Sri Lakshmi Kanta Kesh, Durgapur V. ITO, WD-1(3), DURGAPUR, Durgapur

ITA 13/KOL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0950 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-11-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 04-01-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained investment
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA [BEFORE HONBLE SHRI ABY. T. VARKEY, JM & SHRI M. BALAGANESH, AM ] I.T.A NO. 13/KOL/2016 ASSESSMENT YEAR : 2009-1 0 SHRI LAKSHMI KANTA KESH - VS- ITO, WARD-1(3), DURGAPUR [PAN: AESPK 8143 C] (APPELLANT) (RESPONDE NT) FOR THE APPELLANT : SHRI U.DASGUPTA, A DVOCATE FOR THE RESPONDENT : SHRI ARINDAM BHATTACHARJ EE, ADDL. CIT DATE OF HEARING : 07.11.2017 DATE OF PRONOUNCEMENT : 17.11.2017 ORDER PER M.BALAGANESH, AM 1. THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE O RDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-DURGAPUR [IN SHORT THE LD. CIT(A)] IN APPEAL NO. 181/CIT(A)/DGP/2011-12 DATED 13.10.2014 AGAINST TH E ORDER PASSED BY THE ITO, WARD-1(3), DURGAPUR [IN SHORT THE LD. AO] U/S 143(3 ) OF THE INCOME TAX ACT, 1961 [HEREINAFTER REFERRED TO AS THE ACT] DATED 30.12. 2011 FOR THE ASSESSMENT YEAR 2009-10. 2. THE ASSESSEE HAD RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. FOR THAT THE ORDER OF THE AO IS ARBITRARY, EXCE SSIVE AND HENCE BAD IN LAW. 2. FOR THAT ON THE FACTS OF THE CASE THE AO WAS NOT LEGALLY JUSTIFIED IN ADDING BACK AN AMOUNT OF RS. 3,27,778/- ON A/C OF UNEXPLAI NED MONEY IN BANK, WHEN THE SOURCE OF THE SAID DEPOSITS IN BANK ARE FULLY EXPLA INABLE, AND THE SAME MAY PLEASE BE DELETED. 3. FOR THAT ON THE FACTS OF THE CASE THE AO WAS NOT LEGALLY JUSTIFIED IN ADDING BACK AN AMOUNT OF RS. 4,000/- ON A/C OF UNEXPLAINED DEPOSIT IN CAMS, WHEN THE 2 ITA NO.13/KOL/2016 LAKSHMI KANTA KESH A.YR.2009-10 2 SOURCE OF THE SAID DEPOSITS ARE FULLY EXPLAINABLE, AND HAS COME OUT OF REGULAR BUSINESS TRANSACTIONS, AND AS SUCH THE SAME MAY PLE ASE BE DELETED. 4. FOR THAT THE AO ACTED ILLEGALLY IN DEMANDING REG ULAR BOOKS OF ACCOUNTS FROM THE APPELLANT, WHEN THE APPELLANT WAS NOT REQUIRED TO MAINTAIN BOOKS U/S 44AA, BECAUSE THE APPELLANTS BUSINESS IS COVERED U/S 44AF , AND THE PROFITS DISCLOSED U/S 44AF IS DEEMED TO BE THE INCOME FROM BUSINESS. 5. FOR THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTE R, AMEND ANY FURTHER GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 3. THE BRIEF FACTS OF THIS APPEAL IS THAT THE ASSES SEE IS AN INDIVIDUAL AND HAD FILED HIS RETURN OF INCOME FOR THE ASST YEAR 2009-10 ON 13.7. 2010 DECLARING TOTAL INCOME OF RS 3,98,000/-. THE LD AO IN THE COURSE OF ASSESSMENT PROCEEDINGS DIRECTED THE ASSESSEE TO PRODUCE THE BOOKS OF ACCOUNTS. IN RESPONSE TO THIS , THE ASSESSEE REPLIED THAT THE INCOME HAS BEEN OFFERED U/S 44AE AND 44AF OF THE ACT AND H ENCE HE IS NOT REQUIRED TO MAINTAIN ANY BOOKS OF ACCOUNTS. THE LD AO HOWEVER OBSERVED THAT THE ASSESSEE HAD FILLED UP THOSE COLUMNS IN THE RETURN OF INCOME RELEVANT TO MAINTENANCE OF BOOKS OF ACCOUNTS AND ACCORDINGLY INSISTED FOR PRODUCTION OF BOOKS OF ACCOUNTS BEFORE HIM. LATER THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT ON 3 0.12.2011 DETERMINING TOTAL INCOME AT RS 7,29,778/-. IN THE SAID ASSESSMENT, T HE FOLLOWING ADDITIONS WERE MADE :- UNEXPLAINED BANK BALANCES - RS 3,27,778/- UNEXPLAINED INVESTMENT - RS 4,000/- 4. THE ASSESSEE AGITATED THE ADDITIONS BEFORE THE L D CITA. BEFORE THE LD CITA , NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE GIVING S EVERAL OPPORTUNITIES AND ACCORDINGLY THE LD CITA DISMISSED THE APPEAL EX PARTE . AGGRIE VED, THE ASSESSEE IS IN APPEAL BEFORE US. 3 ITA NO.13/KOL/2016 LAKSHMI KANTA KESH A.YR.2009-10 3 5. WE HAVE HEARD THE RIVAL SUBMISSIONS. THE LD AR B EFORE US PRAYED FOR ONE MORE OPPORTUNITY TO BE AFFORDED TO THE ASSESSEE AS THE A DDITIONS HAS BEEN SUSTAINED BY THE LD CITA WITHOUT ANY BASIS AND MORE SO THE ADDITIONS WE RE MADE BY THE LD AO WITHOUT PROPER REASONS. WE FIND THAT THE ADDITIONS HAS BE EN MADE MAINLY ON THE GROUND THAT NO DETAILS WERE SUBMITTED BY THE ASSESSEE BEFORE THE L D AO. THE ASSESSEE HAD NOT SUBSTANTIATED HIS CONTENTIONS BEFORE THE LD CITA. WE FIND THAT THE LD CITA HAD DISMISSED THE APPEAL EX PARTE WITHOUT HEARING THE A SSESSEE. HENCE IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE DEEM IT FIT AND APPROPRIA TE, TO REMAND THIS APPEAL TO THE FILE OF THE LD CITA FOR DENOVO ADJUDICATION OF THE GROUNDS RAISED BEFORE IT ON MERITS AND DECIDE THE APPEAL AFRESH IN ACCORDANCE WITH LAW. A CCORDINGLY THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 17.11.2017 SD/- SD/- [A.T. VARKEY] [ M.BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 17.11.2017 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. SHRI LAKSHMI KANTA KESH, BAIDYANATH FISH CENTRE, KARANGA PARA, DURGAPUR-713201 2. ITO, WARD-1(3), DURGAPUR, CITY CENTRE, DURGAPUR- 713216 3. C.I.T(A)- , KOLKATA 4. C. I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S 4 ITA NO.13/KOL/2016 LAKSHMI KANTA KESH A.YR.2009-10 4