Rama Chandra Mallick, Jajpur V. ITO, Cuttack

ITA 144/CTK/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3857 (ITAT-CUTTACK)
• Duration Of Justice: 2 year(s) 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 28-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A TIGGA
• Assessee Lawyers: D K SHETH
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ( CUTTACK BENCH, CUTTACK ) BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH , JUDICIAL MEMBER I TA N O . 144 / CTK/2014 (ASSESSMENT YEAR : 20 11 - 1 2 ) KUNI SAMANTRAY, VS. ITO, WARD 2 (4), 413 B/1, MANGLA SAHI, CUTTACK. ALISHA BAZAR, CUTTACK 753 002. ( PAN : CEDPS0357H ) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI D.K. SHETH , AR REVENUE BY : SHRI A. TIGGA , DR D ATE OF HEARING : 2 7 . 0 4 .2017 DATE OF PRONOUNCEMENT : 27 . 0 4 .2017 O R D E R PER KULDIP SINGH , JUDICIAL MEMBER : THE APPELLANT, KUNI SAMANTRAY (HEREINAFTER REFERRED TO AS THE ASSESSEE ) BY FILING THE AFORESAID APPEAL SOUGHT TO SET ASIDE THE ORDER DATED 2 9 .0 1 .201 5 PASSED BY THE COMMISSIONER OF INCOME - TAX (APPEALS) , CUTTACK QUA THE ASSESSM ENT YEAR 20 13 - 1 4 ON THE GROUNDS INTER ALIA THAT : - 1. FOR THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE ADDITION OF RS.41,50,242/ - UNDER HEAD INCOME SUPPRESSED AS MADE IS ARBITRARY UNCALLED FOR AND UNJUSTIFIED. ITA NO . 1 44 / CTK ./2014 2 2. FOR THAT THE LEARNED AO SHOU LD HAVE GIVEN PROPER OPPORTUNITY TO EXPLAIN THE QUERIES RAISED BY HIM. 3. FOR THAT THE ALLEGED SUPPRESS INCOME AS CALCULATED IS ALSO IMPROPER. 4. FOR THAT THE LEARNED COMMISSIONER IS WHOLLY UNJUSTIFIED TO CONFIRM THE ASSESSMENT AND TO DISMISS THE APPE AL. 5. FOR THAT THE LEARNED COMMISSIONER FAILED TO APPRECIATE THE CONTENTIONS FURNISHED BY THE APPELLANT. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICATION OF THE CONTROVERSY AT HAND ARE : ASSESSING OFFICER MADE AN ADDITION OF RS.41,50,242/ - ON ACCOUNT OF DELIBERATELY SUPPRESSED INCOME ON THE GROUND THAT THE ASSESSEE HAS FAILED TO PRODUCE RELEVANT DOCUMENTS / BANK STATEMENT REGARDING GROSS COLLECTION OF RS.1,35,02,430/ - . 3. ASSESSEE CARRIED THE MATTER BY WAY OF FILING AN APPEAL BEFORE THE LD. CIT (A) WHO HAS DISMISSED THE APPEAL . FEELING AGGRIEVED, THE ASSESSEE HAS COME UP BEFORE THE TRIBUNAL BY FILING THE PRESENT APPEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS RELIED UPON AND O RDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO . 1 44 / CTK ./2014 3 5. UNDISPUTEDLY, THE ASSESSEE HAS DECLARED GROSS COLLECTION OF RS.93,52,188/ - WITH NET INCOME OF RS.13,18,540/ - . ASSESSEE CLAIMED TDS OF RS.14,04,066/ - IN THE RETURN OF INCOME. HOWEVER, AO NOTICED A SUM OF RS.1,35,02,430/ - HAVING BEEN CREDITED IN THE NAME OF THE ASSESSEE BY IL&FS ECOSMART LTD., (TAN DEL 106904C), D 64, DEFENCE COLONY, NEW DELHI 110 024. AO TRIED TO GET THE CONFIRMATION FROM IL&FS ECO SMART LTD. BUT RECEIVED NO REPLY. AO, DURING ASSESSMENT PROCEEDINGS, ISSUED A DETAILED SHOW - CAUSE NOTICE TO THE ASSESSEE WHICH IS REPRODUCED AS UNDER FOR READY REFERENCE : - 'IN COURSE OF ASSESSMENT PROCEEDINGS U/S. 143(3) OF THE I.T. ACT, 1961, FOR THE A SSESSMENT YEAR 2011 - 12, IT IS FOUND THAT AS PER YOUR RETURN OF INCOME YOU DECLARED GROSS RECEIPT OF RS.93,52, 188/ - , NET INCOME RS.13,18,540/ - , T.D.S. RS.14,04,066/ - WITH A CLAIM OF REFUND OF RS.11,47,020/ - . AS PER AUDITED REPORT, THE ASSESSEE HAD BEEN M AINTAINING BOOKS OF ACCOUNT IN MERCANTILE SYSTEM. YOUR GROSS INCOME SHOWS RS.93,52,188/ - , NET INCOME RS.13,18,540/ - AS PER AUDIT REPORT. ON EXAMINATION OF T.D.S. CERTIFICATE FILED BY YOUR A/R ISSUED BY IL & FS ECOSMART LIMITED, D - 64, DEFENCE COLONY, NEW DELHI - I 10024, IT IS SEEN THE ASSESSEE RECEIVED AS BELOW: SL. NO. PERIOD AMOUNT PAID AMOUNT OF TDS DATE OF CREDIT 1. 01.04.2010 TO 30.06.2010 53,82,271 5,92,049 30.04.2010 2. 01.07.2010 TO 30.09.2010 13,56,928 1,35,693 04.08.2010 3. 01.01.2011 TO 31.0 3.2011 37,64,921 3,76,493 23.03.2011 TOTAL 1,05,04,120 11,04,235 TDS CERTIFICATE FOR THE PERIOD FROM 01.10.2010 TO 31.12.2010 NOT PRODUCED. ITA NO . 1 44 / CTK ./2014 4 BUT AS PER TDS STATEMENT 26 AS, IT IS FOUND YOU RECEIVED A SUM OF RS.L,35,02,430/ - FROM THE PERIOD FROM 01 .04.2010 TO 31.03.2010 WITH DEDUCTION OF TAX SOURCE U/S. 194J OF RS.14,04,066/ - WHICH YOU CLAIMED IN YOUR RETURN OF INCOME. FROM THE ABOVE FACT AND FINDINGS ( IT IS SEEN THE ACTUAL T.D.S. MADE BY I.L. & F.S. ECOSMART LTD., TAN: DEL106904), IT IS CLEAR TH AT YOU GOT CREDIT/RECEIVED OF RS.1,35,02,430/ - WITH TDS OF RS.14,04,066/ - U/S 194J AS FOR CONSULTANCY JOB, YOU DECLARED GROSS RECEIPT OF RS.93,52,188/ - IN YOUR RETURN OF INCOME WITH THE CLAIM OF T.D.S. OF RS.14,04,066/ - . AS YOU MAINTAIN BOOKS OF ACCOUNT, AS PER MERCANTILE SYSTEM, AS PER AUDIT REPORT, YOU FAILED TO PRODUCE THE RELEVANT DOCUMENTS/ BANK STATEMENT REGARDING GROSS COLLECTION OF RS.1,35,02,430/ - , YOU ARE ASKED TO SHOW CAUSE WHY THE AMOUNT OF RS.41,50,242/ - (1,35,02,430 - 93,52,188 ) SHALL NOT B E TREATED AS SUPPRESSED INCOME AND ADDED TO NET PROFIT. YOUR REPLY SHOULD REACH TO THE UNDERSIGNED WITHIN 10 DAYS FROM THE DATE OF RECEIPT OF THIS LETTER.' 6. HOWEVER, THE ASSESSEE HAS FAILED TO BRING ON RECORD ANY DOCUMENTARY EVIDENCE TO SUPPORT HER C LAIM. 7. NOW, THE LD. AR FOR THE ASSESSEE CONTENDED THAT THE LD. AO HAS NOT GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE TO PRODUCE ALL THE DOCUMENTS INCLUDING CONFIRMATION FROM IL&FS ECOSMART LTD.. SINCE THE BOOKS OF ACCOUNTS ARE BEING MAINT AINED BY THE ASSESSEE IN DUE COURSE OF BUSINESS AND HAVING NOT BEEN REJECTED BY THE AO, WE ARE OF THE CONSIDERED VIEW THAT ADEQUATE OPPORTUNITY OF BEING HEARD IS REQUIRED TO BE PROVIDED TO THE ASSESSEE. EVEN LD. DR HAS NOT RAISED ANY OBJECTION FOR GRANTIN G FRESH OPPORTUNITY TO THE ASSESSEE. ITA NO . 1 44 / CTK ./2014 5 8. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, PRESENT APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AND IMPUGNED ORDER PASSED BY THE LD. CIT (A) IS SET ASIDE AND FILE IS RESTORED TO THE AO TO DECIDE AF RESH AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ORDER PRONOUNCED IN OPEN COURT ON THIS 27 TH DAY OF APRIL , 201 7 AFTER THE CONCLUSION OF THE HEARING . SD/ - SD/ - ( N.S. SAINI ) ( KULDIP SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 27 TH DAY OF MAY , 201 7 TS COPY OF THE ORDER FORWARDED TO: 1.APPELLANT - KUNI SAMANTRAY, 413 B/1, MANGLA SAHI, ALISHA BAZAR, CUTTACK 753 002. 2.RESPONDENT - ITO, WARD 2 (4), CUTTACK. 3.CIT , CUTTACK 4.CIT (A) , CUTTACK. 5.DR (ITAT), CUTTACK . 6. GUARD FILE //TRUE COPY// BY ORDER SR. PRIVATE SECRETARY , ITAT , CUTTACK