M/s Akhilesh Mishra, Siliguri V. ITO, WD-1(1), SILIGURI, Siliguri

ITA 1440/KOL/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5095 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 07-12-2015
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN
• Assessee Lawyers: VARSHA JALAN
• Keywords: Unexplained investment
• Section: 133A; 147; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH: K OLKATA [BEFORE SHRI MAHAVIR SINGH, JM] I.T.A NO.1440/KOL/2015 ASSESSMENT YEAR: 2011-12 M/S. AKHILESH MISHRA VS. INCOME-TAX OFFICER, WD -1(1), SILIGURI (PAN: AEOPM7057D) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 23.02.2016 DATE OF PRONOUNCEMENT: 23.02.2016 FOR THE APPELLANT: MS. VARSHA JALAN, ADVOCATE FOR THE RESPONDENT: MD. GHAYAS UDDIN, JCIT, SR. DR ORDER THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A), SILIGURI VIDE APPEAL NO. 19/CIT(A)/SLG/2014-15 DATED 03.09.2015. ASSESSMENT WAS FRAMED BY ITO, WD-1(1), SILIGURI U/S. 147/143(3) OF THE INCOME TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2011-12 VIDE HIS ORDER DATED 26.02. 2015. 2. AT THE OUTSET, IT IS NOTICED THAT THIS APPEAL I S TIME BARRED BY 20 DAYS AND ASSESSEE HAS FILED CONDONATION PETITION STATING THE REASONS THAT THE A SSESSEE FELL SEVERELY ILL AND BED RIDDEN FROM 10.11.2015 TO 04.12.2015. A DOCTORS CERTIFICATE D ATED 05.12.2015 IS FILED ALONG WITH CONDONATION PETITION. THE ORDER OF CIT(A) DATED 03 .09.2015 WAS RECEIVED BY ASSESSEE ON 18.09.2015. ACCORDINGLY, THERE IS A DELAY OF FILIN G OF APPEAL BY 20 DAYS AND ULTIMATELY APPEAL WAS FILED BEFORE TRIBUNAL ON 07.12.2015. WHEN THES E FACTS WERE CONFRONTED TO LD. SR. DR, HE COULD NOT REBUT THE SAME. ACCORDINGLY, THE DELAY I S CONDONED AND APPEAL IS ADMITTED. 3. THE FIRST ISSUE IN THIS APPEAL OF ASSESSEE IS AG AINST THE ASSUMPTION OF JURISDICTION BY THE AO U/S. 147 OF THE ACT IS NOT PRESSED AND HENCE, TH E SAME IS DISMISSED AS NOT PRESSED. 4. THE ONLY REMAINING ISSUE IN THIS APPEAL OF ASSES SEE IS AGAINST THE ORDER OF CIT(A) CONFIRMING THE ADDITION MADE BY AO OF RS.,6 LACS AS UNEXPLAINED INVESTMENT IN PURCHASE OF SHOP AT SAI GOLDEN PLAZA, SILIGURI BY INVOKING THE PROVISIONS OF SECTION 69 OF THE ACT. 5. I HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. I FIND FROM THE FACTS OF THE CASE THAT THE ASSESSEE H AS BOOKED A SHOP NO. 38 AT SAI GOLDEN PLAZA AND DEAL WAS FINALIZED AT RS.23,72,580/-. THE ASSE SSEE MADE CASH PAYMENT OF RS.11 LACS AS UNDER: PARTYS NAME PAYMENT DATE MONEY RECEIPT NO. AMOUNT (RS.) MANGALAM MANGALAM 01.03.2011 07.06.2011 23238 4236 6,00,000/- 5,00,000/- 2 ITA NO.1440/KOL/2015 AKHILESH MISHRA, AY 2011-12 2 SUBSEQUENTLY, A SURVEY WAS CONDUCTED ON THE BUSINES S PREMISES OF THE ASSESSEE U/S. 133A OF THE ACT ON 06.03.2013 FROM WHERE A DOCUMENT OF PAYMENT AS MENTIONED ABOVE IS FOUND AND MARKED AS WM/01. ACCORDINGLY, THE AO REQUIRED THE ASSESSE E TO EXPLAIN THE PAYMENT OF RS. 6 LACS PERTAINING TO FY 2010-11 RELEVANT TO AY 2011-12 (UN DER CONSIDERATION). LD. COUNSEL FOR THE ASSESSEE STATED THAT NO OPPORTUNITY TO CROSS EXAMIN E SHRI PRAVESH GOYAL, WHOSE RECEIPT OF RS. 6 LACS WAS FOUND DURING THE COURSE OF SURVEY WAS ALLO WED TO THE ASSESSEE. SHE ALSO REFERRED TO THE ORDER OF CIT(A) PARA 5 WHEREIN SPECIFICALLY THE ASS ESSEE HAS REQUIRED TO CROSS EXAMINE SHRI PRAVESH GOYAL AND THE RELEVANT PARA 5 READS AS UNDE R: THE LD. AR IN HIS SUBMISSION HAS HEAVILY EMPHASIZ ED ON TWO POINTS (I) THAT IN THE FIRST STATEMENT BEFORE THE DDIT (INV.), SILIGURI, APPELLANT HAD CAT EGORICALLY DENIED TO HAVE MADE ANY PAYMENT IN THE FY 2010-11 AND (II) THAT ENTRIES IN THE BOOKS O F THE THIRD PARTY DOES NOT CONSTITUTE ANY MATERIAL EVIDENCE TO PUNISH THE APPELLANT, ESPECIALLY WHEN T HE APPELLANT WAS NOT ALLOWED TO CROSS EXAMINE THAT THIRD PARTY NAMELY, SHRI PRAVESH KUMAR GOYAL. 6. SIMILAR IS THE ASPECT BEFORE THE AO ALSO. IN VI EW OF THESE FACTS, LD. COUNSEL FOR THE ASSESSEE REQUIRED THE BENCH TO SEND BACK THE MATTER TO THE FILE OF THE AO SO THAT THE PARTY SHRI PRAVESH GOYAL CAN BE CROSS EXAMINED BY THE ASSESSEE . ON QUERY FROM THE BENCH, LD. SR. DR HAS NOT SERIOUSLY OPPOSED THE MATTER. I FIND FROM THE FACTS OF THE CASE THAT OPPORTUNITY TO CROSS EXAMINE SHRI PRAVESH GOYAL TO THE ASSESSEE SHOULD H AVE BEEN ALLOWED BY THE AO AT THE FIRST INSTANCE. HOWEVER, IN THE INTEREST OF JUSTICE, I R EMIT THE ISSUE BACK TO THE FILE OF THE AO WHO WILL ALLOW OPPORTUNITY TO THE ASSESSEE TO CROSS EXAMINE SHRI PRAVESH GOYAL AND THEN DECIDE THE ISSUE. THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES. 7. IN THE RESULT, APPEAL OF ASSESSEE IS PARTLY ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (MAHAVIR SINGH) JUDICIAL MEMBER DATED : 23RD FEBRUARY, 2016 JD. SR. P.S COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. AKHILESH MISHRA, HILL CART ROAD, S ILIGURI-734001 2. RESPONDENT ITO, WARD-1(1), SILIGURI. 3. CIT(A) , SILIGURI 4. CIT , SILIGURI 5. DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .