Ajay Sarkar, Kolkata V. ITO, Ward-46(1), Kolkata, Kolkata

ITA 117/KOL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0860 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 20-06-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 22-01-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Non compliance
• Section: 143(3); 142(1)

Judgement Text

AJAY SARKAR I.T.A NO.117/KOL/2015 ASSESSMENT YEAR: 2010-11 PAGE | 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA BEFORE: SHRI P. M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A NO.117/KOL/2015 (ASSESSMENT YEAR: 2010-11) AJAY SARKAR APPELLANT [PAN: BQHPS 0202 C] VS I.T.O, WARD-46(1), KOLKATA RESPONDENT FOR THE APPELLANT : SHRI RAJEEV KUMAR, ADVOCATE FOR THE RESPONDENT : SHRI SALLONG YADEN, ADDL. CI T DATE OF HEARING : 11.09.2017 DATE OF PRONOUNCEMENT : 06.12.2017 ORDER SHRI S.S. VISWANETHRA RAVI, JM: THIS APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 03.11.2014 PASSED BY THE COMMISSIONER OF INCOME TAX (A)-XXX, KOLKATA FOR A.Y 2010-11 WHEREIN HE PASSED EX PARTE ORDER FOR NON- COMPLIANCE ON BEHALF OF THE ASSESSEE. 2. THE ONLY ISSUE COVERING ALL THE GROUNDS RAISED I S TO BE DECIDED AS TO WHETHER THE CIT-A JUSTIFIED IN PASSING ORDER EX PARTE WITHOUT GIVING AN OPPORTUNITY TO THE ASSESSEE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THIS CASE ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND DERIVES INCOME FROM OTHER SOURCES. THE ASSESSEE FILED HIS RETURN OF INCOME DECLARING A TOTAL INCOME AT RS.1,56,316/- . THE SAID RETURN AJAY SARKAR I.T.A NO.117/KOL/2015 ASSESSMENT YEAR: 2010-11 PAGE | 2 WAS PROCESSED U/S. 143(3) OF THE ACT. ON AN INFORMA TION FROM AIR, THE AO ISSUED NOTICES U/S. 143(2) & 142(1) OF THE A CT REGARDING THE CASH DEPOSITS TO AN EXTENT OF RS.3,59,50,000/- IN A SSESSEES SAVING BANK ACCOUNT IN AXIS BANK. IN RESPONSE TO WHICH, TH E AR OF THE ASSESSEE APPEARED AND FILED SUBMISSION DT. 20-11-20 12. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF CASH DE POSIT IN THE SAVING BANK ACCOUNT. THE AR OF THE ASSESSEE STATED THAT THE ASSESSEE APART FROM HIS EMPLOYMENT IN JOB WORK WAS ALSO INVO LVED IN ACTING AS ENTRY OPERATOR TO OBLIGE PARTIES, WHO WANTED CHEQUE S AGAINST CASH. THE COMMISSION EARNED IN THE PROCESS WAS RECEIVED F ROM THE PARTY IN CASH, WHICH ADMITTEDLY NOT DISCLOSED IN THE RETURN AND OFFERED AN ADDITIONAL INCOME OF RS.1,78,882/- @ 25 PAISA OF T OTAL CASH DEPOSITS OF RS.7,15,53,024/- TO AVOID UNNECESSARY LITIGATION AND TO BUY PEACE. CONSIDERING THE ABOVE SUBMISSIONS, THE AO HAS TAKEN DEPOSITION OF THE ASSESSEE. BY EXAMINING THE SAID DEPOSITION, THE AO FIXED THE DATE OF HEARING ON 14-03-2013 AND FOR NON APPEARANCE THE AO ISSUED NOTICE DT. 20-03-2013 REQUESTING THE ASSESSEE TO EX PLAIN THE SOURCE OF ENTIRE CASH DEPOSITS SPECIFICALLY THE NAME AND A DDRESSES OF THE PERSONS FROM WHOM THE ASSESSEE RECEIVED CASH. ACCO RDING TO AO, THE ASSESSEE SUBMITTED A NIL DATED LETTER ON 20-02- 2013 STATING THAT THE ASSESSEE DID NOT MAINTAIN THE NAME OF THE PARTI ES AND IT ONLY MAINTAINED ROUGH NOTINGS. THE ASSESSEE ALSO STATED THAT HE IS NOT AWARE THE PRESENT WHEREABOUT OF THE PARTIES. FOR NO T SUBMITTING THE REQUIRED DETAILS AS SOUGHT BY THE AO ADDED THE ENTI RE CASH OF RS.7,15,53,024/- TO THE TOTAL INCOME OF THE ASSESSE E VIDE HIS ORDER DT. 26-0-2013 PASSED U/S. 143(3) OF THE ACT. 4. AGGRIEVED, THE ASSESSEE CHALLENGED THE ORDER OF THE AO BEFORE THE CIT-A. THE CIT-A, IN TURN, CONFIRMED THE IMPUGN ED ADDITION MADE BY THE AO FOR NON COMPLIANCE OF NOTICE ISSUED U/S. 250 OF THE ACT. AJAY SARKAR I.T.A NO.117/KOL/2015 ASSESSMENT YEAR: 2010-11 PAGE | 3 5. BEFORE US, THE LD. AR FILED A PETITION DT:11-09- 2017 AND SUBMITS THAT THE ASSESSEE APPOINTED SHRI SHRI S. K. SHAH AS AUTHORIZED REPRESENTATIVE TO APPEAR BEFORE THE CIT(A) IN FIRST APPELLATE PROCEEDINGS. BUT, HOWEVER, THE APPEAL WAS DISMISSED FOR NON- APPEARANCE OF THE SAID AR. THE LD. AR PRAYED ONE MO RE OPPORTUNITY MAY BE OFFERED TO ASSESSEE IN ORDER TO PROSECUTE GR OUNDS RAISED BEFORE THE CIT(A) AFRESH. THE LD. DR OPPOSED THE SA ME AND NO EVIDENCE WAS SHOWN BEFORE THIS TRIBUNAL THAT THE AS SESSEE APPOINTED SHRI S. K. SHAH IN THE FIRST APPELLATE PROCEEDINGS. THEREFORE, NO CREDENCE CAN BE GIVEN TO THE ARGUMENTS ADVANCED BY THE LD. AR IN REMANDING THE MATTER TO THE FILE OF CIT(A). 6. HEARD BOTH AND PERUSED THE MATERIALS AVAILABLE O N RECORD. IT IS NOTICED THAT THE CIT(A) ISSUED NOTICES U/S 250 OF T HE ACT FIXING THE DATE OF HEARING ON 20.05.2014, 19.06.2014, 31.07.20 14, 21.08.2014 & 15.10.2014. BUT, HOWEVER NEITHER ASSESSEE NOR THE AR OF THE ASSESSEE APPEARED BEFORE THE CIT(A). BEFORE US, THE LD.AR SUBMITS THE ASSESSEE APPOINTED AN AR BUT UNFORTUNATELY THE SAID AR DID NOT APPEAR BEFORE THE CIT-A. HE, HOWEVER, ASSUMED THAT THE ASSESSEE WILL APPEAR BEFORE THE AO, IF AN OPPORTUNITY IS GRA NTED IN THE INTEREST OF JUSTICE. IT IS ALSO OBSERVED THAT THE AO MADE AD DITION OF RS.7,15,53,024/- FOUND AS CASH DEPOSITS IN THE SAVI NGS BANK ACCOUNT OF ASSESSEE IN AXIS BANK AND ADDED THE SAME AS UNDI SCLOSED MONEY. IT IS ALSO NOTICED THAT THE AO REJECTED THE CLAIM O F THE ASSESSEE ON HIS FAILURE TO GIVE PROPER EXPLANATION. THEREFORE, WE F IND NO PROPER OPPORTUNITY TO THE ASSESSEE BEFORE THE AO. IN OUR O PNION AN ASSISTANCE REQUIRES FROM THE SIDE OF ASSESSEE IN SU BSTANTIATING THE CLAIM OF ASSESSEE AS CONTENDED BEFORE THE AO TAKING INTO CONSIDERATION THE FACT IN RESPECT OF ADDITION MADE BY THE AO, IN THE INTEREST OF JUSTICE, WE DEEM IT PROPER TO REMAND TH E MATTER TO THE FILE OF AO FOR HIS FRESH ADJUDICATION AND ASSESSEE SHALL PROSECUTE HIS CASE BEFORE THE AO WITHOUT SEEKING ANY ADJOURNMENTS AND AO SHALL AJAY SARKAR I.T.A NO.117/KOL/2015 ASSESSMENT YEAR: 2010-11 PAGE | 4 CONSIDER THE EVIDENCES, IF ANY, PUT FORTH BY THE AS SESSEE BEFORE HIM AND PASS ORDER IN ACCORDANCE WITH LAW. 7. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 06.12.2017. SD/- SD/- P. M. JAGTAP S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 06.12.2017 PLACE : KOLKATA RS(SPS) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT AJAY SARKAR, 7, GRANT LANE, 2 ND FLOOR, ROOM NO.218, KOLKATA 700 012. 2 RESPONDENT ITO, WARD-46(1), 3, GOVT. PLACE (WEST) , 2 ND FLOOR, KOLKATA 1. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA //TRUE COPY// BY ORDER, SR.PS/H.O.O ITAT, KOLKATA