Narayan Prasad Agarwala, Uttar Dinajpur V. I.T.O Wd - 1,Raiganj, Uttar Dinajpur

ITA 102/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4683 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 22-04-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 16-01-2013
• Court: TRIBUNAL
• Department Lawyers: RAJAT KUREE L JCIT LD
• Assessee Lawyers: S M SURANA LD
• Section: 143(3); 142(1); 133(6); 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, KOLKATA BEFORE : SHRI P.M JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RA VI, JUDICIAL MEMBER I.T.A NO. 102/KOL/2013 A.Y : 2008-09 NARAYAN PRASAD AGARWALA VS. I.T.O, WARD-1, RAIGAN J PAN: ACSPA 9150D (APPELLANT) (RESPON DENT) FOR THE APPELLANT/ASSESSEE : SHRI S.M SURANA, ADVOCATE, LD.AR FOR THE RESPONDENT/DEPARTMENT: SHRI RAJAT KUREE L, JCIT, LD. SR.DR DATE OF HEARING: 22-04-2016 DATE OF PRONOUNCEMENT: 15 -06 - 2016 ORDER SHRI S.S. VISWANETHRA RAVI, JM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER CIT(A), JALPAIGURI DATED 19-10-2012 FOR THE ASSESSMENT YEAR 2008-09 AGAINST THE ORDER OF ASSESSMENT FRAMED U/S. 143(3) OF THE INCOME TAX AC T, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. THE ONLY ISSUE IN THIS APPEAL TO BE DECIDED IS A S TO WHETHER THE CIT-A JUSTIFIED IN DISMISSING THE PETITION FOR CONDONATIO N OF DELAY IN FILING FIRST APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL AND ENGAGED IN WHOLE SALE CUM RETAIL TRADE OF STATIONER Y ITEMS. THE ASSESSEE HAD FILED HIS RETURN OF INCOME FOR THE A.Y. 2008-09 ON 22.09. 2008 DECLARING A TOTAL INCOME AT RS. 2,51,279.78. UNDER SCRUTINY, NOTICES U/S. 1 43(2) & 142(1) WERE ISSUED IN TIME & SERVED UPON THE ASSESSEE. IN RESPONSE TO THE SAID NOTICES, THE ASSESSEE ITA NO. 102/KOL/2013 NARAYNA PRASAD AGARWALA 2 HIMSELF APPEARED IN PERSON ALONG WITH HIS BROTHER SHRI SURESH KUMAR AGARWAL TIME TO TIME PRODUCED THE BOOKS OF ACCOUNT, BILLS & VOUCHERS, INVENTORIED MATERIAL ETC. AND OTHER INFORMATION CALLED FOR WHIC H ARE TEST CHECKED. 4. PRIOR TO THE ABOVE, A SURVEY WAS CONDUCTED U/S 1 33A OF THE ACT ON 17.08.2007 WHERE THE AO FOUND, FIRSTLY THE STOCK WAS PHYSICALLY VERIFIED AT RS. 16,66,797/- AND BUT AS PER BOOKS IT WAS AT RS. 28,1 6,330/- AND FOUND A SHORTAGE OF STOCK AMOUNTING TO RS. 11,49,533/- ACCORDING TO AO THE ASSESSEE EXPLAINED VIDE HIS STATEMENT U/S 131 OF THE ACT ON 23.08.2007 THAT THE SAID SHORTAGE OF STOCK WAS AS UNDISCLOSED SALES OUT OF THE PURCHASE RECORDED I N BOOKS. AS ASSESSEE DID NOT TAKEN INTO ACCOUNT THE GROSS PROFIT OF UNDISCLOSED SALES IN COMPUTING THE INCOME AND THE AO ADDED @ 3.76% OF RS. 43,222/ TO THE TOTA L INCOME AS THE ASSESSEE OFFERED THE SAME FOR TAXATION. 5. SECONDLY, CASH WAS FOUND AT RS. 11,05,000/- FROM THE CASH BOX DURING SURVEY AND IT WAS STATED THAT THE CASH BELONGS TO A SSESSEES FIRM I.E M/S. NARAYAN ENTERPRISE VIDE STATEMENT U/S. 131 OF THE ACT ON 23 .08.2007 AND THE AO FOUND RS. 2,22,235/- ONLY IN CASH BOOK. THE ASSESSEE OFFERED FOR TAXATION THE DIFFERENCE OF CASH AMOUNTING TO RS. 8,82,765/- AS UNDISCLOSED IN COME AND FOUND NOT OFFERED FOR TAXATION IN THE RETURN FILED SUBSEQUENTLY. ACCO RDING TO AO THE ASSESSEE WAS AGREED FOR TAXATION DURING THE ASSESSMENT PROCEEDIN GS AND THE SAME WAS TREATED AS INCOME OF THE ASSESSEE AND ADDED TO THE TOTAL IN COME. 6. THIRDLY, ASSESSEE HAD SHOWN SUNDRY CREDITOR OF R S. 11,11,502.46 IN THE NAME OF RADIOHMS AGENCIES BUT AS PER CONFIRMATION U/S. 133(6) IT WAS FOUND THE CLOSING BALANCE AT RS. 11,24,528.46. THE ASSESSEE S UBMITTED THAT IT MADE A PURCHASE OF RS. 13,026/- ON 3L.0L.2008 AND THE GOOD S WERE LIFTED ON 20.08.2008 AND THE SAID PURCHASE WAS ENTERED IN THE BOOKS FOR THE F.Y. 2008-09 CAUSING ITA NO. 102/KOL/2013 NARAYNA PRASAD AGARWALA 3 DIFFERENCE OF RS. 13,026/- AND FOR FAILURE TO PRODU CE ANY EVIDENCE THE EXCESS GROSS PROFIT @ 3.76% ON THE PURCHASE OF 13,026/- WH ICH COMES TO RS. 490/- IS ADDED TO THE TOTAL INCOME. 7. FOURTHLY, THE AO FOUND THE ASSESSEE HAS DEBITED RS. 1,02,642/- UNDER THE HEAD CARRIAGE OUTWARD IN PROFIT AND LOSS ACCOUNT, I N SUPPORT OF WHICH, ASSESSEE PRODUCED SELF MADE DEBIT VOUCHERS AND THE AO DISALL OWED 10% OF SUCH EXPENSES OF RS. 10,264/- AND ADDED TO THE TOTAL INCOME. 8. FIFTHLY, THE AO ADDED RS.10,584/- BEING 20% OF R S.52,922/- DEBITED UNDER THE HEAD CAR RUNNING EXPENSES TREATING AS USED FOR PERSONAL PURPOSE. 9. AS AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PR EFERRED AN APPEAL BEFORE THE CIT-A WITH DELAY OF 136 DAYS, WHILE CONSIDERING THE PETITION FOR DELAY CONDONATION, THE CIT-A FOUND THE REASONS AS SUBMITT ED BY THE ASSESSEE NOT SATISFACTORY AND DISMISSED THE APPEAL IN LIMINE, TH E OBSERVATIONS OF WHICH REPRODUCED AS UNDER: IN THIS CASE, THE ASSESSMENT ORDER WAS PASSED U/S. 143(3) ON 27.12.2010. AS PER FORM-35, SAME WAS RECEIVED BY T HE ASSESSEE ON 31.12.2010. HOWEVER, HE FILED THE APPEAL ON 16.06.2 011. THUS, THERE WAS A DELAY OF 136 DAYS IN FILING THE APPEAL, BUT NO COND ONATION PRAYER WAS FILED WITH FORM NO.35. IN COURSE OF HEARING, THE ASSESSEE FILED ONE CONDONATION PRAYER WITHOUT MENTIONING THE REASON FOR THE DELAY BUT REFERRED TO TWO MEDICAL CERTIFICATES FILED WITH THE PRAYER. ON GOI NG THROUGH THE MEDICAL CERTIFICATES, SEVERAL CONTRADICTIONS ARE NOTICED W HICH ARE MENTIONED BELOW: 1. THE FIRST CERTIFICATE WAS ISSUED BY THE PHYSICIA N ON 15,01.2011 MENTIONING THAT THE ASSESSEE HAS BEEN UNDER HIS TRE ATMENT FROM 01.01.20 11 TO 15 .01.2011 FOR HEPATITIS AND ADVISED THREE M ONTHS BED REST. ITA NO. 102/KOL/2013 NARAYNA PRASAD AGARWALA 4 2. IN THE OTHER CERTIFICATE ISSUED ON 10,04,20 IT, THE PHYSICIAN MENTIONED THAT THE ASSESSEE WAS SUFFERING FROM CHRONIC ACTIVE HEPATITIS -B AND ADVISED TO TAKE BED REST UP TO 10,07,20] L 3. THE SIGNATURE OF THE PATIENT AS USUALLY TAKEN ON THE CERTIFICATES IS NO AVAILABLE. 4. IN THE 1 ST CERTIFICATE IT WAS MENTIONED THAT THE ASSESSEE WA S SUFFERING FROM HEPATITIS, HOWEVER IN THE 2ND CERTIFICATE IT W AS MENTIONED AS CHRONIC ACTIVE HEPATITIS -B, WHEN THE ASSESSEE WAS NOT UNDE R HIS TREATMENT. 5. WHEN THE 2 ND CERTIFICATE WAS ISSUED, THE ASSESSEE WAS NOT UNDER THE TREATMENT OF THAT PHYSICIAN 6. WHEN BED REST IS ADVISED A LONGER PERIOD. NORMAL LY THE PERIOD OF TIME IS MENTIONED NOT THE POINT OF TIME. IN THE 2ND CERTIFI CATE, THE PHYSICIAN HAD ADVISED REST UP TO 10,07.2011 WHICH IS ABNORMAL. 7. NO PRESCRIPTION OR PATHOLOGY REPORT FROM THE PHY SICIAN WAS FILED. THEREFORE, IT IS UNASCERTAINABLE THE NATURE OF AILM ENT OR THE ASSESSEE AND NATURE OF TREATMENT. 8. IT IS GATHERED FROM THE AO THAT IN THE SUBSE QUENT YEARS. THE TURNOVER OR THE BUSINESS PERFORMANCE OF THE ASSESSEE WAS NO T AT AN AFFECTED DUE TO HIS AILMENT. IF HE WAS ON BED REST FOR 7 MONTHS. I T WOULD HAVE AFFECTED HIS BUSINESS I HAVE CAREFULLY CONSIDERED THE CONTENTS OF THE PRA YER OF THE ASSSESSEE. THE ASSESSEE COULD NOT PRODUCE ANY PRESCRIPTION FROM TH E PHYSICIAN, NORMALLY. A CHROME ACTIVE HEPATITIS-B PATIENT REQUIRES PROLO NGED TREATMENT AND PRESCRIPTIONS ARC MAINTAINED FOR PURCHASING MEDICIN E. IT IS, THUS, HELD THAT THE EXPLANATION GIVEN BY THE ASSESSEE IS NOT SATISFACTORY AS THE AR FAILED TO ESTABLISH THE SAME WITH ANY MA TERIAL EVIDENCE. IT IS A PREREQUISITE FOR CONDONING DELAY THAT THE AUTHORI TY CONCERN MUST RECORD SATISFACTION THAT THE EXPLANATION FOR THE DELAY WAS EITHER REASONABLE OR SATISFACTORY AS HELD IN P K RAMCHANDRAN V STATE OF KERALA (1997) 7 ACC 556. ITA NO. 102/KOL/2013 NARAYNA PRASAD AGARWALA 5 IN THE INSTANT CASE, THE EXPLANATION FOR THE DELAY IS FOUND NOT EITHER REASONABLE OR SATISFACTORY. FILING OF A MEDICAL REP ORT ALONG WITH THE CONDONATION APPLICATION IN CASE OF ILLNESS IS NECES SARY AS HELD IN THE CASE OF KHUNNE LAL BABURAM VS CST (1981) TAX LR (NOC) 22 3. IN ABSENCE OF ANY EVIDENCE, THE REASON GIVEN FOR TH E DELAY IN FILING THE APPEAL CANNOT BE ACCEPTED AS GENUINE. ON THIS G ROUND, THE DELAY IN FILING THE APPEAL CANNOT BE CONSIDERED AND THE APPE AL IS NOT ADMITTED. THUS, NO DECISION ON MERIT IS GIVEN. 10. IN THIS APPEAL, THE LD. AR SUBMITS THAT THE CIT -A DID NOT AFFORD AN OPPORTUNITY TO THE ASSESSEE TO DEFEND HIS CLAIMS AS MADE BEFORE THE AO AND DID NOT APPRECIATE THE MEDICAL CERTIFICATE AS ISSUED BY THE PHYSICIAN WHO TREATED THE ASSESSEE AND NOT ACCEPTING THE SAME AS GENUINE IS A GAINST TO ESTABLISHED LAW AND PRAYED TO REMIT THE CASE TO CIT-A FOR FRESH CONSIDE RATION OF APPEAL. THE LD. DR RELIED ON ORDER OF CIT-A. 11. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIA L AVAILABLE ON RECORD. WE FIND THAT THE ASSESSEE FILED TWO MEDICAL CERTIFICAT ES ISSUED BY THE PHYSICIAN WHICH GOES TO SHOW THAT THE ASSESSEE SUFFERING FROM HEPAT ITIS AND CHRONIC HEPATITIS-B SINCE JANUARY 2011, WHERE THE PHYSICIAN WHO WAS TRE ATING THE ASSESSEE ADVISED HIM TO TAKE BED REST UPTO 10-07-2011. THE FINDING O F THE CIT-WAS THAT THE ASSESSEE DID NOT PRODUCE MEDICAL PRESCRIPTION AND D ISCHARGE CERTIFICATE TO SUPPORT THE REASONS STATED IN THE PETITION. BUT, HOWEVER, I N THE INTEREST OF THE JUSTICE, WE REMAND THE APPEAL TO THE FILE OF CIT-A FOR FRESH AD JUDICATION TREATING THE REASONS AS STATED IN THE DELAY CONDONATION PETITION FILED B EFORE THE CIT-A AS REASONABLE BY AFFORDING AN OPPORTUNITY TO ASSESSEE AND WE ALSO DIRECT THE ASSESSEE TO PRODUCE ANY EVIDENCE, IF ANY, NECESSARY FOR THE FAIR ADJUDI CATION OF THE CASE AND WE ALSO MAKE IT CLEAR THAT THE ASSESSEE SHALL NOT SEEK ANY FURTHER ADJOURNMENTS. ITA NO. 102/KOL/2013 NARAYNA PRASAD AGARWALA 6 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED THIS ORDER IS PRONOUNCED IN OPEN COURT ON 15 /06 /2016 COPY OF THE ORDER FORWARDED TO 1.. THE APPELLANT/ASSESSEE : SHRI NARAYAN PRASAD AGARWALA, M.G ROAD, RAIGA NJ, U D, PIN 733134(WB). 2 THE RESPONDENT/DEPARTMENT: I.T.O W-1, RAIGNAJ, SBI BUILDING, KARANOJORA, U D, PIN 733134(WB). 3 4.. /THE CIT, /THE CIT(A) 5. DR, KOLKATA BENCH 6. GUARD FILE. TRUE COPY, BY ORDER, ASSTT REGISTRAR ** PRADIP SPS SD/- P.M JAGTAP ACCOUNTANT MEMBER SD/- S.S. VISWANETHRA RAVI J JUDICIAL MEMBER DATE 15 /06 /2016