Shri Manoj Kumar More, Kolkata V. ITO, Ward - 2(1), Siliguri, Siliguri

ITA 1168/KOL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87620 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 12-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY A
• Assessee Lawyers: S JHAJHARIA
• Keywords: Gift; Opportunity of being heard; Principle of natural justice; Reasonable cause; Condonation of delay
• Section: 143(3)

Judgement Text

I.T.A. NO . 1168 /KOL./201 1 ASSESSMENT YEAR: 200 4 - 20 0 5 PAGE 1 OF 7 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI N.K. SAINI (ACCOUNTANT MEMBER) , AND SHRI MAHAVIR SINGH (JUDICIAL MEMBER) I.T.A. NO. 1168 /KOL . / 20 1 1 ASSESSMENT YEAR : 200 4 - 20 0 5 SRI MANOJ KUMAR MORE,..... .................. .. .... ............ .. .APP ELL ANT C/O. M/S. SALARPURIA JAJODIA & CO., 7, C.R. AVENUE, KOLKATA - 700 072 [PAN : A D TPM 4887 F ] - VS. - INCOME TAX OFFICER , . ............ .. ............................ . RESPONDENT WARD - 2 ( 1 ) , SILIGURI , MATIGARA, SILIGURI, WEST BENGAL APPEARANCES BY: SHRI S. JHAJHARIA , CA , FOR THE ASSESSEE SHRI SANJAY , A CIT, SR. D.R. , FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : JANUARY 1 9 , 2 01 5 DATE OF PRONOUNCING THE ORDER : JANUARY 19 , 201 5 O R D E R PER N.K. SAINI : THIS IS AN APPEAL FILED BY THE ASSESSE E AGAINST THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) , SILIGURI IN APPEAL NO. 22 /CIT(A)/ SIG. / 10 - 11 DATED 25 . 0 2 .201 1 FOR TH E ASSESSMENT YEAR 200 4 - 0 5 . 2 . SHRI S. JHAJHARIA , C.A. , REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI SANJAY , A CIT, SR. D.R., REPRESENTED ON BEHALF OF THE REVENUE. I.T.A. NO . 1168 /KOL./201 1 ASSESSMENT YEAR: 200 4 - 20 0 5 PAGE 2 OF 7 3. REGISTRY HAS POINTED OUT THAT THE APPEAL IS BARRED BY LIMITATION BY 77 DAYS. THE ASSESSEE MOVED A PETITION DATED 07.09.2011 FOR CONDONATION OF DELAY STATING THEREIN AS UNDER: - DEAR SIR, MOST HUMBLY I BEG TO STATE THAT I HAVE PREFERRED AN APPEAL BEFORE YOUR BENCH AGAINST THE ORDER OF LD. CIT(APPE A LS), SILIGURI, WEST BENGAL UNDER SECTION 250/254 OF THE INCOME TAX ACT, 1961 DATED 25.02.2011 WHICH WAS RECEIVED BY ME ON 28.04.2011. THE DUE DATE OF FILING OF AFORESAID APPEAL IS 27.06.2011 AND THERE HAS BEEN A DELAY OF 75 DAYS ON MY PART. I WOULD FURTHER LIKE TO SUBMIT THAT I HAD BEEN SICK SINCE 10.06.2011 AND WAS UNDER CONTINUOUS MEDICAL OBSERVATION SINCE THEN AN D FOR THIS REASON, I COULD NOT FILE THE AFORESAID APPEAL PETITION BEFORE YOUR HON BLE BENCH IN TIME. I AM ENCLOSING HEREWITH THE COPY OF MEDICAL PRESCRIPTION FOR YOUR KIND CONSIDERATION. I, THEREFORE, REQUEST YOUR HONOUR TO BE KIND ENOUGH TO CONDONE THE DELAY IN FILING OF THE APPEAL PETITION. AND FOR THIS ACT OF KINDNESS, YOUR APPELLANT, AS DUTY BOUND, SHALL EVERY PRAY. THANKING YOU, YOURS FAITHFULLY, SD/ - (MANOJ KUMAR MORE) 4. IN SUPPORT OF THIS CONTENTION, THE ASSESSEE FURNISHED A CERTIFICATE ISSUE D BY INTERNATIONAL HOSPITAL, LOTUS TOWER, G.S. ROAD, GUWAHATI AND AN AFFIDAVIT DATED 08.09.2011 STATING THEREIN AS UNDER: - I, MANOJ KUMAR MORE, AGED ABOUT 42 YEARS, SON OF SHRI MAHAVIR PRASAD AGARWALLA, INDIAN BY CITIZEN, BUSINESS BY OCCUPATION, RESIDENT OF SILIGURI, P.O. & P.S. SILIGURI, WEST BENGAL, PRESENTLY RESIDING AT GUWAHATI, ASSAM, DO HEREBY SOLEMNLY AFFIRM AND DECLARE AS FOLLOWS: 1 . THAT I HAD BEEN SICK SINCE 10 TH JUNE, 2011 AND WAS UNDER MEDICAL OBSERVATION OF DR. P. MAHANTA OF GUWAHATI SINCE THEN . I.T.A. NO . 1168 /KOL./201 1 ASSESSMENT YEAR: 200 4 - 20 0 5 PAGE 3 OF 7 2 . THAT I HAVE MADE A DELAY IN FILING AN APPEAL PETITION BEFORE THE HON BLE ITAT, WEST BENGAL, KOLKATA AGAINST THE ORDER OF LD. CIT(APPEAL), SILIGURI WHICH WAS REQUIRED BY ME TO BE FILED WITHIN 27 TH JUNE, 2011. 3 . THAT I AM NOW SUBMITTING THE APPEAL PETITION BEFORE THE HON BLE ITAT, WEST BENGAL, KOLKATA AGAINST THE ORDER OF LD. CIT(APPEALS), SILIGURI ALONGWITH A CONDONATION OF DELAY PETITION. THE STATEMENTS MADE BY ME ARE TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF AND I SIGN THIS AFFIDAVIT ON THIS THE 7 TH D AY OF SEPTEMBER, 2011 . 5. DURING THE COURSE OF HEARING, LD. COUNSEL FOR THE ASSESESE STATED THAT THE ASSESSEE WAS SICK AND WAS UNDER MEDICAL OBSERVATION. SO THERE WAS A REASONABLE CAUSE FOR FILING THE APPEAL BELATEDLY. HE REQUESTED TO CONDONE THE DELAY IN FILING THE APPEAL. 6. IN HIS RIVAL SUBMISSION, LD. CIT, D.R. STATED THAT THE DELAY IN FILING THE APPEAL MAY NOT BE CONDONED. 7. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES, WE ARE OF THE VIEW THAT THERE WAS A REASONABLE CAUSE FOR NOT FILING THE APPEAL IN TIME BY THE ASSESSEE. WE, THEREFORE, BY CONSIDERING THE CERTIFICATE ISSUED BY THE INTERNATIONAL HOSPITAL, LOTUS TOWER, G.S. ROAD, GUWAHATI AND THE AFFIDAVIT OF THE ASSESSEE , CONDONE THE DELAY AND THE APPEAL IS ADMITTED. 8. THE ASSESSEE HAS R AISED THE FOLLOWING GROUNDS: - (1) FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS WHOLLY WRONG AND UNJUSTIFIED IN PASSING THE ORDER AFRESH AND AGAIN DISMISSING THE APPEAL WITHOUT GIVING PROPER, REASONABLE AND ADEQUATE OPPORT UNITY OF HEARING TO THE ASSESSEE AND ALSO WITHOUT PROPERLY CONSIDERING AND APPRECIATING THE FACTS OF THE CASE AND THE VARIOUS DETAILS WITH RELEVANT AND SUPPORTING DOCUMENTS FILED DURING THE ASSESSMENT AND APPELLATE STAGE. I.T.A. NO . 1168 /KOL./201 1 ASSESSMENT YEAR: 200 4 - 20 0 5 PAGE 4 OF 7 THE ACTION OF THE LD. CIT(A) WAS WHOLLY UNREASONABLE, UNCALLED FOR AND BAD IN LAW. (2) FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS WHOLLY WRONG AND UNJUSTIFIED IN CONFIRMING THE AO S ACTION IN MAKING ARBITRARY AND UNLAWFUL ADDITION OF RS.8,00,000/ - U/S 68 OF THE I.T. ACT MERELY ON ASSUMPTION AND PRESUMPTION AND WITH A BIASED AND PREJUDICED MIND IN RESPECT OF THE GIFT OF THE SAID AMOUNT RECEIVED BY THE ASSESESE FROM THE DONOR, HIS CLOSE RELATIVE, THROUGH BANKING CHANNEL INSPITE OF THE FACTS THAT THE IDEN TITY AND CREDITWORTHINESS OF THE DONOR AND GENUINENESS OF THE GIFT RECEIVED FROM THE DONOR WAS FULLY ESTABLISHED THROUGH SUBMISSION OF ALL RELEVANT AND SUPPORTING DOCUMENTS. THE ACTION OF THE LD. CIT(A) WAS WHOLLY UNREASONABLE, UNCALLED FOR AND BAD IN LAW. (3) FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS WHOLLY WRONG AND UNJUSTIFIED IN CONFIRMING THE AO S ACTION IN MAKING AN ARBITRARY DISALLOWANCE OF RS.30,000/ - ON ACCOUNT OF PAYMENT OF OFFICE RENT DEBITED IN THE AUDITED PROFIT & LOSS ACCOUNT ON VAGUE AND FLIMSY GROUNDS WITHOUT PROPERLY CONSIDERING AND APPRECIATING THE FACTS OF THE CASE. THE ACTION OF THE LD. CIT(A) WAS WHOLLY UNREASONABLE, UNCALLED FOR AND BAD IN LAW. 9. THE MAIN GRIEVANCE OF THE ASSESSEE IN THIS APPEAL IS THAT THE LD. CIT(APPEALS) HAS NOT GIVEN PROPER, REASONABLE AND ADEQUATE OPPORTUNITY OF BEING HEARD. 10. THE FACTS IN BRIEF ARE THAT THE ASSESSMENT ORDER IN THIS CASE WAS PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (HEREIN AFTER REFERRED TO THE ACT IN SHORT) ON 27.12.2006 BY MAKING CERTAIN ADDITIONS. BEING AGGRIEVED, ASSESSEE PREFERRED APPEAL TO THE LD. CIT(APPEALS), WHO DISMISSED THE SAME EX - PARTE. THE ASSESSEE FURTHER APPEALED TO THE ITAT, B BENCH, KOLKATA IN ITA NO. 87/KOL/2010, WHEREI N VIDE ORDER DATED 26.07.2010 THE MATTER WAS RESTORED TO THE CIT(APPEALS) TO BE DECIDED AFRESH AFTER GIVING PROPER OPPORTUNITY TO THE ASSESSEE AND THE ASSESSING OFFICER AS PER LAW. THE LD. CIT(APPEALS) AGAIN DISMISSED THE APPEAL OF THE ASSESSEE EX - PARTE, ALTHOUGH NEITHER THE ASSESSING OFFICER NOR THE ASSESSEE I.T.A. NO . 1168 /KOL./201 1 ASSESSMENT YEAR: 200 4 - 20 0 5 PAGE 5 OF 7 WAS PRESENT BEFORE HIM. WHILE DECIDING THE APPEAL OF THE ASSESSEE EX - PARTE, LD. CIT(APPEALS) OBSERVED AS UNDER: - A CCORDINGLY, THE HEARING WAS FIXED ISSUING NOTICE U/S. 250 OF THE ACT ON 17.07.2010 FI XING THE HEARING ON 28.09.2010, BUT THE ASSESSEE FILED ONE ADJOURNMENT APPLICATION WHICH WAS ALLOWED AND THE NEXT HEARING WAS FIXED ON 28.09.2010 WHEN NO ONE APPEARED. THE HEARING WAS AGAIN FIXED ON 26.10.2010 ISSUING NOTICE DATED 12.10.2010 AND IN RESPONS E TO THE SAME, THE AR OF THE ASSESSEE SHRI S.R. NAKIPURIA, CA APPEARED AND MADE WRITTEN SUBMISSION WHEN HE WAS ASKED TO PRODUCE SOME EVIDENCE AND DOCUMENTS IN SUPPORT OF HIS SUBMISSION AND THE HEARING WAS RE - FIXED ON 15.11.2010. BUT THEREAFTER, THE AR NEVE R APPEARED. THEREFORE, ANOTHER NOTICE WAS ISSUED ON 04.02.2011 FIXING THE DATE OF HEARING ON 25.02.2011. AS USUAL, THERE IS NO COMPLIANCE. AS SUFFICIENT OPPORTUNITIES OF BEING HEARD HAVE BEEN PROVIDED BUT THE ASSESSEE DID NOT MAKE PROPER COMPLIANCE AS IN THE CASE OF ORIGINAL APPEAL HEARING, THE APPEAL IS DECIDED ON MERIT CONSIDERING THE MATERIAL AVAILABLE ON RECORD . 11. LD. CIT(APPEALS) CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER BY OBSERVING AS UNDER: - I HAVE CAREFULLY CONSIDERED THE CONTENTI ON OF THE ASSESESE AND ALSO PERUSED THE ASSESSMENT ORDER. THE ASSESSEE DID NOT DENY THAT THERE WERE SEVERAL OVER WRITINGS IN THE BILLS. BUT HE HAS SUPPRESSED THE FACT THAT SERIAL NUMBERS MENTIONED ON THE BILLS DID NOT COMMENSURATE THE DATE MENTIONED THERE IN. THE LD. AO HAS GIVEN THE SAME IN A CHART IN HER ORDER WHICH WAS ALSO GIVEN TO THE ASSESESE IN THE SHOW - CAUSE NOTICE. BUT THE ASSESESE FAILED TO RECONCILE THE SAME AND FURNISH ANY EXPLANATION. IT IS NOT THE DUTY OF THE LD. AO TO OBTAIN FURTHER CLARIFICA TION FROM THE H OTEL OWNER. THE ASSESSEE SHOULD HAVE OBTAINED FURTHER EVIDENCE FOR STRENGTHENING HIS EXPLANATION. THEREFORE, IT CANNOT BE SAID THAT THERE WAS ANY AMBIGUITY IN THE ORDER OF THE LD. AO. EVEN, DURING THE APPELLATE PROCEEDINGS, THE ASSEESSEE FAI LED TO ADDUCE ANY EVIDENCE OR EXPLANATION. THEREFORE, I DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE LD. AO. THE SAME IS CONFIRMED . BEING AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. I.T.A. NO . 1168 /KOL./201 1 ASSESSMENT YEAR: 200 4 - 20 0 5 PAGE 6 OF 7 12. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(APPEALS) WHILE DECIDING THE APPEAL OF THE ASSESSEE HAD NOT GIVEN DUE , PROPER, REASONABLE AND ADEQUATE OPPORTUNITY OF BEING HEARD AND DECIDED THE CASE IN HASTE , E VEN HE DID NOT COMPLY WITH THE DIRECTION GIVEN BY THE ITAT VIDE ORDER DATED 26.07. 2010 TO DECIDE THE APPEAL AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSING OFFICER AS WELL AS THE ASSESSEE. 13. IN HIS RIVAL SUBMISSION, LD. SR. D.R. SUPPORTED THE ORDER OF THE LD. CIT(APPEALS) AND FURTHER SUBMITTED THAT THE ASSESSEE DID NOT COOPE RATE AND THE LD. CIT(APPEALS) AFFORDED MANY OPPORTUNITIES, THEREFORE, THERE WAS NO OPTION EXCEPT TO DECIDE THE APPEAL EX - PARTE. 14. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE CASE WAS REMANDED BACK TO THE LD. CIT(APPEALS) BY ITAT, B BENCH, KOLKATA VIDE ORDER DATED 26.07.2010 IN ITA NO. 87/KOL./2010. IN THE SAID ORDER, THE MATTER WAS RESTORED TO THE FILE OF CIT(APPEALS) WITH A DIRECTION TO DECIDE THE SAM E AFRESH AFTER GIVING DUE AND PROPER OPPORTUNITY OF HEARING TO THE PARTIES AND CONSIDERING SUCH EVIDENCES AS MAY BE FILED BEFORE HIM. HOWEVER, LD. CIT(APPEALS) DECIDED THE APPEAL EX - PARTE , I N THE ABSENCE OF BOTH THE PARTIES . THE LD. CIT(APPEALS) ALTHOUGH M ENTIONED IN THE IMPUGNED ORDER THAT ANOTHER NOTICE WAS ISSUED ON 04.02.2011 FIXING THE DATE OF HEARING ON 25.02.2011, BUT THERE WAS NO COMPLIANCE. HOWEVER, HE NOWHERE MENTIONED THAT THE NOTICE OF HEARING ISSUED ON 04.02.2011 WAS SERVED UPON THE ASSESESE. I T IS WELL SETTLED LAW THAT NO BO DY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM A UDI A LTER A M P ARTEM . IN THE PRESENT CASE, AS WE HAVE ALREADY NOTED THAT IT IS NOT CLEAR AS TO WHETHER THE NOTICE OF HEARING ON 25.02.2011 WAS SERVED TO THE ASSESSEE OR NOT . WE , THEREFORE, KEEPING IN VIEW THE PRINCIPLE S OF NATURAL JUSTICE RESTORE THIS CASE BACK TO THE FILE OF THE LD. CIT(APPEALS) TO BE DECIDED AFRESH AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD I.T.A. NO . 1168 /KOL./201 1 ASSESSMENT YEAR: 200 4 - 20 0 5 PAGE 7 OF 7 TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COOPERATE AND NOT TO SEEK UNWARRANTED OR UNDUE ADJOURNMENTS. 15 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH JANUARY , 201 5 . SD/ - SD/ - MAHAVIR SINGH N.K. SAINI (JUDICIAL MEMBER) ( ACCOUNTANT MEMBER) KOLKATA, THE 19 TH D AY OF JANUARY , 201 5 COPIES TO : (1) SRI MANOJ KUMAR MORE, C/O. M/S. SALARPURIA JAJODIA & CO., 7, C.R. AVENUE, KOLKATA - 700 072 (2) INCOME TAX OFFICER, WARD - 2(1), SILIGURI, MATIGARA, SILIGURI, WEST BENGAL (3) COMMISSIONER OF INCOME - TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA B ENCHES, KOLKATA LAHA/SR. P.S.