Gunjan Bhiwaniwala, Kolkata V. ITO, WD-43(4), KOLKATA, Kolkata

ITA 1073/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9574 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 30-11-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 17-05-2016
• Court: TRIBUNAL
• Department Lawyers: TANUJ NEOGI JCIT LD
• Assessee Lawyers: SOUMITRA CHOUDHURY LD
• Section: 142(1); 144

Judgement Text

ITA NO. 1073/KOL/2016 GUNJAN BHIWANIWALA 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA D B ENCH, KOLKATA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 1073/KOL/2016 ASSESSMENT YEAR: 2007-08 SMT. GUNJAN BHIWANIWALA PAN: AFVPB9437L, 17, BALMUKUMD MAKKAR ROAD, KOLKATA-700 007. APPELLANT -VS.- I.T.O WARD 43(4), KOLKATA KOLKATA. RESPONDENT APPEARANCES BY: SHRI SOUMITRA CHOUDHURY, ADVOCATE, LD.AR FOR THE AS SESSEE SHRI TANUJ NEOGI, JCIT, LD.DR FOR THE REVENUE DATE OF HEARING : 12-01- 2017 DATE OF PRONOUNCEMENT : 2 0-01-2017 ORDER SHRI S.S.VISWANETHRA RAVI, JM: THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DT : 01-03-2016 PASSED BY THE COMMISSIONER OF INCOME TAX-(APPEALS), 21, KO LKATA FOR THE ASSESSMENT YEAR 2007-08. 2. IN THIS APPEAL THE ASSESSEE HAS RAISED AS MANY A S SIX GROUNDS OF APPEAL, AMONGST WHICH THE ONLY EFFECTIVE GROUND IN THIS APP EAL IS TO BE DECIDED ITA NO. 1073/KOL/2016 GUNJAN BHIWANIWALA 2 WHETHER THE CIT-A JUSTIFIED CONFIRMING THE INCOME O F ASSESSEE AT RS.10,00,000/- ON ESTIMATION WITHOUT ANY BASIS IN T HE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE ASSESSEE BEING INDIVIDUAL RUNNING HER BUSINE SS UNDER THE NAME AND STYLE M/S. MOHINI COMPUTECT FILED HER RETURN OF I NCOME ON ONLINE ON 14-11- 2007. NOTICES U/S. 143(2)/142(1) OF THE ACT WERE IS SUED. IN RESPONSE TO WHICH THE AR OF THE ASSESSEE APPEARED AND FILED AN AFFIDA VIT STATING THAT ALL THE BOOKS OF ACCOUNT AND RECORDS PERTAINING TO BUSINESS OF ASSESSEE WERE SEIZED BY THE DEPUTY COMMISSIONER SALES TAX, CENTRAL SECTI ON (INVESTIGATION WING) AND EXPRESSED INABILITY TO COMPLY WITH THE CONDITIO NS SET OUT IN THE NOTICE ISSUED U/S. 142(1) OF THE ACT. ACCORDING TO AO, THE ASSESSEE WAS INTENTIONALLY AVOIDING TO SUBMIT THE BOOKS OF ACCOUNT AND RECORDS FOR SEEKING ADJOURNMENTS. THEREBY THE AO DETERMINED THE INCOME OF ASSESSEE ON ESTIMATION AT RS.10,00,000/- AND TO THAT EFFECT AN ORDER U/S. 144 OF THE ACT WAS PASSED ON 30-12-09. 4. IN FIRST APPEAL, BEFORE THE CIT-A THE LD.AR OF A SSESSEE REITERATED THE SAME SUBMISSIONS AS DEPOSED BY SAID AFFIDAVIT BEFOR E THE AO. THE CIT-A SOUGHT FOR REMAND REPORT FROM THE AO. IN THE REMAND REPORT, THE AO NARRATED THE SAME AS MENTIONED IN HIS SAID ORDER DATED 30-12 -2009 PASSED U/S. 144 OF THE ACT. THE CIT-A AFTER TAKING INTO CONSIDERATION THE SAME CONFIRMED THE IMPUGNED ACTION OF THE AO IN ESTIMATING THE INCOME OF ASSESSEE AT RS.10,00,000/-. 5. BEFORE US THE LD.AR OF THE ASSESSEE SUBMITS THAT THE ORDER PASSED U/S. 144 OF THE ACT BY THE AO IS ILLEGAL/INVALID AS THER E WAS NO BOOKS OR RECORDS PERTAINING TO ASSESSEES BUSINESS PRODUCED BEFORE A O. THE LD.AR OF THE ASSESSEE FURTHER SUBMITS THAT THE ASSESSEE DEPOSED IN THE SAID AFFIDAVIT FILED ITA NO. 1073/KOL/2016 GUNJAN BHIWANIWALA 3 BEFORE THE AO THAT SHE DOES NOT HAVE ANY KIND OF EV IDENCE SUPPORTING THE TRANSACTIONS OF HER BUSINESS AS THE DEPUTY COMMISSI ONER SALES TAX, CENTRAL SECTION (INVESTIGATION WING) SEIZED ALL SUCH RECORD S ON 26-05-2008. KNOWING THIS FACT VERY WELL THAT THE ASSESSEE DOES NOT HAVE ANY RECORDS, THE AO WITHOUT ANY BASIS ON ESTIMATION DETERMINED THE INCOME OF AS SESSEE. IN SUPPORT OF HIS CONTENTIONS, HE ALSO SUBMITS BEFORE US THE COPIES O F AUDIT REPORT IN FORM 3CB AND 3CD, TRADING ACCOUNT & BALANCE SHEET OF ASSESSE E AS ON 31-03-2007. FINALLY, HE PRAYED BEFORE THE BENCH TO QUASH THE SA ME. 6. ON THE OTHER HAND, THE LD.DR SUBMITS THAT THE AS SESSEE COULD NOT SUBMIT ANY KIND OF EVIDENCE WHATSOEVER BEFORE THE AO AND THE CIT IN SUPPORT OF HER CONTENTION. HE RELIED ON THE ORDERS OF THE AO AND C IT-A. 7. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND FROM THE FIRST INSTANCE THAT THE ASSESSEE FILED AN AFFIDAVIT DEPOSING THAT ALL HER BOOKS OF ACCOUNT AND RECORDS WERE SEIZ ED BY THE DEPUTY COMMISSIONER SALES TAX, CENTRAL SECTION (INVESTIGAT ION WING) AND EXPRESSED HER INABILITY TO SUBMIT THE REQUIRED INFORMATION/DO CUMENTS AS SOUGHT BY THE AO UNDER MANDATORY AND STATUTORY NOTICES ISSUED BY THE AO. IT IS ALSO NOTICED THAT SAME KIND OF ARGUMENTS WERE CANVASSED BY THE A SSESSEE, BUT NO CONSIDERATION HAS BEEN AFFORDED TO ASSESSEE. IN VIE W OF ABOVE, WE DEEM IT FIT AND PROPER TO REMAND THE ISSUES INVOLVED IN THIS AP PEAL TO THE FILE OF THE AO FOR HIS FRESH CONSIDERATION AND ACCORDINGLY DIRECT THE ASSESSEE TO TAKE SUITABLE STEPS IN GETTING CERTIFIED COPIES OF ACCOUNTS AND S EIZED DOCUMENTS FROM THE SAID INVESTIGATION WING OF DEPUTY COMMISSIONER SALE S TAX, CENTRAL SECTION (INVESTIGATION WING) AND FILE THE SAME BEFORE THE A O FOR HIS CONSIDERATION. THUS, THIS GROUND OF ASSESSEES APPEAL IS ALLOWED F OR STATISTICAL PURPOSE. ITA NO. 1073/KOL/2016 GUNJAN BHIWANIWALA 4 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 20-0 1-2017. SD/- SD/- WASEEM AHMED S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 20-01-2017 COPIES TO : **PP/SPS (1) APPELLANT/ASSESSEE: SMT. GUNJAN BHIWANIWALA 17 BALMUKUND MAKKAR ROAD, KOLKATA-700 007. (2) DEPARTMENT/RESPONDENT: THE INCOME TAX OFFICER, W 43(4), 3 GOVT PLACE, KOLKATA-700 001. (3)COMMISSIONER OF INCOME-TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL KOLKATA