A.C.I.T. CIRCLE-28,Kol, Kolkata V. SAGAR TRADING COMPANY, Kolkata

ITA 1412/KOL/2009

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8041 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-11-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 06-02-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 14-08-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: L K S DEHIYA
• Assessee Lawyers: V N PUROHIT
• Keywords: Reasonable cause; Corroborative evidences
• Section: 143(3)

Judgement Text

I.T.A. NO.1412/ KOL./ 2009 ASSESSMENT YEAR : 2005-2006 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA BEFORE SHRI PRAMOD KUMAR (ACCOUNTANT MEMBER), AND SHRI MAHAVIR SINGH (JUDICIAL MEMBER) I.T.A. NO.: 1412/ KOL. / 2009 ASSESSMENT YEAR : 2005-2006 ASSISTANT COMMISSIONER OF INCOME TAX, ..........APPELLANT CIRCLE-28, KOLKATA, AAYAKAR BHAVAN, DAKSHIN, 2, GARIAHAT ROAD SOUTH, KOLKATA-700 068 -VS.- SAGAR TRADING CO.,....RESPONDENT, 9, DR. SUDHIR BOSE ROAD, KOLKATA-700 023 [PAN :AAUFS 8695 K] APPEARANCES BY: L.K.S. DEHIYA, CIT (D.R.), FOR THE APPELLANT V.N. PUROHIT, FCA, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : NOVEMBER 12, 2012 DATE OF PRONOUNCING THE ORDER : NOVEMBER 12, 2012 O R D E R PER PRAMOD KUMAR: 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CHALLENGED COMMISSIONER OF INCOME TAX (APPEALS)S ORDER DATED 27 TH JANUARY, 2009, IN THE MATTER OF ASSESSMENT U/S. 143(3) OF TH E INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2005-06, ON THE FOLLO WING GROUNDS :- (1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND IN FACT BY TREATING THE REPAYM ENT OF LOANS AS AMOUNTS ADVANCED BY THE ASSESSEE AND RECEI VED BY I.T.A. NO.1412/ KOL./ 2009 ASSESSMENT YEAR : 2005-2006 PAGE 2 OF 5 IT, THEREBY DELETING THE ADDITION OF RS.4,25,000/- AND RS.2,00,000/-. (2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND IN FACT BY DELETING ALL EIGHT ADDITIONS MADE ON ACCOUNT OF CAPITAL INTRODUCTION B Y THE PARTNERS AMOUNTING TO RS.14,78,572/- (RS.9,00,000/- + RS.2,78,572/-). (3) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND IN FACT BY DELETING THE ADDITION OF RS.1 CRORE FOR REDUCING THE LIABILITY WITHOUT TH E SUPPORT OF DOCUMENTARY EVIDENCE. (4) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND IN FACT BY DELETING THE ADDITIONS ON ACCOUNT OF INVESTMENTS IN VARIOUS ENTI TIES FROM UNEXPLAINED SOURCES AMOUNTING TO RS.16 LAKHS (RS.10 LAKHS + RS. 5 LAKHS + RS. 1 LAKH). (5) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND IN FACT BY DELETING THE ADDITION OF TDS AMOUNTING TO RS.8,70,311/- AS INCOME OF THE ASSESSEE. (6) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND IN FACT BY DELETING THE ADDITION OF RS.61,24,888/- (RS.99,068/- + RS.51,25,820/-) ON ACCOUNT OF 20% OF DIRECT & INDIRECT EXPENSES. 2. THE APPEAL IS TIME BARRED BY 101 DAYS BUT THE AS SESSING OFFICER HAS FILED A CONDONATION PETITION, DULY SUPPORTED BY AN AFFIDAVIT. THE EXPLANATION FOR DELAY MAINLY IS THAT THERE WERE CER TAIN CLARIFICATIONS WHICH WERE SOUGHT FROM SHRI S.C. JAIN, ADDL. CIT (A UDIT) WHO HAD PASSED THE ORIGINAL ASSESSMENT ORDER AND AS THERE W AS NO RESPONSE FROM HIM, THE MATTER WAS KEPT PENDING. LEARNED COUN SEL FOR THE ASSESSEE, HOWEVER, VEHEMENTLY OPPOSES THIS CONDONAT ION PETITION. HE I.T.A. NO.1412/ KOL./ 2009 ASSESSMENT YEAR : 2005-2006 PAGE 3 OF 5 TERMS THE ALLEGED REASONS FOR DELAY AS VAGUE AND SUBMITS THAT, IN ANY EVENT, THERE IS NO EXPLANATION AS TO WHAT PREVENTED THE ASSESSING OFFICER FROM FILING THE APPEAL IN THE SIXTY DAYS AL LOWED UNDER THE STATUE FOR THIS PURPOSE. IN OTHER WORDS, ACCORDING TO HIM, THERE SHOULD ALSO BE EXPLANATION FOR EVERY DAY AFTER THE ORDER W AS SERVED UPON THE ASSESSING OFFICER. 3. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING PE RUSED THE MATERIAL ON RECORD, WE ARE INCLINED TO CONDONE THE DELAY. IN OUR CONSIDERED VIEW, THERE IS A REASONABLE CAUSE FOR DE LAY IN FILING OF APPEAL AND THERE IS NO NEED FOR THE ASSESSING OFFIC ER TO EXPLAIN DAY TO DAY DELAY EVEN FOR THE PRESCRIBED PERIOD FOR FILING OF APPEAL. THE DELAY DULY NEEDS TO BE EXPLAINED AFTER THE STATUTORY TIME LIMIT FOR FILING OF APPEAL HAS EXPIRED. IN VIEW OF THESE DISCUSSIONS, A S ALSO BEARING IN MIND ENTIRETY OF THE CASE, WE CONDONE THE DELAY AND PROCEED TO TAKE UP THE MATTER ON MERITS. 4. COMING TO THE MERITS OF THE APPEAL, IT IS NECESS ARY TO TAKE NOTE OF A FEW MATERIAL FACTS. THE ASSESSEE BEFORE US IS A T RANSPORTER AND CONTRACTOR. THE ASSESSEES CASE WAS PICKED UP FOR S CRUTINY ASSESSMENT AND REQUISITIONS WERE MADE FOR FURNISHING OF DETAIL S AND PRODUCTION OF BOOKS OF ACCOUNTS AND VOUCHERS ETC. THE ASSESSING O FFICER NOTED THAT THERE HAS BEEN NO COOPERATION FROM THE ASSESSEE INA SMUCH AS BOOKS OF ACCOUNTS AND VOUCHERS ETC. ARE NOT PRODUCED, AND RE QUISITE DETAILS ARE NOT FURNISHED, AND PROCEEDED TO FRAME THE ASSESSMEN T ON THE BASIS OF CERTAIN ADVERSE INFERENCES AND ESTIMATION BASED DIS ALLOWED. AGGRIEVED, ASSESSEE CARRIED THE MATTER IN THE APPEAL BEFORE TH E CIT(APPEALS) AND THE CIT(APPEALS) GRANTED, INTER ALIA, IMPUGNED RELI EF. THE STAND OF THE I.T.A. NO.1412/ KOL./ 2009 ASSESSMENT YEAR : 2005-2006 PAGE 4 OF 5 CIT(APPEALS) WAS THAT AS EVIDENT FROM ORDER SHEET E NTRY DATED 18.12.2007, THE AO WAS SATISFIED WITH WHATEVER BOOKS OF ACCOUN TS, DOCUMENT DETAILS ETC. HAD BEEN PRODUCED BEFORE HIM . THE ASSESSING OFFICER IS AGGRIEVED OF THE RELIEF SO GRANTED, AND IS IN APPEAL BEFORE US. 5. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING PE RUSED THE MATERIAL ON RECORD, WE ARE UNABLE TO APPROVE COURSE OF ACTION ADOPTED BY THE CIT(APPEALS). ALL THAT THE ORDER SHEET ENTRY DATED 18.12.2007 STATES AS FOLLOWS :- 18/12/2007 - SRI S. HASSEM, ACIT ATTENDS ALONG WI TH A REPLY OF NOTICE U/S. 142(1). CASE HEARD FOR ORDER S UBJECT TO FURTHER HEARING, IF ANY, REQUIRED AFTER NECESSARY S CRUTINY/ INVESTIGATION. IF ANY FURTHER SCRUTINY/ INVESTIGATI ON ARE MADE, THEN FURTHER HEARING OF THE CASE MAY BE GIVEN . SD/- 18.12.2007 6. HOWEVER, WHEN WE SEE LETTER DATED 18.12.2007 WHI CH IS REFERRED TO IN THE ABOVE, WE FIND IT DOES NOT DEAL WITH THE ISSUES ON WHICH THE IMPUGNED RELIEF IS GIVEN. WHEN WE POINTED OUT TO TH E LEARNED COUNSEL THAT, AS EVIDENT FROM PAPERS 1 TO 4 OF THE PAPER BO OK WHICH CONSISTS OF A COPY OF THE ABOVE LETTER, THESE ISSUES ARE NOT DE ALT WITH AND REASONABLE EXPLANATION IS NOT ON RECORD, NOR IS IT ANYWHERE MENTIONED THAT BOOKS OF ACCOUNTS AND VOUCHERS ARE PRODUCED BE FORE THE AO, LEARNED COUNSEL FAIRLY SUBMITTED THAT HE HAS NO OBJ ECTION TO THE MATTER BEING RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATION DE NOVO AFTER GIVING YET ANOTHER OPPORTUNITY TO THE ASSESS EE TO PRODUCE BOOKS OF ACCOUNTS, VOUCHERS AND SUPPORTING EVIDENCE S. LEARNED DEPARTMENTAL REPRESENTATIVE ALSO FAIRLY ACCEPTS THI S SUGGESTION. IN THIS VIEW OF THE MATTER, WE DE4EM IT FIT AND PROPER TO V ACATE THE IMPUGNED ORDER AND RESTORE ALL THESE ISSUES TO THE FILE OF T HE ASSESSING OFFICER FOR I.T.A. NO.1412/ KOL./ 2009 ASSESSMENT YEAR : 2005-2006 PAGE 5 OF 5 FRESH EXAMINATION AFTER GIVING YET ANOTHER OPPORTUN ITY OF HEARING OF THE ASSESSEE, IN ACCORDANCE WITH THE LAW AND BY WAY OF A SPEAKING ORDER. WE ALSO DIRECT THE ASSESSEE TO PRODUCE BOOKS OF ACCOUNTS, SUPPORTING VOUCHERS AND EVIDENCES BEFORE THE ASSESS ING OFFICER AND TO COMPLY WITH HIS REQUISITIONS IN A FAIR AND REASONAB LE MANNER. WITH THESE DIRECTIONS, THE MATTER STANDS RESTORED TO THE FILE OF THE ASSESSING OFFICER. 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES IN THE TERMS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH DAY OF NOVEMBER, 2012. SD/- SD/- MAHAVIR SINGH PRAMOD KUMAR (JUDICIAL MEMBER) (ACC OUNTANT MEMBER) KOLKATA, THE 12 TH DAY OF NOVEMBER, 2012 COPIES TO : (1) THE APPELLANT, (2) THE RESPONDENT, (3) CIT(A), (4) CIT, (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.