Biwanath Lohia, Kolkata V. THE ITO, WD-48(3), KOLKATA, Kolkata

ITA 1289/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9539 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 08-06-2016
• Court: TRIBUNAL
• Department Lawyers: MD G HYAS UDDIN
• Keywords: Rectification of order; Principle of natural justice
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI S.S.VISWANETHRA RAVI, JM & DR. A.L.SAI NI, AM ./ ITA NO.1289/KOL/2016 ( / ASSESSMENT YEAR:2006-2007) BISWANATH LOHIA, HUF, 171/1, JN MUKHERJEE ROAD, SALKIA, HOWRAH-6, C/O: SRI JITENDRA KAUSHIK, ADVOCATE, 19-D, MUKTARAM BABU STREET, KOLKATA-700007 VS. ITO, WARD-48 (3), 3, GOVT. PLACE(W) KOLKATA-700001 ./ ./PAN/GIR NO.: AAEHB 6352 A ( /APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : SHRI NIRMAL KAUSHIK, ADVOCATE REVENUE BY : MD. GHYAS UDDIN, JCIT / DATE OF HEARING : 05/01/2016 /DATE OF PRONOUNCEMENT 13/01/2017 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAIN ING TO THE ASSESSMENT YEAR 2006-07, IS DIRECTED AGAINST THE OR DER PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-14, KOLKATA, I N APPEAL NO.15/CIT(A)-14WD-47(3)/2011-12, DATED 28.04.2016, WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFI CER (AO) UNDER SECTION 143(3)/154 OF THE INCOME TAX ACT 1961, (IN SHORT THE ACT), DATED 28.03.2011. 2. BRIEF FACTS OF THE CASE QUA THE ASSESSEE ARE THA T THE ASSESSEE FILED ITS RETURN OF INCOME ON 8.11.2006 DECLARING TOTAL I NCOME OF RS.1,05,810/-. ASESSEES CASE WAS SELECTED FOR SCRUTINY U/S.143(3) AND THE AO HAS COMPLETED THE ASSESSMENT BY MAKING VARIOUS ADDITION S. LATER ON, THE ASSESSING OFFICER PASSED THE RECTIFICATION ORDER UN DER SECTION 154 OF THE ACT OBSERVING THAT DEDUCTION U/S 24(A) OF THE I.T. ACT WAS WRONGLY ALLOWED ITA NO.1289/16 BISWANATH LOHIA HUF 2 TO THE ASSESSEE. ASSESSING OFFICER OBSERVED THAT TH E ASSESSEE IS NOT OWNER OF ANY HOUSE PROPERTY AND AN AMOUNT RECEIVED BY THE ASSESSEE RS. 5,00,000/- IS WITHOUT ANY CONSIDERATION. 3. AGGRIEVED FROM THE ORDER OF THE AO, ASSESSEE FIL ED AN APPEAL BEFORE THE CIT(A), WHO RELYING ON THE DECISION OF H ONBLE SUPREME COURT IN THE CASE OF H.M.ESUFALI H.M. ABDULALI (1973) 90 ITR 271, DISMISSED THE APPEAL FILED BY THE ASSESSEE. THE OBSERVATIONS OF T HE LD CIT(A) ARE AS UNDER:- IN THIS CONNECTION, RELIANCE MAY BE PLACED UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF H.M.ESUFALI H.M.ABDULALI (1973) 90 ITR 271 WHEREIN THE HONBLE COURT HAS HEL D THAT THE APPELLATE AUTHORITY CANNOT SUBSTITUTE ITS OWN JUDGM ENT IN PLACE OF THE JUDGMENT OF THE AO UNLESS IT IS SHOWN THAT THE JUDGMENT OF THE AO WAS BIASED, IRRATIONAL, VINDICTIVE OR CAPRICIOUS . IN THE RESULT, THE APPEAL OF THE APPELLANT DISMISS ED. 4. NOT BEING SATISFIED WITH THE ORDER OF LD. CIT(A) , THE ASSESSEE IS IN APPEAL BEFORE US AND HAS TAKEN THE FOLLOWING GROUND S OF APPEAL :- 1 FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN DISMI SSING THE GROUND OF APPEAL RAISED BEFORE HIM THAT THE ORDER P ASSED BY THE LD. ASSESSING OFFICER U/S 143(3)/154 OF THE I T ACT IS BAD IN LAW AS IN FACTS AS THERE WAS NO MISTAKE WHICH WAS A PPARENT FROM RECORD IGNORING THE SUBMISSIONS MADE BEFORE HI M OFFICIALLY ON 25.10.2013. 2 FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN DISMI SSING THE GROUND OF APPEAL RAISED BEFORE HIM THAT THE LD. ASS ESSING OFFICER ERRED IN NOT ALLOWING A SUM OF RS. 44,588/- BEING STATUTORY DEDUCTION UNDER SECTION 24(A) OF THE I T ACT 1961 UNDER THE HEAD' INCOME FROM HOUSE PROPERTY IN RECTI FICATION ORDER IGNORING THE SUBMISSION MADE BEFORE HIM OFFIC IALLY ON 25.10.2013 3 FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN DISMI SSING THE GROUND OF APPEAL RAISED BEFORE HIM THAT THE LD. ASS ESSING OFFICER ERRED IN ADDING A SUM OF RS. 5,00,000/- ON THE ALLEGED GROUND OF AMOUNT RECEIVED WITHOUT ANY CONSIDERATION IN ITA NO.1289/16 BISWANATH LOHIA HUF 3 RECTIFICATION ORDER IGNORING THE SUBMISSION MADE BE FORE HIM OFFICIALLY ON 25.10.2013 4 FOR THAT YOUR APPELLANT CRAVES LEAVE TO ADDUCE F URTHER OR OTHER GROUND/GROUNDS, IF ANY ON OR BEFORE THE HEARING OF APPEAL. 5. LD. AR FOR THE ASSESSEE HAS SUBMITTED BEFORE US THAT THE ASSESSEE SUBMITTED WRITTEN SUBMISSION BEFORE THE LD. CIT(A) BUT WHILE PASSING THE ORDER, THE LD. CIT(A) DID NOT CONSIDER THE MATERIAL SUBMITTED BY THE ASSESSEE, WHICH IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. THEREFORE, LD. AR REQUESTED BEFORE US TO REMAND THE CASE BACK TO T HE FILE OF LD. CIT(A) TO RE-ADJUDICATE THE SAME AFTER GIVING PROPER OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE. NO DOUBT, THE ASSESSEE COULD NOT ATTE ND THE OFFICE OF THE LD CIT (A ) ON MANY OCCASIONS/DATE OF HEARINGS, BUT HE SUBMITTED THE WRITTEN SUBMISSION ON DATED 25-10-2013 BEFORE THE LD CIT(A) , AND THE SAID WRITTEN SUBMISSIONS WERE NOT CONSIDERED BY THE LD. CIT(A) WHILE DISPOSING OFF THE APPEAL. THEREFORE, ORDER PASSED B Y THE LD CIT(A) IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. 6. ON THE OTHER HAND, LD. DR FOR THE REVENUE HAS RE LIED ON THE ORDERS OF THE AUTHORITIES BELOW. 7. HAVING HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD, WE ARE OF THE VIEW THAT THERE IS MERIT IN THE SUBMI SSIONS OF LD. AR FOR THE ASSESSEE. AS THE PROPOSITION CANVASSED BY LD. AR FO R THE ASSESSEE ARE SUPPORTED BY THE FACTS NARRATED BY HIM ABOVE. LD. A R HAS SUBMITTED BEFORE US THAT ASSESSEE HAS SUBMITTED WRITTEN SUBMI SSION BEFORE THE LD. CIT(A) ON DATED 25-10-2013, BUT HE DID NOT CONSIDER THE WRITTEN ITA NO.1289/16 BISWANATH LOHIA HUF 4 SUBMISSION WHILE PASSING THE ORDER, WHICH IS AGAINS T THE PRINCIPLE OF NATURAL JUSTICE. THEREFORE, CONSIDERING THE FACTUAL POSITION, WE ARE OF THE VIEW TO REMIT THE CASE BACK TO THE FILE OF LD. CIT( A) WITH A DIRECTION TO RE- ADJUDICATE THE ISSUE AFTER GIVING THE PROPER OPPORT UNITY OF BEING HEARD TO THE ASSESSEE AND AFTER TAKING INTO ACCOUNT THE WRIT TEN SUBMISSIONS ALREADY SUBMITTED BY THE ASSESSEE. 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 13/ 01/2017. S D/ - (S.S.VISWANETHRA RAVI) SD/ - (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; ! DATED 13/01/2017 ' $%& /PRAKASH MISHRA , 0 . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) % & , / ITAT, 1. / THE APPELLANT-BISWANATH LOHIA HUF 2. / THE RESPONDENT.-ITO WARD-48(3), KOLKATA 3. 1 ( ) / THE CIT(A), KOLKATA. 4. 1 / CIT 5. 23 4 0056 , 56 , / DR, ITAT, KOLKATA 6. 4 78 / GUARD FILE. 2 0 //TRUE COPY//