Appeal details
Counselvise Citation
[2012] 119 COUNSELVISE.COM (IT) 8052 (ITAT-KOLKATA)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 month(s) 17 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
08-11-2012
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
B
Next Hearing Date
08-11-2012
Assessment Year
2007-2008
Appeal Filed On
22-08-2012
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA [BEFORE SMT. DIVA SINGH, HONBLE JM & SHRI C.D.RAO, HONBLE AM ] / I.T.A NO.1223/KOL/2012 / ASSESSMENT YEAR : 2007-2008 YASEER ARAFAT, -VS- ITO, WARD-28(2), KOLKATA C/O- SHRI SOMNATH GHOSH, ADVOCATE SEVEN BROTHERS LODGE, P.O. BUROSIBTALA, P.S.-CHINSURAH, DIST- HOOGHLY, PIN-712 105. (PAN:ACVPA 3470H) ( /APPELLANT ) ( / RESPONDENT ) DATE OF HEARING: 08.11.2012 DATE OF PRONOUNCEMENT: 08.11.2012 FOR THE APPELLANT : SHRI SOMNATH GHOSH, ADVOCATE FOR THE DEPARTMENT : SHRI NIRANJAN SATPATI , JCIT, SR.D.R. /ORDER PER SMT.DIVA SINGH, J.M . THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER DATED 21.05.2012 OF COMMISSIONER OF INCOME TAX (APPEALS)-XIV, KOLKAT A PERTAINING TO 2007- 2008 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS:- 1. FOR THAT THE LD. COMMISSIONER OF INCOME TAX (APP EALS) XIV, KOLKATA FAILED TO APPRECIATE THAT NONE OF THE COND ITIONS PRECEDENT FOR THE ASSUMPTION OF JURISDICTION U/S. 40(A)(IA) OF THE I NCOME TAX ACT, 1961 EXISTED AND/OR FULFILLED IN THE INSTANT CASE BY TH E LD. INCOME TAX OFFICER, WARD 28(2), KOIKATA AND THE IMPUGNED ADDITION OF R S. 16,32,053/- UPHELD WITHOUT PROVING ANY VIOLATION ON THAT BEHAL F IS AB INITIO VOID, ULTRA VIRES AND EX-FACIE NULL IN LAW. 2. FOR THAT THE LD. COMMISSIONER OF INCOME TAX (AP PEALS) XIV, KOLKATA ACTED UNLAWFULLY IN SUSTAINING THE IMPUGNE D ADDITION OF RS. 1632,053/- MADE BY THE LD. INCOME TAX OFFICER, WAR D 28(2), KOLKATA INVOKING THE PROVISIONS OF S. 40(A)(IA) READ WITH S. 194C(1) OF THE INCOME TAX. ACT, 1961 WITHOUT TAKING INTO CONSIDERATION T HE INAPPLICABILITY THEREOF IN THE ASSESSMENT YEAR IN DISPUTE AND THE SPECIOUS ACTION ON THAT BEHALF IS ABSOLUTELY OPPOSED TO LAW. 2 ITA 1223-KOL-2012 YASEER ARAFAT ASSESSMENT YEAR : 2007-08 3. FOR THAT THE LD. COMMISSIONER OF INCOME THX (AP PEALS) XIV, KOLKATA WAS IN ERROR IN UPHOLDING THE PURPORTED AD DITION OF RS. 16,32,053/- MADE BY THE LD. INCOME TAX OFFICER, WA RD 28(2), KOLKATA APPLYING THE PROVISIONS OF S. 40(A)(IA) OF THE INC OME TAX ACT, 1961 BY MISREADING THE STATUTORY PRESCRIPTION CONTAINED IN S. 194C(1) OF THE ACT AND THE IMPUGNED FINDINGS IN THIS RESPECT ARE WHOL LY ARBITRARY, FLAWED, UNWARRANTED AND PERVERSE. 4. FOR THAT THE ACTION OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) XIV, KOLKATA IN UPHOLDING THE IMPUGNED A DDITION OF RS.9,50,000/- MADE BY THE LD. INCOME TAX OFFICER, WARD 2 8(2), KOLKATA ON THE UNFOUNDED PREMISE OF UNDISCLOSED INCOME U NDER THE GUISE OF THE PROVISIONS OF S. 68 OF THE INCOME TAX ACT, 1961 WI THOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE IN THIS RESPEC T IS WHOLLY ERRONEOUS, FLAWED AND PERVERSE. 5. FOR THAT IN VIEW OF THE EVIDENCE RELATING TO TH E IDENTITY AND CREDITWORTHINESS OF M/S. SHOW & CO. AND GENUINENES S OF THE TRANSACTION, THE PURPORTED FINDING OF THE LD. COMMISSIONER OF I NCOME TAX (APPEALS) XIV, KOLKATA IN UPHOLDING THE SPECIOUS ADDITION OF RS.9,50,000/- MADE BY THE LD. INCOME TAX OFFICER, WARD 28(2), KOLKATA IS COMPLETELY UNFOUNDED, UNJUSTIFIED AND UNTENABLE IN LAW. 2. LD. A.R., SHRI SOMNATH GHOSH, APPEARING AT THE T IME OF HEARING, SUBMITTED THAT THE POINTS AT ISSUE ARE COVERED IN F AVOUR OF THE ASSESSEE. HOWEVER, A PERUSAL OF THE RECORD ORDER SHOWS THAT T HE ASSESSEE, WHO IS ENGAGED IN THE BUSINESS OF HIRING AND TRANSPORTATION AS A C ONTRACTOR, UNDER THE NAME AND STYLE M/S. WESTERN COMMERCIAL SERVICES, WHO RETURNE D AN INCOME OF RS.2,07,236/-. THE AO MADE ADDITIONS BY WAY OF DISA LLOWANCE OF TRANSPORT CHARGES; DISALLOWANCE OF COMMISSION ON SALE OF CRAN E AND ALSO MADE ADDITION ON ACCOUNT OF UNDISCLOSED INCOME CLAIMED AS LOAN IN THE ORDER PASSED UNDER SECTION 143(3). IN APPEAL BEFORE THE CIT(A), THESE ADDITIONS WERE CHALLENGED AND VARIOUS OPPORTUNITIES WERE GIVEN AND ON ACCOUNT OF NON-REPRESENTATION ON THE PART OF THE ASSESSEE, THE ISSUE WAS CONCLUDED I N THE FOLLOWING MANNER: 4. THE APPELLANT HAS RAISED GROUNDS THAT THE ADDITI ONS MADE BY THE A.O. ARE NOT CORRECT AND CONTRARY TO LAW AND FACTS. HOW EVER, THE APPELLANT HAS NOT BROUGHT ON RECORD ANY MATERIAL IN SUPPORT OF H IS CONTENTION. THEREFORE, AFTER CAREFUL PERUSAL OF THE ASSESSMENT ORDER, I AM OF THE VIEW 3 ITA 1223-KOL-2012 YASEER ARAFAT ASSESSMENT YEAR : 2007-08 THAT THE ADDITIONS HAVE BEEN CORRECTLY MADE BY THE A.O. HENCE I CONFIRM THE ADDITIONS MADE BY THE A.O. HENCE, ALL THE GROU NDS OF APPEAL ARE DISMISSED. 3. IN THE AFOREMENTIONED PECULIAR FACTS AND CIRCUMS TANCES, AFTER HEARING THE PARTIES BEFORE THE BENCH, WE CONSIDER IT APPROPRIAT E TO RESTORE THE ISSUE BACK TO THE FILE OF THE CIT(A) WITH THE DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW COMPLYING WITH THE REQUIREMENTS OF STATUTE AS SET OUT IN SECTION 250(6) OF THE INCOME TAX ACT, WHICH NECESSARILY MANDATES T HAT THE CIT(A), WHILE DECIDING THE APPEAL SHALL SET OUT THE POINTS OF DIF FERENCE AND PASS AN ORDER DECIDING THE ISSUES ALONG WITH REASONING FOR THE CO NCLUSION. FOR READY REFERENCE, WE REPRODUCE THE RELEVANT STATUTORY REQU IREMENTS OF SECTION 250(6) OF THE INCOME TAX ACT, 1961. 250(6). THE ORDER OF THE COMMISSIONER (APPEALS) DIS POSING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POI NTS FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. 4. ON QUERY, THE LD. A.R. GAVE AN ORAL UNDERTAKING ON BEHALF OF THE ASSESSEE STATING THAT THE ASSESSEE SHALL PARTICIPATE IN THE PROCEEDINGS BEFORE THE CIT(A). IN THE LIGHT OF THE AFOREMENTIONED PECULIAR FACTS, CIRCUMSTANCES AND STATUTORY REQUIREMENT, THE ISSUE IS RESTORED TO THE FILE OF T HE CIT(A) WITH THE DIRECTION TO DECIDE THE SAME IN ACCORDANCE WITH LAW BY WAY OF A SPEAKING ORDER AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEAR D. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON 8 TH NOVEMBER, 2012. SD/- SD/- (C.D.RAO) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( ) )) ) DATED : 8 TH NOVEMBER, 2012 4 ITA 1223-KOL-2012 YASEER ARAFAT ASSESSMENT YEAR : 2007-08 ' # $#%- COPY OF THE ORDER FORWARDED TO: 1. / YASEER ARAFAT, C/O- SHRI SOMNATH GHOSH, ADVOCATE, SEVEN BROTHERS LODGE, P.O. BUROSIBTALA, P.S.-CHINS URAH, DIST- HOOGHLY, PIN-712 105. 2 / ITO, WARD-28(2), KOLKATA 3. ' ( )/ THE CIT(A), KOLKATA 4. ' / CIT, KOLKATA 5. ( ) / DR, KOLKATA BENCHES, KOLKATA # / TRUE COPY, * / BY ORDER, + , /ASSTT. REGISTRAR . -. /, 0 TALUKDAR/SR.P.S.
