Sudish Yadav, Darjeeling V. ITO, Ward - 2(2), Siliguri, Siliguri

ITA 1518/KOL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1455 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 27-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Gift; Opportunity of being heard
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA SMC BENCH, KOLKATA [BEFORE S H RI P.M. JAGTAP , HONBLE A CCOUNTANT M EMBER ] I.T.A. NO. 1518 / KOL/201 7 ASSESSMENT YEAR: 20 12 - 13 SUDISH YADAV. . .. . . ... APPELLANT PRAKASH NAGAR, BYPASS NH - 31, SEVOK ROAD SILIGURI DARJEELING [PAN : AAKPY 1276 C ] I.T.O. WARD - 2 ( 2 ) , SILIGURI .. ... .. ... RESPONDENT SILIGURI APPEARANCES BY: SHRI SUBHASH AGARWAL , ADVOCATE , APPEAR ED ON BEHALF OF THE ASSESSEE. SHRI S.M. TAUHEED , ADDL. CIT , DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : FEBRUARY 12 TH , 2017 DATE OF PRONOUNCING THE ORDER : FEBRUARY 21 ST , 201 8 O R D E R PER P.M. JAGTAP : - THIS APPEAL FILED BY THE ASSESSE E IS DIRECTED AGAINST THE EX - PARTE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - SILIGURI , DT. 18/11/2017, (HEREINAFTER THE LD. CIT (A)), PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DISMISSING THE APPEAL OF THE ASSESSEE FILED BEFORE HIM. 2. AT THE OUTSET, IT IS NOTED THAT THERE IS A DELAY OF 161 DAYS ON THE PART OF THE ASSESSEE IN FILING OF THIS APPEAL BEFORE THE TRIBUNAL. IN THIS REGARD, THE ASSESSEE HAS FILED AN APPLICATION SEEKING CONDONATION OF THE SAID DELAY ON THE FOLLOWING GROUNDS: - 2 . THAT I WAS SUFFERING FROM JAUNDICE FROM 16 TH OF DECEMBER 2016 TO 19 TH JUNE, 2017. THEREFORE, I WAS ADVISED BY THE DOCTOR BED REST. COPY OF MEDICAL CERTIFICATE IS ANNEXED HEREWITH AND MARKED AS ANNEXURE A. 3. THAT AFTER MY REVIVAL FROM THE AILMENT, I CO NTACTED SRI SUBASH AGARWAL, ADVOCATE ON OR AROUND 21/06/2016 AND HANDED OVER THE RELEVANT PAPERS FOR THE PURPOSE OF FILING APPEAL. 4. THAT SRI SUBASH AGARWAL, ADVOCATE ASKED FOR SOME MORE DOCUMENTS WHICH WERE HANDED OVER TO HIM ON OR AROUND 26/06/2016. 5. THAT THE APPEAL PAPERS WERE LODGED IN THE OFFICE OF THE LD. INCOME TAX APPELLATE TRIBUNAL ON 27/06/2016 AFTER A DELAY OF AROUND 162 DAYS. 2 I.T.A. NO. 2131/KOL/2017 ASSESSMENT YEAR: 2012 - 13 M/S. EBONY COMMERCIALS P. LTD 3. KEEPING IN VIEW THE SUBMISSIONS MADE BY THE ASSESSEE, AS ABOVE, WHICH IS DULY SUPPORTED BY A MEDICAL CERTIFICATE, I AM SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE DELAY OF 161 DAYS ON THE PART OF THE ASSESSE IN FILING THIS APPEAL. EVEN THE LD. D/R, HAS NOT RAISED ANY OBJECTION IN THIS REGARD. I, THEREFORE, CONDONE THE SAID DELAY AND PROCEED TO DISPOSE OFF THIS APPEAL OF THE ASSESSEE ON MERIT. 4. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL, WHO IS ENGAGED IN THE BUSINESS OF TRADING OF CONSTRUC TION EQUIPMENT AND MACHINERY. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY HIM ON 30/03/2013 DECLARING TOTAL INCOME OF RS.9,47,300/ - . IN THE ASSESSMENT COMPLETED U/S 143(3) VIDE AN ORDER DT. 31/03/2015, THE TOTAL INCOME OF THE ASSESSE E WAS DETERMINED BY THE ASSE SSING OFFICER AT RS.43,10,128/ - AFTER MAKING ADDITION S OF RS.3,31,000/ - & RS.29,71,828/ - , ON ACCOUNT OF REPAYMENT OF LOAN IN CASH AND U NEXPLAINED CAPITAL CONTRIBUTION RESPECTIVELY. 5 . AGAINST THE ORDER PASSED BY THE ASSESSING OF FICER U/S 143(3) OF THE ACT, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING ON FOUR DIFF ERENT OCCASIONS, THE LD. CIT(A) PR OCEEDED TO DISMISS THE SAME VIDE HIS APPELLATE ORDER DT. 18/11/2016 PASSED EX - PARTE. 6 . AGGRIEVED, BY THE SAME, THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING GROUNDS: - 1. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN PASSING THE EX - PARTE ORDER. 2. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE DELETED THE ADDITION OF RS.3.31.000/ - MADE BY THE A.O. BEING LOAN REPAID TO ONE PRAKASH SINGH BY WRONGLY INVOKING THE PROVISIONS OF SECTION 269T. 3. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE DELETED THE ADDITION OF RS.29, 71,828/ - MADE BY THE A.O . IN RESPECT OF AMOUNT RECEIVED AS GIFTS WRONGLY TREATING THE SAME AS UNEXPLAINED CASH CREDIT U/S 68 OF THE INCOME TAX ACT, 1961. 3 I.T.A. NO. 2131/KOL/2017 ASSESSMENT YEAR: 2012 - 13 M/S. EBONY COMMERCIALS P. LTD 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE ALL OR ANY OF THE GROUNDS OF APPEAL. 7. I HAVE HEARD THE ARGUMEN TS FOR BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN GROUND NO. 1, THE ASSESSEE HAS RAISED A PRELIMINARY ISSUE CHALLENGING THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX - PARTE. IN THIS REGARD, THE LD. COUNSEL FOR THE ASSESSE E HAS CONTENDED THAT THE ASSESSEE WAS SERIOUSLY ILL DURING THE RELEVANT PERIOD AND IN THE ABSENCE OF ANY PROPER DIAGNOSIS, HIS MEDICAL TREATMENT GOT DELAYED. HE HAS CONTENDED THAT THERE WAS, THUS, SUFFICIENT CAUSE FOR THE NON - APPEARANCE OF THE ASSESSEE BEF ORE THE LD. CIT(A) AND SINCE THE LD. CIT(A) VIDE HIS IMPUGNED ORDER PASSED EX - PARTE HAS NOT DECIDED THE ISSUES RAISED IN THE APPEAL ON MERITS, THE MATTER MAY BE SENT BACK TO THE LD. CIT(A) FOR DISPOSING OFF THE APPEAL OF THE ASSES SEE AFRESH. I FIND MERIT I N THIS CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. EVEN THE LD. D/R, HAS NOT RAISED ANY OBJECTION FOR SENDING THE MATTER BACK TO THE LD. CIT(A). AS PER SUB - SECTION ( 6 ) OF SECTION 250 OF THE ACT, THE LD. CIT(A), DISPOSING OFF THE APPEAL HAS TO BE IN WRITING STATING THEREIN THE POINTS FOR DETERMINATION, DECISION THEREON AND THE REASON FOR THE DECISION. A PERUSAL OF THE I MPUGNED ORDER OF THE LD. CIT(A) PASSED EX - PARTE SHOWS THAT IT DOES NOT COMPLY WITH THE REQUIREMENT OF SECTION 250(6) OF THE ACT. I, TH EREFORE, SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) EX - PARTE AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OFF THE APPEAL OF THE ASSESSEE AFRESH ON MERITS, AFTER GIVING THE ASSESSEE PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. 8. IN THE RESULT, AP P EAL OF THE ASSESSEE IS TREATED A S ALLOWED FOR STATISTICAL PURPOSES. KOLKATA, THE 21 ST DAY OF MARCH , 201 8 . SD/ - [ P.M. JAGTAP] ACCOUNTANT MEMBER DATED : 21 . 0 2 .201 8 {SC SPS} 4 I.T.A. NO. 2131/KOL/2017 ASSESSMENT YEAR: 2012 - 13 M/S. EBONY COMMERCIALS P. LTD C OPY OF THE ORDER FORWARDED TO: 1. SUDISH YADAV PRAKASH NAGAR, BYPASS NH - 31, SEVOK ROAD SILIGURI DARJEELING 2. I.T.O. WARD - 2(2), SILIGURI 3. CIT(A) - 4. CIT - , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES