Amit Keshan, Kolkata V. ITO, WD-30(2), KOLKATA, Kolkata

ITA 1005/KOL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4092 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 08-12-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 15-05-2014
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 133(6); 69

Judgement Text

I.T.A. NO. 1005/KOL./2014 ASSESSMENT YEAR: 2009-2010 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA BEFORE SHRI A.T. VARKEY, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER I.T.A. NO. 1005/KOL/ 2014 ASSESSMENT YEAR: 2009-2010 SHRI AMIT KESHAN,.................................. ......................................APPELLANT SRIKUNJ APARTMENT, FLAT NO. 2A, 60/2, LAKE ROAD, KOLKATA-700 029 [PAN: AEJPK 5499 J] -VS.- COMMISSIONER OF INCOME TAX (APPEALS)-XIV, KOLKATA,. ...........RESPONDENT ITO, WARD-30(2), AAYAKAR BHAWAN DAKSHIN, 5 TH FLOOR, 2, GARIAHAT ROAD, KOLKATA-700 068 APPEARANCES BY: SHRI SUBASH AGARWAL, ADVOCATE, FOR THE ASSESSEE SHRI PINAKI MUKHERJEE, JCIT, SR. D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : DECEMBER 08, 2016 DATE OF PRONOUNCING THE ORDER : DECEMBER 20, 2016 O R D E R PER SHRI A.T. VARKEY, J.M .: THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-XIV, KOLKATA D ATED 20.02.2014 FOR THE ASSESSMENT YEAR 2009-10. 2. THE SOLE GROUND RAISED BY THE ASSESSEE IS AGAINS T THE ACTION OF THE LD. CIT(APPEALS) IN CONFIRMING THE ADDITION OF RS.2 5,00,000/- MADE BY THE ASSESSING OFFICER. 3. BRIEF FACTS OF THIS CASE ARE THAT THE ASSESSEE F ILED HIS RETURN OF INCOME OF RS.4,68,380/- ON 16.07.2009 UNDER THE HEA D PROFITS AND GAINS OF BUSINESS OR PROFESSION AND INCOME FROM OTHER S OURCES. LATER THE CASE WAS TAKEN UP FOR SCRUTINY. DURING THE COURSE O F ASSESSMENT, THE ASSESSING OFFICER CONFRONTED THE ASSESSEE WITH THE AIR, WHICH REVEALED THAT THERE WAS AN INVESTMENT IN MUTUAL FUND TO THE TUNE OF I.T.A. NO. 1005/KOL./2014 ASSESSMENT YEAR: 2009-2010 PAGE 2 OF 5 RS.80,00,000/- (FMP) AND AS PER CIB INFORMATION, AN OTHER INVESTMENT WAS MADE IN MUTUAL FUND (RS.25,00,00/- AS PER CONFIRMAT ION WITH ACCOUNT STATEMENT OBTAINED UNDER SECTION 133(6) FROM CAMS ( COMPUTER AGE- MANAGEMENT SERVICE (P) LIMITED), THE MUTUAL FUND AU THORITY. THE ASSESSEE WAS ABLE TO CONVINCE THE ASSESSING OFFICER IN RESPECT OF RS.80,00,000/-. HOWEVER, ACCORDING TO THE ASSESSING OFFICER, THE ASSESSEE FAILED TO PROVE THE SOURCE OF RS.25,00,000/-, WHICH WAS REVEALED BY THE CIB INFORMATION IN ADDITION OF RS.80,00,000/- AND C ONSEQUENTLY THE ASSESSING OFFICER MADE AN ADDITION OF RS.25,00,000/ - UNDER SECTION 69 OF THE INCOME TAX ACT, 1961. BEING AGGRIEVED, THE ASSE SSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(APPEALS), WHO WAS PLEASED TO CONFIRM THE ADDITION AND DISMISSED THE APPEAL OF THE ASSESSEE. BEING AGGRIEVED WITH THE ORDER OF THE LD. CIT(APPEAL), THE ASSESSEE IS I N APPEAL BEFORE THE TRIBUNAL. 4. AT THE TIME OF HEARING BEFORE US, THE LD. A.R. T OOK OUR ATTENTION TO PAGE NO. 13 OF THE PAPER BOOK, WHICH IS AIR TRANSAC TIONS REPORT, AND CONTENDED THAT ON 16.06.2008, THERE WAS ONLY ONE TR ANSACTION OF RS.25,00,000/- AND THEREAFTER HE TOOK OUR ATTENTION TO PAGE NO. 14 OF THE PAPER BOOK, WHEREIN CIB OLD CODE TRANSACTIONS WAS S HOWN AND TOOK OUR ATTENTION TO THE FACT THAT THERE WERE TWO ENTRIES O F RS.25,00,000/- AND ALSO TOOK OUR ATTENTION TO PAGE NO. 33 OF THE PAPER BOOK, WHICH IS A LETTER ISSUED BY THE BNP PARIBAS MUTUAL FUND TO THE ASSESS ING OFFICER DATED 02.04.2013, WHEREIN THEY CLARIFIED THAT DUE TO GLOB AL DESTRUCTING, THE NAME OF SCHEME IN WHICH THE ASSESSEE INVESTED ON 16 .06.2008 HAS CHANGED ITS NAME. THE LD. A.R. ALSO TOOK OUR ATTENT ION TO PAGE NO. 34 OF THE PAPER BOOK, WHICH IS ACCOUNT STATEMENT IN RESPE CT TO THE ASSESSEE, WHEREIN IT SHOWED THAT THERE WAS ONLY ONE TRANSACTI ON IN RESPECT OF RS.25,00,000/- AND THEREAFTER THE LD. A.R. TOOK OUR ATTENTION TO PAGE NO. 37, WHEREIN ALSO THE BNP PARIBAS MUTUAL FUND HAD WR ITTEN A LETTER TO THE ASSESSEE INFORMING ABOUT THE CHANGE IN THE SCHEME A S ABOVE STATED AND IT HAS CATEGORICALLY STATED AS UNDER IN RESPECT TO CHA NGE IN NAME OF THE FUNDS AS ON 16 TH JUNE, 2008 AS REPRODUCED BELOW :- I.T.A. NO. 1005/KOL./2014 ASSESSMENT YEAR: 2009-2010 PAGE 3 OF 5 I.T.A. NO. 1005/KOL./2014 ASSESSMENT YEAR: 2009-2010 PAGE 4 OF 5 5. ON THE OTHER HAND, THE LD. D.R. RELIED ON THE OR DERS OF A.O. AND THE LD. CIT(APPEALS) AND DOES NOT WANT US TO INTERFERE IN THE IMPUGNED ORDER. 6. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ENTIRE D ISPUTE IN THE CASE OF ASSESSEE IS IN RELATION TO THE INVOLVEMENT OF AN EX TRA ENTRY GIVEN IN THE CIB REPORT. IN THE CIB REPORT, TRANSACTIONS OF RS.2 5,00,000/- HAD BEEN SHOWN ON 16.06.2008 TWICE AND THE TRANSACTION REFER ENCE WAS SHOWN AS FTP SER 12 PLAN B INS CAL. QLY. DIV. HONGKONG & SHA NGHAI BANKING CORPORATION AND OTHER TRANSACTIONS SHOWN ON THE SAM E DATE AS FTP SER 12 PLAN B INS CAL. QLY. DIV. WE NOTE THAT THE ASSESSEE HAD CONSISTENTLY CONTENDED THAT THE INFORMATION ON WHICH THE ASSESSI NG OFFICER SOUGHT TO TAX RS.25 LAKHS WAS DUE TO THE CONFUSION CAUSED BY THE CIB REPORT WAS NOTHING BUT ONLY THAT OF ONE INVESTMENT OF RS.25,00 ,000/- ON 16.06.2008 FOR WHICH THE SOURCE WAS CLEARLY DEMONSTRATED BEFOR E THE ASSESSING OFFICER, WHICH HE ACCEPTED. THE CASE OF THE ASSESSI NG OFFICER WAS THAT THE SOURCE OF RS.25,00,000/- WAS INCLUSIVE OF THE TRANS ACTIONS OF RS.80,00,000/-, WHICH THE ASSESSEE WAS ABLE TO PROV E. WE TAKE NOTE THAT IN THE AIR INFORMATION AS ON DATE 16.06.2008 THERE IS ONLY ONE ENTRY OF RS.25 LAKHS AND THE ASSESSING OFFICER HAS PICKED UP THE CIB REPORT IN WHICH ANOTHER ENTRY OF INVESTMENT IN MUTUAL FUND ON THE SAME DATE IS REFLECTED. NOW SINCE THE BNP PARIBAS MUTUAL FUND HA VE BEEN ABLE TO CLARIFY THE TRUE POSITION BASED ON THE EXTRACT (SUP RA) AND THAT HAS BEEN PRODUCED BEFORE US, SO IN THE INTEREST OF JUSTICE W E SET ASIDE THE ORDER OF THE LD. CIT(APPEALS) AND REMAND THE MATTER BACK TO THE FILE OF ASSESSING OFFICER WITH A DIRECTION TO EXAMINE THE DOCUMENTS T HAT HAS BEEN PRODUCED BEFORE US AND IF THE CONTENTION OF THE ASSESSEE IS CORRECT THAT THE TRANSACTION OF RS.25,00,000/- IS ONE AND THE SAME W HICH WAS MADE ON THE SAME DATE, I.E. ON 16.06.2008 AND SINCE BNP PARIBAS MUTUAL FUND HAS CLEARLY CLARIFIED THAT THERE WAS CHANGE IN THE NAME OF FUND DATED 16 TH JUNE, 2008 AND WITH THE CLARIFICATION GIVEN BY THE BNP PARIBAS MUTUAL FUND WHICH IS REPRODUCED ABOVE, THE ASSESSING OFFIC ER MAY VERIFY THE CONSISTENT CONTENTION OF THE ASSESSEE AND IF IT IS FOUND THAT THE CONTENTION I.T.A. NO. 1005/KOL./2014 ASSESSMENT YEAR: 2009-2010 PAGE 5 OF 5 OF THE ASSESSEE IS GENUINE, THEN NO ADDITION IS WAR RANTED. WITH THIS OBSERVATION, WE REMIT THE MATTER BACK TO THE FILE O F ASSESSING OFFICER FOR DECIDING THE ISSUE AFRESH BY PROVIDING REASONABLE A ND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. NEEDLES S TO SAY THAT THE ASSESSEE IS AT LIBERTY TO FILE ANY DOCUMENTARY EVID ENCE IN SUPPORT OF ITS CASE ON THE ISSUE BEFORE THE ASSESSING OFFICER, WHI CH THE ASSESSING OFFICER SHALL VERIFY AND DECIDE THE ISSUE IN ACCORDANCE WIT H LAW. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 20, 2016. SD/- SD/- (WASEEM AHMED) (A.T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMB ER KOLKATA, THE 20 TH DAY OF DECEMBER, 2016 COPIES TO : (1) SHRI AMIT KESHAN, SRIKUNJ APARTMENT, FLAT NO. 2A, 60/2, LAKE ROAD, KOLKATA-700 029 (2) COMMISSIONER OF INCOME TAX (APPEALS)-XIV, KOL KATA, ITO, WARD-30(2), AAYAKAR BHAWAN DAKSHIN, 5 TH FLOOR, 2, GARIAHAT ROAD, KOLKATA-700 068 (3) COMMISSIONER OF INCOME TAX(APPEALS)-XIV, KOLKAT A, (4) COMMISSIONER OF INCOME TAX- ,KOLKATA; (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.