HARIRAM AGARWAL,KOLKATA V. D.C.I.T.,CENTRAL CIRCLE-2(1), KOLKATA

ITSSA 4/KOL/2025

AI Insights

This case involves an appeal by Hariram Agarwal against the order of the Commissioner of Income Tax (Appeals), which upheld the additions made by the AO under sections 68 and 69C of the Income Tax Act, following a search operation at the assessee's premises. The primary contention in the appeal was the non-compliance with procedural requirements by the AO, specifically the failure to provide copies of statements from entry operators and the denial of an opportunity for cross-examination. The Tribunal considered similar precedents and the procedural lapses highlighted by the assessee's representative, leading to the decision to remit the case back to the AO.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 772265 (ITAT-KOLKATA)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 25-08-2025
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Assessment Year: 2013-2014
• Other Referred Cases: Amit Agarwal & ors. in ITA No. 2592/Kol/2019 dated 09.04.2024, Sajjan Agarwal in ITA No. 2476/Kol/2019, PCIT vs. Swati Bajaj in [2022] 139 taxmann.com 352 (Cal)
• Laws Referred To: Income Tax Act
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Unexplained cash credit; Unexplained expenditure; Opportunity of cross examination
• Section: 143(3); 132; 153A; 69C; 139

Judgement Text

" आयकर अपीलीय अधिकरण, कोलकाता पीठ “बी’’, कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH: KOLKATA श्री राजेश क ुमार, लेखा सटस्य एवं श्री प्रदीप क ुमार चौबे, न्याययक सदस्य क े समक्ष [Before Shri Rajesh Kumar, Accountant Member &Shri Pradip Kumar Choubey, Judicial Member] I.T.(S.S)A. No. 04/Kol/2025 Assessment Year: 2013-14 Hariram Agarwal (PAN: ACMPA 6463 F) Vs. DCIT, Circle-2(1), Kolkata Appellant / ( अपीलार्थी ) Respondent / प्रत्यर्थी Date of Hearing / सुनवाई की यिथर्थ 24.07.2025 Date of Pronouncement/ आदेश उद्घोषणा की यिथर्थ 25.08.2025 For the assessee / यनर्ााररिी की ओर से Shri Sunil Surana, FCA For the revenue / राजस्व की ओर से Shri Raja Sengupta, CITDR ORDER / आदेश Per Pradip Kumar Choubey, JM: This is the appeal preferred by the assessee against the order of Commissioner of Income Tax (Appeals), -26, Kolkata (hereinafter referred to as the Ld. CIT(A)] dated 13.11.2024 for AY 2013-14. Printed from counselvise.com 2 I.T.(S.S)A. No. 04/Kol/2025 Assessment Year: 2013-14 Hariram Agarwal 2. Brief facts of the case of the assessee are that the assessee is an individual, filed his return of income u/s 139 of the Act for AY 2013-14 disclosing total income of Rs. 70,96,950/- on 24.07.2013. The return was processed u/s 143(1) of the Act. Consequent to search u/s 132 of the Act in the residential premises of the assessee at 96N, New Alipur, Block-E, Kolkata-700053 on 27.08.2014, notice u/s 153A was issued to the assessee and assessment was completed u/s 143(3) r.w.s 153A of the Act on 21.12.2016 with the following additions: i) Unexplained cash credit u/s 68 : Rs. 35,78,902/- ii) Unexplained expenditure u/s 69C : Rs. 17,984/- 3. Aggrieved by the said order, the assessee preferred an appeal before the Ld. CIT(A) wherein the appeal of the assessee has been dismissed. Being aggrieved and dissatisfied the assessee preferred an appeal before us. 4. The Ld. A.R instead of arguing into the merit of the case has only prayed that the matter be remitted back to the file of AO as the AO in passing the assessment order did neither comply the SOP nor provide any opportunity to the assessee to cross- examine the entry providers. The Ld. A.R submits that in spite of several requests were made by the assessee to provide copies of statement given by the brokers, directors and/or entry operators, the same were not provided to the assessee. The Ld. A.R has prayed that the assessee has to give an opportunity to place his case with a direction to the AO to follow the SOP as well as permit the AR to cross-examine the entry operators being basis of the assessment order. He has relied the following decisions: i) Amit Agarawl & ors. in ITA No. 2592/Kol/2019 dated 09.04.2024 ii) Sajjan Agarwal in ITA No. 2476/Kol/2019 He has also filed SOP before this Tribunal. 5. Contrary to that the Ld. D.R vehemently opposes the contention of the Ld. A.R thereby submitting that there is nothing in the order to be inferred nor the case is fit to Printed from counselvise.com 3 I.T.(S.S)A. No. 04/Kol/2025 Assessment Year: 2013-14 Hariram Agarwal be remitted for fresh consideration as the AO as well as Ld. CIT(A) has considered the evidence and judgment passed by the Hon’ble Calcutta High court in the case of PCIT vs. Swati Bajaj in [2022] 139 taxmann.com 352 (Cal). 6. Upon hearing the submission and counsel of the respective parties, we have perused the impugned order and find that in spite of requests made by the assessee to provide the copies of statement given by the broker, directors and/or entry operators relied upon by the AO but the same were not provided to the assessee. It is also not in dispute that the assessee has also requested to allow an opportunity to the assessee to cross-examine them so that the truth comes out. Since the A.R relied upon some judicial pronouncement, hence We have gone through the cited decision of the A.R first. Looking at the order passed in ITA No. 2592/Kol/2019 for AY 2015-16 & Ors. dated 09.04.2024 we find that the issue was same as of this case and the Hon’ble Co-ordinate Bench has discussed the case at length and thereafter held thus: “13.1. Thus, in the context of the present case, our view as stated herein is confined to the non- supply of material gathered by the ld. AO from the enquiries conducted by him in the course of assessment and utilised for the purpose of assessment without complying with the mandatory statutory procedural requirement stated in section 142(3). In the present case before us, from the perusal of the impugned assessment order, as a matter of fact, it is noted that Ld. AO has not provided the effective opportunity of cross examination and other material relied upon for taking the adverse view. 13.2. Considering the above discussion in respect of provisions contained in sec. 142(3) read with sec. 142(2), we are inclined to consider the plea taken by the ld. Counsel to remit the matter back to the file of Ld. AO and direct the Ld. AO to make available the material gathered by him in the course of enquiry conducted in terms of sec. 142(2) and provide a reasonable opportunity of being heard to the assessee as enunciated u/s. 142(3) of the Act along with effective opportunity of cross examination as requested several times by the assessee. Thereafter, Ld. AO may complete the assessment in accordance with the provisions of law. Accordingly, ground no. 3 taken by the assessee is allowed for statistical purposes. 14. Since the matter has been remitted back to the file of Ld. AO in terms of above observations and finding, all other grounds taken by the assessee are rendered academic in nature and are, therefore, not adjudicated upon. Accordingly, appeal of the assessee is allowed for statistical purposes. The above observations and finding apply mutatis mutandis all the other six appeals in this consolidated order.” 7. Keeping in view, the facts of the case as well as submission made by the judgment of Co-ordinate Bench, Kolkata as discussed above, we are inclined to remit the appeal of the assessee to the file of AO for fresh consideration after observing the discussion made above. The AO is directed to pass an order after considering the SOP as well as by giving an opportunity to the assessee to cross-examine the entry operators. Printed from counselvise.com 4 I.T.(S.S)A. No. 04/Kol/2025 Assessment Year: 2013-14 Hariram Agarwal In the result, the appeal of the assessee is allowed for statistical purposes. Order is pronounced in the open court on 25th August, 2025 Sd/- Sd/- (Rajesh Kumar/राजेश क ुमार) (Pradip Kumar Choubey /प्रदीप क ुमार चौबे) Accountant Member/लेखा सदस्य Judicial Member/न्याययक सदस्य Dated: 25th August, 2025 SM, Sr. PS Copy of the order forwarded to: 1. Appellant- Hariram Agarwal,79, Nalini Ranjan Avenue, New Alipore, Kolkata- 700053 2. Respondent – DCIT, Circle- 2 (1), Kolkata 3. Ld. CIT(A)- 26, Kolkata 4. Ld. PCIT- , Kolkata 5. DR, Kolkata Benches, Kolkata (sent through e-mail) True Copy By Order Assistant Registrar ITAT, Kolkata Benches, Kolkata 1. ……………………………………… Printed from counselvise.com "