Indrajit Roy , Kolkata V. ITO, Ward - 51(3), Kolkata , Kolkata

ITA 1104/KOL/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0150 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 09-12-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 22-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Assessee Lawyers: MANISH TIWARI
• Keywords: Income from undisclosed sources
• Section: 44AD; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B, BENCH KOLKATA BEFORE SHRI P.M. JAGTAP, V.P & SHRI S. S. GODARA, JM ./I.T.A NO.1104/KOL/2018 ( [ [ / ASSESSMENT YEAR: 2013-14) INDRAJIT ROY 1, ASHOK SEN NAGAR, PO: NATAGARH, SODEPUR, KOLKATA 700113. VS. ITO, WARD-51(3), KOLKATA. ./ ./PAN/GIR NO.: AFPPR0773R (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI MANISH TIWARI, FCA RESPONDENT BY : SMT. RANU BISWAS, SR. DR / DATE OF HEARING : 09/12/2019 /DATE OF PRONOUNCEMENT : 31/12/2019 / O R D E R PER SHRI S. S. GODARA: THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2013-14 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (A)-15, KOLKATA DATED 16.01.2017 PASSED IN CASE NO.377/CIT(A)-15/15-16/WD-51(3)/KOL INVOLVING PROCEEDINGS U/S 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. IT TRANSPIRES AT THE OUTSET THAT THE ASSESSEES INSTANT APPEAL SUFFERS FROM 427 DAYS DELAY IN FILING. THIS TAXPAYER HAS PLACED ON RECORD HIS CONDONATION PETITION THAT HE HAS BEEN UNDERGOING DISTURBED STATE OF MIND ON ACCOUNT OF HIS WIFE SUFFERING FROM SERIOUS AILMENTS FOR A VERY LONG PERIOD. IT IS FURTHER STATED THAT SHE REQUIRED FREQUENT HOSPITALIZATION IN CRITICAL CARE WHICH ALSO HAD AN ADVERSE IMPACT ON HIS DAY TO DAY BUSINESS AFFAIRS. LEARNED COUNSEL THEREAFTER INVITED OUR ATTENTION TO RECTIFICATION PROCEEDINGS/NOTICE ISSUED BY THE ASSESSING OFFICER ON 28.04.2017 FOLLOWED BY HIS ORDER TO THIS EFFECT COMPUTING A FRESH DEMAND 29.06.2017. MR. TIWARI PLEADS THAT ALL THE ABOVE FACTORS COUPLED WITH THE NON-COMPLIANCE OF VARIOUS PROCEDURAL FORMALITIES IN COMPILATION OF RECORDS MAKE IT CLEAR THAT THE I.T.A NO.1104/KOL/2018 INDRAJIT ROY PAGE | 2 IMPUGNED DELAY IS NEITHER INTENTIONAL NOR DELIBERATE BUT ON ACCOUNT OF CIRCUMSTANCES BEYOND ASSESSEES CONTROL. THE REVENUE VEHEMENTLY OPPOSES THE ASSESSEES CONDONATION PETITION THAT THE SAME NOWHERE EXPLAINS THE RELEVANT CIRCUMSTANCES AND THEREFORE, THE INSTANT APPEAL DESERVES TO BE DECLINED ON THIS COUNT ALONE. 3. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RIVAL CONTENTIONS. SUFFICE TO SAY, THE REVENUE IS FAIR ENOUGH IN NOT DISPUTING THE ASSESSEES CONDONATION AVERMENTS CITING VARIOUS GROUNDS AS EXPLANATION FOR THE IMPUGNED DELAY. HONBLE APEX COURTS LANDMARK DECISION IN COLLECTOR, LAND ACQUISITION VS. MST. KATIJI (1987) 167 ITR 471 (SC) SETTLED THE LAW LONG BACK THAT THE CAUSE OF SUBSTANTIAL JUSTICE MUST PREVAIL OVER ALL TECHNICAL ASPECTS. WE THEREFORE CONDONE THE IMPUGNED 427 DAYS DELAY IN FILING OF THE APPEAL. THE SAME IS THEREFORE TAKEN UP FOR ADJUDICATION ON MERITS. 4. THE ASSESSEE RAISES THE FOLLOWING SUBSTANTIVE GROUNDS IN THE INSTANT APPEAL READS AS UNDER: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDER PASSED BY LD. CIT(A) DATED 16.01.2017 IS ARBITRARY, BAD AND IS LIABLE TO BE QUASHED. 2. (A) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT(A) IS WRONG AND UNJUSTIFIED IN MAKING A FRESH CALCULATIONS OF BUSINESS PROFIT OF RS. 26,65,470/- @ 19.87% BY NOT CONSIDERING OR DISTINGUISHING THE AO'S APPROACH AT ALL. (B) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT(A) IS WRONG AND UNJUSTIFIED IN CALCULATING BUSINESS PROFIT AT AN ARBITRARY AND HIGH RATE OF 19.87% IN CASE OF MAIN CONSTRUCTION BUSINESS AS AGAINST PRESCRIBED STATUTORY RATE OF 8% U/S 44AD OF INCOME TAX ACT, 1961. (C) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT(A) IS WRONG AND UNJUSTIFIED IN CONSIDERING A WRONG FIGURE OF RS. 88,89,412/- BY CHEQUE INSTEAD OF GROSS CONSTRUCTION OF RECEIPT OF RS. 31,98,676/- AS STATED IN PARA 3.5 OF STATEMENT OF FACTS. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) IS WRONG AND UNJUSTIFIED IN CONFIRMING THE SUM OF RS. 27,88,814/- AS INCOME FROM UNDISCLOSED SOURCES. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT(A) IS ALSO WRONG AND UNJUSTIFIED IN CONFIRMING THE AO'S CONTENTION FOR PURCHASE OF CAR BY NOT CONSIDERING THE TWO EXPLAINED SOURCES AGGREGATING TO RS. 14,00,000/- (REFER PARA 4 OF STATEMENT OF FACTS). 5. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, ADDUCE OR AMEND ANY GROUND OR GROUNDS ON OR BEFORE THE DATE OF HEARING OF THE APPEAL. I.T.A NO.1104/KOL/2018 INDRAJIT ROY PAGE | 3 5. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RIVAL CONTENTIONS. THE CIT(A)S ORDER IN PARA NO.3 PAGE 6 HAS BEEN PASSED EX PARTE WHILST AFFIRMING THE ASSESSING OFFICERS ACTION MAKING VARIOUS ADDITIONS TOTALLING TO RS.70,56,736/- INVOLVING GROSS PROFITS ESTIMATION IN CONSTRUCTION BUSINESS @19.87% COMING TO RS.26,65,470/-, INCOME FROM UNDISCLOSED SOURCES ON ACCOUNT OF CASH EXPENSES/INVESTMENTS OF RS.27,88,814/-, INCOME FROM UNDISCLOSED SOURCES IN PURCHASE OF CAR OF RS.14,00,000/- AND INTEREST INCOME INVOLVING SUM OF RS.2,02,452/-; RESPECTIVELY. THE REVENUES CASE IN LIGHT OF THE CIT(A)S DETAILED DISCUSSION IS THAT BOTH THE LOWER AUTHORITIES HAVE RIGHTLY REJECTED ASSESSEES CORRESPONDING EXPLANATIONS. MS. BISWAS FAILS TO INDICATE THAT THE CORRESPONDING NOTICE OF LOWER APPELLATE PROCEEDING HAD NOT BEEN SERVED ON THE ASSESSEE QUA THE LAST DATE OF HEARING I.E. 10.01.2017. 6. COUPLED WITH THIS, WE NOTICE THAT THE ASSESSING OFFICERS ASSESSMENT ORDER HAS ALSO NOT DISCUSSED THE ISSUE AS TO IN WHAT CIRCUMSTANCES, THE ASSESSEES GROSS PROFITS HAVE BEEN ESTIMATED AT 19.87% IN VIEW OF THE PRECEDING AND SUCCEEDING ASSESSMENT YEARS. THE FACTUAL POSITION IS NO DIFFERENT QUA ALL REMAINING ISSUES AS WELL WHEREIN THE LOWER AUTHORITIES HAVE NOWHERE CONSIDERED ALL THE ASSESSEES CREDITS AND DEBIT ENTRIES IN THE BANK ACCOUNTS. WE THEREFORE DEEM IT PROPER THAT LARGER INTEREST OF JUSTICE WOULD BE MET IN CASE THE ASSESSING OFFICER RE-EXAMINES ALL THE ISSUES AFRESH IN ACCORDANCE WITH LAW WITHIN THREE EFFECTIVE OPPORTUNITIES OF HEARING. WE ORDER ACCORDINGLY. THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE ASSESSING OFFICER ON OR BEFORE 30.04.2020 FOR FURTHER CONSEQUENTIAL PROCEEDINGS. 7. THIS ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES IN ABOVE TERMS. ORDER IS PRONOUNCED IN THE OPEN COURT ON 31.12.2019. SD/- ( P. M. JAGTAP ) SD/- (S. S. GODARA) VICE-PRESIDENT JUDICIAL MEMBER /KOLKATA; / DATE: 31/12/2019 RS, SR.PS I.T.A NO.1104/KOL/2018 INDRAJIT ROY PAGE | 4 / COPY OF THE ORDER FORWARDED TO : TRUE COPY BY ORDER ASSISTANT REGISTRAR, I.T.A.T, KOLKATA BENCHES, KOLKATA . 1. THE APPELLANT - INDRAJIT ROY 2. THE RESPONDENT - ITO, WARD-51(3), KOLKATA. 3. ( ) / THE CIT(A), KOLKATA [SENT THROUGH EMAIL] 4. / CIT 5. , , / DR, ITAT, KOLKATA [SENT THROUGH EMAIL] 6. [ / GUARD FILE.