Shri Jagteswar Singh, Kolkata V. ITO, WD-33(2), KOLKATA, Kolkata

ITA 1271/KOL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4481 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 06-06-2016
• Court: TRIBUNAL
• Department Lawyers: MD GHYAS UDDIN JCIT LD
• Assessee Lawyers: ANIKESH BANERJEE LD
• Keywords: Unexplained investment; Application of stay; Non compliance
• Section: 143(3); 69; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : A BE NCH : KOLKATA [BEFORE SHRI S.S.VISWANETHRA RAVI, JM & DR. A.L. SAINI, AM] S.P NO. 40/KOL/2016 [ ARISING OUT OF ITA NO. 1271/KOL/2016 A.Y 2011-12] SHRI JAGTESWAR SINGH VS. I.T.O WARD 33(2), KOLKATA PAN : AJVPS 1925N [APPLICANT] [RESPONDENT] ITA NO. 1271/KOL/2016 A.Y 2011-12 SHRI JAGTESWAR SINGH VS. I.T.O WARD 33(2), KOLKATA PAN : AJVPS 1925N (APPELLANT) (RESPONDENT) APPLICANT BY : SHRI ANIKES H BANERJEE, ADVOCATE, LD.AR RESPONDENT BY : SHRI M.D. GHYASUDDIN, JCIT, LD.SR.DR DATE OF HEARING : 12-08-2016 DATE OF PRONOUNCEMENT : 23-09-2016 ORDER SHRI S.S.VISWANETHRA RAVI, JM: BY FILING THIS STAY PETITION, THE ASSESSEE SEEKS STAY OF COLLECTION OUTSTANDING DEMAND OF RS.7,95,370/- PAYABLE BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2011-12. 2. THE FACTS OF THE UNEXPLAINED INVESTMENT U/S. 6 9 OF THE ACT ARE THAT THE AO ADDED RS.26,17,246/- TREATING THE SAME AS UNDISC LOSED INCOME AND PASSED AN ASSESSMENT ORDER TO THAT EFFECT U/S. 143(3) OF THE ACT FOR THE AY 2011-12. AS AGGRIEVED BY SUCH ASSESSMENT ORDER, THE ASSESSEE PR EFERRED AN APPEAL BEFORE THE CIT-A, WHEREIN HE DISMISSED THE APPEAL OF ASSESSEE FOR NON COMPLIANCE OF HEARING ON 30-03-2016. AGAINST WHICH THE ASSESSEE F ILED AN APPEAL BEFORE THE S.P NO. 40/KOL/2016 [IN ITA NO. 1271/KOL/2016] SHRI JAGTESWAR SINGH-JM 2 TRIBUNAL IN ITA NO. 1271/KOL/2016 ALONG WITH SA NO. 40/KOL/2016 FOR THE AY 2011-12. 3. AT THE TIME OF HEARING BEFORE US, THE LD.AR SUB MITTED THAT THE ASSESSEE HAS DERIVED HIS INCOME FROM TWO HEADS I.E. ONE FROM AGRICULTURAL INCOME AND ANOTHER INCOME FROM PARTNERSHIP FIRM. DURING THE CO URSE OF HEARING BEFORE US, HE DREW OUR ATTENTION TO PAGE 14 OF THE PAPER BOOK TO SHOW THAT HE EARNED AGRICULTURAL INCOME OF RS.18,74,900 AND DRAWING FRO M PARTNERSHIP FIRM OF RS.10,00,000/-. THE AO ALLOWED THE AGRICULTURAL INC OME OF RS.5,52,754/- OUT OF RS.18,74,900/- AND ADDED AN AMOUNT OF RS.23,22,146 (RS.10,00,000 + RS.13,22,146) I.E BALANCE AMOUNT OF CASH DEPOSITED IN THE ANDHRA BANK, BALLYGUNGE BRANCH, KOLKATA TREATED THE SAME AS INC OME FROM UNDISCLOSED SOURCES. THE CIT-A HAS CONFIRMED THE ACTION OF THE AO AND DISMISSED THE APPEAL OF ASSESSEE FOR NON COMPLIANCE OF NOTICE OF HEARING ON THE PART OF ASSESSEE. THE LD.AR FURTHER ARGUES THAT THE ASSESSE E DID NOT RECEIVE ANY NOTICE FROM THE CIT-A. HE DREW OUR ATTENTION TO PAGE 46 OF THE PAPER BOOK. 4. IN REPLY, THE LD.DR DREW OUR ATTENTION TO TABLE- A AT PAGE 31 OF THE PAPER BOOK AND PARAS 3-5(B) OF THE ASSESSMENT ORDER. HE F URTHER ARGUED THAT WITH REFERENCE TO CBDT CIRCULAR THAT IF THE ASSESSEE PA YS 15% OF THE DEMAND RAISED BY THE AO, AND THEN GOES IN APPEAL, IN THAT CASE A O CANNOT ASK THE ASSESSEE TO PAY FURTHER DEMAND. 5. HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATE RIAL AVAILABLE ON RECORD INCLUDING THE PAPER BOOK. IT IS NOTICED THAT ON REC EIVING OF NOTICE FROM THE CIT-A, THE LD.AR OF THE ASSESSEE ATTENDED AND FILED WRITTE N SUBMISSION BEFORE HIM. BASING ON WHICH THE CIT-A SOUGHT FOR A REMAND REPOR T FROM THE AO. AGAIN FRESH NOTICE WAS ISSUED TO THE ASSESSEE AND REMAND REPORT WAS SERVED ON THE ASSESSEE FOR FILING REJOINDER. THEREAFTER, THE CIT-A ISSUED ANOTHER NOTICE ON 22-02-2016 S.P NO. 40/KOL/2016 [IN ITA NO. 1271/KOL/2016] SHRI JAGTESWAR SINGH-JM 3 FOR WHICH NON COMPLIANCE WAS MADE BY THE ASSESSEE. THUS, THE CIT-A DISMISSED THE APPEAL OF ASSESSEE FOR NON COMPLIANCE ON PART OF THE ASSESSEE. THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE REMAINED ABSENT B EFORE THE CIT-A DURING THE COURSE OF APPELLATE PROCEEDINGS. HE DID NOT FILE RE JOINDER. 6. WITH REGARD TO SUBMISSIONS OF THE LD.DR THAT PAY MENT OF 15% OF THE DEMAND NOTICE IS TO BE MADE FOR SEEKING ANY STAY OF DEMAND, WE OBSERVE THAT OUT OF DEMAND OF RS.8,95,370/- THE ASSESSEE HAS ALREAD Y PAID RS.1,00,000/- VIDE CHALLAN DTD. 23-12-2013 WHERE THE DEMAND REMAINS T O RS.7,95,370/- AND IT IS ABOUT 12% PAYMENT OF THE DEMAND RAISED/ISSUED BY TH E REVENUE. HENCE, WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES TO BE SET ASID E TO THE FILE OF CIT(A), SINCE THE ASSESSING OFFICER HAS ALREADY BEEN TAKEN A VIEW I N THIS MATTER. ACCORDINGLY, WE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE ISSU E TO HIS FILE WITH THE DIRECTION TO RE-ADJUDICATE THIS ISSUE IN THE LIGHT OF DISCUSSION MADE SUPRA. 7. IN THE RESULT, THE STAY PETITION FILED BY THE AS SESSEE IS DISMISSED AND APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE AS STATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 23-09-2016 SD/- S D/- DR. A.L. SAINI S.S.VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 23-09-2016 COPY OF THE ORDER FORWARDED TO: 1. /APPLICANT : SHRI JAGTESWAR SINGH GREENWOOD PARK , HIG-3, FLAT-1 DB 1, NEW TOWN , RAJARHAT, KOLKATA-156.. 2 RESPONDENT : INCOME TAX OFFICER W 33(2) 54/1 RAF I AHMED KIDWAI ROAD, KOLKATA-16. 3. / CIT, 4. CIT(A), 5. DR, KOLKATA BENCHES, KOLKATA **PP/SPS TRUE COPY] BY ORDER, ASSTT REGISTRAR.