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Income Tax Appellate Tribunal, KOLKATA ‘A’ BENCH, KOLKATA
Before: SRI RAJPAL YADAV & DR. MANISH BORAD
order : February 9th, 2024 ORDER Per Rajpal Yadav, Vice-President (KZ): The assessee is in appeal against the order of the Commissioner of Income Tax (Appeals)-7, Kolkata [in short ld. 'CIT(A)'] dated 20.11.2015 passed for AY 2009-10.
This appeal was earlier listed for hearing on 13.02.2018. The appeal was dismissed for want of prosecution. The assessee could not know about the order of the ITAT. This order was not passed on merit as contemplated in the procedure. But the appeal was dismissed in limine. Therefore, when it came to the notice of the assessee, he filed a Miscellaneous Application I.T.A. No.: 195/KOL/2016 Assessment Year: 2009-10 M/s. Fashion Palace. bearing No. 28/KOL/2023. This application has been allowed by the Tribunal vide its order dated 18.08.2023. This appeal has come up before us for adjudication on merit.
The assessee has raised six grounds of appeal
which are argumentative and descriptive in nature. In brief the grievance of the assessee is whether addition of Rs. 17,82,466/- to the total income of the assessee is sustainable or not.
4. The brief facts of the case are that assessee has filed his return of income on 18.03.2010 declaring total income at Rs. 14,730/-. The assessee was engaged in trading of garments on retail business. A survey u/s 133A of the Act has been carried out on the premises of the assessee. The survey team has observed that there is an excess stock than the one accounted in the register. The AO in the assessment order has observed that stock at the assessee’s business premises was of Rs. 24,79,474/- whereas assessee has shown gross sales at Rs. 29,79,085/-. The AO thereafter, made certain calculations and worked out an addition of Rs. 17,67,736/-. Appeal to ld. CIT(A) did not bring any relief.
5. Before us, ld. Counsel for the assessee has submitted that assessee has been filing his return of income u/s 44AF of the Act and therefore, he was not required to maintain any books of accounts and if he was not required to maintain books of accounts then it is not discernible as to how survey team has worked out excess stock.
6. On the other hand, ld. D/R relied upon the orders of Revenue authorities.
7. We have duly considered the rival contentions and gone through the record carefully. Section 44AF would contemplate that notwithstanding anything contrary to Section 28 to 43C of the Act, in the case of assessee engaged in retail trade in any goods or merchandise, a sum equal to 5% of the total turnover in the previous year on account of such business or, as the case may be, a sum higher then then aforesaid sum as declared by the