Narasingha Paul Service Station, Hooghly V. I. T.O. Wd-1(4), Hooghly, Hooghly

ITA 1351/KOL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2670 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2010
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 04-08-2009
• Court: TRIBUNAL
• Department Lawyers: JYOTI KUMARI
• Assessee Lawyers: S P DA TTA
• Keywords: Rectification of order; Opportunity of being heard; Wrong claim
• Section: 143(1); 154

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL 'B BENCH : KOLKATA (BEFORE HONBLE SRI B.R.MITTAL, J.M. AND HON BLE SRI B.C.MEENA, A.M.) I.T.A. NO. 1351 /KOL/2009 ASSESS MENT YEAR : 2004-05 NARASINGHA PAUL SERVICE STATION VS ITO, WARD 1(4), HOOGHLY (PAN NO. AACFN 2451 Q) (APPELLANT) (RESPONDENT) APPELLANT BY : SRI S.P.DA TTA. RESPONDENT BY : SMT. JYOTI K UMARI. O R D E R PER SHRI B.C.MEENA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE CIT(A)- XXXVII, KOLKATA DATED 23.02.2009 FOR THE ASSESSME NT YEAR 2004-05. 2. GROUNDS RAISED ARE AS FOLLOWS : 1. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE A.O. WAS WRONG AND UNJUSTIFIED IN PASSING THE ORDER U /S 154 AND RECTIFYING THE INTIMATION ISSUED U/S 143(1) ON ABSOLUTE IN CORRECT APPRECIATION OF THE FACTS. 2. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN PASSING THE APPEAL ORDER EXPARTE WITHOUT AFFORDING PROPER AND REASONABLE OPPORTUNITY OF BEING HEARD T O THE ASSESSEE. 3. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ALSO ERRED IN CONFIRMING THE ORDER U/S 154 PASSE D BY THE A.O. ON WRONG APPRECIATION OF THE FACTS. 4. FOR THAT YOUR PETITIONER CRAVES THE RIGHT TO PUT ADDITIONAL GROUND AND/OR TO ALTER /AMEND/MODIFY THE PRESENT GROUNDS BEFORE/OR AT THE TIME OF HEARING. 3. THERE IS A DELAY IN FILING THE APPEAL. AFTER HE ARING BOTH THE SIDES ON THE ISSUE, THE DELAY IS CONDONED. 4. WHILE PLEADING ON BEHALF OF THE ASSESSEE, THE LE ARNED A.R. SUBMITTED THAT THE ADDITION HAS BEEN MADE WITHOUT PROVIDING ADEQU ATE OPPORTUNITY TO THE ASSESSEE. THE CIT(A) ALSO SUSTAINED THE SAME. THE A.O. HAS RECTIFIED THE ORDER WITHOUT PROVIDING ADEQUATE OPPORTUNITY TO THE ASSE SSEE. 2 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED O N THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT ADEQUATE OPP ORTUNITIES WERE PROVIDED TO THE ASSESSEE. THE CLAIM OF ASSESSEE WAS APPARENTLY WR ONG. HE PLEADED TO SUSTAIN THE ORDER OF THE CIT(A). 6. AFTER HEARING BOTH THE SIDES, WE FIND THAT THE A SSESSEE CLAIMED THE REMUNERATION TO THE PARTNERS AT RS.90,000 IN THE RETURN OF INCOME. AS PER THE PARTNERSHIP DEED AVAILABLE ON RECORDS TWO OF THE PARTNERS SRI R.K.GHOSH AND SRI P.K.GHOSH WERE NOT ENTITLED FOR ANY REMUNERAT ION. A WRONG CLAIM HAS BEEN MADE FOR THE REMUNERATION PAID TO THESE PARTNERS . THIS DISCREPANCY WAS NOTICED BY THE A.O. AND THE SAME HAS BEEN RECTIFIED U/S 154 OF THE INCOME TAX ACT. THE CIT(A) HAS SUSTAINED THIS RECTIFICATION ORDER . WE ARE ALSO OF THE VIEW THAT THE CLAIM OF REMUNERATION OF RS.60,000 WAS EXCESSI VE AND NOT ADMISSIBLE. THEREFORE, THE CIT(A) HAS RIGHTLY SUSTAINED THE R ECTIFICATION ORDER MADE BY THE A.O. AS FAR AS THE OPPORTUNITY WAS CONCERNED, WE FIND THAT THE A.O. AS WELL AS THE CIT(A) HAVE PROVIDED ADEQUATE OPPORTUNITY AND ON THIS COUNT ALSO, THE APPEAL OF THE ASSESSEE DESERVES TO BE DISMISSED. KEEPI NG ALL THESE FACTS IN VIEW, ALL THE FOUR GROUNDS RAISED IN THE ASSESSEES APPEAL STAN D DISMISSED. 7. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 23.04.2010 SD/- SD/- (B.R.MITTAL ) (B.C.MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 23.04.2010. COPY FORWARDED TO :- 1) ITO, WARD 1(4),HOOGHLY. 2) NARASINGHA PAUL SERVICE STATION, VILL-AMGRAM, P.O. HARINKHOLA, DIST. HOOGHLY. 3) CIT(A), KOLKATA. 4) CIT, KOLKATA. 5) D.R., ITAT, KOLKATA. BY ORDER ASSISTANT REGISTRAR I.T.AT., KOLKATA. BCD