Income Tax Appellate Tribunal - Kolkata
Sri Narayan Chandra Bera (L/H Late ... vs I.T.O Wd - 3,Haldia, Haldia on 23 August, 2017
आयकर अपील य अधीकरण, यायपीठ - "B" कोलकाता, IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH "B" KOLKATA Before Shri Aby.T Varkey, Judicial Member and Shri Waseem Ahmed, Accountant Member ITA No.1731/Kol/2013 Assessment Year :2005-06 Income Tax Officer, V/s. Narayan Chandra Bera W ard-3, Vill. Nandakumar, Tamluk, Basudevpur, P.O. Purba Medinipur, Pin-
Khanjanchak, Haldia, 7216632
Purba Medinipur, [P AN No. ADFPB 4114 Q]
Pin-721602
अपीलाथ /Appellant .. यथ /Respondent
ITA No.1923-1927/Kol/2013
Assessment Years:2001-02 to 2005-06
Sri Narayan Ch Bera V/s. Income Tax Officer,
L/h Lt. Srikanta Bera, W ard-3, Vill. Basudevpur,
Bahargram, Panskura-RS, P.O. Khanjanchak, Haldia,
Purba Medinipur Purba Medinipur,
[P AN No. ADFPB 4114 B] Pin-721602
अपीलाथ /Appellant .. यथ /Respondent
ITA No.1928-1932/Kol/2013
Assessment Years: 2001-02 to 2005-06
Sri Narayan Ch Bera V/s. Income Tax Officer,
Nandakumara, Purba W ard-3, Vill. Basudevpur,
Medinipur, Pin.721627 P.O. Khanjanchak, Haldia,
[P AN No. ADFPB 4114 Q] Purba Medinipur,
Pin-721602
अपीलाथ /Appellant .. यथ /Respondent
ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 2 ITA No.1873-1876/Kol/2013 Assessment Year: 2002-03 to 2005-06 Income Tax Officer, V/s. Narayan Chandra Bera W ard-3, Vill. L/h of Lt Srikanta Bera, Basudevpur, P.O. Nandakumar, Tamluk, Khanjanchak, Haldia, Purba Medinipur, Pin-
Purba Medinipur, 7216632
Pin-721602 [P AN No. ADFPB 4114 B]
अपीलाथ /Appellant .. यथ /Respondent
आवेदक क ओर से/By Assessee Shri Subash Agarwal, Advocate
Shri Atin Das, Advocate
Shri Sugata Das, Advocate
राज व क ओर से/By Revenue Shri Satyajit Mondal, JCIT, SR-DR
सन
ु वाई क तार
ख/Date of Hearing 05-07-2017
घोषणा क तार ख/Date of Pronouncement 23-08-2017
आदे श /O R D E R
PER BEMCH:-
Out of 15 appeals - 10 appeals by the assessee and 5 appeals by the Revenue are directed against orders of Commissioner of Income Tax (Appeals)-XXXIII, Kolkata all of dated 28.03.2013. Assessments were framed by ITO, Ward-3, Haldia u/s 147/143(3)/145(3) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') vide their orders dated 26.06.2008 for assessment years 2001-02 to 2005-06 respectively. Shri Subash Agarwal, Shri Atin Das & Shri Sugata Das, Ld. Advocates appeared on behalf of assessee and Shri Satyajit Mondal, Ld. Departmental Representative represented on behalf of Revenue. First we take up assessee's appeal in ITA No.1927/Kol/2013 and Revenue's appeal in ITA No.1876/Kol/2013 for AY 05-06.
2. At the time of hearing Ld. counsel for the assessee has not pressed the revised grounds of appeal. Hence, same are dismissed as not pressed. ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 3 Similarly the assessee has not pressed the grounds nos. 1,2,3,& 5 raised in the original grounds of appeal. Hence, same are dismissed as not pressed.
3. The effective ground No.4 raised by assessee is reproduced below:-
"4. That under the facts and circumstances of the case the CIT(A) erred in estimating the gross turnover 2.58 crores in place of 1.69 crore as per profit & loss account submitted before the Ld. CIT(A) so the gross turnover should be accepted Rs.1.69 crores in place of 2.58 crore."
The effective ground raised by Revenue is reproduced below :
"5) That on the facts and circumstances of the case the CIT(A) erred in considering the income from commission @ 2.5% as in his business and failed to appreciate that the rate of profit from commission is normally higher than the normal business."
4. Briefly stated facts are that assessee is legal heir of Late Srikanta Bera who was engaged in wholesale business of fruit. A survey operation u/s 133A of the Act was conducted on 18.03.2005 at the business premises of the assessee. Thereafter the case was selected under scrutiny, accordingly notice u/s. 143(2)/142(1) were served upon the assessee.
5. During the course of survey operation several books of account / documents were inventoried marked as SKB/1 to SKB/32. However, out of books of account / documents inventoried as SKB/1 to SKB/32, only documents / books of account marked as SKB/1 to SKB/13 and SKB/32 were impounded. During the course of assessment proceedings, the Assessing Officer requested the assessee to provide books of account inventoried as SKB/14 to SKB/31 but assessee failed to do so. The AO also observed that the turnover found in the impounded documents of the assessee is not matching with the turnover declared by the assessee in its revised return of income. Accordingly, AO sought clarification from the assessee by issuing several notices / letters u/s. 142(1) of the Act on different dates. But the assessee did not comply with such notices / letters. In the absence of any documentary evidence, the AO rejected the books of account of assessee by invoking the provision of Section 145(3) of the Act. ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 4
6. The assessee in its original return of income for the year under consideration declared turnover of ₹42.90 lakh only. Subsequent to the survey operation assessee revised its return of income and declared total turnover at ₹169.21 lacs. Accordingly, AO was of the view that assessee is in the habit of suppressing turnover to a considerable extent.
The AO from the impounded documents observed that assessee's turnover is at ₹2,15,76,240/- which is for 10 months only as the assessee was following Bengali Year. Accordingly, AO computed the turnover of assessee for 12 months for ₹2,58,92,088/- only (21576240x12÷10). The AO further observed that assessee has declared its gross profit @ 5.63% on the turnover declared by him (deceased) in its revised return of income. The AO also found that son of assessee is in the similar business who declared gross profit 7.48% during the assessment year 2002-03. Accordingly, AO worked out gross profit on the turnover of ₹2,58,92,088/- @ 7% which comes to ₹18,12,446/-. The assessee has declared gross profit in its revised return of income for ₹9,53,129.00 only. Thus, the AO worked out the suppression of gross profit for ₹8,59,317/- (18,12,446 - 9,53,129). Finally, the AO treated the sum of ₹8,59,317/- as suppress gross profit and added to the total income of assessee.
7. Aggrieved, assessee preferred an appeal before Ld. CIT(A). The assessee before ld. CIT(A) submitted as under:-
i) The turnover determined on the basis of impounded documents SKB/2, SKB/5 and SKB/32 at ₹2,18,76,240/- contains turnover pertaining to financial year 2003-04. Therefore, if the turnover of the earlier year is added to the turnover of the current year then it would not give correct picture,
ii) Some of the documents impounded are representing the cashbook and copy of parties ledger. The AO has clubbed both the figures and arrived at turnover of assessee's business. The clubbing of the turnover from the cashbook as well as from the party ledger will certainly lead to double addition to arrive at the turnover of assessee;
ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 5
iii) All the turnover shown in the impounded documents do not pertain to assessee only. The assessee was doing business along with three other persons namely, Shri Paban Chandra Mondal, Shri Satish Ch. Malakar and Shri Madan Mohan Bhunia. If the entire turnover is combined in the hands of the assessee then it will amount to double addition resulting double taxation in his hand. It is because all other persons have shown turnover in their respective hands by filing their income tax returns.
iv)The AO erred in extrapolating the turnover on the ground that the turnover from the impounded document was for 10 months only. The AO should have made the addition only on the basis of impounded document alone without extrapolating the same.
After considering the contentions of assessee Ld. CIT(A) called for remand report from Assessing Officer which reads as under:-
1) There was no double addition of the turnover in the hands of assessee on the basis of cash book as well as party ledger. There was no reflection of the transactions recorded in party ledger in cash book of the assessee.
2) The assessee failed to justify on the basis of supporting evidence that the turnover determined for the year under consideration includes the turnover of earlier year. The assessee was requested to justify his contention that the turnover of earlier year is included in the turnover of the current year. But the assessee failed to make any reply in support of his claim.
3) There was no evidence suggesting that the status of assessee was as AOP or firm. The assessee has never filed its return of income claiming him as AOP or firm. There was no document impounded during the survey proceedings showing the profit sharing ratio or investment by the persons as claimed to be partner of the AOP/firm.
ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 6 Ld. CIT(A) after considering the contention of assessee and remand report observed certain facts as enumerated below:-
i) The assessee was confronted with the observation of AO given by him in remand report but he failed to bring any defect in the remand report of Assessing Officer.
ii) There is no logic in the contention of the assessee that the turnover shows for 10 months in the impounded documents cannot be extrapolated to 12 months. It is because under the income proceedings the strict law of evidence does not prevail as it is not criminal proceedings. The income tax provisions are based on the preponderance of probability. Therefore, AO has not erred in extrapolated turnover of the assessee.
iii) A statement at the time of survey was recorded of Shri Paban Ch. Mondal on 18.03.2005 the statement reveals the following facts:-
a) The business of assessee was owned by three other parties as discussed above;
b) There was no written document between them in relation to the impugned business. The business was being carried on mutual understanding among four persons.
c) There was verbal understanding that the profit shall be divided among four persons in the ratio as detailed under :
i. 40% to Shri Srikanta Bera
ii. 30% to Shri Madan Mohan Bhunia,
iii. 15% to Satish Ch. Malakar and
iv. 15% to Paban Ch. Mondal.
d) No separate account was maintained by each of the person associated with the business ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 7
iv) No formal partnership deed or AOP was formed due to ignorance of law.
v) It was also observed that the names of 4 persons were also appearing in the impounded documents and this fact was also accepted by the AO in the remand report where it referred to scribbling sentences in its report.
vi) There remains no doubt that the business was carried on by 4 persons jointly.
vii) There is no basis or cogent reason for allocating turnover among 4 persons associated with the business.
viii) Splitting of turnover was not possible therefore DCIT was of the view to consider the entire turnover in the hands of assessee only.
After considering the above stated facts, remand report and contentions of assessee Ld. CIT(A) granted relief in part to assessee by observing as under:-
"7.8. However, the assessing officer has estimated income from unaccounted transactions by applying gross profit rate on the turnover worked out from the impounded material and reducing the gross profit shown in the return. It is true that in a case where it is found that the assessee was engaged in unaccounted trading transactions, income from such transactions is generally estimated by applying appropriate gross profit rate, The underlying logic for this approach is that all the indirect expenses must have already been claimed by the assessee in his profit and loss account prepared for the accounted transactions. The indirect expenses are related to establishment cost and generally do not increase much with the turnover. Therefore, the only additional expenditure incurred in respect of unaccounted sales would be the direct expenses such as purchase, carriage inward etc. related to such sales and hence profit from unaccounted sales can normally be worked out by applying gross profit rate on such sales. However, the appellant's case is vitally different on facts Here even all the accounted transactions of business have not been shown in hands of the appellant only but have been split among four persons. The appellant was of opinion that the business was a joint activity of the four persons and sales, purchase and other expenses etc. were required to be considered in four different hands. As a result, the entire accounted turnover and expenses have been split in four hands and for all four persons separate profit and loss account have been prepared Therefore, it would not be correct to say that all the indirect expenses of the business have been already debited in the profit and loss account of the appellant. As a matter of fact they have been debited only partly in the profit and loss account of the appellant with remaining expenses being booked in profit and loss account of three other persons. While it has been held in the previous para ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 8 that there was no valid reason and basis for such splitting of profit and loss account, as the things stand, the appellant has actually done such a splitting. Therefore, when the entire turnover recorded in the impounded material is being taxed in the hand of appellant it would be fair and reasonable to also consider all the indirect expenses shown in the hands of other three persons. Moreover, while it is true that indirect expenses do not vary proportionately with the turnover, some change in indirect expenses is expected to be there if the change in turnover is significant as in the case of the appellant. Thus, the appellant's accounts are defective and unreliable not only with reference to turnover and purchase but also in respect of indirect expenses which have been split in five hands and not properly claimed. Under these circumstances, instead of applying gross profit rate, a more appropriate method, in my opinion, would be to apply net profit rate on the entire turnover worked out by the assessing officer to arrive at a reasonable estimate for the appellant's income. On going through the past record of the appellant it is seen that his net profit varied between 1.12% and 373% between FY 2000-01 to FY.2004- 05 with average being about 2.5%. Also, net profit shown in the case of Narayan Ch Bera son of the appellant, engaged in similar business in the same years has varied between 1.18% and 2.09%. Therefore I consider it reasonable to apply net profit rate of 2.5% on the turnover of Rs.2,58,92,088/- worked out by the assessing officer. Net profit would accordingly come to Rs.6,47,022/-, resulting in addition of Rs.2,51,622/- to the disclosed net profit. The assessing officer is directed to reduce the addition accordingly."
Being aggrieved by this order of Ld. CIT(A) both assessee and Revenue came in appeal before us.
8. The assessee is in appeal against the amount of turnover enhanced by Assessing Officer and confirmed by Ld. CIT(A) for ₹.89 crores (2.58 - 1.69) whereas Revenue is in appeal for determining the suppressed income of the assessee on the basis of net profit.
First we deal with assessee's appeal in ITA No.1927/Kol/2013.
9. Ld. AR for the assessee filed paper book which is running pages 1 to 68 and fairly conceded and requested the Bench to maintain the status quo of the order of Ld. CIT(A).
On the other hand, Ld. DR vehemently relied on the order of AO.
10. We have heard the rival contentions of both the parties and perused the material available on record. At the outset, it was observed that Ld. AR raised no objection against the order of Ld. CIT(A), hence the appeal filed by the assessee becomes infructuous.
11. In the result, assessee's appeal is dismissed as infructuous. Now we deal with Revenue's appeal in ITA No.1876/Kol/2013. ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 9
12. Ld. DR before us submitted that there is no provision under the Act for considering the business of assessee as joint business without the documentary evidence. The assessee has already claimed all the indirect expense in the revised return of income filed by assessee (deceased). Therefore, only basis remains to be adopted for taxing the suppressed sale is gross profit ratio. Ld. DR vehemently relied on the order of AO.
On the other hand, Ld. AR submitted that the business of assessee was carried on jointly by a group of 4 persons and all the persons in the group have already disclosed income in their respective hands by filing their return of income. Further the addition in the hands of assessee will certainly lead to double addition as well as double taxation in the hands of assessee. Ld. AR drew our attention on the translated statement given by Shri Pabana Ch. Mondal, which was recorded during the survey operation dated 18.03.2005 which is placed on pages 7 to 13 of the paper book. The relevant extract of the statement is reproduced below:-
:Q(2) - - what is your position in S.K.Bera & others?
A - - I am one of the four proprietors of S.K.Bera & Others. I am a partner of the profit and loss of this company.
Q(3) - - what are the names and address of the other three owners?
A - - the names and address are below (1)Sri Srikanta Bea - Ananatapur, Chapsarpur, Purba Medinipour (2) Sri Mandan Mohan Bhuniya - do -
(3) Sri Satish Ch. Mahato -Panskura Rly. Stn. Panskura, Purba Medinipur Ld. AR further drew our attention on the translated copies of seized materials which are placed on pages 14 to 33 of the paper book and the relevant extract mentioned on page 17 represents as under:-
"2002-03 All the entries in this cash book relating to the following partners:
1. Sri Kanta Bera 2.Madan Mohan Bhuiya
3. Pawan Chandra Mondal 4.Satish Kumar Malakar Ld. AR also drew our attention pages 34 and 35 of the paper book where the affidavit before the Notary Public was duly submitted by the assessee in support of his claim. Further, Ld. AR also drew our attention on pages 37 to 42 ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 10 of the paper book where the copies of return of all three persons were enclosed. He relied on the order of Ld. CIT(A).
13. We have heard the rival contentions of both the parties and perused the material available on record. In the instant case before us the assessee claimed to have carried out his business along with three other persons. Accordingly, assessee separated all the transactions of the business amongst 4 persons and filed respective return of income disclosing the profit attributable to them. However, AO treated the entire turnover of assessee only and accordingly worked out the suppressed amount of sale. Thus, AO determined the gross profit on the suppressed sale and income of assessee. However, Ld. CIT(A) confirmed the order of AO for determining the suppressed sales of assessee. But Ld. CIT(A) admitted the fact that business was carried on by group of 4 persons on the basis of seized documents impounded during the survey operation. However, Ld. CIT(A) was not satisfied with the splitting of the turnover amongst 4 persons. Therefore, Ld. CIT(A) observed the basis adopted by the AO for determining the profit on suppressed sale at the gross profit ratio was not correct. Accordingly, Ld. CIT(A) adopted net profit ratio to determine the profit on the suppressed sale. Now, the question before us arises for our adjudication so as to whether profit determined on the net profit ratio on suppressed sale is justifiable in the aforesaid facts and circumstances of the case.
In our considered view, there is no dispute on the basis of the document impounded during the survey operation are suggesting that the business was carried by group of 4 persons. Besides the document, assessee also furnished the affidavit in support of his claim. In our considered view, the aspect of joint business cannot be ignored.
4.1 The next question arises if the business is carried on by a group of 4 persons then on what basis the turnover and corresponding expenses have been allocated amongst the group of persons. In this regard, Ld. AR has not brought anything on record suggesting the bifurcation of turnover and corresponding expenses.
ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 11 Ld. AR before us has just filed the copies of IT return. Thus in the absence of any documentary evidence and considering the peculiar facts and circumstances Ld. CIT(A) has adopted the net profit ratio to work out the profit on suppressed sale. Therefore, considering the facts and circumstances, we do not find any infirmity in the order of Ld. CIT(A). Therefore we fully agree with the reasons given by the ld. CIT-A and for the same we rely in the judgment of Hon'ble Supreme Court of India in the case of CIT vs. K.Y. Pilliah & Sons reported in 63 ITR 411 wherein it was held as under:-
"The Tribunal is the final fact-finding authority and normally it should record its conclusion on every disputed question raised before it, setting out its reasons in support of its conclusion. But, in failing to record reasons, when the Tribunal fully agrees with the view expressed by AAC and has no other ground to record in support of its conclusion, it does not act illegally or irregularly, merely because it does not repeat the grounds of the AAC on which the decision was given against the assessee or the Department."
Therefore we concur with the view of ld. CIT(A) and hence this ground of Revenue's appeal is dismissed.
14. Next issue raised by Revenue in ground No.1 is that Ld. CIT(A) erred in reducing the commission income from ₹20,12,178 to ₹51,804/- by applying net profit ratio @ 2.5%.
15. During the course of assessment proceedings, AO observed on the basis of impounded document marked as SKB/8 that assessee has earned commission income on sale of fruit for ₹20,12,178/- only. During the year under consideration the same has not been offered to tax in income tax return. Accordingly, AO called upon the assessee for making the addition of commission income. But assessee failed to reply to AO accordingly he confirmed the addition in the hands of assessee.
16. Aggrieved, assessee preferred an appeal before Ld. CIT(A). The assessee before Ld. CIT(A) submitted that AO has misunderstood the entry reflected in the documents marked as SKB/8 where Shri Pawan Ch. Mondal in his statement stated that during the survey assessee is engaged as ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 12 wholesaler and commission agent. Considering the contention of assessee Ld. CIT(A) granted relief to assessee in part by observing as under:-
"11.2 The appellant has not disputed that the bank account under consideration was undisclosed. He has accepted that the peak of the deposits and withdrawals should have been added. However, the Assessing Officer has mentioned in his order that the amount added was peak credit only. Therefore I find no reason to interfere with the addition as such. However, there is force in the alternative submission made by the appellant. For the reasons discussed in para 9.2, it is reasonable to allow benefit of telescoping between the addition for profit from unaccounted transactions and unexplained investment in bank account. Therefore no separate addition is required to be mad for the later. Subject to the remark in para 9.2 the appellant gets relief in respect of the addition."
The Revenue, being aggrieved, is in appeal before us against the relief granted part to assessee.
17. Before us both parties relied on the order of Authorities Below as favourable to them.
18. We have heard the rival contentions of both the parties and perused the material available on record. From the foregoing discussion, we find that AO has taken the gross amount as commission income of the assessee whereas Ld. CIT(A) found that the AO has not reduced the commission paid by assessee from the amount of gross commission. Accordingly, Ld. CIT(A) applied the net profit rate on the gross amount of commission. We also find that the commission was earned by assessee in the earlier year as well after reducing the commission expenses. In the case before us the AO has not reduced the commission expenses against the gross amount of commission. Accordingly, in our considered view, AO was to reduce the amount of commission expense against the gross amount of commission income. Thus, in the absence of commission expenses Ld. CIT(A) has correctly applied the net profit ratio on the gross amount of commission income. In the light of above reasoning, we hold that the order of the Ld. CIT(A) is correct and in accordance with law and no interference is called for. This ground of Revenue's appeal is dismissed.
ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 13
19. Next issue raised by Revenue in this appeal is that Ld. CIT(A) erred in deleting the addition made by AO for ₹67,08,546/- on account of unaccounted purchase.
20. Assessee in its revised return of income has shown purchase worth of ₹1,47,18,455/- whereas AO determined the purchase for 10 months on the basis of impounded documents marked SKB/3 and SKB/9 for ₹1,80,20,501/- only. The AO further observed from the impounded documents that purchases for ₹1,80,22,501/- was for a period of 10 months. Therefore, it was accordingly extrapolated to 12 months which comes to ₹2,16,27,01/- (18022501 x 12 ÷
10), therefore the Assessing Officer treated the difference in the amount of purchase for ₹67,08,546/- (21627001 - 14918455) as income u/s 69C of the Act which was added to the total income of assessee.
21. Aggrieved, assessee preferred an appeal before Ld. CIT(A). The assessee before Ld. CIT(A) submitted that the addition has been made by the AO on the basis of guesswork. The books of account were duly audited and no defect whatsoever has been pointed out in financial statement. If it is presumed that assessee was involved in unaccounted purchases then also entire amount cannot be treated as investment in the business. It is because the sale proceeds of goods for a day were utilized for the purchase to be made on the next day. As the assessee was dealing in perishable goods so there was no point to keep the stock of the goods for longer period. Moreover the goods were sold on cash basis and therefore sufficient cash was available with the assessee for making the purchase on the next day. It was also pointed out that the business was owned by the group of 4 persons and therefore the addition on account of undisclosed investment cannot be made in the hands of the assessee. After considering the submissions of assessee Ld. CIT(A) deleted the addition made by AO in part by observing as under :
"8.2 I have carefully considered the facts of the case. So far as the figure of purchase worked out by the Assessing Officer from the impounded material is concerned, the appellant has not pointed out any specific error. It has been stated in a general manner that the working ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 14 done by the assessing officer was incorrect. The appellant had been duly given copy of the impounded material by the assessing officer. Therefore, he should have made his own working and it there was any error in the figures worked out by the assessing officer the same should have been specifically pointed out. It may also be mentioned that in the course of appellant proceedings the report of the Assessing Officer had been called for in respect of the objections involving impounded material and as discussed earlier, in the reply given by the Assessing Officer it has not been accepted that there was an error in the figures worked out in the assessment order. Considering this and the fact that the appellant has not pointed out any specific error in the working, the figure of Rs.1,80,22,501/- has to be taken as correct. In fact, the figure taken by the assessing officer is on a lower side. As discussed earlier, the turnover worked out from the impounded material and extrapolated for the full year was of Rs.2,58,76,240/-. At the gross profit rate of 7% taken by the Assessing Officer, that would correspond to purchases of Rs.2,40,64,903/-. Since the appellant deals in a perishable commodity (fruit), there is normally no significant stock. Hence, it can be inferred that the entries on the impounded material are for only a part of actual purchases, which must be about Rs.2,40,64,903/-.
8.3 However, the contention that the transactions pertain not only to the appellant but 4 persons h some force as discussed earlier. Though the splitting of transactions and income has been held to be without any valid basis, if any purchase has been accounted for in hand of any of three other persons, source of the same cannot be treated as unexplained. It is seen that in the year under consideration after purchases of all 4 persons are added up they cover the purchase worked out as above and there remains no gap to be treated as unaccounted purchase of the appellant. The addition is therefore deleted."
The Revenue, being aggrieved, is in appeal before us.
22. Before us both parties relied on the order of Authorities Below as favourable to them.
23. We have heard the rival contentions of both the parties and perused the material available on record. It is undisputed fact that assessee engaged in trading of wholesale fruit being perishable goods needs to be sold as early as possible. Thus, it is inferred the turnover ratio of the business of assessee was very high. Thus, there is force in the arguments of Ld. AR that there was sufficient cash available with the assessee for the purchase of fruit for the next day.
ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 15 However, the aspect investment in the business of assessee cannot be ignored and undisclosed purchases have been found on the basis of seized materials. Therefore, in our considered view 1% of the undisclosed purchases should be treated as undisclosed investment in the business of the assessee. Hence, this ground of Revenue's appeal is partly allowed. AO is directed accordingly.
24. Ground No. 3, 4 & 6 are general in nature and do not require any separate adjudication.
25. Next issue in ground No.5 raised by Revenue is that Ld. CIT(A) erred in reducing the amount of commission income from ₹ 20,12,178/- to ₹51,804/-.
26. At the outset, we find that same issue has already been raised by Revenue in ground No.1 of Revenue's appeal and the same has been adjudicated by us in para-18 of this order. Therefore, taking a consistent view we also dismiss this ground of Revenue's appeal. Hence, this ground of Revenue's appeal is dismissed.
27. In the result, Revenue's appeal is partly allowed. Coming to assessee's appeal in ITA No.1924/Kol/2013 and Revenue's appeal in ITA No. 1873/Kol/2013 for A.Ys 02-03
28. At the time of hearing Ld. counsel for the assessee has not pressed the revised grounds of appeal. Hence, same are dismissed as not pressed. Similarly the assessee has not pressed the grounds nos. 1,2,3,4,& 6 raised in the original grounds of appeal.
29. The effective ground No.5 raised by assessee is reproduced below:-
"5. That under the facts and circumstances of the case the CIT(A) erred in estimating the gross turnover 88.46 lakh in place of 20.22 lakh as per profit & loss account submitted before the Ld. CIT(A) so the gross turnover should be accepted Rs.22.22 lack in place of 88.46 lack."
Revenue has raised the following grounds of appeal:-
"1) That on the facts and in circumstances of the case the Ld. CIT(A) erred in reducing the addition on account of unaccounted purchases ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 16 calculated at ₹88,46,432/- to ₹88,464/- only and reduced net profit @ 2.5% on the unaccounted purchase which arrived at ₹2,26,831/-.
2) That on the facts and in circumstances of the case, the CIT(A) ha failed to consider the provisions of section 292C of the IT Act.
3) That on the facts and in circumstances of the case, the CIT(A) has erred in reducing the addition when in actual fact he nor the assessee has found any defect in the calculation that has been worked out from the impounded material of the assessee.
30. The AO during assessment proceedings observed that the assessee has declared purchases in its return at Rs. 18,79,720.00 only whereas the amount of purchases were from found from the impounded documents at 1,07,26,152.00 only. Thus the difference of Rs. 88,46,432.00 was found which was treated as undisclosed income of the assessee under section 69C of the Act and accordingly added to the total income of assessee.
31. The matter was carried to ld. CIT(A) who has allowed relief to assessee in part by observing as under:-
"7.2 I have carefully considered the facts of the case. So far as the figure of purchase worked out by the Assessing Officer from the impounded material is concerned, the appellant has not pointed out any specific error. It has been stated in a general manner that the working done by the Assessing Officer was incorrect. The appellant had been duly given copy of the impounded material by the Assessing Officer. Therefore, he should have made his own working and if there was any error in the figures worked out by the assessing officer the same should have been specifically pointed out. It may also be mentioned that in the course of appellate proceedings the report of the Assessing Officer had been called for in respect for certain other objections involving impounded material which shall be discussed in more detail while deciding the subsequent ground. Presently, it would suffice to say that in reply given by the assessing officer no error the figures worked out in the assessment order ha been found. Considering this and the fact that the appellant has not pointed out any specific error in the working, the figure of Rs.1,07,26,152- has to be taken as correct. So far as the contention that the transactions pertain not only o the ape but 3 other persons has some force. In the appeals relating to AY 2003-04 to 2005- 06, the issue has been discussed in more details and due credit has been allowed for the same. However, for the year under consideration, ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 17 the app has not been able to support the turnover shown in the names of other three persons by producing their P & L accounts or returns. Therefore, no credit can be allowed in respect of the same and the amount of Rs.88,46,432/- has to be treated as unaccounted purchase of the appellant. However, it is also true that the entire purchase of the appellant cannot be added. What is required to be added is the unaccounted investment in the same. The appellant has rightly said that he was making purchase and sale on day to day basis and cash generate from sale of one day was available for purchase of next day. The appellant deals in fruits which is a perishable commodity. The appellant also does not own cold storage. Therefore, purchase made at the time cannot be expected to be for more than two three days. It is seen from the balance sheet of the appellant, that he was not having closing stock, creditors or debtors which supports the contention that he was carrying out trading transactions in cash on account of day to day basis. Under these circumstances, investment in purchase cannot reasonably expected to be more than the purchase of say, three or four days. Since the unaccounted purchase for the entire year had been worked out at Rs.88,46,432/- on proportionate basis, investment therein can be considered to be around 1% which would come to rs.88,464/-. The addition is therefore reduced to Rs.88,464/-.
7.3 Furthermore, it is observed that though the Assessing Officer has made addition in respect of excess purchase, no addition has been made for gross profit earned on the corresponding sale. It may be mentioned that after the survey action re-assessments have been completed in respect of AY 2001-02 to 2005-06. In most of the other assessment years, the Assessing Officer has made ads for unaccounted purchases, as well as gross profit on unaccounted sales. However, in the year under appeal, no separate addition has been made for unaccounted gross profit. Since thee appellant had made unaccounted purchase of Rs.88,46,432/- he must have sold the concerned goods out of books. This is more so, as the appellant deals in fruits which are perishable items and it is not likely that any purchase would remain lying in stock. This point was discussed with the authorized representatives of the appellant vide order sheet dated 08.03.2013 and they could not counter this point. In the Assessment Year 2005-06 the appellant's appeal has been decided vide order of even date. In that order it has been held, after considering facts and circumstances of the case, that income from unaccounted transactions should be arrived at by applying net profit rate on such sales. The net profit rate has been taken at 2.50% after considering profit shown in other years, as well as the case of the appellant's son. The same would correspond to 2.564% on purchase. Accordingly, net profit o unaccounted purchase of Rs.88,46,432/- would come to Rs.2,26,831/-. Thus amount is required to be added apart from the addition for in unaccounted purchase."
ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 18 Being aggrieved by this order of Ld. CIT(A) both assessee and Revenue came in appeal before us.
32. The assessee is in appeal against the amount of turnover enhanced by confirmed by Ld. CIT(A) for ₹ 88.46 lacs whereas Revenue is in appeal for determining the suppressed income of the assessee on the basis of net profit and undisclosed investment.
First we deal with assessee's appeal in ITA No.1924/Kol/2013.
33. Ld. AR for the assessee filed paper book which is running pages 1 to 68 and fairly conceded and requested the Bench to maintain the status quo of the order of Ld. CIT(A).
On the other hand, Ld. DR vehemently relied on the order of AO.
34. We have heard the rival contentions of both the parties and perused the material available on record. At the outset, it was observed that Ld. AR raised no objection against the order of Ld. CIT(A), hence the appeal filed by the assessee becomes infructuous.
35. In the result, assessee's appeal is dismissed as infructuous. Now we deal with Revenue's appeal in ITA No.1873/Kol/2013.
36. Ld. DR before us submitted that there is no provision under the Act for considering the business of assessee as joint business without the documentary evidence. The impugned undisclosed purchase represents the income of the assessee. Therefore, only basis remains to be adopted for taxing the suppressed purchase is to add the entire amount u/s 69C of the Act. Ld. DR vehemently relied on the order of AO.
On the other hand, Ld. AR submitted that the business of assessee was carried on jointly by a group of 4 persons and all the persons in the group have already disclosed income in their respective hands by filing their return of income. Further the addition in the hands of assessee will certainly lead to double addition as well as double taxation in the hands of assessee. He relied on the order of Ld. CIT(A).
37. We have heard the rival contentions of both the parties and perused the material available on record. At the outset we find that the similar issue raised by the Revenue in ground no. 2 in ITA 1876/Kol/2013, which has been adjudicated by us in Para No. 23 of this order. Following the same we do not ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 19 find any infirmity in the order of ld. CIT-A. Hence this ground of appeal of Revenue is dismissed.
38. In the result, Revenue's appeal is dismissed.
Coming to assessee's appeal in ITA No.1925/Kol/2013 for A.Y 03-04.
39. At the time of hearing Ld. counsel for the assessee has not pressed the revised grounds of appeal. Hence, same are dismissed as not pressed. Similarly the assessee has not pressed the grounds nos. 1,2,3,4,5 & 7 raised in the original grounds of appeal and the grounds are dismissed as not pressed.
40. The effective ground No.6 raised by assessee is reproduced below:-
"6. That under the facts and circumstances of the case the CIT(A) erred in estimating the gross turnover 1.70 crores in place of 23.72 lack as per profit & loss account submitted before the Ld. CIT(A) so the gross turnover should be accepted Rs.23.72 lack in place of 1.70 crore."
41. The facts of the case in the year under appeal is identical to the facts of the case for the A.Y 05-06 in ITA 1927/Kol/2013 except the amount. The impugned issue has already been adjudicated in Para 10 of this order. Therefore following the same we dismiss the appeal filed by assessee.
42. In the result, assessee's appeal is dismissed as infructuous. Coming to Revenue's appeal in ITA No.1874/Kol/2013 for A.Y 03-04.
43. At the outset, we have already adjudicated the inter-connected issue in Revenue's appeal in ITA No.1876/Kol/2013 for A.Y. 2005-06 in para 23 of this order. Since the facts are identical both parties agreed whatever view taken may be taken in this appeal also, we hold accordingly.
44. In the result, Revenue's appeal is dismissed.
Coming to assessee's appeal in ITA No.1926/Kol/2013 for A.Y. 04-05.
45. At the time of hearing Ld. counsel for the assessee has not pressed the revised grounds of appeal. Hence, same are dismissed as not pressed. Similarly the assessee has not pressed the grounds nos. 1,2,3,4 & 6 raised in the original grounds of appeal.
ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 20
46. The effective ground No.5 raised by assessee is reproduced below:-
"5. That under the facts and circumstances of the case the CIT(A) erred in estimating the gross turnover 2.19 crores in place of 27.52 lack as per profit & loss account submitted before the Ld. CIT(A) so the gross turnover should be accepted Rs.27.52 crores in place of 2.19 crore."
47. The facts of the case in the year under appeal is identical to the facts of the case for the A.Y 05-06 in ITA 1927/Kol/2013 except the amount. The impugned issue has already been adjudicated in Para 10 of this order. Therefore following the same we dismiss the appeal filed by assessee.
48. In the result, assessee's appeal is dismissed as infructuous. Coming to Revenue's appeal in ITA No. 1875/Kol/2013 for A.Y. 04-05.
49. Common ground No. 1 and 2 in this appeal of Revenue has already been adjudicated by us in Revenue's appeal No.1876/Kol/2013 vide Para No. 10 & 23 respectively. Since the facts are exactly identical, both parties are agreed whatever view taken in the above appeal of Revenue may be taken in this appeal also. We hold accordingly.
50. In the result, Revenue's appeal is dismissed.
Coming to assessee's appeal in ITA No.1923/Kol/2013 for A.Y. 01-02.
51. At the time of hearing Ld. counsel for the assessee has not pressed the revised grounds of appeal. Hence, same are dismissed as not pressed. Similarly the assessee has not pressed the grounds nos. 1,2,3,4 & 6 raised in the original grounds of appeal and are dismissed as not pressed.
52. The effective ground No.5 raised by assessee is reproduced below:-
"5. That under the facts and circumstances of the case the CIT(A) erred in estimating the gross turnover 1.20 crores in place of 39.66 lakhs as per profit & loss account submitted before the Ld. CIT(A) so the gross turnover should be 39.66 lack in place of 1.20 crore. As there was no impounded books of account."
53. As stated earlier, the issue in this year is same as that of the last year in ITA 1927/Kol/2013. The only difference is the amount involved. Since the facts are exactly identical, both parties are agreed whatever view taken in the ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 21 above appeal of the assessee may be taken in this appeal of assessee also. We hold accordingly.
54. In the result, assessee's appeal is dismissed as infructuous. Coming to Revenue's appeal in ITA No.1731/Kol/2013 for A.Y. 05-06.
55. Common ground No. 1 and 2 in this appeal of Revenue has already been adjudicated by us in Revenue's appeal No.1876/Kol/2013 vide Para No. 10 & 23 respectively. Since the facts are exactly identical, both parties are agreed whatever view taken in the above appeal of Revenue may be taken in this appeal also. We hold accordingly.
56. In the result, Revenue's appeal is dismissed.
57. Next issue raised by Revenue in ground No.3 is that Ld. CIT(A) erred in deleting the addition made by AO for ₹2,66,922/-, 31,520/-, 2,38,402/- and ₹1,81,848/- in respect of drawings of undisclosed investment in land, SB a/c and fixed deposit on the basis of telescoping.
58. The assessee in the year under consideration has shown drawing for personal expenses for ₹33,078/. The AO also observed on the basis of document impounded and marked as NCB/6 that assessee has shown drawing of ₹2,82,177/- up to 31.03.2004 as well as drawing of ₹86,120 from 01.04.2004 to 07.05.2004. Thus, AO was of the view that assessee has shown less amount of drawing. Accordingly, AO after considering the prevailing market price computed the drawing at ₹ 3 lakh on estimated basis. Thus, a sum of ₹2,66,922/- (3 lakh - 33,078) was added to the total income of assessee.
59. Aggrieved, assessee preferred an appeal before Ld. CIT(A). The assessee before Ld. CIT(A) submitted that the addition has been made by the AO on the basis of own surmise and conjecture and without brining any cogent reasons and materials. There was sufficient cash available in the hands of assessee out of the income earned which were not recorded in the regular books of account. Ld. CIT(A) after considering the submission of assessee deleted the addition made by AO by observing as under:-
ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 22 "9.2 I do not agree with the appellant, when he calls the addition to be based without any cogent reason. In fact the Assessing Officer has worked out expenditure on the basis of the entries recorded in the impounded material and has compared the same with the drawings shown. No specific flaw has been pointed out by the appellant in the reasoning given by the Assessing Officer. Therefore, in principle the addition of Rs.2,66,922/- is upheld. However, there is force in the alternative submission made by the appellant. While deciding the ground no. 6, I have confirmed the addition of Rs.6,24,007/- in respect of profit from unaccounted transactions. Such profit was obviously available with the appellant for meeting the personal household expenses. Therefore, it is reasonable to allow benefit of telescoping between the addition for profit from unaccounted transactions and unexplained household expenditure. Therefore no separate addition is required to be made for the latte. However, in case the former addition is deleted or reduced in any further appeal, the addition in respect of unexplained household expenditure would be required to be sustained to that extent. Subject to this remark, the appellant gets relief in respect of the addition."
The Revenue, being aggrieved, is in appeal before us.
60. Before us both parties relied on the order of Authorities Below as favourable to them.
61. We have heard rival contentions of both the parties and perused the material available on record. We find that assessee has already been taxed for the income earned from undisclosed source. Therefore, it can be inferred that the drawing made by the assessee must be out of undisclosed income which has been taxed by department. Therefore, if the addition is sustained on account of low drawing then it will amount to double addition. Hence, we find no reason to interfere in the order of Ld. CIT(A). Hence, this ground of Revenue is dismissed.
62. The next deletion of Rs. 31,520.00 on account of investment in land has been challenged by the Revenue on the ground that ld. CIT(A) erred in doing so.
63. Similarly, AO found on the basis of page 76 and 82 of the impounded document marked NCB/6 that assessee has made investment in land for ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 23 ₹31,520/- but assessee made no disclosure in its income tax return. Therefore, Assessing Officer treated the same as undisclosed investment and added to the total income of assessee.
64. The assessee before Ld. CIT(A) submitted that investment in land was duly disclosed in the personal balance-sheet.
Besides the above, assessee submitted that the undisclosed income taxed by the AO is sufficient enough to cover the investment in the impugned land. Ld. CIT(A) after considering the submission of assessee deleted the addition made by the AO by observing as under:-
"10.2 Though it had been claimed that the bank account under consideration was part of personal balance sheet, it is seen that no such claim was made before the Assessing Officer prior to completion of assessment. Even otherwise, no specific explanation has been given for the said expenses. Considering this, I find no reason to interfere with the addition made by the Assessing Officer. However, there is force in the alternate submission made by the appellant. For the reasons discussed in para 9.2 it is reasonable to allow benefit of telescoping between the addition for profit from unaccounted transactions and unexplained investment in land. Therefore no separate addition is required to be made for the latter. Subject to the remark in par 9.2 the appellant gets relief in respect of the addition."
The Revenue, being aggrieved, is in appeal before us.
65. Before us both parties relied on the order of Authorities Below as favourable to them.
66. We have heard rival contentions of both the parties and perused the material available on record. We find that assessee has already been taxed for the income earned from undisclosed source. Therefore, it can be inferred that the investment in land made by the assessee must be out of undisclosed income which has been taxed by department. Therefore, if the addition is sustained on account of undisclosed investment, then the same will amount to double addition. Hence, we find no reason to interfere in the order of Ld. CIT(A). Hence, this ground of Revenue is dismissed. ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 24
67. The next deletion of Rs. 2,38,402.00 on account of undisclosed bank account has been challenged by the Revenue on the ground that ld. CIT(A) erred in doing so.
68. During the course of survey operation, it was found that S.B account bearing No.01150 / 060309 maintained with SBI Takurgarh Branch was not disclosed in its IT return. Accordingly, AO determined the balance as on 18.06.2004 for ₹2,38,402/- which was added to the total income of assessee as undisclosed investment.
69. The assessee before Ld. CIT(A) submitted that the undisclosed income taxed by the AO is sufficient enough to cover the investment in the bank account. Ld. CIT(A) after considering the submission of assessee deleted the addition made by the AO by observing as under:-
"11.2 The appellant has not disputed that the bank account under consideration was undisclosed. He has accepted that the peak of the deposits and withdrawals should have been added. However, the Assessing Officer has mentioned in his order that the amount added was peak credit only. Therefore, I find no reason to interfere with the addition as such. However, there is force in the alternative submission made by the appellant. For the reasons discussed in para 9.2 it is reasonable to allow benefit of telescoping between the addition for profit from unaccounted transactions and unexplained investment in bank account. Therefore no separate addition is required to be made for the latte. Subject to the remark in para 9.2,the appellant gets relief in respect of the addition."
The Revenue, being aggrieved, is in appeal before us.
70. Before us both parties relied on the order of Authorities Below as favourable to them.
71. We have heard rival contentions of both the parties and perused the material available on record. We find that assessee has already been taxed for the income earned from undisclosed source. Therefore, it can be inferred that the bank balance is out of such undisclosed income which has been taxed by department. Therefore, if the addition is sustained on account of low drawing then it will amount to double addition. Hence, we find no reason to ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 25 interfere in the order of Ld. CIT(A). Hence, this ground of Revenue is dismissed.
72. The next deletion of Rs. 1,81,848.00 on account of undisclosed fixed deposit has been challenged by the Revenue on the ground that ld. CIT-A erred in doing so.
73. The assessee had fixed deposit with SBI Kalynpur Branch for ₹3,16,848/- as on 31.03.2005. But the assessee has shown fixed deposited of ₹1.35 lakh in its balance-sheet. Therefore the difference of ₹1,81,848/- (316848- 1.35 lakh) was added to the total income of assessee. Assessee before Ld. CIT(A) submitted that the amount of fixed deposit for ₹1,03,003/- has already been considered by the AO in the A.Y 2004-05. Further the addition of Rs.1,03,003/- will amount to double addition to the income of the assessee. Besides the above, assessee submitted that the undisclosed income is sufficient enough to cover the amount of fixed deposit shown by the assessee. Ld. CIT(A) after considering the submission of assessee has deleted the addition made by AO by observing as under:-
"12.2 I have carefully considered the facts. It is seen that in theism order dated 26.06.2008 for AY 2004-05, the Assessing Officer has made an addition.
Rs.1,03,003/- in respect of undisclosed fixed deposits. While making the addition the Assessing Officer had observed that the fixed deposits as on 31.3.20004 were of Rs.2,38,003/-. Therefore, there is indeed some duplication in the additions made on that count in the year under appeal. Since the fixed deposits as on 31.-3.2004 were Rs.2,38,003/- the accretion during the year was of Rs.78,845/ only. The appellant has not given any explanation in respect of the same. Therefore the addition is confirmed to that extent. However, there is force in the alternate submission made by the appellant also. For the reasons discussed in para 9.2 it is reasonable to allow benefit of telescoping between the addition for profit from unaccounted transactions and unexplained investment in FDs. Therefore no separate addition is required to be made for the latter. Subject to the remark in para 9.2 the appellant gets relief in respect of the addition."
The Revenue, being aggrieved, is in appeal before us.
74. Before us both the parties relied on the order of Authorities Below as favourable to them.
ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 26
75. We have heard rival contentions of both the parties and perused the material available on record. We find that assessee has already been taxed for the income earned from undisclosed source. Therefore, it can be inferred that the Fixed Deposit is out of such undisclosed income which has been taxed by department. Therefore, if the addition is sustained on account of low drawing then it will amount to double addition. Hence, we find no reason to interfere in the order of Ld. CIT(A). Hence, this ground of Revenue is dismissed.
76. In the result, Revenue's appeal is dismissed.
Coming to assessee'a appeal in ITA No.1928/Kol/2013 for A.Y 01-02.
77. At the time of hearing Ld. counsel for the assessee has not pressed the ground Nos. 1,2,3,& 5 of appeal. Hence, same are dismissed as not pressed.
78. The effective ground No.4 raised by assessee is reproduced below:-
"4. That under the facts and circumstances of the case the CIT(A) erred in estimating the gross turnover 2 crore in place of 92.12 lack as per profit & loss account submitted before the Ld. CIT(A) so the gross turnover should be accepted Rs.92.12 lack in place of 2 crore. As there was no impounded books of account."
79. As stated earlier, the issue in this year is same as that of the last year in ITA 1927/Kol/2013. The only difference is the amount involved. Since the facts are exactly identical, both parties are agreed whatever view taken in the above appeal of the assessee may be taken in this appeal of assessee also. We hold accordingly.
80. In the result, assessee's appeal is dismissed as infructuous. Coming to assessee's appeal in ITA No.1929/Kol/2013 for A.Y. 02-03.
81. At the time of hearing Ld. counsel for the assessee has not pressed the ground nos. 1,2,3,4, & 6 of appeal. Hence, same are dismissed as not pressed.
82. The effective ground No.5 raised by assessee is reproduced below:-
"5. That under the facts and circumstances of the case the CIT(A) erred in estimating the gross turnover 2.16 crores in place of 76.82 lack as per profit & loss account submitted before the Ld. CIT(A) order page no. ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 27 9 so the gross turnover should be accepted Rs.76.82 lack in place of 2.16 crore."
83. As stated earlier, the issue in this year is same as that of the last year in ITA 1927/Kol/2013. The only difference is the amount involved. Since the facts are exactly identical, both parties are agreed whatever view taken in the above appeal of the assessee may be taken in this appeal of assessee also. We hold accordingly.
84. In the result, assessee's appeal is dismissed as infructuous. Coming to assessee's appeal in ITA No.1930/Kol/2013 for A.Y. 03-04.
85. At the time of hearing Ld. counsel for the assessee has not pressed the ground nos. 1,2,3,4 & 6 of appeal. Hence, same are dismissed as not pressed.
86. The effective ground No.5 raised by assessee is reproduced below:-
"5. That under the facts and circumstances of the case the CIT(A) erred in estimating the gross turnover 4.45 crores in place of 76.82 lack as per profit & loss account submitted before the Ld. CIT(A) so the gross turnover should be accepted Rs.76.82 lack in place of 4.45 crore."
87. As stated earlier, the issue in this year is same as that of the last year in ITA 1927/Kol/2013. The only difference is the amount involved. Since the facts are exactly identical, both parties are agreed whatever view taken in the above appeal of the assessee may be taken in this appeal of assessee also. We hold accordingly.
89. In the result, assessee's appeal is dismissed as infructuous. Coming to assessee's appeal in ITA No.1931/Kol/2013 for A.Y. 04-05.
90. At the time of hearing Ld. counsel for the assessee has not pressed the ground nos. 1,2,3,4 & 6 of appeal. Hence, same are dismissed as not pressed.
91. The effective ground No.5 raised by assessee is reproduced below:-
"5. That under the facts and circumstances of the case the CIT(A) erred in estimating the gross turnover 3.61 crores in place of 61.58 lack as per profit & loss account submitted before the Ld. CIT(A) so the gross turnover should be accepted Rs.61.58 lack in place of 3.61 crore."
ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 28
92. As stated earlier, the issue in this year is same as that of the last year in ITA 1927/Kol/2013. The only difference is the amount involved. Since the facts are exactly identical, both parties are agreed whatever view taken in the above appeal of the assessee may be taken in this appeal of assessee also. We hold accordingly.
93. In the result, assessee's appeal is dismissed as infructuous. Coming to assessee's appeal in ITA No.1932/Kol/2013 for A.Y. 05-06.
94. At the time of hearing Ld. counsel for the assessee has not pressed the ground Nos. 1,2,3 & 5 of appeal. Hence, same are dismissed as not pressed.
95. The effective ground No.4 raised by assessee is reproduced below:-
"4. That under the facts and circumstances of the case the CIT(A) erred in estimating the gross turnover 5.31 crores in place of 2.30 crore as per profit & loss account submitted before the Ld. CIT(A) so the gross turnover should be accepted Rs.2.30 crore in place of 5.31 crore."
96. As stated earlier, the issue in this year is same as that of the last year in ITA 1927/Kol/2013. The only difference is the amount involved. Since the facts are exactly identical, both parties are agreed whatever view taken in the above appeal of the assessee may be taken in this appeal of assessee also. We hold accordingly.
97. In the result, assessee's appeal is dismissed as infructuous.
98. In combine result, appeals of assessee stand dismissed as infructuous as not pressed and Revenue's appeal in ITA No.1876/Kol/2013 is partly allowed and remaining appeals stand dismissed.
Order pronounced in the open court 23/08/2017
Sd/- Sd/-
(Aby. T. Varkey) (Waseem Ahmed)
(Judicial Member) (Accountant Member)
Kolkata,
*Dkp
$दनांकः- 23/08/2017 कोलकाता ।
ITA No.1731, 1873-76, 1923-32/Kol/2013 A.Ys 01-02 to 05-06 ITO Wd-3 HLD Vs. Narayan Ch Bera Page 29 आदे श क त ल प अ े षत / Copy of Order Forwarded to:-
1. आवेदक/Assessee-Narayan Ch. Bera, Nandakumar, Tamluk, Purba Medinipur Pin.721632
2. राज व/Revenue-ITO Ward-3, Vill. Basudevpur, P.O. Khanjanchak, Haldia, Purba Medinipur, Pin 721602
3. संब/ं धत आयकर आय0ु त / Concerned CIT Kolkata
4. आयकर आय0 ु त- अपील / CIT (A) Kolkata
5. 3वभागीय 6त6न/ध, आयकर अपील य अ/धकरण, कोलकाता / DR, ITAT, Kolkata
6. गाड9 फाइल / Guard file.
By order/आदे श से, /True Copy/ Sr. Private Secretary, Head of Office/DDO आयकर अपील य अ/धकरण, कोलकाता ।