Dulal Kanti Chowdhury, Kolkata V. DCIT, Circle -50, Kolkata, Kolkata

ITA 1116/KOL/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3134 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2013
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 01-08-2012
• Court: TRIBUNAL
• Department Lawyers: D K SONOWAL
• Assessee Lawyers: GAUTAM B ANERJEE; A N CHATTERJEE
• Keywords: Principle of natural justice
• Section: 131

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B , KOLKATA [ () . .. . . .. . , ,, , , !' #! $'# #! $'# #! $'# #! $'#, ,, , ] ]] ] [BEFORE HONBLE SRI N.S.SAINI AM & HONBLE SRI M AHAVIR SINGH, JM] '& '& '& '& /ITA NO.1116/KOL/2012 $' !()/ ASSESSMENT YEAR : 2005-06 (+, / APPELLANT ) - ! - ( ./+, /RESPONDENT) DULAL KANTI CHOWDHURY D.C.I.T., CIRCLE-50 KOLKATA -VERSUS- KOLKATA-54 (PAN:ACRPC 0745 K) +, 0 1 / FOR THE APPELLANT: SHRI GAUTAM BANERJEE & SHRI A.N.CHATTERJEE, FCA ./+, 0 1 / FOR THE RESPONDENT: SHRI D.K.SONOWAL, JCIT, SR.DR 2!3 0 4 /DATE OF HEARING : 10.06.2013 5( 0 4 /DATE OF PRONOUNCEMENT : 10.06.2013. 6 / ORDER PER SHRI N.S.SAINI, AM THIS IS AN APPEAL FILED BY THE ASSESEE AGAINST THE ORDER OF LD. CIT(A)-XXXII, KOLKATA DATED 15.07.2011. 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.16,33,500/- U/S 40(A)(IA) OF THE I.T.ACT FOR NON DEDUCTION OF TAX AT SOURCE U/S 194H OF THE ACT. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE AO FOU ND THAT THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION PAID BROKERAGE AND COMMISS ION TO 16 PERSONS IN VIOLATION OF SECTION 40(A)(IA)OF THE IT ACT WITHOUT DEDUCTING TA X AT SOURCE. THEREFORE HE MADE AN ADDITION OF RS.16,33,500/- TO THE INCOME OF THE ASS ESSEE. 4. ON APPEAL BEFORE THE LD. CIT(A) THE ASSESSEE SU BMITTED THAT THE ASSESEE IS A MERCHANT EXPORTER WHO MAINLY DEALS WITH COMMODITIES WHICH ARE PROCURED FORM THE ITA NO.1116 /KOL/2012 DULAL KANTI CHOWDHURY, KOLKATA VS DCIT, CIRCLE-50,KOLKATA A.YR.2005-06 2 AGRICULTURAL MARKET LOCATED IN THE RURAL AREAS. IN ORDER TO WITHSTAND THE STIFF COMPETITION THE ASSESSEE PREFERRED TO INCUR EXPENSE S FOR PROCUREMENT OF MERCHANDISE FROM THE RURAL MARKET INSTEAD OF FROM THE LOCAL MAR KET. THEREFORE ALL EXPENSES FOR PROCUREMENT OF COMMODITIES WERE PAID DIRECTLY TO VA RIOUS PERSONS FOR THEIR SERVICES RENDERED IN PROCUREMENT. THE ASSESSEE SUPPLIED NAME S AND ADDRESSES OF THE PERSONS TO WHOM PAYMENTS WERE MADE. THE LD. CIT(A) CALLED FOR A REMAND REPORT FROM THE AO. THE AO VIDE HIS REMAND REPORT DATED 03.03.2009 SUBM ITTED THAT SHRI PRADIP DUTTA, SHRI BISWANATH MONDAL AND SHRI ASHIM GHOSH APPEARED AND HAVE REFUSED TO HAVE RECEIVED ANY BROKERAGE FROM THE ASSESSEE. HE ALSO S TATED THAT SHRI SHANKAR BANIK, SHRI NARAYAN SARKAR, SHRI PARIMAL PAL AND SHRI BUDDHA BI SWAS DID NOT APPEAR NOR GAVE ANY REPLY TO THE SUMMONS U/S 131 OF THE ACT. THEREF ORE HE CONCLUDED THAT THE BROKERAGE PAYMENT CLAIMED BY THE ASSESSEE WAS FALSE AND NO DEDUCTION WAS ALLOWABLE. THE LD. CIT(A) REFIXED THE HEARING ON 04.07.2011 ON WHICH DATE COPY OF THE REMAND REPORT WAS GIVEN TO THE ASSESSEE AND VIDE ORDER DAT ED 04.07.2011 ITSELF CONFIRMED THE ORDER OF THE AO AND DISMISSED THE APPEAL OF THE ASS ESSEE. 5. THE LD. AR OF THE ASSESSEE SUBMITTED THAT NO SUF FICIENT OPPORTUNITY WAS GRANTED TO THE ASSESSEE TO REPLY TO THE REMAND REPORT OF TH E AO AND THEREFORE ONE MORE OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE TO MA KE ITS REPLY TO THE REMAND REPORT OF THE AO BEFORE THE LD. CIT(A). 6. THE LD. DR HAD NO OBJECTION TO THE ABOVE SUBMISS IONS OF THE LD. AR OF THE ASSESSEE. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES BELOW AND THE MATERIALS AVAILABLE ON RE CORD. AFTER CONSIDERING THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE WE ARE OF THE C ONSIDERED OPINION THAT THE LD. CIT(A) SUPPLIED COPY OF THE REMAND REPORT OBTAINED FROM THE AO ON 04.11.2011 AS PER HIS ORDER. THE LD. CIT(A) PASSED HIS ORDER ALSO ON THE VERY SAME DATE I.E. 04.07.2011 THE DATE ON WHICH THE REMAND REPORT WAS SUBMITTED TO THE ASSESSEE. THUS IT IS OBSERVED THAT NO OPPORTUNITY WAS ALLOWED TO T HE ASSESSEE TO REBUT THE FINDING OF ITA NO.1116 /KOL/2012 DULAL KANTI CHOWDHURY, KOLKATA VS DCIT, CIRCLE-50,KOLKATA A.YR.2005-06 3 THE AO IN THE REMAND REPORT. THIS IS A GROSS VIOLAT ION OF THE PRINCIPLES OF NATURAL JUSTICE. WE, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO HIS FILE FOR ADJUDICATION OF THE ISSUE AFRE SH AFTER ALLOWING REASONABLE AND PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. THUS THE GROUNDS OF APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10.06.2013. SD/- SD/- [ .#! $'# , ] [ .., ,, , ] [MAHAVIR SINGH ] [N.S.SAINI] JUDICIAL MEMBER ACCOUNTANT MEMBER ( (( (4 4 4 4) )) ) DATE:10.06.2013. R.G.(.P.S.) 6 0 .$$7 87(9- COPY OF THE ORDER FORWARDED TO: 1. DULAL KANTI CHOWDHURY, CF-45, SECTOR-I, SALT LAKE C ITY, -700064. 2 D.C.I.T., CIRCLE-50, KOLKAT-54. 3 . CIT KOLKATA 4. CIT (A)-XXXII, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. /7 .$/ TRUE COPY, 62/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES