Bhairab Nandy, Hooghly V. ITO, Ward - 23(4), Hooghly , Hooghly

ITA 1348/KOL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4488 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 19-06-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: I BAN ERJEE
• Keywords: Revision of order; Opportunity of being heard; Source of fund
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (SMC), KOLKATA [BEFORE SHRI P.M. JAGTAP, HONBLE VICE - PRESIDENT] I.T.A. NO. 1348/KOL/2018 ASSESSMENT YEAR : 2009-10 BHAIRAB NANDY.....................................APPELLANT BENGAI, SUBHAS NAGAR, GOGHAT, HOOGHLY 712 611. [PAN : AFIPN 4034 J] ITO WARD 23(4) HOOGHLY...........................RESPONDENT GRAND TRUNK ROAD, CHINSURAH, HOOGHLY 712 102. APPEARANCES BY: SHRI I BANERJEE, AR APPEARING ON BEHALF OF THE ASSESSEE. SHRI KAPIL MONDAL, JCIT APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : SEPTEMBER 20, 2018 DATE OF PRONOUNCING THE ORDER : OCTOBER 26, 2018 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT (APPEALS) 6, KOLKATA DATED 18.09.2017. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL WHO IS ENGAGED IN THE BUSINESS OF TRADING OF PADDY AND VEGETABLE. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY HIM ON 19.08.2009 DECLARING A TOTAL INCOME OF RS. 1,13,410/-. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD DEPOSITED A TOTAL AMOUNT OF RS. 7,34,950/- IN HIS BANK ACCOUNT. SINCE NO SATISFACTORY EXPLANATION IN RESPECT OF THE SOURCE OF THE SAID DEPOSITS COULD BE OFFERED BY THE ASSESSEE, THE ASSESSING OFFICER TREATED THE SAME AS UNACCOUNTED SALES OF THE ASSESSEE AND MADE AN ADDITION OF RS. 88,195/- TO THE TOTAL INCOME OF THE ASSESSEE BEING PROFIT ESTIMATED @ 12% ON THE ALLEGED UNACCOUNTED SALES IN THE ASSESSMENT ORIGINALLY COMPLETED U/S 143(3). ON EXAMINATION OF THE RECORD OF THE SAID ASSESSMENT, THE CONCERNED 2 I.T.A. NO. 1348/KOL/2018 A.Y. 2009-10 BHAIRAB NANDY LD. CIT WAS OF THE VIEW THAT THE AO OUGHT TO HAVE EXAMINED THE SOURCE OF FUNDS OF THE CASH DEPOSITS FOUND TO BE MADE IN THE BANK ACCOUNT OF THE ASSESSEE AND SHOULD HAVE CONSIDERED THE TOTAL UNACCOUNTED RECEIPTS FOR ADDITION TO THE TOTAL INCOME OF THE ASSESSEE. HE ACCORDINGLY TREATED THE ORDER PASSED BY THE AO U/S 143(3) AS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE AND SETTING ASIDE THE SAME VIDE HIS ORDER PASSED U/S 263, HE DIRECTED THE AO TO MAKE THE ASSESSMENT AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. AS PER THE DIRECTION OF THE LD. CIT, A FRESH ASSESSMENT WAS MADE BY THE AO VIDE AN ORDER DATED 27.03.2015 PASSED U/S 143(3)/263 WHEREIN HE MADE A FURTHER ADDITION OF RS. 6,46,765/- TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF CASH DEPOSITS FOUND TO BE MADE IN HIS BANK ACCOUNT BY TREATING THE SAME AS UNEXPLAINED. 3. AGAINST THE ORDER PASSED BY THE AO U/S 263/143(3), AN APPEAL WAS FILED BY THE ASSESSEE BEFORE THE LD. CIT(A). THERE WAS HOWEVER A DELAY OF 4.5 MONTHS ON THE PART OF THE ASSESSEE IN FILING THE SAID APPEAL AND THE ASSESSEE SOUGHT CONDONATION OF THE SAID DELAY ON THE GROUND THAT HE WAS NOT WELL DURING THE RELEVANT PERIOD. HE ALSO FILED A MEDICAL CERTIFICATE TO SUPPORT AND SUBSTANTIATE HIS CASE. AS PER THE SAID MEDICAL CERTIFICATE, THE ASSESSEE WAS ADVISED BED REST FOR ONE MONTH AND KEEPING IN VIEW THE SAME, THE LD. CIT(A) HELD THAT THE DELAY OF 4.5 MONTHS WAS EXPLAINED BY THE ASSESSEE ONLY TO THE EXTENT OF ONE MONTH AND THERE WAS NO SUFFICIENT CAUSE FOR THE DELAY OF REMAINING 3.5 MONTHS. HE ACCORDINGLY TREATED THE APPEAL FILED BY THE ASSESSEE AS BARRED BY LIMITATION AND DISMISSED THE SAME IN LIMINE. 3 I.T.A. NO. 1348/KOL/2018 A.Y. 2009-10 BHAIRAB NANDY AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AT THE OUTSET, IT IS NOTED THAT THERE IS A DELAY OF 172 DAYS ON THE PART OF THE ASSESSEE IN FILING THIS APPEAL BEFORE THE TRIBUNAL. IN THIS REGARD, THE ASSESSEE HAS FILED AN APPLICATION SEEKING CONDONATION OF THE SAID DELAY ON THE GROUND THAT HE WAS SUFFERING FROM PROLONGED ILLNESS DURING THE RELEVANT PERIOD. SINCE THE SAID APPLICATION FILED BY THE ASSESSEE FOR THE CONDONATION OF THE DELAY IS DULY SUPPORTED BY THE MEDICAL CERTIFICATES EVIDENCING THE PROLONGED ILLNESS OF THE ASSESSEE AND ADVICE GIVEN BY THE DOCTORS FOR BED REST FROM TIME TO TIME, I AM SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE DELAY OF 172 DAYS ON THE PART OF THE ASSESSEE IN FILING THIS APPEAL BEFORE THE TRIBUNAL. IT IS A WELL SETTLED POSITION OF LAW AS REITERATED TIME AND AGAIN BY THE HONBLE SUPREME COURT THAT THE EXPRESSION SUFFICIENT CAUSE IS TO BE CONSTRUED LIBERALLY IN ORDER TO ADVANCE THE SUBSTANTIATE CAUSE OF JUSTICE. I ACCORDINGLY CONDONE THE DELAY ON THE PART OF THE ASSESSEE IN FILING THIS APPEAL BEFORE THE TRIBUNAL. I ALSO CONDONE THE DELAY ON THE PART OF THE ASSESSEE IN FILING HIS APPEAL BEFORE THE LD. CIT(A) FOR THE SIMILAR REASONS HOLDING THAT THE PROLONGED ILLNESS OF THE ASSESSEE DULY ESTABLISHED ON THE BASIS OF MEDICAL CERTIFICATE WAS A SUFFICIENT CAUSE FOR SUCH DELAY. I ACCORDINGLY SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT AFTER GIVING THE ASSESSEE A PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. 4 I.T.A. NO. 1348/KOL/2018 A.Y. 2009-10 BHAIRAB NANDY 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH OCTOBER, 2018. SD/- (P.M. JAGTAP) VICE - PRESIDENT DATED: 26/10/2018 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. BHAIRAB NANDY, BENGAI, SUBHAS NAGAR, GOGHAT, HOOGHLY 712 611. 2. ITO WARD 23(4), HOOGHLY, GRAND TRUNK ROAD, CHINSURAH, HOOGHLY 712102. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES KOLKATA