Sri Aloke Goenka , Kolkata V. ITO, Ward - 7(3), Kolkata , Kolkata

ITA 1522/KOL/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6022 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 02-07-2019
• Assessment Year: 2005-2006
• Appeal Filed On: 13-07-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 131; 68

Judgement Text

1 ITA NO. 1522/KOL/2018 SHRI ALOKE GOENKA, AY - 2005-06 , (SMC) , IN THE INCOME TAX APPELLATE TRIBUNAL (SMC) BENCH: KOLKATA ( ) . . , ) [BEFORE SHRI A. T. VARKEY, JM] I.T.A. NO. 1522/KOL/2018 ASSESSMENT YEAR: 2005-06 SHRI ALOKE GOENKA (PAN: ADTPG7902R) VS. INCOME-TAX OFFICER, WD-7(3), KOLKATA APPLICANT RESPONDENT DATE OF HEARING 02.07.2019 DATE OF PRONOUNCEMENT 25.09.2019 FOR THE APPLICANT SHRI RAVI TULSIYAN, FCA FOR THE RESPONDENT SHRI SHANKAR HALDER, JCIT, SR. D R ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAINST TH E ORDER OF THE LD. CIT(A)-3, KOLKATA DATED 10.05.2018 FOR AY 2005-06. 2. THE ONLY ISSUE INVOLVED IN THIS APPEAL OF ASSESS EE IS AGAINST THE ACTION OF LD CIT(A) CONFIRMING THE ADDITION MADE U/S. 68 OF THE INCOME- TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) OF RS.21,15,000/- (RS. 7,00,000/- + RS.1 4,15,000/-) ON ACCOUNT OF CASH DEPOSITED IN THE BANK. BRIEFLY STATED THE FACTS AS PER THE A O ARE THAT DURING THE COURSE OF SCRUTINY PROCEEDINGS, CASH OF RS.31,00,000/- HAD BEEN DEPOSI TED ON FOLLOWING THREE DIFFERENT DATES IN THE BANK A/C. NO.1472500100157601OF THE ASSESSEE MA INTAINED IN KARNATAKA BANK LTD., PARK STREET BRANCH. 23.07.2004 RS. 9,00,000/- 24.07.2004 RS.15,00,000/- 26.07.2004 RS. 7,00,000/- TOTAL RS.31,00,000/- 3. ON A QUERY BY THE AO REGARDING SOURCE OF THE CAS H DEPOSITS OF RS.7,00,000/-, THE ASSESSEE SUBMITTED THAT COMMISSION OF RS.7,00,000/- HAD BEEN PAID TO SHRI KAUSHAL BAJORIA [MIDDLE MAN] ON SIGNING OF THE AGREEMENT ON 10.05.2 000 FOR PURCHASE OF 74 SATAK OF LAND 2 ITA NO. 1522/KOL/2018 SHRI ALOKE GOENKA, AY - 2005-06 FROM SHRI NIRMAL KUMAR KUTHI [OWNER]. FURTHER IT WA S EXPLAINED THAT CASH OF RS.9,85,000/- HAD BEEN DEPOSITED FROM WITHDRAWALS MADE FROM THE B ANK ACCOUNT. AS REGARDS THE BALANCE AMOUNT OF RS.14,50,000/- IT WAS SUBMITTED THAT THE ASSESSEE HAD STARTED A PROPRIETARY BUSINESS IN THE NAME OF M/S EASTERN UDYOG IN 1998 A ND THE BUSINESS OF THIS PROPRIETARY CONCERN WAS INTENDED FOR TRADING IN ZARDA, KHAINI ETC. HOWEVER, THE TRADING OF THE ABOVE ITEMS REQUIRED LICENSE AND REGISTRATION FROM VARIOU S GOVERNMENT AUTHORITIES, SO THE ASSESSEE APPLIED FOR TRADING LICENCE AND MEANWHILE ASSESSEE HAD ADVANCED RS.14, 15,000/- TO VARIOUS PARTIES FOR STARTING THE BUSINESS. HOWEV ER AS LICENSE AND REGISTRATION FROM GOVERNMENT AUTHORITIES COULD NOT MATERIALIZE, THE A SSESSEE CLOSED DOWN THE BUSINESS IN THE YEAR 2004. ACCORDING TO THE ASSESSEE, THE ADVANCES GIVEN TO VARIOUS PERSONS WERE REALIZED BACK TO THE EXTENT OF RS.11,86,282/- IN THIS ASSESS MENT YEAR. THUS, THE ASSESSEE EXPLAINED TO THE AO THAT THE CASH ADVANCED TO THE TUNE OF RS.14 ,15,000/- WHILE INTENDING TO START M/S EASTERN UDYOG IN THE YEAR 1998 (WHICH WAS CLOSED DO WN IN THE YEAR 2004) HAS BEEN RETURNED BACK TO THE EXTENT OF RS.11,86,282/- AND B ALANCE FROM THE CASH IN HAND AVAILABLE TO THE ERSTWHILE PROPRIETARY CONCERN. AFTER HEARING TH E EXPLANATION OF THE ASSESSEE, THE ASSESSING OFFICER ACCEPTED THE CONTENTION OF THE AS SESSEE REGARDING CASH DEPOSITED TO THE TUNE OF RS.9,85,000/- BEING MADE OUT OF THE CASH WI THDRAWALS FROM THE BANK ACCOUNT. HOWEVER, AO DID NOT ACCEPT THE EXPLANATION REGARDIN G COMMISSION FOR PURCHASE OF LAND GIVEN TO SHRI KAUSHAL BAJORIA BEING RETURNED TO THE ASSESSEE TO THE TUNE OF RS. 7 LAKHS. THE EXPLANATION OF THE ASSESSEE THAT ADVANCES GIVEN IN 1998 BY EASTERN UDYOG LTD. WAS RECEIVED BACK IN THE IMPUGNED PREVIOUS YEAR WERE ALSO NOT AC CEPTED BY THE ASSESSING OFFICER. ACCORDINGLY THE ADDITION OF RS.21,15,000/- (RS.14,1 5,000 + RS.7,00,000) HAS BEEN MADE. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO CONFIRMED THE ACTION OF AO. AGGRIEVED ASSESSEE IS BEFORE THIS TRIBUNAL. 4. AFTER HEARING THE RIVAL SUBMISSIONS, I NOTE THAT DURING THE YEAR UNDER APPEAL, THE APPELLANT APART FROM DIRECTOR'S REMUNERATION RECEIV ED FROM M/S. SAGARSONS EXPORTS PVT. LTD. HAD SHOWN INTEREST INCOME, DIVIDEND INCOME AND INCOME FROM SHARE DIFFERENCE. AS PER BALANCE SHEET FOR THE YEAR UNDER APPEAL, THE ASSESS EE RECEIVED LOAN OF RS.L,44,77,380/- AND LOAN ADVANCED WAS AMOUNTED TO RS.80,52,927/-. IN SU PPORT OF THE SAID LOANS, THE APPELLANT 3 ITA NO. 1522/KOL/2018 SHRI ALOKE GOENKA, AY - 2005-06 FILED LOAN CONFIRMATIONS, COPIES OF BANK STATEMENTS , DETAILS OF INVESTMENT ETC. BEFORE THE A.O. ON VERIFICATION OF THE SAME THE A.O. OBSERVED THE FOLLOWING CASH DEPOSITS IN KARRNATAKA BANK LTD., PARK STREET BRANCH, KOLKATA : - DATE OF DEPOSIT AMOUNT DEPOSITED 23-7-2004 RS. 9,00,000 24-7-2004 RS. 8,00,000 24-7-2004 RS. 7,00,000 26-7-2004 RS.7,00,000 RS.31,00,000/- 5. THE AO ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF THE AFORESAID CASH DEPOSIT, PURSUANT TO WHICH THE ASSESSEE GAVE EXPLANATION WHI CH WAS FOUND UNSATISFACTORY TO THE AO, EXCEPT OF RS.9,85,000/- WHICH WAS ACCEPTED BY THE A O AND THE AO HAD MADE ADDITION OF RS.21,15,000/- ON ACCOUNT OF THE FACT THAT CASH TO THE TUNE OF RS.21,15,000/- WAS DEPOSITED IN THE ASSESSEES ACCOUNT DURING THIS ASSESSMENT YE AR AND THE ASSESSEE WAS UNABLE TO EXPLAIN TO THE SATISFACTION OF AO THE SOURCE OF THE SAME. THE EXPLANATION OF THE ASSESSEE WAS THAT THE AMOUNT OF RS. 21,15,000/- COMPRISES OF A DEPOSI T OF RS.14,15,000/- FROM THE PARTIES TO WHOM THE ASSESSEE HAD MADE ADVANCES WHEN HE STARTED A PROPRIETARY BUSINESS UNDER THE NAME AND STYLE OF M/S. EASTERN UDYOG IN THE YEAR 19 98. THE BUSINESS OF THIS PROPRIETARY CONCERN WAS INTENDED FOR TRADING IN ZARDA, KHAINI ETC. ACCORDING TO THE ASSESSEE, IN ORDER TO RUN THIS BUSINESS, IT HAD TO GET CLEARANCE FROM VA RIOUS GOVERNMENT AUTHORITIES AND SINCE THE ASSESSEE FAILED TO GET THE LICENCE, THE ASSESSEE DE CIDED TO WIND UP THE BUSINESS IN JULY, 2004. SINCE THE ASSESSEE HAD SHUT DOWN THIS BUSINESS IN T HE YEAR 2004, THE ASSESSEE PROMPTLY STARTED TAKING STEPS TO GET BACK THE DEPOSIT/ADVANC ES GIVEN TO VARIOUS PARTIES FROM THE YEAR 1998 AND THIS FACT CAN BE SEEN CORROBORATED FROM TH E BALANCE SHEET WHEREIN THE SAME IS REFLECTED AS CAPITAL IN THE NAME OF PROPRIETOR AS O N 31.03.2004 AT RS.14,18,837.50. SINCE NO BANK ACCOUNT COULD BE OPENED IN THE NAME OF THE PRO PRIETORSHIP M/S. EASTERN UDYOG IN THE ABSENCE OF TRADE LICENCE/REGISTRATION NUMBER, THE A SSESSEE COULD NOT GIVE THE BUSINESS ADVANCES/DEPOSIT IN CHEQUE. AS STATED ABOVE, SINCE THE ASSESSEE HAD WOUND UP M/S. EASTERN UDYOG IN JULY, 2004 HE PERSUADED THE PARTIES TO RET URN THE MONEY ADVANCED TO HIM WHICH 4 ITA NO. 1522/KOL/2018 SHRI ALOKE GOENKA, AY - 2005-06 THEY DID IN THIS ASSESSMENT YEAR. IN THE MEAN TIME PARTIES TO WHOM ADVANCES MADE WERE REFUNDED RS.11 ,86,282/- ALL BY CASH. LIST OF THE P ARTIES WERE FILED BEFORE THE A.O. HOWEVER, IN THE LATER PART OF F.Y. 2003-04, THE SAID CASH RE FUND OF ADVANCE WAS RECEIVED BACK. THIS IS THE SOURCE OF THE MONEY WHICH THE ASSESSEE HAD DEPOSITED IN THE BANK ACCOUNT IN THIS ASSESSMENT YEAR. THUS, HE EXPLAINED THAT THE AMOUN T OF RS.14,18,000/- WHICH WERE DEPOSITED IN CASH ON THE FOLLOWING DATES : I) 05.06.2004 RS. 5,00,000/-; II) THEN ON 22.6.2004 RS. 5,00,000/-; III) THEN ON 02.07.2004 RS.4,18,000/- TOTAL RS.14,18,000/- IN ORDER TO CORROBORATE THESE FACTS, THE ASSESSEE F ILED COPIES OF LETTERS SENT BY SIX PARTIES CONFIRMING THE FACT OF REPAYMENT OF ADVANCE/DEPOSIT WHICH IS FOUND PLACED AT PAGES 78 83. THAT APART, THE ASSESSEE WITHDREW ENTIRE CAPITAL OF RS.14, 19, 137/- INCLUDING RS.2,32,855/- AS CASH BALANCE SHOWN IN THE BALANCE SHEET AS ON 31 .3.2004 (WRONGLY MENTIONED BY A.O. AS 31/3/2000) IN RESPECT OF EASTERN UDYOG. COPY OF THE ACCOUNT WAS FILED BEFORE THE A.O. THE A.O. FOUND THE EXPLANATION OF THE ASSESSEE NOT SATI SFACTORY FOR THE FOLLOWING REASONS: A) IT WAS NOT CONVINCING THAT ALL THE PARTIES TO WH OM ADVANCES WERE MADE IN 1999 HELD REFUNDED ENTIRE AMOUNT IN CASH AT A TIME. NO EVIDEN CE COULD BE FILED IN SUPPORT OF THE SAME. B) AS PER ASSESSEE THE REFUND OF ADVANCE BY CASH WA S RECEIVED BACK AT THE END OF F.Y. 2003-04 WHEREAS CASH DEPOSIT WAS MADE INTO THE BANK ACCOUNT IN JULY, 2004 AND IT IS AGAINST HUMAN PROBABILITY TO KEEP SUCH CASH IN HAND FOR SUCH A LONG TIME. C) COMPLETE POSTAL ADDRESS OF THE PARTIES WERE NOT GIVEN AND HENCE VERIFICATION COULD NOT BE MADE. D) THE ASSESSEE FAILED TO PRODUCE THE PARTIES ON TH E PLEA THAT SINCE THE ADVANCES WERE REFUNDED FOUR YEARS AGO, IT WAS NOT POSSIBLE TO CON TACT THOSE PARTIES OR CONVINCE THEM TO FURNISH REQUIRED DOCUMENTS OR TO MAKE THEM PRESE NT BEFORE THE A.O. THUS, THE AO ADDED RS.14,50,000/-. ON APPEAL, THIS ACTION WAS CONFIRMED BY THE LD. CIT (A). 5 ITA NO. 1522/KOL/2018 SHRI ALOKE GOENKA, AY - 2005-06 6. COMING TO RS. 7 LACS, ACCORDING TO THE ASSESSEE, HE HAD INTENDED TO PURCHASE A LAND BELONGING TO SHRI NIRMAL KR. KUTHI SON OF LATE DR. KAMAL KUTHI FOR PURCHASE OF 74 SATAK OF LAND UNDER MOUZA AMTALA. ACCORDING TO THE ASSESSE E, HE HAD ENTERED INTO A MOU WITH SRI KAUSHAL BAJORA, A MIDDLEMAN, ON 10TH MAY, 2001 (WRO NGLY TYPED IN THE AGREEMENT AS 10.5.2000) FOR MAKING NEGOTIATION FOR PURCHASE OF 7 4 SATAK OF LAND AT AMTALA, 24-PARGANAS (SOUTH) FROM THE OWNER SRI NIRMAL KUMAR KUTHI AND, ACCORDINGLY, PAID COMMISSION OF RS.7,00,000/- TO SRI KAUSHAL BAJORIA. (COPY OF THE SAID MOU WAS FILED BEFORE THE A.O., LD. CIT(A) AND TRIBUNAL). THE SAID SRI BAJORIA COULD N OT PROPERLY ACT AS A MIDDLEMAN AND COULD NOT MATERIALIZE THE DEAL FOR WHICH MOU WAS EN TERED INTO ON 10.5.2001. THE SAID MOU WAS SUBSEQUENTLY CANCELLED ON 6.7.2004 AND COPY OF THE CANCELLATION OF AGREEMENT WAS ALSO FILED. ACCORDING TO ASSESSEE, AFTER A LOT OF PERSUASION, THE MONEY WAS ULTIMATELY REALIZED FROM HIM IN CASH ON 6.7.2004 AND THE SAME WAS DEPOSITED IN THE APPELLANT'S BANK ACCOUNT WITH KARNATAK BANK. HOWEVER, THE A.O. DEPU TED AN INSPECTOR TO VERIFY THE VERACITY OF THE SALE OF LAND WHICH ASSESSEE BROUGHT TO HIS N OTICE. THEREFORE, THE INSPECTOR ISSUED NOTICE U/S. 131 WHICH WAS SERVED UPON THE SAID SRI RAMESH CHANDRA KUTHI AND SUBMITTED THE ENQUIRY REPORT BEFORE THE AO DATED 11.07.2007. THEREAFTER, THE AO ON 16.07.2007 SUMMONED SHRI RAMESH KUMAR KUTHI, WHOSE STATEMENT W AS OBTAINED/RECORDED BY THE A.O. THE A.O. ALLEGED THAT THE SAID PERSON SHRI SHRI RAM ESH CHANDRA KUTHI (COUSIN BROTHER OF OWNER), DENIED HOLDING ANY POWER OF ATTORNEY ON BEH ALF OF THE OWNER OF THE PROPERTY SRI NIRMAL KUMAR KUTHI (WHO WAS AT BELGIUM) AND HE EVEN SAID THAT HE HAD NOT HEARD THE NAMES OF SRI KAUSHAL BAJORIA (MIDDLEMAN) OR SRI ALO KE GOENKA (ASSESSEE) AND HE DENIED HAVING EXECUTED/SIGNED ANY AGREEMENT FOR SALE OF AN Y LAND OWNED/POSSESSED BY SRI NIRMAL KUMAR KUTHI. WHEN THE AO BROUGHT THIS FACT TO THE NOTICE OF ASSESSEE, THE ASSESSEE FURTHER BROUGHT TO THE NOTICE OF AO ANOTHER FACT WHICH ACCO RDING TO HIM GOES ON TO PROVE THAT ASSESSEE WAS GENUINELY INTERESTED IN PURCHASING THE SAID LAND/PROPERTY. THIS FACT THE ASSESSEE VIDE ANOTHER LETTER DATED 24.9.2007 EXPLAI NED TO THE A.O. THAT SINCE THE ASSESSEE HAD BEEN CHEATED BY SRI KAUSHAL BAJORIA, (THE FIRST MIDDLEMAN), HE (ASSESSEE) TRIED/ATTEMPTED TO PURCHASE THE SAME LAND THROUGH A NOTHER ENTITY/A COMPANY NAMED M/S. AAKANCHA PROPERTIES P. LTD., IN WHICH HE (ASSESSEE) WAS/IS A DIRECTOR. THIS FACT, ACCORDING TO ASSESSEE, WOULD BE EVIDENT FROM THE AGREEMENT WHICH WAS ENTERED INTO ON 12.12.2000 BY 6 ITA NO. 1522/KOL/2018 SHRI ALOKE GOENKA, AY - 2005-06 AND BETWEEN MD. ATIR MALLICK, [ANOTHER MIDDLEMAN] A ND SRI RAMESH CHANDRA KUTHI (POA) FOR PURCHASE OF THE SAME PROPERTY. ANOTHER MOU WAS SUBSEQUENTLY EXECUTED ON 7.7.2001 BETWEEN MD. ATIR MALLICK (SECOND MIDDLEMAN) AND M/S . AAKANCHA PROPERTIES P. LTD. [COPIES OF THESE AGREEMENTS WERE FILED WITH THE A.O .] AS A TOKEN OF ADVANCE, M/S. AAKANCHA PROPERTIES P. LTD. PAID RS.20,000/- BY CHE QUE TO THE SAID MD. ATIR MULLICK. ACCORDING TO ASSESSEE, THIS AGREEMENT/NEGOTIATION G OES ON TO PROVE THAT THE ASSESSEE WAS GENUINELY TRYING TO SOMEHOW ACQUIRE/PURCHASE THE S AID LAND. IT WAS POINTED OUT THAT WHEN THE FIRST MIDDLEMAN (SHRI KAUSHAL BAJORIA) FAILED, THE ASSESSEE TRIED THROUGH SECOND MIDDLEMAN, (MR. ATIR MULLICK) AND, ACCORDING TO ASS ESSEE, THE AGREEMENT FOR SALE OF THE SAID LAND IS STILL VALID IN FAVOUR OF THE ASSESSEE AND T HAT THE ALLEGED STATEMENT RECORDED BY THE DEPARTMENT U/S. 131 OF THE ACT OF SRI RAMESH CHANDR A KUTHI (POA) ADMITTEDLY BEHIND THE BACK OF THE ASSESSEE WAS INCORRECT, FALSE AND MISLE ADING FOR THE REASONS BEST KNOWN TO HIM AND THAT STATEMENT CANNOT BE RELIED UPON WITHOUT GI VING A COPY OF THE STATEMENT OF SHRI RAMESH CHANDRA KUTHI (POA) AND AN OPPORTUNITY TO CR OSS-EXAMINE THE MAKER OF THE ADVERSE STATEMENT. HOWEVER, AFTER GOING THROUGH TH E AFORESAID CONTENTION AND MOUS, ACCORDING TO AO, THE EXPLANATIONS GIVEN BY THE ASSE SSEE ALONG WITH COPIES OF SEVERAL MOU DO NOT AUTOMATICALLY PROVE THE SOURCE OF CASH DEPO SIT OF RS. 7 LACS BECAUSE THE ASSESSEE COULD NOT ESTABLISH THE ACTUAL PAYMENT OF RS.7 LACS TO SRI KAUSHAL BAJORIA (FIRST MIDDLEMAN) AND THE RETURN OF THE SAID AMOUNT BACK IN CASH AFTE R THE EXPIRY OF 4 YEARS. HE, THEREFORE, HELD THAT THE AGREEMENT DATED 10.5.2001 (WRONGLY TYPED, ACCORDING TO ASSESSEE, IN THE ASSESSMENT ORDER AS 10/05/2004) WAS FALSE AND THE PAYMENT OF R S. 7 LAES TO SRI KAUSHAL BAJORIA AND THE CONTENTION OF ASSESSEE THAT THIS AMOUNT WAS ULTIMAT ELY REFUNDED IN CASH ON 26.7.2004 (WRONGLY TYPED IN THE ASSESSMENT ORDER AS 06/07/07) WERE NOTHING BUT CONCOCTED STORY TO PROVE THE GENUINENESS OF THE TRANSACTION AND HENCE, THE AO HELD THAT THE SOURCE OF THE CASH DEPOSIT OF RS. 7 LACS REMAINED UNEXPLAINED AND ADDE D THE SAME. 7. ON APPEAL, THE LD. CIT(A) HAS CONFIRMED THE ACT ION OF AO. THE MAIN GRIEVANCE OF THE LD. AR OF THE ASSESSEE IS THAT THE AO ONLY BELI EVED THE CASH DEPOSIT OF RS.9,85,000/- OUT OF THE RS. 31 LAKHS DEPOSIT AND HAS RELIED UPON THE STATEMENT OF SHRI RAMESH KUMAR KUTHI (POA) WHICH WAS ADMITTEDLY TAKEN BEHIND THE BACK OF THE ASSESSEE TO DISBELIEVE THE 7 ITA NO. 1522/KOL/2018 SHRI ALOKE GOENKA, AY - 2005-06 DOCUMENTS FILED BEFORE HIM WITHOUT GIVING AN OPPORT UNITY TO CROSS-EXAMINE SHRI RAMESH KUMAR WHICH ACTION OF AO WAS BAD IN THE LIGHT OF TH E LAW LAID BY HONBLE SUPREME COURT IN ANDAMAN TIMBER INDUSTRIES IN CIVIL APPEAL NO. 4228 OF 2006 AND IT WAS POINTED OUT TO US THAT THE AO IN HIS ASSESSMENT ORDER HAS MIXED UP THE DATE OF MOUS ETC. WHICH GOES ON TO SHOW THAT AO HAS NOT APPLIED THE MIND TO THE FACTS OF THE CASE AND HAS NOT APPRECIATED THE FACT OF REFUND OF ADVANCE WHICH WAS REFUNDED TO THE ASSESSEE BY THE PARTIES AFTER ASSESSEE SET UP M/S. EASTERN UDYOG. ACCORDING TO ASSESSEE, NO PROPER OPPORTUNITY WAS GIVEN BY THE AO AT THE ASSESSMENT STAGE WHICH IS EVIDENT FROM TH E MIX UP OF DATES OF MOU/EVENTS ETC. WHICH ARE WRONGLY REFLECTED IN THE ASSESSMENT ORDER . WE FIND FORCE IN THE CONTENTION OF THE ASSESSEE AND AS HELD BY THE HONBLE SUPREME COURT I N TIN BOX COMPANY VS. CIT (2001) 249 ITR 216 (SC) IF THE ASSESSEE DID NOT GET PROPER OPPORTUNITY BEFORE AO, THEN THE MATTER NEEDS TO BE REMANDED BACK TO AO. IN THE SAID JUDGM ENT, THE HONBLE APEX COURT HAS HELD AS UNDER (HEAD NOTE): HELD, REVERSING THE DECISION OF THE HIGH COURT, TH AT ONCE THE TRIBUNAL FOUND THAT THE INCOME-TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORT UNITY OF BEING HEARD, THAT THE ASSESSEE COULD HAVE PLACED THE EVIDENCE BEFORE THE APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL WAS REALLY OF NO CONSEQUENCE FOR IT WAS THE ASSESSMENT ORDER THAT CO UNTED: THAT ORDER HAD TO BE MADE AFTER THE ASSESSEE HAD BEEN GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD. THEREFORE, IN VIEW OF THE ABOVE FACTS, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE AO FOR FRESH ADJ UDICATION AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 25TH SEPT EMBER, 2019. SD/- (ABY. T. VARKEY) JUDICIAL MEMBER DATED : 25TH SEPTEMBER, 2019 JD.(SR.P.S.) 8 ITA NO. 1522/KOL/2018 SHRI ALOKE GOENKA, AY - 2005-06 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SHRI ALOKE GOENKA, CIRCULAR COURT, 9 TH FLOOR, 8, AJC BOSE ROAD, KOLKATA-700 017. 2 RESPONDENT ITO, WARD-7(3), KOLKATA 3. 4. CIT(A)-3, KOLKATA (SENT THROUGH E-MAIL) CIT-, , KOLKATA. 5. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR