Shri Dhananjoy Mukherjee, Kolkata V. ITO, Ward - 34(3), Kolkata, Kolkata

ITA 1309/KOL/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3145 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2013
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 21-07-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 24-06-2010
• Court: TRIBUNAL
• Department Lawyers: K K TRIPATHI SRDR
• Assessee Lawyers: CHIRAJIT GOSWAMI
• Keywords: Additional evidence
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI, N.S. SAINI, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER ITA NO. 140 9 &1309 / KOL / 2010 ASSESSMENT YEAR :2007-08 INCOME TAX OFFICER, WARD-34(3), KOLKATA SHRI DHANANJOY MUKHERJEE C/O OCEANIANS PVT. LTD., P-14, MISSION ROW EXTN., KOLKATA 700 001 V/S . V/S . DHANONJAY MUKHERJEE C/O OCEANIANS PVT. LTD., P-14, MISSION ROAD, KOLKATA 700 001 [ PAN NO.AIWPM 7352 H ] INCOME TAX OFFICER, WARD-34(3), 18, RABINDRA SARANI, KOLKATA /APPELLANT .. / RESPONDENT /BY ASSESSEE SHRI CHIRAJIT GOSWAMI, AR /BY REVENUE SHRI K.K. TRIPATHI, SR-DR /DATE OF HEARING 13-06-2013 ! /DATE OF PRONOUNCEMENT 11-07-2013 ' ' ' ' / // / O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- THESE CROSS-APPEALS FILED BY REVENUE AND ASSESSEE ARE ARISING OUT COMMON ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS )-XX, KOLKATA (CIT(A) FOR SHORT) IN APPEAL NO.293/CIT(A)-XX/WD- 34(3)/09-1-/KOL DATED 22-04-2010. ASSESSMENT WAS FRAMED BY ITO, WARD-34(3 ), KOLKATA U/S.144 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED T O AS THE ACT) VIDE HIS ORDER DATED 24-12-2009 FOR ASSESSMENT YEAR (AY) 200 7-08. ITA NO.1409 &1309/KOL/2010 A.Y.2007-08 ITO WD-34(3), KOL V. DHANONJAY MUKHERJEE PAGE 2 2. AT THE OUTSET, LD. SR-DR FIRST OF ALL, TOOK US T O GROUND NO.5 RAISED IN REVENUES APPEAL, WHICH READS AS UNDER:- V) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(APPEALS) ERRED IN ACCEPTING THE FACTUAL EXPLANATIONS/SUBMISSIONS O F THE ASSESSEE WITHOUT THE EVIDENCES INCLUDING BOOKS OF ACCOUNTS FOR FY 20 05-06& 2006-07, 2007- 08 BEING EXAMINED BY THE ASSESSING OFFICER. THE NEW EVIDENCES PRODUCED BEFORE LEARNED CIT (APPEALS) WERE NOT EXAMINED BY T HE ASSESSING OFFICER & NO REMAND REPORT WAS CALLED FROM THE ASSESSING OFFI CER. IT APPEARS FROM THE APPELLATE ORDERS THAT BOOKS OF ACCOUNTS WERE NOT PR ODUCED EVEN BEFORE THE LEARNED CIT (APPEALS). HE FURTHER STATED THAT ASSESSEE IS THE PROPRIETOR O F M/S D.M. AGENCY, A WHOLESALE TRADING CONCERN OF M/S. NESTLE INDIA LTD. APART FROM THIS, ASSESSEE IS ALSO THE OWNER OF M/S. SHILPI BANDANA, M/S.BASUNDHARA YANTRA SANSTHA, M/S. NEW LOKNATYA AND M/S. D.M.PRODUCTION. ALL THESE PROPRIETARY CONCERNS ARE ENGAGED IN PERFORMING DRAMAS (JATRA) A T DIFFERENT PLACES. AS IS EVIDENT FROM THE ASSESSMENT ORDER AMPLE OPPORTUNITI ES WERE GIVEN TO THE ASSESSEE, THE AUTHORIZED REPRESENTATIVE OF THE ASSE SSEE APPEARED ON MANY DATES BUT NEVER PRODUCED THE BOOKS OF ACCOUNT AND OTHER EVIDENCE IN SUPPORT OF RETURN, NEITHER THE OTHER DETAILS AS REQ UISITIONED IN NOTICE U/S. 142(1) OF THE ACT. AS A RESULT, THE ORDER WAS PASSE D U/S. 144 OF THE ACT ON MERIT. THE ASSESSEE HAD FILED ITS RETURN OF INCOME SHOWING A TOTAL INCOME OF RS.3,41,647/-. THE CASE OF THE ASSESSEE WAS SELECTE D FOR SCRUTINY AND ORDER WAS PASSED U/S. 144 OF THE ACT DETERMINING A TOTAL INCOME OF RS.80.08 LAKH AND MAIN REASONS FOR ADDITION WERE NON TRACEABILITY OF CERTAIN ARTISTS TO WHOM OUTSTANDING LIABILITY WAS SHOWN UNDER SALARY H EAD, FAILURE TO FURNISH THE SAME OF 32 ARTISTS TO WHOM SALARY WAS PAID, FAI LURE TO PRODUCE PROOF OF VAT PAYMENT, NON-EXISTENCE OF SOME OF JATRA BROKERS PAYING ADVANCE, BOGUS INTEREST PAYMENT ETC., IN VIEW OF THE ABOVE, LD. DR TOOK US TO ASSESSMENT ORDER THAT THE ASSESSMENT WAS FRAMED U/S . 144 OF THE ACT AND THE REASONS RECORDED BY ASSESSING OFFICER IN HIS AS SESSMENT ORDER READS AS UNDER:- ITA NO.1409 &1309/KOL/2010 A.Y.2007-08 ITO WD-34(3), KOL V. DHANONJAY MUKHERJEE PAGE 3 IN RESPONSE, MR. B.S. PANDA, FCA AND SHRI S.CHOU DARY, LEARNED AUTHORIZED REPRESENTATIVE AND MR. DHANONJAY MUKHERJ EE ASSESSEE APPEARED FROM TIME TO TIME WITHOUT PRODUCING BOOKS OF ACCOUNTS INCLUDING THE DETAILS CALLED FOR UNDER SECTION 143(2) & 142(1 ) AS WELL AS THE REQUISITIONS MADE IN COURSE OF HEARINGS. AS THE ASS ESSEE FAILED TO PRODUCE THE BOOKS OF ACCOUNTS AND EVIDENCES IN SPITE OF REP EATED OPPORTUNITIES GIVEN, DUE TO LIMITATION OF TIME, ASSESSMENT IS COM PLETED EX PARTY U/S. 144 OF THE I.T. ACT 1961, ON MERIT. THE ASSESSING OFFICER HAS NOTED DETAILS OF ORDER-SH EET ENTERED NON- APPEARANCE BY THE ASSESSEE AND FINALLY FRAMED ASSES SMENT U/S. 144 OF THE ACT IN VIEW OF THE FOLLOWING REASONS:- FROM ABOVE, IT IS CLEAR THAT DESPITE SUFFICIENT AND REASONABLE TIME AND OPPORTUNITIES GIVEN, THE ASSESSEE FAILED TO PRODUCE BOOKS OF ACCOUNTS AND OTHER EVIDENCE IN SUPPORT OF THE RETURN. IN VIEW OF ASSESSEES FAILURE TO COMPLY WITH THE TERMS OF THE NOTICE SERVED U/S. 142 (1) TO PRODUCE BOOKS OF ACCOUNT AND OTHER REQUISITIONED DETAIL THE ASSESSME NT IS BEING MADE U/S. 144 OF THE INCOME TAX ACT 1961, ON MERIT. IN SUCH CIRCUMSTANCES, LD. DR POINTED OUT THAT CIT( A) HAS ADMITTED ALL ADDITIONAL EVIDENCES WITHOUT ALLOWING THE OPPORTUNI TY TO THE REVENUE. 3. ON QUERY FROM THE BENCH, LD. COUNSEL FOR THE ASS ESSEE CONCEDED THE POSITION AND STATED THAT ALL THE DOCUMENTS AND DETA ILS WERE FILED BEFORE CIT(A) FOR THE FIRST TIME BUT PARTLY SOME DETAILS W ERE FILED BEFORE THE ASSESSING OFFICER ALSO. IN SUCH CIRCUMSTANCES, BOTH LD. DR AS WELL AS LD. COUNSEL FOR THE ASSESSEE ADMITTED THAT ISSUE INVOLV ED IN BOTH THE APPEALS CAN BE REMITTED BACK TO THE FILE OF AO FOR FRESH AD JUDICATION. IN SUCH CIRCUMSTANCES, WE QUASH THE ORDER OF CIT(A) IN ENTE RITY AND SET ASIDE THE ISSUE TO THE FILE OF AO FOR RE-ADJUDICATION OF THE ENTIRE ASSESSMENT AFRESH AFTER ALLOWING REASONABLE OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE. ACCORDINGLY, BOTH THE APPEALS ARE ALLOWED FOR STATI STICAL PURPOSES IN TERMS OF OUR ABOVE DISCUSSION. ITA NO.1409 &1309/KOL/2010 A.Y.2007-08 ITO WD-34(3), KOL V. DHANONJAY MUKHERJEE PAGE 4 4. IN THE RESULT, BOTH THE APPEALS OF REVENUE AS WE LL AS ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 11.07.201 3 SD/- SD/- (N.S.SAINI) (MAHAVIR SINGH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, PRONOUNCED BY *DKP SD/- (PRAMOD KUMAR) SD/- (MAHAVIR SINGH) A.M. J.M. #$%- 11 /07/2013 , ' ' ' ' --. --. --. --. /. /. /. /. / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. $1$-2 3 / CONCERNED CIT 4. 3- / CIT (A) 5. . 67 ---2, -2!, / DR, ITAT, KOLKATA 6. 7:; <= / GUARD FILE. BY ORDER/ ' , >/? $ -2!, ,