M/s Govind Lal Diga, Kolkata V. ITO, Ward-45(2), Kolkata, Kolkata

ITA 1478/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9301 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 13-07-2016
• Court: TRIBUNAL
• Department Lawyers: MD G HYAS UDDIN
• Keywords: Unexplained expenditure; Depreciation; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI S.S.VISWANETHRA RAVI, JM & DR. A.L.SAI NI, AM ./ ITA NO.1478/KOL/2016 ( / ASSESSMENT YEAR:2006-07) M/S GOVIND LAL DIGA, C/O S.L.KOCHAR, ADVOCATE, 86, CANNING STREET, KOLKATA-700001 VS. ITO, WARD-45(2), KOLKATA, 3, GOVT. PLACE WEST, KOLKATA-700001 ./ ./PAN/GIR NO.: AACFG 4663 K ( /APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : SHRI ANIL KOCHAR, ADVOCATE REVENUE BY : MD. GHYAS UDDIN, JCIT / DATE OF HEARING : 13/02/2017 /DATE OF PRONOUNCEMENT 03/03/2017 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAINI NG TO THE ASSESSMENT YEAR 2006-07, IS DIRECTED AGAINST THE OR DER PASSED BY LD. CIT(A)-21, KOLKATA IN APPEAL NO.1256/ITO, WARD-45(2 )/CIT(A)-21/KOL/14- 15, DATED 20.06.2016, WHICH IN TURN ARISES OUT OF A N ORDER PASSED BY THE ASSESSING OFFICER (AO) UNDER SECTION 143(3) OF THE INCOME TAX ACT 1961, (HEREINAFTER REFERRED TO AS THE ACT), DATED 27.11 .2008. 2. BRIEF FACTS OF THE CASE QUA THE ASSESSEE ARE THA T THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE A.Y.2006-07 ON 31-10- 2006 DECLARING TOTAL INCOME OF RS.14,140/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND THE AO FRAMED THE ASSESSMENT U/S.143(3 ) MAKING VARIOUS ADDITIONS. 3. AGGRIEVED FROM THE ORDER OF AO, THE ASSESSEE FIL ED AN APPEAL BEFORE THE LD. CIT(A), WHO HAS CONFIRMED THE ORDER PASSED BY THE AO OBSERVING THE FOLLOWINGS :- ITA NO.1478/KOL/2016 M/S GOVIND LAL DIGA 2 3 THE INSTANT APPEAL WAS FILED ON 13.01.2009 IN THE OFFICE OF CIT(A)-XXX, KOLKATA. IN MARCH 2015, IT WAS TRANSFER RED TO THE OFFICE OF CLT(C)-11, KOLKATA. AT PRESENT THE JURISDICTION OVER APPEAL LIES WITH THE OFFICE OF CIT(A)-21, KOLKATA. THE RECORDS SHOW THAT THE ASSESSEE HAD FILED RETURN OF INCOME FOR A.V. 2006-07 ON 31.10.2006 SHOWING INCOME OF RS. 14 ,140/-. THE CASE WAS SELECTED FOR SCRUTINY AND THE ASSESSMENT P ROCEEDING WAS COMPLETED U/S 143(3)(II) OF THE ACT ON 27.11.2008 A T THE TOTAL INCOME OF RS. 3,34,368/-. NOTICES FOR THE HEARING O F APPEAL HAVE BEEN ISSUED AND THE LD. AR APPEARED IN THE BEGINNIN G OF APPEAL PROCEEDINGS AND ARGUED THE CASE, WRITTEN SUBMISSION HAVE ALSO BEEN FILED. HOWEVER, THE RELEVANT RECORDS SHOW THAT THERE HAS BEEN NO RESPONSE FROM THE APPELLANT IN THE RECENT PAST. NOTICES FOR THE HEARING OF APPEAL HAVE BEEN ISSUED ON 17/09/2009, 1 2/10/2009, 18/11/2009, 08/02/2010, 05/09/2011, 09/11/2011, 18/ 12/2012, 04/03/2013, 12/07/2013,06/09/2013,16/09/2014,15/07/ 2014 AND 02/12/2015. IN VIEW OF THIS THE APPEAL IS DECIDED O N THE BASIS OF MERIT AND MATERIAL ON RECORD. IT IS SEEN FROM THE RECORDS THAT THE APPELLANT'S LD . AR HAD APPEARED EARLIER AND FILED SUBMISSION AND ARGUED BUT THERE H AS BEEN NO RESPONSE FROM THE APPELLANT OR APPELLANT'S AR IN TH E RECENT PAST ESPECIALLY AFTER THE RECEIPT OF REMAND REPORT FROM THE ASSESSING OFFICER. 4. NOT BEING SATISFIED WITH THE ORDER OF LD. CIT(A) , THE ASSESSEE IS IN FURTHER APPEAL BEFORE US AND HAS TAKEN THE FOLLOWIN G GROUNDS OF APPEAL :- 1. FOR THAT ORDER OF THE LD. CIT (A) WHEREBY APPEA L HAS BEEN DISMISSED IS WRONG, UNCALLED FOR AND BAD ON FACTS A ND IN LAW. 2. FOR THAT THE APPEAL WAS INSTITUTED ON 13.06.200 9 AND THERE HAVE BEEN VARIOUS HEARINGS AS NOTED BY THE LD. CIT (A) AND THAT WITH REFERENCE TO THE WRITTEN SUBMISSIONS AND DOCUMENTS PRODUCED BEFORE THE LD. CIT (A) A REMAND REPORT WAS CALLED FOR AND THERE IS THE REJOINDER SUBMITTED BY THE APP ELLANT WHICH HAVE NOT ALL BEEN CONSIDERED AND RELIED UPON BY THE LD. CIT (A) AND IN THIS VIEW OF THE MATTER THE ORDER DISMISSING THE APPEAL IS ENTIRELY BAD-IN-IAW. 3. FOR THAT THE LD. CIT (A) ERRED IN CONFIRMING TH E DISALLOWANCE OF RS.61,183/- MADE BY THE A.O. U/S 40 (A)(IA). 4. FOR THAT THE LD. CIT (A) ERRED IN CONFIRMING DI SALLOWANCE OF RS.3,600/- ON ACCOUNT OF DEPRECIATION. 5. FOR THAT THE LD. CIT (A) ERRED IN CONFIRMING DI SALLOWANCE OF RS.12,120/- OUT OF ADVERTISEMENT EXPENSES. ITA NO.1478/KOL/2016 M/S GOVIND LAL DIGA 3 6. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING ADD ITION OF RS.5,72,000/- AS UNDISCLOSED INCOME ON THE ALLEGED GROUNDS. 7. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING ADD ITION OF RS.45,951/- ON THE ALLEGED GROUNDS. 8. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING ADD ITION OF RS.53,176/- MADE BY THE A.O. ON THE ALLEGED GROUND OF UNEXPLAINED EXPENDITURE. 9. FOR THAT VARIOUS ADDITIONS & DISALLOWANCES MADE BY THE A.O. AND CONFIRMED BY THE LD. CIT (A) PROCEED ON NON-CON SIDERATION THE EXPLANATIONS AND THE EVIDENCES ADDUCED BY THE A PPELLANT IN THE COURSE OF APPEAL PROCEEDINGS AND THE REJOINDER TO THE REMAND REPORT WHICH HAS NOT BEEN CONSIDERED. 10. FOR THAT FURTHER GROUNDS OF APPEAL MAY KINDLY B E ALLOWED TO BE TAKEN AT THE TIME OF HEARING OF THE APPEAL. 5. IN THIS APPEAL, THE ASSESSEE HAS RAISED 10 GROUN DS OF APPEAL BUT AT THE TIME OF HEARING THE SOLITARY GRIEVANCE OF THE A SSESSEE HAS BEEN CONFINED TO GROUND NO.2. THE GROUND NO.3 HAS NOT BE EN PRESSED BY THE ASSESSEE AND OTHER GROUNDS RAISED BY THE ASSESSEE A RE ON MERITS. THE SOLITARY GRIEVANCE OF THE ASSESSEE IN THIS APPEAL I S THAT LD. CIT(A) PASSED THE ORDER WITHOUT CONSIDERING THE REJOINDER/ SUBMISSION OF THE ASSESSE FOR REMAND REPORT. 5.1 THE LD AR FOR THE ASSESSEE HAS SUBMITTED BEFO RE US THAT LD CIT(A) CALLED A REMAND REPORT FROM THE AO AND THEN ASSESSE E SUBMITTED A REJOINDER/SUBMISSIONS, IN ORDER TO REPLY THE ISSUES OF REMAND REPORT. THE LD CIT(A) DID NOT CONSIDER AT ALL THE REJOINDER/SUB MISSIONS OF THE ASSESSEE. IT IS AGAINST THE PRINCIPLE OF NATURAL JU STICE. THEREFORE, THE LD AR FOR THE ASSESSEE HAS PRAYED THE BENCH TO REMIT T HE CASE BACK TO THE FILE OF LD. CIT(A) FOR RE-ADJUDICATION THE CASE AF RESH. ITA NO.1478/KOL/2016 M/S GOVIND LAL DIGA 4 6. ON THE OTHER HAND, LD. DR FOR THE REVENUE HAS AG REED WITH THE LD. AR FOR THE ASSESSEE TO REMIT THE MATTER BACK TO THE FILE OF LD. CIT(A) TO RE- ADJUDICATE THE ISSUE AFRESH. 7. HAVING HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD, WE ARE OF THE VIEW THAT THERE IS MERIT IN THE SUBMI SSIONS OF THE ASSESSE, AS THE PROPOSITION CANVASSED BY LD. AR FOR THE ASSE SSEE ARE SUPPORTED BY THE FACTS NARRATED BY HIM ABOVE. AS LD. AR FOR THE ASSESSEE HAS POINTED OUT THAT LD. CIT(A) DID NOT CONSIDER THE SUBMISSION S/REJOINDER SUBMITTED BY THE ASSESSEE DURING THE APPELLATE PROCEEDINGS AND W ITHOUT CONSIDERING THE REPLY/REJOINDER OF THE ASSESSEE, LD. CIT(A) HAS PASSED THE ORDER WHICH IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. THEREF ORE, WE ARE OF THE VIEW TO REMIT THE CASE BACK TO THE FILE OF LD. CIT(A) TO RE -ADJUDICATE THE ISSUE AFRESH. ACCORDINGLY, WE REMIT THE CASE BACK TO THE FILE OF LD. CIT(A) TO ADJUDICATE THE ISSUE AFRESH AFTER CONSIDERING THE R EJOINDER/SUBMISSIONS GIVEN BY THE ASSESSEE AND AFTER GIVING AN OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE. 9.SINCE, WE ARE SENDING THE CASE BACK TO THE FILE O F THE CIT(A) THEREFORE, WE DO NOT ADJUDICATE THE GROUNDS RAISED BY THE ASS ESSE ON MERITS. 10. IN THE RESULT, APPEAL FILED BY THE ASSESSEE, I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 03/03 /2017. SD/ - (S.S.VISWANETHRA RAVI) S D/ - (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; ! DATED 03/03/2017 ' $%& /PRAKASH MISHRA , 0 . / PS ITA NO.1478/KOL/2016 M/S GOVIND LAL DIGA 5 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) % & , / ITAT, 1. / THE APPELLANT-M/S GOVIND LAL DIGA 2. / THE RESPONDENT.- ITO WD. 45(2), KOLKATA 3. 1 ( ) / THE CIT(A), KOLKATA. 4. 1 / CIT 5. 23 4 0056 , 56 , / DR, ITAT, KOLKATA 6. 4 78 / GUARD FILE. 2 0 //TRUE COPY//