TMI Blog2016 (12) TMI 1239X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of the disallowance of deduction or non- existence of the business has never been raised in the earlier years. The allegation of the AO that the assessee being chartered accountant has not taken permission from the institute of chartered accountant has no connection in the income tax proceedings. Similarly the allegation of the AO that the assessee is doing the business in the land belonging to his father without sharing the profit with his other brother and sisters has no base. The reasons for holding that there was no business were not correct. - Decided in favour of assessee - ITA No.1990/Kol/2013 & C.O. 47/Kol /2014 - - - Dated:- 9-9-2016 - Shri Waseem Ahmed, Accountant Member And Shri S. S. Viswanethra Ravi, Judicial Member By Assessee : Shri Miraj D Sha, Advocate By Department : Shri Debasish Lahiri, Addl. CIT-DR ORDER Per Waseem Ahmed, Accountant Member This appeal is preferred by Revenue against the order of Commissioner of Income Tax (Appeals)-XXXVI, Kolkata dated 25.04.2013 for the Assessment Year (AY) 2009-10 and the same is being disposed of along with Cross Objection (CO) filed by the assessee being C.O. No.47/Kol/2014. Assessment was fra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 lakhs, income from the business of bio- degradable waste ₹ 27,57,452 and income from other sources ₹ 47,690/- The assessee has claimed the deduction u/s 80 JJA of the Act against the income from the sale of bio degradable waste. Thereafter the case was selected for scrutiny under CASS and notices under section 143(2) r.w.s 142(1) of the Act were issued respectively. Assessee in the present case is the native of Cuttack, in the state of Odissa and he is providing his professional services in Kolkata. Assessee was having an ancestral property in Narayanprasad, Post Office Gopapur, Police Station Baramba, District Cuttack, Odissa where he was running the business of processing of biodegradable waste. His biodegradable waste business was looked after Shri Behera (nick name Bulu) who resides next door to his native village house. During assessment proceedings, it was observed by the Assessing Officer that there was no business carried by the assessee in the year under consideration. The necessary facts of the case are reproduced below. 1. The assessee being a Chartered Accountant should have taken prior permission from ICAI to engage himself in any other business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al income while the transactions were shown throughout the year. Based on the above observations AO has added back ₹ 27,57,452/- as cash unexplained credits u/s 68 of the Act. 5. Aggrieved, assessee preferred an appeal before CIT(A) whereas assessee submitted that during the course of assessment proceedings, AO has erred in disbelieving the business activity and he relied on the reports of Inspector to his charge but rejected the reports submitted by the Investigation Wing , Bhubaneshwar, Fresh affidavit by the Sarpanch and his father as well as Reports of Assistant Agriculture Officer, Baramba Block,Cuttack, Odissa where it was certified by them that the assessee has carried out the business of processing of bio degradable waste and selling of fertilizers. Further, assessee also submits that the Inspector attached to the AO has taken the statement of the Sarpanch and his father under coercion on the date of issue of notice to them. Considering the submission of assessee Ld.CIT(A) initiated to call a report u/s 250(4) of the Act. The enquiry report of Ld. JCIT reiterated that the assessee was not engaged in the business of processing of bio degradable waste. In reply th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ste and producing selling of Bio-fertilizers, while calculating the quantitative details and observing the Commission Reports of the Investigation Wing, Bhubaneswar, still he/she disbelieved the existence of such business only on the basis of Reports of the Inspector attached to his/her Office on mere suspicion. Such action of the Assessing Officer is not justified in view of the above Judgement. 7.5 I have also considered the fact that barring the inspector s report attached to the assessing officer, none of the reports i.e., two Commission Reports of the Investigation Wing, Bhubaneswar, Report of the Assistant Agriculture Officer, Baramba Block, Cuttack, Orissa, V.A.W. Baramba Block, Cuttack, Orissa, Sarpanch of Local Grama Panchayata Chairman of Baramba Block, Cuttack, Orissa, delegates / endorses the view adopted by the assessing officer, rather all the above reports / certificates affirm the contention of the assessee as to have carried out the business of processing of Bio-degradable waste and producing selling the Bio-fertilizers. 8. I, therefore, hold that the assessing officer was not justified in disbelieving the business activity of processing of Bio-degr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... North Coal India Ltd. as Finance Manager. The third son is the computer engineer settled in Bangalore and the fourth son is employed as design engineer in BHEL. All the daughters are married. The ld. AR as such submitted that all the members of the family were employed and do not require share the profit of the assessee business. The ld. AR vehemently supported the order of the ld. CIT(A). 8. We have heard the rival contentions of both the parties and perused the materials available on record. From the foregoing discussion we find that the assessee has claimed the deduction under section 80JJA of the Act for its bio-fertilizer business. But the AO has held that there was no such business activity and entire sales proceeds for ₹ 37,05,680.00 was treated as income under section 68 of the Act. However the ld. CIT(A) on appeal allowed the relief to the assessee. From the perusal of the orders of lower authorities we find that various reports were called for by the AO to check whether the business of the assessee was into existence or not. We find that the contradictory reports were submitted from the inspector of the ward of the ITO having jurisdiction on the assessee and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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