Hari Mohan Ghosh, Burdwan V. ITO, WD-1(4), Burdwan, Burdwan

ITA 1422/KOL/2014

• Counselvise Citation: 142223514 RSA 2014
• Duration Of Justice: 6 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 23-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Assessee Lawyers: SOUMITR A CHOUDHURY
• Keywords: Opportunity of being heard; Additional evidence; Reasonable cause; Assessment record
• Section: 144; 143(3); 142(1)

Judgement Text

I.T.A. NO . 1 422 /KOL./201 4 ASSESSMENT YEAR: 200 7 - 20 0 8 PAGE 1 OF 7 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI N.K. SAINI (ACCOUNTANT MEMBER) AND SHRI MAHAVIR SINGH (JUDICIAL MEMBER) I.T.A. NO. 1 422 /KOL . / 20 1 4 ASSESSMENT YEAR : 200 7 - 20 0 8 HARI MOHAN GHOSH,................ .......... ...... .... ............ .. .APP ELL ANT PROP.: THE NILACHAL LOTTERY AGENCIES, SPANDAN COMPLEX, STATION BAZAR, P.O. & DIST. BURDWAN - 713 101 [PAN : A CXPG 4478 J ] - VS. - INCOME TAX OFFICER , . ............ .. ............................ . RESPONDENT WARD - 1 ( 4 ) , BURDWAN , AAYAKAR BHAWAN, COURT COMPOUND, BURDWAN - 713 101 APPEARANCES BY: SHRI SOUMITRA CHOUDHURY , ADVOCATE , FOR THE ASSESSEE S MT. RANU BISWAS, JCIT, FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : JANUARY 20 , 2 01 5 DATE OF PRONOUNCING THE ORDER : JANUARY 22 , 201 5 O R D E R PER MAHAVIR SINGH : THIS IS AN APPEAL B Y THE ASSESSE E IS ARISING OUT OF THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) , DURGAPUR IN APPEAL NO. 1 06 /CIT(A) /ASL/WD - 1(4)/BWN/2011 - 12 DATED 05 .0 3 .201 4. THE ASSE SSMENT WAS FRAMED BY THE INCOME TAX OFFICER, WARD - 2(1), ASANSOL UNDER SECTION 143(3) READ WITH SECTION 144 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) VIDE HIS ORDER DATED 24.12.2009 FOR THE ASSESSMENT YEAR 2007 - 08. I.T.A. NO . 1 422 /KOL./201 4 ASSESSMENT YEAR: 200 7 - 20 0 8 PAGE 2 OF 7 2. THE FIRST ISS UE IN THIS APPEAL OF ASSESSEE IS AGAINST THE ORDER OF LD. CIT(APPEALS) IN NOT CONDONING THE DELAY AND REFUSING TO CONDONE THE DELAY WITHOUT REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. FOR THIS, THE ASSESSEE HAS RAISED THE FOLLOWING THREE GROUNDS : - ( 1 ) FOR THAT ON THE FACTS OF THE CASE, THE ORDER PASSED BY THE LD. CIT(A) IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. ( 2 ) FOR THAT ON THE FACTS OF THE CASE, THE ORDER PASSED BY THE LD. CIT(A) WITHOUT GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESS EE WHICH IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. ( 3 ) FOR THAT ON THE FACTS OF THE CASE, THE LD. CIT(A) WAS WRONG IN NOT CONSIDERING THE CONDONATION OF DELAY, THEREFORE, THE ORDER PASSED BY THE LD. CIT(A) IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILL EGAL. 3 . SHRI SOUMITRA CHO U DHURY , ADVOCATE, REPRESENTED ON BEHALF OF THE ASSESSEE AND S MT. RANU BISWAS, JCIT, REPRESENTED ON BEHALF OF THE REVENUE. 4. BRIEFLY STATED THE FACTS ARE THAT THE ITO, WARD - 2(1), ASANSOL PASSED ASSESSMENT ORDER UNDER SECTION 143 (3)/144A OF THE ACT ON 24.12.2009. THE LD. CIT(APPEALS) NOTED THE FACT THAT THE ASSESSMENT ORDER ALONG WITH D EMAND NOTICE WAS SERVED ON THE ADVOCATE OF THE ASSESSEE SHRI PRAMANANDA GIRI ON 13.12.2009. THE APPEAL AGAINST THIS ASSESSMENT ORDER WAS FILED ONLY ON 14.11.2011 CAUSING THEREBY DELAY OF 652 DAYS AND BARRED BY LIMITATION. LD. CIT(APPEALS) NOTED THAT THE APPEAL SHOULD HAVE BEEN FILED ON OR BEFORE 31.01.2010. THE ASSESSEE FILED A CONDONATION PETITION BEFORE THE LD. CIT(APPEALS) EXPLAINING THE REASONS F OR SUCH DELAY, WHICH ARE AS UNDER: - (1) THAT THE APPELLANT HAS NOT SERVED DEMAND NOTICE AND ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2007 - 08 ALTHOUGH IT TRANSPIRES THAT THE ASSESSMENT FOR ASSESSMENT YEAR 2007 - 08 WAS COMPLETED ON 24.12.2009. (2) THAT THE ASSESSING ITO, WARD - 2(1), ASANSOL HAS FAILED TO SERVE NOTICE UNDER SECTION 143(2) AND UNDER SECTION I.T.A. NO . 1 422 /KOL./201 4 ASSESSMENT YEAR: 200 7 - 20 0 8 PAGE 3 OF 7 142(1) OF THE I.T. ACT, 1961 IN RESPECT OF ASSESSMENT YEAR 2007 - 08. (3) THAT IN THE BODY OF ASSESSMENT ORDER FOR ASSESSMENT YEAR 2007 - 08 , THE ITO STATED TH AT NOTICE UNDER SECTION 143(2) OF THE I.T. ACT, 1961 DATED 23.07.2008 WAS DULY SERVED BUT IN FACT THE ITO HAS FAILED TO SERVE THE ABOVE NOTICE AND THE APPELLANT HAS OBJECTED THE WORD DULY SERVED UPON THE ASSESSEE AND THE AO IS BOUND TO PROVE THE SERVICE. (4) THAT THE AO DID NOT SERVE ANY NOTICE DURING THE COURSE OF ENTIRE PROCEEDINGS NOR CALL UPON THE ASSESSEE FOR PERSONAL ATTENDANCE OR FOR MEETING ANY QUARRY. (5) THAT THE ACCOUNTANT OF THE ASSESSEE FALSELY USING SIGNED STAMP OF ASSESSEE AS POWER OF ATT ORNEY TO ATTEND PROCEEDING ON BEHALF THE ASSESSEE - APPELLANT AND ON USING SUCH POWER HE HAS SOUGHT GUIDE LINE FROM JCIT, ASANSOL BY FILING PETITION UNDER SECTION 144A OF THE I.T. ACT, 1961 SUO MOTO BEHIND THE KNOWLEDGE AND KEEPING THE ASSESSEE IN DARKNESS T O BLACKMAIL THE ASSESSEE, THE APPELLANT AND THE ASSESSING OFFICER HAD EXTENDED ALL COOPERATION TO DUPE THE ASSESSEE. (6) THAT THE APPELLANT HAS FIRST TIME COME TO KNOW ABOUT THE ASSESSMENT FOR ASSESSMENT YEAR 2007 - 08 AFTER GETTING PENALTY NOTICE OF HEARIN G UNDER SECTION 271(1)(C) OF I.T. ACT, 1961 FIXED ON 26.05.2010. (7) THAT FROM THE LETTER DATED 06.02.2009/03.12.2009 IT WOULD BE APPELLANT THAT INSTEAD OF SENDING NOTICE TO ASSESSEE, THE AO HAS SENT NOTICE TO SRI HARI MOHAN GHOSH, HILL VIEW EAST, UPPER C HELIDANGA S.B. GARAI ROAD, BURDWAN. HOW THIS NOTICE CAN BE TR E ATED AS VALID NOTICE IN SCRUTINY ASSESSMENT CASE (COPY IS ENCLOSED), NOTICE DATED 03.12.2009 IS DEFECTIVE AND IS NOT VALID NOTICE. (8) THAT THE APPELLANT PRAYER FOR CERTIFIED COPY OF ASSESSMENT ORDER AND DEMAND ON FILING PETITION WITH COPYING FEE OF RS.250/ - BUT THE COPY OF ASSESSMENT ORDER AND DEMAND NOTICE HAS NOT GRANTED TO THE APPELLANT ON VARIOUS PRETEXT. (9) THAT AFTER TRANSFER OF I.T FILE FROM THE ITO, WARD - 2(1), ASANSOL TO ITO, WARD - 1(4 ), BURDWAN, THE ASSESSEE APPELLANT HAS GOT COPY OF ASSESSMENT ORDER AND DEMAND NOTICE FOR ASSESSMENT YEAR 2007 - 08 ON 09.11.2011 AFTER I.T.A. NO . 1 422 /KOL./201 4 ASSESSMENT YEAR: 200 7 - 20 0 8 PAGE 4 OF 7 SUBMITTING PRAYER BEFORE THE AFORESAID ITO, WARD - 1(4), BURDWAN. HENCE, THERE IS REASONABLE CAUSE FOR NON - FILING APPEAL P ETITION IN DUE TIME AND THE APPEAL PETITION IS FILED IN DELAY FOR ASSESSMENT YEAR 2007 - 08 AND THE APPELLANT PRAYS FOR CONDONATION DELAY IN FILING APPEAL PETITION FOR THE ASSESSMENT YEAR 2007 - 08 AND OBLIGE . 5. LD. CIT(APPEALS) NOTED THAT THE ASSESSMENT OR DER AS WELL AS NOTICES UNDER SECTION 143(2) AND 142(1) OF THE ACT WERE DULY SERVED UPON THE ASSESSEE S ADVOCATE SHRI PRAMANANDA GIRI AND HE WAS PROPERLY AUTHORI ZED BY THE ASSESSEE BY WAY OF GIVING A POWER OF ATTORNEY IN HIS FAVOUR. LD. CIT(APPEALS) SPECIF ICALLY NOTED THAT ON THE STRENGTH OF THE SAID POWER OF ATTORNEY, SAID ADVOCATE AND A.R. APPEARED ON SEVERAL OCCASIONS BEFORE THE AO. ON THE OTHER HAND, THE APPELLANT UTTERLY FAILED TO ESTABLISH HIS ACCUSATION THAT HIS SIGNED STAMP PAPER WAS USED BY HIS AC COUNTANT TO DRAW A POWER OF ATTORNEY IN FAVOUR OF SHRI PRAMANAND GIRI, ADVOCATE. THERE IS ALSO NO EVIDENCE ON RECORD THAT THE APPELLANT TO DEFY SUCH ILLEGAL ACT OF HIS ACCOUNTANT HAS LODGED ANY COMPLAINT WITH ANY APPROPRIATE AUTHORITY OR THE MATTER WAS BRO UGHT TO THE NOTICE OF THE AO DURING ASSESSMENT PROCEEDINGS. FURTHERMORE, THE ALLEGATION OF BLACKMAILING/DUPING BY THE AO METED TO THE APPELLANT IS TOTALLY UNWARRANTED AND BASELESS. NO REASON OR INCIDENCE WHATSOEVER HAS BEEN POINTED OUT TO JUSTIFY SUCH AN A LLEGATION . 6. BEFORE US, LD. COUNSEL FOR THE ASSESEE FILED A COPY OF ORDER OF THE ORDER OF CHIEF JUDICIAL MAGISTRATE, BURDWAN HEREIN A CRIMINAL COMPLAINT AGAINST THE ADVOCATE SHRI PRAMANANDA GIRI AND FOUR OTHERS ALLEGING COMMISSION OF OFFENCE UNDER SECT ION 467/468/479/406/420 OF I.P.C. WITH A PRAYER FOR SENDING THE CASE TO I.C., BURDWAN P.S. UNDER SECTION 156(3) OF CR.P.C. FOR CAUSING INVESTIGATION WAS FILED. THE CRIMINAL COMPLAINT C.R. NO. 722 OF 2010 WAS FILED AND VIDE ORDER DATED 11.08.2010, THE CHIEF JUDICIAL MAGISTRATE, BURDWAN ORDERED FOR FURTHER INQUIRY AND PROCEEDINGS TO THE LD. JUDICIAL MAGISTRATE, 2 ND COURT, BURDWAN WAS MARKED. LD. COUNSEL FOR I.T.A. NO . 1 422 /KOL./201 4 ASSESSMENT YEAR: 200 7 - 20 0 8 PAGE 5 OF 7 THE ASSESSEE BEFORE US STATED THAT THE FACT OF FILING OF CRIMINAL COMPLAINT AGAINST SHRI PRAMANANDA GIR I, ADVOCATE AND FOUR OTHERS IN CHIEF JUDICIAL MAGISTRATE, BURDWAN WAS A PRIOR ACT, I.E. PRIOR TO THE DATE OF ORDER OF LD. CIT(APPEALS), I.E. 05.03.2014. EVEN THIS ACT IS PRIOR TO THE FILING OF APPEAL, I.E. APPEAL WAS FILED BEFORE THE LD. CIT(APPEALS) ON 14 .11.2011. IN VIEW OF THESE FACTS, LD. C OUNSEL FOR THE ASSESSEE STATED THAT THE ASSESSEE HAS A REASONABLE CAUSE FOR DELAY AS HE COULD NOT LAY HIS HAND ON THE ASSESSMENT ORDER AND D EMAND NOTICE RATHER HE WAS NOT AT ALL AWARE ABOUT THIS ASSESSMENT. LD. COUNSE L FOR THE ASSESSEE STATED THAT HE BECAME AWARE ONLY ON THE RECEIPT OF PENALTY NOTICE UNDER SECTION 271(1)(C) FIXING THE DATE OF HEARING ON 26.05.2010. LD. COUNSEL FOR THE ASSESSEE STATED THAT AFTER THE KNOWLEDGE OF THE ASSESSMENT ORDER FOR THE ASSESSMENT Y EAR 2007 - 08, HE FILED AN APPLICATION FOR OBTAINING CERTIFIED COPY TO THE ASSESSING OFFICER, BURDWAN WITH A COPING FEE OF RS.250/ - . B UT THE ASSESSING OFFICER HAS NOT GIVEN THE COPY TO THE ASSESSEE BUT FINALLY TRANSFERRED THE ASSESSMENT RECORDS FROM ITO, WAR D - 2(1), ASSANSOL TO ITO, WARD - 1(4), BURDWAN. THE ASSESESE GOT COPY OF ASSESSMENT AND D EMAND NOTICE ONLY ON 09.11.2011 FROM THE OFFICE OF ITO, WARD - 1(4), BURDWAN AND APPEAL WAS FILED ON 14.11.2011. IN VIEW OF THESE FACTS, THE ASSESESE S LD. COUNSEL PRAYED T HAT THERE IS A CLEAR CASE OF REASONABLE CAUSE FOR DELAY AND THE SAME , ACCORDING TO HIM , MAY BE CONDONED. 7. ON THE OTHER HAND, LD. SR. D.R. VEHEMENTLY OPPOSED THE CONDONATION OF DELAY. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE ALSO EXAMINED THE CASE RECORDS INCLUDING THE ASSESSMENT RECORDS. FROM THE ASSESSMENT RECORDS, WE NOTICE THAT THE ASSESSMENT ORDER AND THE D EMAND NOTICE WAS NOT SERVED ON THE ASSESSEE , RATHER IT WAS SERVED ON THE ASSESSEE S AD VOCATE SHRI PRAMANANDA GIRI, AGAINST WHOM THE ASSESSEE HAS FILED CRIMINAL COMPLAINT IN CHIEF JUDICIAL MAGISTRATE, BURDWAN COURT VIDE C.R. CASE NO. 722 OF 2010 AND IN WHICH ORDER WAS PASSED ON 11.08.2010 MARKING THE I NQUIRY TO JUDICIAL MAGISTRATE, 2 ND COURT , BURDWAN FOR INQUIRY AND PROCEEDING S IN THE MATTER IN ACCORDANCE WITH LAW. WE FIND THAT THE ASSESSEE HAS ALREADY MOVED IN C RIMINAL CASE AGAINST SHRI PRAMANANDA GIRI, ADVOCATE AND FOUR OTHERS FOR ALLEGING COMMISSION OF OFFENCE UNDER SECTION 467/468/471/406 /420 OF THE INDIAN PENAL CODE. IN VIEW OF THE ABOVE FACTS, WE I.T.A. NO . 1 422 /KOL./201 4 ASSESSMENT YEAR: 200 7 - 20 0 8 PAGE 6 OF 7 GENERALLY CAN INFER THAT THERE IS A REASONABLE CAUSE. THE ASSESSEE MIGHT NOT HAVE RE CEIV ED THE ASSESSMENT ORDER. IT SEEMS BONAFIDE ACT FROM THE FACT THAT THE ASSESSEE APPLIED FOR CERTIFIED COPIE S OF THE ASSESSMENT ORDER AND D EMAND NOTICE TO THE ASSESSING OFFICER AND AFTER OBTAINING THE SAME ON 09.11.2011 , THE APPEAL WAS FILED ON 14.11.2011. WE FIND THAT THERE IS A REASONABLE CAUSE FOR DELAY IN FILING OF THIS APPEAL AND WE CONDONE THE DELAY AND DI RECT THE LD. CIT(APPEALS) TO ADMIT THE APPEAL, AND ALSO ADJUDICATE ON MERITS . 9. IN RESPECT TO THE GROUNDS OF APPEAL ON MERITS, SINCE THE LD. CIT(APPEALS) HAS NOT CONDONED THE DELAY AND NOT ADJUDICATED ON MERITS, WE SET ASIDE THE ISSUES ON MERITS TO THE F ILE OF LD. CIT(APPEALS), WHO WILL ADJUDICATE THE ISSUES ON MERITS AFTER ALLOWING REASONABLE OPPORTUNITIES OF BEING HEARD TO THE ASSESSEE. LD. COUNSEL FOR THE ASSESSEE MADE A PRAYER THAT THE ISSUE BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER. MANY OF T HE EVIDENCES ARE TO BE FILED BEFORE HIM FOR THE FIRST TIME. ACCORDING TO THE LD. COUNSEL , THESE ALL THE EVIDENCES WILL BE FRESH EVIDENCE S BEFORE THE LD. CIT(APPEALS). 10. ON THIS, LD. SR. D.R. VEHEMENTLY OPPOSED THE PRAYER. WE FEEL LET THE ISSUE BE SET A SIDE TO THE FILE OF LD. CIT(APPEALS) AND IN CASE ASSESSEE FILE S ADDITIONAL EVIDENCES THAT CAN BE SENT BACK TO THE FILE OF THE A SSESSING OFFICER FOR EXAMINATION BY WAY OF SEEKING A REMAND REPORT ON THE SAME , FOR ADJUDICATION OF THE ISSUE S . IN TERMS OF THE ABOVE, THE LD. CIT(APPEALS) WILL DECIDE THE ISSUE S ON MERITS AFRES H. 11. IN THE RESULT, THE APPEAL OF THE ASSE S SEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND JANUARY, 201 5 . SD/ - SD/ - N.K. SAINI MAHAVIR SINGH ( ACCOUNTANT MEMBER) ( JUDICIAL MEMBER) KOLKATA, THE 22 ND D AY OF JANUARY , 201 5 COPIES TO : (1) HARI MOHAN GHOSH, PROP.: THE NILACHAL LOTTERY AGENCIES, SPANDAN COMPLEX, STATION BAZAR, P.O. & DIST. BURDWAN - 713 101 I.T.A. NO . 1 422 /KOL./201 4 ASSESSMENT YEAR: 200 7 - 20 0 8 PAGE 7 OF 7 ( 2) INCOME TAX OFFICER, WARD - 1(4), BURDWAN, AAYAKAR BHAWAN, COURT COMPOUND, BURDWAN - 713 101 (3) COMMISSIONER OF INCOME - TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA B ENCHES, KOLKATA LAHA/SR. P.S.