M/S Tulip International, Kolkata vs Assessee

IN THE INCOME TAX APPELLATE TRIBUNAL "A" BENCH: KOLKATA [Before Shri Mahavir Singh, JM & Shri B. P. Jain, AM]

S.P. No. 17/Kol/2015 I.T.A No.369/Kol/2015 Assessment Year: 2010-11 M/s. Tulip International Vs. Income-tax Officer, Wd-33(3), Kolkata (PAN:AABFT9009R) (Applicant) (Respondent)

Date of hearing: 15.05.2015 Date of pronouncement: 15.05.2015

For the Applicant: S/Shri Kumarjit Das & Rajashree Dutta, Advocates For the Respondent: Shri K. L. Kanak, JCIT

ORDER Per Shri Mahavir Singh, JM:

By way of this Stay Application applicant/assessee seeks to stay the outstanding demand of Rs.93,77,530/-.

2. We have heard rival submissions and gone through facts and circumstances of the case. Brief facts are that the assessee is a partnership firm engaged in the business of clearing and forwarding agency. During the course of assessment proceedings, the AO noticed from Form No. 26AS for the FYT 2009-10 relevant to AY 2010-11 that the gross receipt of the assessee firm was to the tune of Rs.2,31,54,644/- and TDS deducted thereon was Rs.5,82,192/- . According to AO, the assessee has not disclosed the receipt as well as TDS except a sum of Rs.1,04,503/- (receipts) and Rs.2,03,069/- (TDS). The AO required the assessee to explain but he could not and accordingly, he added the sum of Rs.2,30,35,707/- as undisclosed receipts as substantive addition in the hands of the assessee. It is to be noted that the receipt of Rs.2,31,54,644/- was treated as undisclosed receipt in the hands of Shri Manish K. Chatwani by the ITO, Ward-22(3)2, Mumbai as protective assessment. Before us, ld. Counsel for the assessee stated that Shri Manish K. Chatwani opened two bank accounts fraudulently and this receipt of Rs.2,31,54,644/- was deposited in these two accounts. The assessee in his petition has referred to this fact in para 14, which reads as under:

"14. Your petitioner states that the Learned Appellate Authority admitted that the two bank accounts were opened with Saraswat Co-operative Bank, Camac Bhunder Branch at Mumbai vide Account No. 143100100000165 and the Union Bank of India, Bhat Bazar Branch, Mumbai vide Account No. 315901010036770 in the name of Shri Minish Kishorlal Chatwani of Mumbai. Shree Ganesh Karupa Housing Society, B-20, 113 Sector No. 10, Airoli, Navi Mumbai 400 708 by using the PAN Card of the Appellant Firm without the knowledge of the partners and both the bank Accounts were used depositing the receipts of Rs.2,31 ,54,644.00. Shri Manish Kishorlal Chatwani admitted that he acted and carried out the business without knowledge of Appellant and in this 2 S.P. No. 17/K/2015 In ITA No.369/K/2015 Tulip International AY 2010-11

respect, a written submission signed by Shri Manish K Chatawani was submitted before the Learned Commissioner of Income Tax (Appeal)-9 and whereas the Appellate authority did not consider while passing the Appellate Order which is unwarranted and against the facts of the case."

3. The Ld. Counsel for the assessee also referred to the affidavit of Shri Manish K. Chatwani placed in assessee's paper book at page 47 wherein, according to ld. Counsel for the assessee admitted that this amount belongs to him. The copy of affidavit is enclosed at pages 47 and 48 of assessee's paper book.

4. We have gone through the affidavit of Shri Manish K. Chatwani dated 28.06.2013. We are not sure about the authenticity of the copy of this affidavit. Hence, this affidavit needs verification. Accordingly, Ld. DR was asked to verify this affidavit or the authenticity of this affidavit. The Ld. Sr. DR is also asked to send this affidavit to ITO, Ward 22(3)2, Mumbai and he can call for Shri Manish K. Chatwani for verification whether he admits this amount belongs to him or not and send the report to the Tribunal within a month's time from the date of receipt of this order. In view of the above uncertainty, whether the amount belongs to assessee or Shri Manish K. Chatwani, we are inclined to grant stay of this demand with the following conditions:

i) The ass4essee will pay a sum of Rs.10 lakh on or before 05.06.2015. The assessee will submit the copy of payment of challan to the AO positively by 10th June, 2015 and accordingly AO will report to the Bench that the payment has been made.

ii) The assessee will pay next installment of Rs. 10 lakh on or before the last day of the month i.e. 30.06.2015. The installments will continue on monthly basis till the disposal of the appeal, accordingly and in case revenue seeks adjournment the payment of installment will be stopped for that month only.

5. The appeal will come up for hearing on 02.07.2015. Adjournment to either of the parties will be given only in exceptional circumstances. In terms of the above the stay is granted.

6. In the result, the Stay Petition filed by the assessee stands allowed in terms of above.

Order is pronounced in the open court.

Sd/- Sd/- (B. P. Jain) (Mahavir Singh) Accountant Member Judicial Member Dated : 15th May, 2015 Jd.(Sr.P.S.) 3 S.P. No. 17/K/2015 In ITA No.369/K/2015 Tulip International AY 2010-11

Copy of the order forwarded to:

1. APPELLANT - M/s. Tulip International, 1, Lindsay Street, Kolkata-700 087

2 Respondent - ITO, Ward-33(3), Kolkata

3. The CIT(A), Kolkata

4. CIT Kolkata

5. DR, Kolkata Benches, Kolkata /True Copy, By order,

Asstt. Registrar.