Saroj Banthia., Malda V. I.T.O Wd - 3,Malda, Malda

ITA 101/KOL/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0509 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 16-01-2013
• Court: TRIBUNAL
• Department Lawyers: SANJAY
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOLKATA [BEFORE SHRI P. K. BANSAL, AM & SHRI MAHAVIR SINGH, JM ] I.T.A NO. 1 01 /KOL/201 3 ASSESSMENT YEAR : 200 9 - 1 0 SAROJ BANTHIA VS. INCOME - TAX OFFICER, WD - 3, MALDA (PAN: ADRPB7751P ) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 1 0 .0 6 .2015 DATE OF PRONOUNCEMENT: 1 0 . 0 6 . 2015 FOR THE APPELLANT: SHRI SUNIL SURANA, FCA FOR THE RESPONDENT: S HRI SANJAY, ADDL. CIT ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT (A) , JALPAIGURI VIDE APPEAL NO. 121/MLD/CIT(A)/JAL/11 - 12 DATED 2 3 . 1 0 .201 2 . ASSESSMENT WAS FRAMED BY ITO, WARD - 3, MALDA U/S. 1 4 4 OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) FOR ASSESSMENT YEAR 200 9 - 1 0 VI DE HIS ORDER DATED 1 9 . 12 .20 11 . 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE HAS NOT PRESSED THE JURISDICTIONAL ISSUES RAISED VIDE GROUND NOS. 2 AND 3 I.E. THE ASSESSMENT ORDER IS BARRED BY LIMITATION AND REOPENING IS NOT VALID WHEN THE TIME LIMIT FOR ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT DID NOT EX PIRE. AS THE ASSESSEE HAS NOT PRESSED THESE TWO ISSUES THE SAME ARE DISMISSED AS NOT PRESSED. 3. COMING TO MERITS OF THE CASE I.E. THE ISSUE RELATING TO DISALLOWANCE OF INTEREST PAYMENT FOR NON DEDUCTION OF TDS BY INVOKING THE PROVISIONS OF SECTION 40(A )(IA) OF THE ACT AMOUNTING TO RS.4,17,112/ - AND ADDITION OF ESTIMATED PROFIT OF RS.4,01,771/ - AND DIFFERENCE IN BANK BALANCE WITH THAT OF THE RECONCILIATION STATEMENT OF BANK AT RS.6,320/ - RAISED VIDE GROUND NOS. 4, 5 AND 6, WHICH READ AS UNDER: 4 . FOR T HAT THE LD. CIT( A ) ERRED IN CONFIRMING THE DISALLOWANCE OF RS.4,17,102/ - UNDER SEC. 40(A)(IA) FOR NON DEDUCTION OF TAX AT SOURCE ON INTEREST PAID WHEN THE ASSESSEE WAS NOT REQUIRED TO DEDUCT ANY TAX SINCE THE ASSESSEE WAS NOT SUBJECTED TO AUDIT UNDER SEC. 44AB OF THE INCOME TAX ACT, 1961 IN THE IMMEDIATELY PRECEDING FINANCIAL YEAR AND THE SAME WAS ON RECORD OF THE DEPARTMENT. 5. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.4,01,771/ - BEING ESTIMATED PROFIT ON ACCOUNT OF ALLEGED UNDISCLOSE D SALES AND RS.12,10,222/ - AS INVESTMENT IN ALLEGED UNDISCLOSED PURCHASES WHEN THE ALLEGED DISCREPANCIES IN THE FIGURE OF STOCK AND PURCHASES FOUND AT THE TIME OF SURVEY WERE DULY RECONCILED WITH 2 ITA NO. 1 01 /K/201 3 SAROJ BANTHIA AY 200 9 - 1 0 REFERENCE TO THE REGULAR BOOKS AND EVEN OTHERWISE THE ONLY REASONABLE PROFIT SHOULD HAVE BEEN ADDED, THE PURCHASE HAVING BEEN FOUND TO BE MADE ON DIFFERENT OCCASIONS IN SMALL SUMS. 6. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.6320/ - ON ACCOUNT OF DIFFERENCE IN BANK BALANCE WHEN THE RECONCILI ATION STATEMENT OF THE BANK WAS PRODUCED. 4. LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, STATED THAT THE ASSESSMENT FRAMED WAS U/S. 144 OF THE ACT I.E. EX PARTE ASSESSMENT AND EVEN BEFORE CIT(A) NONE WAS PRESENT. HENCE, HE ARGUED THAT THE MATTER CAN BE REMITTED BACK TO THE FILE OF AO. ON QUERY FROM THE BENCH, LD. SR. DR SHRI SANJAY, ADDL. CIT FAIRLY CONCEDED THE POSITION. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE ASSESSMENT IS EX PARTE AND THE ORDER OF CIT(A) ALSO EX PARTE. IN TERM OF THE ABOVE AND NONE OF THE AUTHORITIES BELOW HAVE ALLOWED REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND REMIT THE ISSUE BACK TO THE FILE OF THE AO FOR FRESH ADJUDICATION AFTER ALLOWING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND IN ACCORDANCE WITH LAW. APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6 . IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . 7 . ORDER IS PRONOUNCED IN THE OPEN COURT . S D / - S D / - ( P. K. BANSAL ) (MAHAVIR SINGH) ACCOUNTANT MEMBER J UDICIAL MEMBER DATED : 10 TH JUNE , 201 5 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . A PPELLANT SHRI SAROJ BANTHIA , C/O PRABIN TEXTILE, KALITALA, ENGLISHBAZAR, P.O. & DIST. MALDA, PIN - 732101, WB 2 RESPONDENT ITO, WARD - 3, MALDA . 3 . THE CIT (A), JALPAIGURI 4. 5. CIT, JALPAIGURI DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .