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Income Tax Appellate Tribunal, “D”, BENCH KOLKATA
Before: SHRI K. NARASIMHA CHARY, JM & DR. A.L.SAINI, AM
O R D E R
Per Dr. Arjun Lal Saini, AM:
The captioned appeal filed by the assessee pertaining to the assessment year 2010-2011, is directed against the order passed by ld. CIT(A), Asansol, in Appeal No.159/CIT(A)/Asl/W-3(1)/Asl/12-13, dated 16th March, 2015, which in turn arises out an order passed by the Assessing Officer u/s.143(3) of the Income Tax Act, 1961 (in short the ‘Act’), dated 26-11-2012.
The facts of case; qua the assessee are that the return of income for assessment year 2010-11 was filed by the assessee on 29-09-2010. Later on the case was selected for scrutiny and the Assessing Officer made the assessment by making various additions. In assessee’s case under consideration a survey u/s.133A of the Income Tax Act was carried out at the business premises of the assessee firm on 26-3-2010. During the course of survey authorized officer (AO) carried out the survey proceeding in presence of Sri Bhakti Ram Bhalotia (being the 50% share holder), partner of the firm. Papers and documents which were found were inventoried and the Assessing Officer used the material which was taken by the survey team during the survey proceedings.
The Assessing officer did the small additions; such as addition of Rs. 20000/= ‘received by the assessee as advance from the party’, addition of Rs. 24,255/- ‘presuming unaccounted sale’, addition of Rs.500,000/- and adhoc additions based on the estimate etc.
3.Aggrieved, from the order of the Assessing Officer, the assessee filed an appeal before the ld CIT(A), who has also confirmed the action of the AO, by observing the followings:
“18.A decision in this regard is to be by taking into account the aspects discussed above. There are inaccuracies on part of the assessee. Further a statement given is not validity retracted, instead tax was paid to cement the statement. I find that there are some inaccuracies on part of Assessing Officer in the manner computation of unaccounted stock. Since unaccounted trade is confirmed (decision on grounds 3 and 4 confirms the same) the stock disclosed cannot be correct. There is an admission of unaccounted stock which subsists on account of lack of retraction.
Considering all aspects, I hold that a via media approach is to be adopted.
After weighing cases from both sides, I hold that an addition of Rs. 5,00,000/- will be sufficient to absorb the deficiency noted. The Assessing Officer is directed to modify assessment replacing addition of Rs. 7,55,254/- by Rs. 5,00,000/-. The ground is partly allowed.
19.Ground 4 is against disallowance of 20% of Car expenses including depreciation. The Assessing Officer made a clear recording that log book is not maintained to prove exclusive use for business. Before me it was stated as under:
‘Regarding car expenses and depreciation on car we would like to mention that expenses on Car averaging Rs.5000/- to 6000/- per month is very meager as our factory is situated around 10 Kms away and also we have to search for the markets to sell the woods. I think expenses is not much high’ The matter is considered. On facts and circumstances of the case, I hold that a disallowance of 12.5% will suffice. Hence Assessing Officer is directed to modify assessee restricting disallowance to 12.5% in place of 20%. The ground is partly allowed.”
This way, the ld CIT(A) has also disallowed some other small expenses.
Not being satisfied with the order of CIT(A), the assessee is in further appeal before us and has taken the following grounds of appeal :-
(1) That the Comm. of Income Tax (Appeal)-Asansol [C.I.T.(A)] has erred, both in law and on the facts and under the circumstances of the case in confirming the addition to total income, a sum of Rs. 20,000/- received as advance from a party. (2) That likewise, the C.I.T.(A) has further erred in confirming the addition of Rs. 24,255/- as unaccounted sales. (3) That likewise, the C.I.T.(A) has further erred in confirming the addition to the extent of RS.5.00 lacs (Rs.5,00,0001-) out of total addition made by A.O. at Rs.7,55,254/-.
(4) That likewise, the C.I.T.(A) has further erred in confirming an adhoc disallowance of Rs.10,775/- being 12.5% of Rs. 86,203/- against addition of Rs. 17,240/- made by A.O.at the rate 20% of car expenses Rs.73.028/- and depreciation on Car Rs. 13,175/- (Rs. 14,605/- plus Rs.2,635/- total Rs. 17,240/-). (5) That the assessee, craves leave to add, to amend or withdraw any grounds on or before the hearing of the appeal.
Ld. AR for the assessee has submitted before us some additional evidences by way of paper book, in respect of the above said grounds of appeal taken by him, these are as follows:
S.No.1 of paper book: Receipts, S.No.2 of paper book:Tax invoice S.No.5 of paper book:Stock summary.
S. No. 33 to 35 of paper book : Journal Vouchers, Suresh Kumar Bhalotia Account, and ledger account of Chattraj Construction, R.N.Colony Account.
All these additional evidences are connected and related to all the grounds taken by the assessee before us, therefore, we are of the view that this entire issue requires fresh examination at the end of the Assessing Officer.
Ld. Departmental Representative has also agreed to remit the case back to the AO to examine the additional evidence submitted by the assessee.
Having heard the rival contentions, perused the material available on record, we are of the view that this issue requires fresh examination at the end of the Assessing Officer, therefore, we set aside the order of the ld CIT(A) and restore this entire issue to the file of the assessing officer with the direction to ascertain the addition, if any, by considering the additional evidences submitted by the assessee.
In the result, appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open court on this 19/10/2016.
Sd/- Sd/- (NARASIMHA CHARY) (DR. A.L.SAINI) �या�यक सद�य / JUDICIAL MEMBER लेखा सद�य / ACCOUNTANT MEMBER कोलकाता /Kolkata; �दनांक Dated 19/10/2016 �काश �म�ा/Prakash Mishra,�न.स/ PS आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. आयकर आयु�त(अपील) / The CIT(A), Kolkata. 4. आयकर आयु�त / CIT �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, कोलकाता / DR, ITAT, Kolkata 5. 6. गाड� फाईल / Guard file. स�या�पत ��त //True Copy// आदेशानुसार/ BY ORDER,