Income Tax Appellate Tribunal - Kolkata
Sri Mukti Roy , Hooghly vs Ito, Ward - 23(3), Hooghly , Hooghly on 31 January, 2019
IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH "SMC" KOLKATA Before Shri S.S, Godara, Judicial Member ITA No.119/Kol/2018 Assessment Year:2010-11 Sr Mukti Roy बनाम / Income Tax Officer, 27A, Bhattacharjee Garden V/s . Ward-23(3), Aayakar Lane, P.O. Serampore, Bhawan, Hooghly, Pin-712203 Khadinamore, [PAN No.ADUPR 0648 E] Chinsurah, Hooghly-
712101
अपीलाथ /Appellant .. यथ /Respondent
अपीलाथ क ओर से/By Appellant Shri Miraj D Shah, Advocate
यथ क ओर से/By Respondent Shri Kalyan Nath, Addl. CIT-SR-DR
सुनवाई क तार ख/Date of Hearing 24-01-2019
घोषणा क तार ख/Date of Pronouncement 31-01-2019
आदे श /O R D E R
This assessee's appeal for assessment year 2010-11, arises against the Commissioner of Income-tax (Appeals)-6, Kolkata's order dated 19.09.2017 passed in case No. 272/CIT(A)-6/Kol/2013-14 involving proceedings u/s. 143(3) of the Income Tax Act, 1961; in short 'the Act'.
Heard both the parties. Case file perused.
2. The assessee's first substantive ground seeks to delete bogus purchase disallowance / addition of ₹ 4 lac. Both the lower authorities have declined the above expenditure under the head "right to sale of land" paid to various land owners. The assessee is admittedly engaged in sale-purchase of land and building materials business. The CIT(A) is of the view that since the assessee has not got the relevant purchase registered, the impugned sum is not allowable. Learned Departmental Representative fails to dispute that this assessee is engaged in land pulling business and his corresponding sales have been already treated as "business income". I conclude in this peculiar facts that both the lower authorities have erred in disallowing ITA No.119/Kol/2018 A.Y. 2010-11 Sri Mukti Roy Vs. ITO Wd-23(3) HGY Page 2 assessee's land purchases of ₹ 4 lac in issue. I therefore delete this disallowance amount keeping in mind these peculiar facts and circumstances.
3. The assessee does not press for his second substantive ground challenging correctness of actual legal expense disallowance/ addition of ₹50,202/-. The same stand confirmed accordingly.
4. Lastly comes sec. 40A(3) disallowance of ₹6,42,451/-. It transpires during the course of hearing that the assessee had made cash purchases in building material business already assessed is presumptive rate of taxation u/s. 44AD of the Act as a separate business. This Tribunal co-ordinate bench's decision in ACIT vs. Rameshchandra R Patel (2005) 94 TTJ 361 (Ahd) holds that 40A(3) does not apply in case of presumptive scheme of taxation u/s 44AD of the Act. I therefore accept assessee's instant third substantive ground to delete the amount the sec. 40A(3) of the Act.
5. This assessee's appeal is partly allowed in terms of above terms.
Order pronounced in open court on 31/01/2019 Sd/-
(S.S. Godara)
Judicial Member
Kolkata,
*Dkp/Sr.PS
दनांकः- 31/01/2019 कोलकाता
आदे श क त ल प अ े षत / Copy of Order Forwarded to:-
1. अपीलाथ /Appellant-Sri Muti Roy, 27A, Bhattacharjee Garden Lane, PO. Serampore, Hooghly, Pin-712203
2. यथ /Respondent-ITO Wd-23(3), Aayakar Bhawan, Khadinamore, Chinsurah Hooghly-712101
3. संबं"धत आयकर आय% ु त / Concerned CIT
4. आयकर आय% ु त- अपील / CIT (A)
5. &वभागीय )त)न"ध, आयकर अपील य अ"धकरण कोलकाता / DR, ITAT, Kolkata
6. गाड+ फाइल / Guard file.
By order/आदे श से, /True Copy/ उप/सहायक पंजीकार आयकर अपील य अ"धकरण, कोलकाता ।