vis bill numbers. According to the Ld. AR, even if this kind of discrepancy was seen, the AO was free to summon M/s. Baral Jewellery House whose phone no., address as well as VAT no. has specifically mentioned in the bills. The fact that the value of the gold on the specific date of sale has not been found fault with, but Ld. CIT(A) wondered as to how the assessee 5 Shri Bhikari Charan Pradhan, AY 2008-09 got the value for the old gold raised suspicion in the mind of Ld. CIT(A) which led him not to accept the claim of the assessee when the assessee had produced the bills which dates from 05.04.2007 to 15.09.2007. The AO found fault on the fact that the assessee has sold gold not at the beginning of the business whereas we note that the assessee has in fact started selling the gold from 05.04.2007 i.e. from the April, 2007 upto 16.09.2007 thus raising an amount of Rs.2.02,199/- which cannot be disbelieved only on the basis of surmises and conjecture when the fact of the matter is that bills evidencing sale of gold was in fact produced before the lower authorities. In case the AO/CIT(A) was of the opinion that bills were bogus they were free to summon the jewellery shop owner and verified the veracity of the claim. However, no such action was undertaken by the AO/CIT(A). By producing the bills of sale of gold the assessee has discharged the onus on him and thereafter if the AO had any doubt subsisting in his mind then he should have exercised the powers vested in him to investigate and find out the truth, without that, finding of the authorities below are not sustainable in the eyes of law. Therefore, the contention of the assessee that he has raised Rs.2,02,199/- cannot be disbelieved and this amount was in the hands of the assessee to do business. Coming to the deposit of Rs.10,05,000/- we note from page 1 of the paper book (bank statement of the assessee) that the assessee had deposited cash of Rs.5000/- on 01.02.2008 and on 07.02.2008 deposited Rs. 6 lacs and on 06.03.2008 deposited another cash of Rs. 4 lacs which comes to total Rs.10,05,000/-. When we asked the ld. AR to explain the cash, he drew our attention to the cash flow statement from where we note that the cash balance as on 01.02.2008 was Rs.5,34,484/- which figure we got from a perusal of page 24 of the paper book (petty cash book of M/s. Sarada Enterprises) and from a perusal of page 25 reveals that cash received from 02.02.2008 to 06.02.2008 was Rs.94,500/-. Thus, the assessee had cash in hand on 07.02.2008 an amount of Rs.6,28,984. Thus, the assessee deposited on 07.02.2008 Rs. 6 lacs and Rs.5000/- on 01.02.2008 makes total of Rs.6,05,000/- in Union Bank of India; and cash balance as on 07.02.2008 is Rs.28,984/-. Cash received from 07.02.2008 to 06.03.2008 is Rs.3,77,884/- which is evident from pages 25 to 26 thus, cash in hand as on 06.03.2008 was Rs.4,06,868/- (Rs.28,984/- + Rs.3,77,884/-). After depositing cash on 06.03.2008 of Rs.4 lacs assessee’s cash balance is Rs.6,868/-. The cash flow statement of the assessee is reproduced as under:
CASH FLOW STATEMENT Cash Balance as on 01.02.2008 Rs. 5,34,484/- Cash received from 02.02.2008 to 06.02.2008 Rs. 94,500/- Rs. 6,28,984/- Cash deposited in Union Bank of India on 1.2.2008 Rs.5000/- on7.2.2008 Rs.600000/- Rs. 6,05,000/- Cash Balance as on 7.2.2008 Rs. 28,984/- Cash received from 7.2.2008 to 6.3.2008 Rs. 3,77,884/- Rs. 4,06,868/- Less: Cash deposited on 6.3.2008 Rs. 4,00,000/- Cash Balance Rs. 6,868/- When the cash flow statement along with the statement of bank account from 01.02.2008 to 06.03.2008 stands reconciled, therefore, the assessee has been able to explain the cash deposited in the bank account and, therefore, the addition u/s. 68 of the Act was not warranted. The authorities below on surmise and conjecture have disbelieved the sales of gold as well as the money transferred from one branch to another branch of the assessee, which have been explained before us. The authorities below without conducting proper enquiries have simply disbelieved the evidence furnished before them and has made the addition which cannot be sustained in the eyes of law and, therefore, we are inclined to allow this ground of appeal of the assessee.