Sudip Kumar Bhattacharya, Kolkata V. ACIT, Circle - 40, Kolkata, Kolkata

ITA 1416/KOL/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1626 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 30-07-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 12-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADIP KR MAJUMDER
• Keywords: Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C, BENC H KOLKATA BEFORE SHRI A. T. VARKEY, JM &DR. A.L.SAINI, AM ./ITA NO.1416/KOL/2017 ( / ASSESSMENT YEAR: 2012-13) SUDIP KUMAR BHATTACHARYA 64/95, KHUDIRAM BOSE SARANI, KOLKATA- 700037 VS. ACIT, CIRCLE-40, KOLKATA ./ ./PAN/GIR NO.: AEIPB 4333 B (ASSESSEE) .. (REVENUE) ASSESSEE BY : SHRI SUBASH AGARWAL, ADVOCATE RESPONDENT BY : SHRI PRADIP KR. MAJUMDER, ADDL. CIT DR / DATE OF HEARING : 30/07/2019 /DATE OF PRONOUNCEMENT : 06/09/2019 / O R D E R PER DR. A. L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERT AINING TO ASSESSMENT YEAR 2012-13 , IS DIRECTED AGAINST THE ORDER PASSED BY T HE COMMISSIONER OF INCOME TAX (APPEAL)-13, KOLKATA, WHICH IN TURN ARISES OUT OF A N ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 22/08/2014. 2. AT THE OUTSET ITSELF, THE LD COUNSEL FOR THE ASS ESSEE SUBMITTED THAT DURING THE APPELLATE STAGE, THE LD. CIT(A) SOUGHT THREE REMAND REPORT FROM ASSESSING OFFICER. THESE REMAND REPORTS ARE CONTRADICTORY TO EACH OTHE R, VIDE 1 ST REMAND REPORT OF ASSESSING OFFICER REPRODUCED AT PAGE NO. 16 PARA 7. 1.5 OF LD. CIT(A) ORDER, 2 ND REMAND REPORT OF ASSESSING OFFICER REPRODUCED AT PA GE NO. 12 OF LD. CIT(A)S SUDIP KUMAR BHATTACHARYA ITA NO.1416/KOL/2017 ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 2 22 2 ORDER AND 3 RD REMAND REPORT OF ASSESSING OFFICER REPRODUCED AT PAGE 12 OF LD. CIT(A)S ORDER AND CONTENDED THAT THE BASIS OF LD. CIT(A) IS VITIATED BEING THE OUTCOME OF CONTRADICTION REPORT OF ASSESSING OFFICE R. LD. D.R. FOR THE REVENUE COULD NOT CONTRADICT THE F ACT THAT THESE THREE REMAND REPORTS OF ASSESSING OFFICER OBTAINED BY THE LD CIT (A) DURING THE APPELLATE STAGE, ARE CONTRADICTORY TO EACH OTHER; HOWEVER, HE SUPPOR TED THE DECISION OF LD. CIT(A). 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. WE NOTE THAT 1 ST REMAND REPORT SUBMITTED BY ASSESSING OFFICER VIDE PG 16 OF LD. CIT(A) AND PARA NO. 7.1.5, WHEREIN THE ASSESSING OF FICER STATED THAT THE ASSESSEE HAS NOT PRODUCED CASH BOOK. IN 2 ND REMAND REPORT DATED 31.08.2016, THE ASSESSING OFFI CER STATED THE ASSESSEE HAS PRODUCED CASH STATEMENT AND CASH BOOK, VIDE PG 12 OF ORDER OF LD. CIT(A). IN 3 RD REMAND REPORT, VIDE PG 23 OF LD. CIT(A) DATED 31.1 2.2016, THE ASSESSING OFFICER STATED THAT BOOKS OF ACCOUNTS WERE NOT PROD UCED BY THE ASSESSEE AT ALL. THE LD. COUNSEL SUBMITTED THAT THE ASSESSEE HAS PR ODUCED BOOKS OF ACCOUNTS AND ASSESSING OFFICER HAS COMPUTED DISALLOWANCE ITEM-WI SE, EXPENSE-WISE. ACCORDING TO HIM, WITHOUT THE HELP OF BOOKS OF ACCOUNTS THE A SSESSING OFFICER CANNOT COMPUTE THE DISALLOWANCE EXPENSE-WISE. IN 1 ST REMAND REPORT THE AO STATED THAT NO CASH BOOK PRODUCED BY THE ASSESSEE. WE NOTE THAT IN 2 ND REMAND REPORT, ASSESSING OFFICER STATED THAT ASSESSEE HAS PRODUCED CASH BOOK WHEREAS IN 3 RD REMAND REPORT ASSESSING OFFICER STATED THAT NO BOOKS OF ACCOUNTS WERE PRODUCED BY THE ASSESSEE. WE NOTE THAT CASH BOOK IS A PART OF BOOKS OF ACCOUN TS, WHICH WAS PRODUCED BY THE ASSESSEE AS CONFIRMED BY THE ASSESSING OFFICER IN H IS 2 ND REMAND REPORT. THUS, WE NOTE THAT ON ONE HAND AO STATED THAT NO BOOKS OF AC COUNTS WERE PRODUCED BY THE ASSESSEE AND ON THE OTHER HAND HE COMPUTED DISALLOW ANCE ITEM-WISE/EXPENSE-WISE WHICH THE ASSESSING OFFICER CANNOT DO WITHOUT THE A ID OF BOOKS OF ACCOUNTS. THEREFORE, WE FIND THAT THERE ARE A LOT OF CONTRAD ICTORY FACTUAL ASSERTIONS IN THESE REMAND REPORTS. HENCE, WE ARE OF THE VIEW THAT THE LD. CIT(A) COULD NOT HAVE SUDIP KUMAR BHATTACHARYA ITA NO.1416/KOL/2017 ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 3 33 3 REACHED A LOGICAL CONCLUSION ON THE ISSUE BEFORE H IM BECAUSE OF CONTRADICTORY AND CONFUSING REPORT PREPARED BY THE ASSESSING OFFICER IN THESE THREE REMAND REPORTS. 4. AT THE COST OF REPETITION, WE NOTE THAT THE ASSE SSING OFFICER HAS HIMSELF DISALLOWED EXPENSES ITEM-WISE WHICH HE COULD HAVE C ARRIED OUT ONLY AFTER EXAMINATION OF THE BOOKS OF ACCOUNTS OF THE ASSESSE E. HOWEVER, IN 3RD REMAND REPORT, THE AO HAS SUBMITTED THAT ASSESSEE HAS NOT PRODUCED BOOKS OF ACCOUNTS. HOWEVER, WE WONDER AS TO HOW THE ASSESSING OFFICER WITHOUT THE AID OF BOOKS OF ACCOUNTS COULD HAVE DISALLOWED EXPENSES ITEM-WISE . IN THE LIGHT OF THE AFORESAID CONCLUSION & INCONSISTENCIES, WE ARE OF THE VIEW TH AT NEITHER THE LD. CIT(A) NOR THE ASSESSING OFFICER COULD HAVE LOGICALLY DETERMIN ED THE CORRECT INCOME OF THE ASSESSEE. HENCE WE ARE OF THE VIEW THAT THIS ISSUE SHOULD BE REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER FOR DE NOVO ADJUDICAT ION. THE LD. DR FOR THE REVENUE DID NOT HAVE OBJECTION IF THE MATTER IS REMITTED BA CK TO THE FILE OF ASSESSING OFFICER. THEREFORE WE THINK IT FIT AND APPROPRIATE TO REMIT THIS ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER. THEREFORE, WE SET ASIDE T HE ORDER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF ASSESSING OFF ICER FOR DE NOVO ASSESSMENT. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED TO BE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 06.09.2019 SD/- ( A.T. VARKEY ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE: 06/09/2019 ( SB, SR.PS ) SUDIP KUMAR BHATTACHARYA ITA NO.1416/KOL/2017 ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 4 44 4 COPY OF THE ORDER FORWARDED TO: 1. SUDIP KUMAR BHATTACHARYA 2. ACIT, CIRCLE-40, KOLKATA. 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES