Sri Shyamalendu Konar, Burdwan V. ITO, Ward-1(2), Burdwan, Burdwan

ITA 1559/KOL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4234 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 24-07-2014
• Court: TRIBUNAL
• Section: 143(3); 54F; 142(1)

Judgement Text

ITA NO. 1559/KOL/14 SRI SHYAMALENDU KONAR 1 IN THE INCOME TAX APPELLATE TRIBUNAL,A BENCH KOLKATA BEFORE : SHRI M.BALAGANESH, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO.1559/KOL/2014 A.Y: 2010-11 SRI SHYAMALENDU KONAR VS. I.T.O., WARD 1(2), BURD WAN PAN: AKAPK 8760L (APPELLANT) (RESPONDENT) APPEARANCES BY: SHRI MIRAJ D.SHAH, AR NONE APPEARED ON BEHALF OF R EVENUE DATE OF HEARING : 13-10-2016 DATE OF PRONOUNCEMENT : 30-11-2016 O R D E R SHRI S.S. VISWANETHRA RAVI, JM :- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 26-05-2014 PASSED BY THE COMMISSIONER OF INCO ME TAX(APPEALS), ASANSOL FOR THE ASSESSMENT YEAR 2010 -11, WHEREIN HE CONFIRMED THE ADDITIONS MADE BY THE AO. 2. INSPITE OF SERVICE OF NOTICE, NONE APPEARED OF BEHALF OF REVENUE. THEREFORE, AFTER HEARING THE LD.AR OF THE ASSESSE A ND PERUSING THE MATERIAL AVAILABLE ON RECORD, WE DISPOSE OFF THE APPEAL ON M ERITS. 3. THE ONLY ISSUE IS TO BE DECIDED IN THIS APPEAL AS TO WHETHER THE CIT-A IS JUSTIFIED WITHOUT AFFORDING AN OPPORTUNITY TO THE ASSESSEE IN THE ENQUIRY AS CONDUCTED BY THE AO CONCERNING THE ADDIT IONAL GROUNDS AS RAISED BY THE ASSESSEE BEFORE THE CIT-A. ITA NO. 1559/KOL/14 SRI SHYAMALENDU KONAR 2 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND CONDUCTING HIS BUSINESS IN THE NAME OF STYLE OF KONAR MILL STORES AS SUPPLIER OF SPARE PARTS TO VARIOUS RICE MILLS. THE ASSESSEE FILED HIS RETURN OF INCOME DECLARING A TOTAL INCOME OF RS.1,56,420/- AND UNDER SCRUTINY, NOTICES U/SEC. 143(2) AND 142(1) OF THE ACT WERE IS SUED. IN RESPONSE TO WHICH THE ASSESSEE SUBMITTED PURCHASE DEED OF A LAN D AND A BANK STATEMENT BELONGING TO UNITED BANK OF INDIA, BURDWA N STATION BAZAR. ACCORDING TO AO, THE SALE CONSIDERATION OF SAID LAN D AS DETERMINED BY THE STAMP VALUATION AUTHORITY WAS AT RS.59,76,250/- AND CALCULATED THE VALUE OF SUCH TRANSFER OF ASSET AT RS.46,34,640/- F OR THE PURPOSE OF LONG TERM CAPITAL GAIN, BESIDES, ALSO ASSESSED THE INCOM E FROM BUSINESS & PROFESSION AT RS.1,56,420/- AND DETERMINED THE TOTA L INCOME OF THE ASSESSEE AT RS.47,91,060/- U/S. 143(3) OF THE ACT. 5. THE ASSESSEE, AS AGGRIEVED, ASSAILED THE SAME BE FORE THE CIT-A, WHEREIN, THE ASSESSEE RAISED ADDITIONAL GROUNDS CLA IMING DEDUCTION ON BROKERAGE, INCIDENTAL EXPENSES, COST ON IMPROVEMENT AND EXEMPTION/DEDUCTION U/S. 54F OF THE ACT. THE CIT-A CONFIRMED THE ORDER OF AO. 6. THE CONTENTION OF THE LD.AR WAS THAT BEFORE US, THAT THE CIT-A SOUGHT ENQUIRY REPORT FROM AO AND DID NOT PROVIDE AN OPPORTUNITY TO ASSESSEE TO PARTICIPATE IN SUCH ENQUIRY AND REFERRE D TO PARA-3 OF IMPUGNED ORDER OF THE CIT-A AND ARGUED THAT IT IS U NILATERAL ENQUIRY. LIKEWISE, LD.AR REFERRED TO PARA-6 OF CIT-AS ORDER THAT THERE WAS NO OPPORTUNITY FOR THE ASSESSEE TO PRODUCE EVIDENCE IN RESPECT OF CLAIM OF BROKERAGE AND INCIDENTAL EXPENSES BEFORE THE AO AND BASING ON SUCH ENQUIRY REPORT AS CONDUCTED BY THE AO BEHIND THE B ACK OF ASSESSEE THE CIT-A DISMISSED THE CLAIMS AS RAISED IN ADDITIONAL GROUNDS. 6.1 THE LD. AR FURTHER SUBMITS THAT WHILE REFERRING TO PARA 8,13,14 AND 18 REGARDING CLAIM OF COST IMPROVEMENT AND DEDUCTIO N U/S. 54F, THE ITA NO. 1559/KOL/14 SRI SHYAMALENDU KONAR 3 APPEAL MAY BE REMANDED TO THE AO FOR VERIFICATION AS THE ENQUIRY AS CONDUCTED BY THE AO ARE AGAINST PRINCIPLE OF NATURA L JUSTICE. 7. ON THE CONTRARY, THE LD. DR RELIED ON THE ORDERS OF AUTHORITIES BELOW. 8. IN VIEW OF THE DISCUSSION ABOVE, WE FIND THAT TH E CIT-A INSTEAD OF SEEKING REMAND REPORT FROM AO ALLOWED THE AO TO CON DUCT ENQUIRY IN THE ABSENCE OF ASSESSEE. IT IS NOTICED FROM PARAS 6 AND 18 THAT THE CIT-A DISMISSED THE CLAIM ON BROKERAGE AND INCIDENTAL EXP ENSES AND DEDUCTION U/SEC. 54F OF THE ACT FOR WANT OF EVIDENCE. IN SUCH CIRCUMSTANCES AS SUBMITTED BY THE LD.AR TO REMAND THE APPEAL TO AO, IN THE INTEREST OF JUSTICE, WE DEEM IT FIT, PROPER TO REMAND THE APPEA L TO THE FILE OF AO FOR VERIFICATION IN TERMS OF ADDITIONAL GROUNDS AS RAIS ED BY THE ASSESSEE BEFORE THE CIT-A. THE ASSESSEE SHALL BE AT LIBERTY TO FILE/PRODUCE EVIDENCES, IF ANY TO SUBSTANTIATE HIS CLAIM AND SH ALL CO-OPERATE WITH THE AO IN THE ASSESSMENT PROCEEDING WITHOUT SEEKING ANY ADJOURNMENT. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 9. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 30 TH NOVEMBER,2016 SD/- SD/- M.BALAGANESH S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 30/11/ 2016 ITA NO. 1559/KOL/14 SRI SHYAMALENDU KONAR 4 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT/ ASSESSEE: SRI SHYAMALENDU KONAR PROP: M/S. KONAR MILL STORES, 57 GT ROAD, BURDWAN 7 13101. 2 THE RESPONDENT/ DEPARTMENT: INCOME TAX OFFICER, WARD 1(2), AAYKAR BHAWAN,COURT COMPOUND, BURDWAN. 3 / THE CIT(A) 4.THE CIT 5 . DR, KOLKATA BENCH 6 . GUARD FILE . **PP/SPSTRUE COPY, BY ORDER, ASSTT REGISTRA R