Alamgir Molla, Kolkata vs Department Of Income Tax

IN THE INCOME TAX APPELLATE TRIBUNAL "C" BENCH: KOLKATA [Before Shri Mahavir Singh, JM & Shri Shamim Yahya, AM]

I.T.A No.2005/Kol/2009 Assessment Year: 2004-05

Assistant Commissioner of Income-tax, Vs. Shri Alamgir Molla Central Circle-XXIII, Kolkata. (PAN: AJJPM8661M) (Appellant) (Respondent)

Date of hearing: 29.01.2015 Date of pronouncement: 03.02.2015

For the Appellant: Shri Varinder Mehta, CIT, DR For the Respondent: N o n e

आदेश /ORDER Per Shri Mahavir Singh, JM :

This appeal by revenue is arising out of order of CIT(A), Central-III, Kolkata in Appeal No. 326/CC-XXIII/CIT(A)/C-III/08-09 dated 04.09.2009. Assessment was framed by ACIT, CC-XXIII, Kolkata u/s. 153C/144 of the Income-tax Act, 1961 (hereinafter referred to as "the Act") for Assessment Year 2004-05 vide his order dated 31.12.2008.

2. The only issue in this appeal of revenue is against the order of CIT(A) deleting the unexplained cash credit of Rs.2,72,635/-. For this, revenue has raised following two grounds:

"1. Whether under the facts and circumstances of the case and in law the Ld. CIT(A), C-III, Kolkata is justified in deleting the addition of Rs.2,72,635/- in the nature of unexplained cash credit u/s. 68 of the I. T. Act, 1961.

2. Whether under the facts and circumstances of the case the Ld. CIT(A), Kolkata is justified in deleting the addition u/s. 68 of the I. T. Act, 1961, and the tax effect is below the prescribed limit, vide the composite appellate order against which appeal may be considered on merits as per relevant departmental instruction No. 05/2008."

3. Briefly stated facts are that the AO assessed sum of Rs.2,72,635/- as unexplained cash credit for the reason that the assessee did not file Balance Sheet as on 31.03.2004 as a capital was claimed to be brought forward from earlier assessment year i.e. 2003-04. According to AO, as the assessee did not file any break up for the brought forward capital, he brought this opening capital of Rs.2,72,635/- to tax. Aggrieved, assessee preferred appeal before CIT(A), who deleted the addition for the reason that this is an opening and brought forward capital as on 01.04.2003. Aggrieved, revenue came in appeal before us.

4. After hearing Ld. DR and carefully perusing the material available on record, we find that the relevant FY is 2003-04 relevant AY 2004-05. The opening capital as on 01.04.2003 2 ITA No. 2005/K/2009 Shri Alamgir Molla AY. 2004-05

declared is at Rs.2,72,635/- which is carried forward from last year i.e. FY 2002-03. Even otherwise the CIT(A) has recorded a finding of fact that for FY 2002-03 the profit from trading of readymade garments and general order supply is Rs.78,438/- and agricultural income is Rs.42,528/-. The balance brought forward opening capital of Rs.1,51,669/- clearly relates to capital raised by the assessee during FY2003-04 and this fact has not disputed by Ld. Sr. DR before us now. In the given facts and circumstances, we are of the view that the assessee has actually carried forward this opening capital of Rs.2,72,635/- from earlier FY 2002-03. Now question arises whether the opening capital carried forward from last year or brought forward can be brought to tax in term of section 68 of the Act or not. In our view, the brought forward or opening capital as on 01.04.2003 cannot be brought to tax. In any eventuality, this is to be taxed in the relevant FY 2002-03 relevant to AY 2003-04. In term of the above, we dismiss the appeal of revenue.

5. In the result, appeal of revenue is dismissed.

6. Order is pronounced in the open court on 03.02.2015

Sd/- Sd/-

(Shamim Yahya) (Mahavir Singh) Accountant Member Judicial Member Dated: 03rd February, 2015 Jd.(Sr.P.S.)

Copy of the order forwarded to:

1. APPELLANT - ACIT, CC-XXIII, Kolkata.

2 Respondent - Shri Alamgir Molla, 2 No. Bacharpara Road, Netaji Nagar, P/S. Thakurpukur, L.P. No.180/14/9/1, Kol-63. 3. The CIT(A), Kolkata 4. CIT Kolkata 5. DR, Kolkata Benches, Kolkata

/True Copy, By order,

Asstt. Registrar.