RAJIB BANERJEE,DURGAPUR vs. A.C.I.T CIR - 1,DURGAPUR, DURGAPUR

It is noticed that the appeal filed by the assessee is time barred by 150 days. For which the assessee has filed condonation and after perusing the details therein and hearing both the parties, we condone the delay in filing the appeal.

Brief facts of the case are that the assessee is an individual and the assessee is engaged in supply of mechanical goods, mainly the electrical goods like transformer etc. During the assessment year under consideration the assessee derived his income from business, profession and income from other sources. He filed his return of income for the A.Y 2009-10 on 31-03-2010 declaring a total income of Rs.18,30,225/-. Under scrutiny notices u/s. 143(2) and 142(1) of the Act issued. In response to such notices, the ld.AR of the assessee appeared and produced details in connection with return filed by the assessee. During such assessment proceedings, the AO found that the assessee had debited Rs.22,240/- to P & L A/c under the head ‘legal charges’’ without deducting of tax in terms of Chapter-XVIIB of the Act. For not producing any documentary evidence in support of such claim and not deducting tax at source on such amount of Rs.22,240/-, the AO added said amount to the income of the assessee.

Aggrieved by such order of the AO, the assessee preferred an appeal before the CIT(A). Before him the assessee contended that the amounts involved therein were paid

As aggrieved by such order of the CIT(A), now the assessee is in appeal before us by raising the grounds of appeal, which have been mentioned hereinabove.

At the time of hearing before us, the ld. AR for the assessee submitted that Section 194J under which the impugned addition was made is not at all applicable to the assessee being individual and having turnover below Rs. 40 lakhs as required u/s. 44AB of the Act. He further argued that it is not tax audit case. The ld. AR submitted that the 2nd proviso to section 194J of the Act is applicable to this case.

In reply, the ld.DR submits that the plea of specified monetary limit as contemplated u/s. 44AB of the Act is not applicable to the assessee at this stage and such plea of the assessee is not permissible. The ld. DR prayed before us that the issue may be sent back to the file of the AO for verification of the same in view of the submissions made by the ld. AR of the assessee.

We have heard the rival submissions and perused the material available on record including the paper book filed before us. We find that the ld. AR for the 3 I.T.A No. 1228/Kol/2013 Rajib Banerjee, Durgapur

Ground nos.3 and 4 relate to confirmation of addition of Rs. 24,71,659/- on account of cash deposits in Axis Bank A/c No.7551 of assessee.

During the course of assessment proceedings the AO examined the cash deposits and found that there are certain cash deposits made by the assessee from the 1st day of the financial year relating to the A.Y under consideration. The AO further observed that the assessee did not make any reference to the said cash deposits and investment made in M/s. Bengal Green Field Housing Development Co.Ltd. The AO observed that the assessee did not produce any cash book and explanation. But, however, the 4 I.T.A No. 1228/Kol/2013 Rajib Banerjee, Durgapur

Aggrieved by such order of the CIT(A), now the assessee is in appeal before us and contended before us that the credit balance of Rs. 14 lakhs is reflected/available in the cash book as well as in the Axis Bank account statement on 2-6-08, which is available at page 39 of the assessee’s paper book filed before us.

In reply, the ld.DR submits before us that the deposits of Rs.14 lakhs generally would be deposited in the assessee’s current bank account, not in saving bank account. In this regard, the AO has categorically stated that no material was produced in the assessment proceedings. He further pointed out that except this deposit there was no other deposit in the said bank account. 5 I.T.A No. 1228/Kol/2013 Rajib Banerjee, Durgapur

We have heard the rival submissions and perused the material including the paper book available on record. We find from the assessment order that inspite of giving opportunities by the AO, the assessee could not offer any satisfactory explanation in respect of impugned deposits on which basis the AO made the impugned addition. It is also noticed from the assessment order that the assessee did not produce cash book before the AO. From the observation of the CIT(A) in his appellate order, we find that the assessee produced before him the copy of cash book. On verification of the same, the CIT(A) found that the assessee purchased a land during the year under consideration and the same is being reflected in the Schedule of Fixed Assets as on 31/3/09. However, the CIT(A) did not grant any relief to the assessee and doubted the explanation as offered by the assessee before him as well as before the AO being different. Taking into consideration the submissions of the ld.AR of the assessee that all the deposits found to be made available in the cash book as maintained by the assessee. Taking into consideration the submissions of the ld.DR that a new plea was taken by the assessee before the CIT(A) as well as before the Tribunal that reflection of deposit in the cash book and bank account. In view of the above, we hold that this matter should go back to the file of the AO for proper verification of cash book regarding availability of such deposits. The assessee, shall be at liberty, to file necessary evidences, if any, in support of his claim. The assessee shall not seek any adjournment. Accordingly, the AO is directed to pass an order in accordance with law. Ground no.3 of assessee’s appeal is allowed for statistical purpose.

Ground no. 1 is being general and needs no answer and it is dismissed.

In the result, the appeal of the assessee is allowed for statistical purpose. Order Pronounced in the Open Court on 5th August, 2016.