Md. Fazal Khan, Kolkata V. ITO, Ward - 32(3), Kolkata, Kolkata

ITA 1615/KOL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87691 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 25-11-2011
• Court: TRIBUNAL
• Department Lawyers: K L KANAK SR DR
• Assessee Lawyers: R M JAIN
• Keywords: Opportunity of being heard
• Section: 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C , KOLKATA [BEFORE HON BLE SRI SHAMIM YAHYA , A M & HON BLE SRI GEORGE MATHAN, J M] ITA NO. 1615 /KOL/2011 ASSESSMENT YEAR : 2007 - 08 ( APPELLANT ) (RESPONDENT) MD.FAZ AL KHAN .. - VS - I.T.O., WARD - 32 (3), KOLKATA KOLKATA (PAN: AKLPK 5904 C) FOR THE APPELLANT SHRI R.M.JAIN, FCA FOR THE RESPONDENT K.L.KANAK, SR.DR, JCIT DATE OF HEARING : 03.03 .2015 DATE OF PRONOUNCEMENT : 05.03.2015. ORDER P ER SHRI SHAMIM YAHYA, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF L D. C.I.T.(A ), X I X , KOLKATA DT. 28.07.2011 AND PERTAI NS TO ASSESSMENT YEAR 2007 - 08. 2 . THE GROUNDS OF APPEAL READ AS UNDER : - 1. FOR THAT THE ORDER OF THE LD.ASSESSIN G OFFICER IS ARBITRARY, WHIMSICAL, EXCESSIVE AND BAD IN LAW. 2. FOR THAT LD. ASSESSING OFFICER ERRED IN ADDING BACK OF RS.6,80,209/ - AS ESTIMATED INCOME ON THE BASIS OF JUDGEMENT. THE LD. ASSESSING OFFICER HAS NOT GIVEN ANY SHOW CAUSE NOTICE BEFORE ADDING BACK THE INCOME. THE LD. A.O. HAS ALSO NOT FOLLOWED THE PROVISION OF SEC 144 OF THE ACT. SO THE ADDITION MADE ON ABOVE GROUND IS BAD IN LAW AND WHIMSICAL AND ARBITRARY. 3. FOR THAT THE LD. ASSESSING OFFICER ERRED IN ADDING BACK OF RS.14,44,550/ - BY ADDING THE ABOVE AMOUNT U/S 69B AND SEC 68 OF THE ACT WITHOUT PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD AND WITHOUT ISSUING SHOW CAUSE NOTICE BEFORE IS BAD IN LAW AND WHIMSICAL AND ARBITRARY. 4. FOR THAT THE ASSESSEE CRAVES TO LEAVE TO ADD, TO ALTER & TO M ODIFY ANY OF GROUND ON OR BEFORE THE DATE OF HEARING. 5. FOR THAT THE ORDER OF THE LD. ASSESSING OFFICER MAY BE MODIFIED & THE ASSESSEE MAY BE GIVEN SUCH RELIEF AS YOUR HONOUR DEEMS FIT & PROPER IN THE CIRCUMSTANCES OF THE CASE. ITA NO.1615/KOL/2011 MD.FAZAL KHAN A.YR.2007 - 08 2 3. AO IN THIS CASE RE JECTED THE BOOKS OF ACCOUNT FILED BY THE ASSESSEE EXCEPT FOR THE PERCENTAGE OF THE GROSS PROFIT SHOWN IN THE ACCOUNT. ON THIS BASIS HE PROCEEDED TO MAKE AN ESTIMATE OF PROFIT ON THE BASIS OF ASSESSEE S DEPOSITS IN THE UNDISCLOSED BANK ACCOUNTS TREATING THE M AS TURN OVER . THE TOTAL INCOME ASSESSED BY THE AO IS RS.21,25,200/ - . 3.1. UPON ASSESSEE S APPEAL THE LD. CIT(A) DISMISSED THE ASSESSEE S APPEAL. AGAINST THE ABOVE ORDER ASSESSEE IS IN APPEAL BEFORE US. 4. IN THE GROUNDS OF APPEAL T HE ASSESSEE HAS CONT ENDED THAT AO REJECTED THE BOOKS OF ACCOUNT BUT HAS NOT GIVEN ANY OPPORTUNITY TO THE ASSESSEE TO SHOW CAUSE. FURTHER IT HAS BEEN SUBMITTED THAT REASONABLE OPPORTUNITY OF BEING HEARD HAS NOT BEEN PROVIDED TO THE ASSESSEE. 5. WE HAVE HEARD BOTH THE COUNSEL AND CAREFULLY PERUSED THE RECORDS. WE FIND THAT AO IN THIS CASE HAS REJECTED THE BOOKS OF ACCOUNT. HE HAS TAKEN INTO ACCOUNT DEPOSITS IN THE ASSESSEE S UNDISCLOSED BANK ACCOUNT WHICH WERE UNDISCLOSED AND TREATED THE SAME AS TURN OVER OF THE ASSESSEE. AO HAS TAKEN THE GROUND THAT ASSESSEE HAS NOT RECONCILED THE RECEIPTS AS PER THE BANK STATEMENT AND RECEIPTS AS PER THE PROFIT AND LOSS ACCOUNT.. ON THE OTHER HAND, THE ASSESSEE HAS SUBMITTED THAT HE HAS NOT BEEN PROVIDED ANY OPPORTUNITY TO ADDRESS THE ISSUE. WE FIND THAT THERE IS NO PRESUMPTION THAT UNDISCLOSED DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE ARE NECESSARILY THE TURN OVER. THE ONUS IS UPON THE ASSESSEE TO PROVE AS TO HOW THE SAME IS NOT UNDISCLOSED INCOME. MOREOVER WE FIND THAT THE ASSESSEE IS MA KING A PLEA THAT HE HAS NOT BEEN PROVIDED PROP ER OPPORTUNITY OF BEING HEARD. HENCE IN THE INTEREST OF JUSTICE W E CONSIDER IT APPROPRIATE TO REMIT THE ISSUE TO THE FILE OF AO TO EXAMINE THE ISSUE DENOVO. NEEDLESS TO ADD, ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. ITA NO.1615/KOL/2011 MD.FAZAL KHAN A.YR.2007 - 08 3 6. IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCE D IN THE COURT ON 5 .3.2015. SD/ - SD/ - [ GEORGE MATHAN ] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 5.3.2015. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . MD.FAZAL KHAN, 7, ACRE ROAD, KOLKATA - 700017. 2 I.T.O., WD - 32(3), KOLKATA . 3 . CIT(A) - X I X , KOLKATA. 4. CIT KOLKATA 5 . CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY, BY ORDER, ASST. REGISTRAR , ITAT, KOLKATA BENCHES