Sri Debasish Roy Chowdhury, Kolkata V. DCIT,Cir-52,Kolkata, Kolkata

ITA 1368/KOL/2012

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0508 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 25-09-2012
• Court: TRIBUNAL
• Department Lawyers: SANJAY
• Assessee Lawyers: ANIKESH BANERJEE
• Keywords: Gift; Opportunity of being heard
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOLKATA [BEFORE SHRI P. K. BANSAL, AM & SHRI MAHAVIR SINGH, JM ] I.T.A NO. 1368 /KOL/201 2 ASSESSMENT YEAR : 200 5 - 0 6 SHRI DEBASISH ROY CHOWDHURY VS. DEPUTY COMMISSIONER OF INCOME - TAX , (PAN: A DIPR7212A ) CIR - 52 , KOLKATA. ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 1 0 .0 6 .2015 DATE OF PRONOUNCEMENT: 1 0 . 0 6 . 2015 FOR THE APPELLANT: SHRI ANIKESH BANERJEE, ADVOCATE FOR THE RESPONDENT: S HRI SANJAY, ADDL. CIT ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT (A) - XXXII I , KOLKATA VIDE APPEAL NO. 178/CIT(A) - XXXII I /DCIT/CIRCLE - 52,KOL/07 - 08 DATED 05 . 0 7 .201 2 . ASSESSMENT WAS FRAMED BY DCIT, CIRCLE - 5 2 , KOLKATA U/S. 1 43(3) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) FOR ASSESSMENT YEAR 200 5 - 0 6 VIDE HIS ORDER DATED 1 3 . 12 .20 07 . 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGAINST THE ORDER OF CIT(A) CONFIRMING THE ACTION OF AO IN MAKING ADDITION OF GIFT OF RS.16,55,304/ - IN VIOLATION OF PROVISIONS OF SECTION 68 OF THE ACT. FOR THIS, ASSESSEE HAS RAISED FOLLOWING THREE GROUNDS: 1. FOR THAT THE DONOR OF THE ASSESSEE, DR. KRISHNA RANJAN DEY IS AN NRI & STAYING IN THE UNITED KINGDOM. THE DONOR IS THE UNCLE, I.E. THE HUSB AND OF THE ASSESSEE S AUNT (SISTER OF THE ASSESSEE S MOTHER), SO THE VIOLATION OF SEC. 56(2)(V) IS NOT APPLICABLE IN THIS CASE. 2. FOR THAT THE FILING OF AFFIDAVIT BY THE DONOR WAS DULY IGNORED BY THE ASSESSING AUTHORITY WHICH IS ARBITRARY IN NATURE. 3 . FOR THAT THE DONOR IS A DOCTOR IN THE UNITED KINGDOM. THE PAYMENT OF RS.16,55,304/ - IS JUSTIFIABLE AS FOR HIS STATUS. HENCE, THE VIOLATION OF SEC. 68 DOES NOT ARISE HERE. 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE STATED THAT THE AO AS WELL AS CIT (A) HAS ONLY CONFIRMED THE ADDITION THAT THE IDENTITY OF DR. K. R. DEY WAS NOT ESTABLISHED. LD. COUNSEL FOR THE ASSESSEE FILED ADDITIONAL GROUND THAT NO OPPORTUNITY WAS PROVIDED BY THE AO OR THE CIT(A) TO PRODUCE THE RELEVANT DOCUMENT TO ESTABLISH THE IDE NTITY OF DR. K. R. DEY . THE FOLLOWING IS THE ADDITIONAL GROUND RAISED BY THE ASSESSEE: 2 ITA NO. 1 368 /K/201 2 DEBASISH ROY CHOWDHURY AY 200 5 - 0 6 FOR THAT THE ADDITION WAS MADE U/S. 68 OF THE I. T. ACT, 1961 IN THE ASSESSMENT ORDER. THOUGH THE APPELLATE AUTHORITY HAD OVERRIDDEN THE LD. A.O AND IN HIS APPEAL OR DER HE INTRODUCED A DIFFERENT SECTION, I.E. S. 56(2)(V) OF THE ACT, WITHOUT GIVING ANY REASONABLE OPPORTUNITY TO THE ASSESSEE THE LD. APPELLATE AUTHORITY CHANGED THE SECTION WHICH IS BAD IN LAW. WHEN THE SAME WAS REFERRED TO LD. SR. DR, HE FAIRLY CONCEDED THAT THIS CAN BE ADMITTED AND THE MATTER CAN BE RESTORED BACK TO THE FILE OF AO FOR PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD IN THE MATTER AND TO PRODUCE THE DOCUMENTS TO PROVE THE IDENTIT Y OF DR. K. R. DEY. ON THIS, LD. COUNSEL FOR THE ASSESSEE STATED THAT THE MATTER CAN GO BACK TO THE FILE OF AO FOR FRESH ADJUDICATION ON THIS ISSUE. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT T HE PLEA OF BOTH THE PARTIES IS QUITE REASONABLE AND GOING THROUGH THE ORDERS OF THE LOWER AUTHORITIES, WE FIND THAT NO PROPER OPPORTUNITY TO PRODUCE THE RELEVANT DOCUMENT TO ESTABLISH THE IDENTITY OF DR. K. R. DEY WAS ALLOWED. IN TERM OF THE ABOVE, WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND REMAND THE ISSUE BACK TO THE FILE OF AO FOR FRESH ADJUDICATION AFTER ALLOWING OPPORTUNITY OF HEARING TO THE ASSESSEE AND ALSO TO PRODUCE THE DOCUMENT TO ESTABLISH THE IDENTITY OF MR. K. R. DEY. APPEAL OF ASSE SSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5 . IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6 . ORDER IS PRONOUNCED IN THE OPEN COURT . S D / - S D / - ( P. K. BANSAL ) (MAHAVIR SINGH) ACCOUNTANT MEMBER J UDICIAL MEMBER DATED : 10 TH JUNE , 201 5 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . A PPELLANT SHRI DEBASISH ROY CHOWDHURY, 46E/1, NEW BALLYGUNGE ROAD, KOLKATA - 39 2 RESPONDENT D CIT , CIR - 52, KOLKATA 3 . THE CIT (A), KOLKATA 4. 5. CIT, KOLKATA . DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .