Sk. Md. Aref Ali, Kolkata V. ITO, Ward-28(2), Kolkata, Kolkata

ITA 1365/KOL/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70497 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2013
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 24-09-2012
• Court: TRIBUNAL
• Department Lawyers: R P NAG SRDR
• Assessee Lawyers: K K CHHAPARIA
• Keywords: Opportunity of being heard
• Section: 143(3); 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI ABRAHAM.P.GEORGE, ACCOUNTANT MEMBER ITA NO. 1365 / KOL / 2012 ASSESSMENT YEAR :2006-07 SK.MD.AREF ALI 3B, EKBALPORE ROAD, KOLKATA-700 023 [ PAN NO.AGPPA 2530C ] V/S . INCOME TAX OFFICER WARD-28(2), KOLKATA / APPELLANT .. / RESPONDENT) /BY APPELLANT SHRI K.K. CHHAPARIA, AR /BY RESPONDENT SHRI R.P. NAG,SR-DR /DATE OF HEARING 26-11-2013 /DATE OF PRONOUNCEMENT 19-12-2013 / // / O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-XIV, KOLKATA IN APPEAL NO.383/ CIT(A)-XIV/08-09 DATED 17- 07-2012. THE ASSESSMENT WAS FRAMED BY ITO, WARD-28( 2), KOLKATA U/S 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO A S THE ACT) FOR ASSESSMENT YEAR (AY) 2006-07VIDE HIS ORDER DATED31-12-2008. 2. FIRST ISSUE IN THIS APPEAL OF THE ASSESSEE IS AG AINST THE ORDER OF CIT(A) IN CONFIRMING THE ACTION OF ASSESSING OFFICER DESPITE THE FACT THAT NO REASONABLE OPPORTUNITY OF BEING HEARD WAS PROVIDED TO THE ASSE SSEE BY AO. FOR THIS, ASSESSEE HAS RAISED FOLLOWING GROUND NOS.1 AND 2:- ITA NO.1365/KOL/2012 A.Y.2006-07 SK. MD. AREF ALI V. ITO WD-28(2) KOL PAGE 2 1. FOR THAT THE ENTIRE ASSESSMENT ORDER IS VOID-AB -INITIO SINCE THE LD. AO DENIED YOUR APPELLANT A REASONABLE OPPORTUNITY OF BEING HEARD A ND IGNORING THE SUBMISSIONS FILED AT THE HEARING STAGE. THE ACTION OF THE AO WAS WHOLLY UNREASONABLE, UNCALLED FOR AND BAD IN LAW. THE LD.CIT(A) WAS UNJUSTIFIED IN CONFIRMING THE ACTION OF THE AO. 2. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE LD. AO ERRED IN TREATING AGRICULTURAL INCOME OF RS.7,99,875- AS UNDISCLOSED INCOME OF THE ASSESSEE. THE ACTION OF THE AO WAS WHOLLY UNREASONABLE, UNCALLED FOR AND BAD IN LAW. THE LD. CIT(A) WAS UNJUSTIFIED IN CONFIRMING THE ACTION OF THE AO. 2. WE HAVE HEARD RIVAL CONTENTION AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT ASSESSING OFFICER HAS FIX ED THE HEARING ON 18-06-2008, 27-06-2008, 29-12-2008 AND 31-12-2008. ON 31-12-200 8, THE ASSESSEE COULD NOT ADDUCE ANY EVIDENCE AND HE INFORMED THE AO THAT HE WAS NOT IN A POSITION TO ADDUCE ANY EVIDENCE IN SUPPORT OF ADDITIONAL LAND H OLDING CLAIMED BY THE ASSESSEE. THE AO ALSO EXAMINED THE ASSESSEE U/S. 13 1 OF THE ACT AND ACCORDING TO CIT(A), HE HAS PROVIDED REASONABLE OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE. WE FIND FROM THE FACTS THAT ASSESSEE HAS 5 ACRE AND 25 CHITAKS OF AGRICULTURAL LAND AS IS EVIDENT FROM THE DETAILS FI LED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. WHETHER THE ASSESSEE HAS GR OWN POTATO AS CLAIMED BY HIM IN THE ABOVE LAND, THE ASSESSEE SHOULD PRODUCE REVENUE RECORDS TO PROVE THE SAME TO THE AO. ASSESSEE WILL ALSO PRODUCE THE SALE RECEIPTS ETC. INCLUDING OTHER EVIDENCES, IF ANY, TO SUPPORT HIS CLAIM. THE AO WILL HAVE NO ALTERNATIVE EXCEPT TO ESTIMATE THE CLAIM OF AGRICULTURE ON THE BASIS OF RECORDS AVAILABLE IN TERMS OF THE ABOVE, IN CASE THE ASSESSEE IS UNABLE TO PRODUCE THE EVIDENCES. HENCE, THE ISSUE BEFORE US IS SET ASIDE TO THE FILE OF AO FOR FRESH ADJUDICATION. NEEDLESS TO SAY THAT AO WILL PROVIDE REASONABLE OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 19 /12/2013 SD/- SD/- (ABRAHAM.P. GEORGE) (MAHAVIR S INGH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP !' #- 19/ 1 2 /2013 ) ITA NO.1365/KOL/2012 A.Y.2006-07 SK. MD. AREF ALI V. ITO WD-28(2) KOL PAGE 3 **+ **+ **+ **+ ,+ ,+ ,+ ,+ / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. '.'*/ 0 / CONCERNED CIT 4. 0- / CIT (A) 5. +34 ***/, */ , / DR, ITAT, KOLKATA 6. 478 9: / GUARD FILE. BY ORDER/ , ;/< '= */ , )