Saptarshi International, Kolkata V. ITO, Ward - 51(3), Kolkata, Kolkata

ITA 1627/KOL/2010

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 5549 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-11-2010
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 17-08-2010
• Court: TRIBUNAL
• Department Lawyers: P C NAYAK
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

, .. , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH SMC, KOLKATA () BEFORE , , , , , SMT. DIVA SINGH, JUDICIAL MEMBER. ! ! ! ! / ITA NO .1627/ KOL/2010 '# $%/ ASSESSMENT YEAR : 2006-07 ('( / APPELLANT ) SAPTARSHI INTERNATIONAL (PAN: AAOFS 3732 P) - ' - - VERSUS - . (*+'(/ RESPONDENT ) THE ITO, WARD-51(3), KOLKATA '( , - ./ FOR THE APPELLANT: SHRI SUBHAS AGARWAL *+'( , - ./ FOR THE RESPONDENT: SHRI P.C.NAYAK ./ / ORDER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)- XXXII, KOLKATA DATED 23.09.2009 PERTAINING TO 200 6-07 ASSESSMENT YEAR WHEREIN THE FOLLOWING GROUNDS HAVE BEEN RAISED :- 1. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WAS WRONG IN C ONFIRMING THE ORDER U/S 144 OF INCOME TAX ACT, 1961 PASSED BY THE LEARNED I TO WITHOUT GOING INTO FACTS OF THE CASE AND WITHOUT PROVIDING ADEQUATE OP PORTUNITY OF HEARING TO THE APPELLANT AS ENVISAGED UNDER LAW. NON SERVICE OF NO TICE BY ONE REASON OR OTHER AT ONE TIME AND NO FOLLOW UP THEREAFTER TANTAMOUNT TO DEPRIVING OPPORTUNITY OF HEARING. 2. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LEARNED CIT(A) WAS UNJUSTIFIED TO CONFIRM REJECTION OF BOOKS AS DONE B Y LEARNED ITO WITHOUT CONSIDERING THE FACT THAT THE SAME WERE DULY AUDITE D AS REQUIRED U/S 44AA OF THE I.T.ACT, 1961. 3. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE LEARNED CIT(A) WAS WRONG IN CONFIRMING THE ESTIMATED INCOME OF RS.2950 00/- BEING 5% OF ESTIMATED SALES OF RS.5900000/- WHICH IS MOST HYPOT HECAL, BASED ON SURMISE, CONTRARY TO THE FIGURES OF RETURN FILED AND DOES NO T HAVE A LOCUS STANDY. THE 2 FIGURES REFLECTING IN INCOME TAX RETURN FORMS A BAS E WHICH ARE SUPPORTED BY DOCUMENTARY EVIDENCES. 4. THAT THE LEARNED ITO WAS WRONG BY NOT CONSIDERIN G INTEREST AND REMUNERATION PAYABLE TO PARTNERS AS ENVISAGED EVEN IN THE CASE OF PRESUMPTIVE ASSESSMENT U/S 44AF (THE ASSESSEE IS AL SO A RETAIL TRADERS IN THE YEAR OF RELEVANCE). THE LEARNED CIT(A) FAILED TO CO NSIDER THIS ASPECT WHILE DISCHARGING ORDER. 5. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE ASSESSING AUTHORITIES FAILED TO CONSIDER PAST LOSSES, ELIGIBLE FOR SET OF F AS CLAIMED BY THE ASSESSEE. 6. THAT YOUR APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, SUBSTITUTE OR OTHERWISE IN THE GROUNDS OF APPEAL. 2. ADDRESSING GROUND NO.1 RAISED BY THE ASSESSEE IT WAS SUBMITTED BY THE LD. AR THAT THE IMPUGNED ORDER WAS PASSED EX-PARTE WHEREIN ON THE DAY OF HEARING FIXED, NO ONE WAS PRESENT. IT WAS HIS SUBMISSION THAT NO FURT HER OPPORTUNITY WAS GIVEN ESPECIALLY IN THE CASE WHERE THE ASSESSMENT WAS MAD E U/S 144. IT WAS SUBMITTED THAT IN THIS PECULIAR FACTS AND CIRCUMSTANCES FULL AND COMP LETE FACTS WERE NOT AVAILABLE ON RECORD EITHER IN THE ASSESSMENT ORDER OR IN THE CIT (A)S ORDER. REFERRING TO THE MATERIAL AVAILABLE ON RECORD IT WAS HIS SUBMISSION THAT EVEN BEFORE THE AO A PERUSAL OF THE IMPUGNED ORDER WOULD SHOW THAT THE CASE WAS FIXED FOR HEARING ON 27.01.2008 ON WHICH DATE THERE WAS NO COMPLIANCE AND AGAIN ON 12.09.2008 ON THE SAID DATE THERE WAS NO COMPLIANCE ACCORDINGLY AFTER GIVING TW O OPPORTUNITIES AN EXPARTE U/S 144 WAS PASSED. ADDRESSING THE FACTS IT WAS HIS SUBMISS ION THAT AT THAT POINT OF TIME THERE WAS A DISPUTE AMONGST THE PARTNERS ON ACCOUNT OF WH ICH THE ASSESSEE COULD NOT COMPLY AND IN THE BACKGROUND OF THESE FACTS IT WAS HIS HUM BLE PRAYER THAT IN THE INTEREST OF SUBSTANTIAL JUSTICE THE ISSUE MAY BE RESTORED BACK TO THE FILE OF THE AO. IT WAS HIS SUBMISSION THAT IF THE ISSUE IS RESTORED BACK TO TH E FILE OF THE CIT(A) IT WOULD NOT SERVE ANY PURPOSE SINCE THE ASSESSMENT WAS MADE EXPARTE U /S 144 WHEREIN FULL FACTS ARE NOT ON RECORD. 3. THE LD. DR SUBMITTED THAT THERE ARE TWO OPPORTUN ITIES GIVEN BY THE AO AND ONLY ONE BY THE CIT(A). HOWEVER, HE STATED THAT AS THERE WERE SUFFICIENT REASONS FOR NON REPRESENTATION THEN HE WOULD HAVE NO OBJECTION IF THE AO LOOKS INTO THE FACTS. 4. IN THE AFORE MENTIONED FACTS AND CIRCUMSTANCES A ND IN THE LIGHT OF THE ARGUMENTS ADVANCED BY THE PARTIES BEFORE THE BENCH IT IS CONSIDERED APPROPRIATE TO 3 RESTORE THE ISSUE BACK TO THE FILE OF THE AO WITH T HE DIRECTION TO DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REA SONABLE OPPORTUNITY OF BEING HEARD. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES AS PER PRONOUNCEMENT MADE IN THE OPEN COURT IN THE PRESENC E OF THE PARTIES ON THE DATE OF HEARING ITSELF I.E. 03.11.2010. SD/- , , , , , DIVA SINGH, JUDICIAL MEMBER. DATE : 03.11.2010. ./ , *0 1.0$2- COPY OF THE ORDER FORWARDED TO: 1. SAPTARSHI INTERNATIONAL, C/O SHRI MANAS MITRA, C-29 , SCHOOL ROAD, SODEPUR, 24-PARGANAS (NORTH), KOLKATA-700010. 2 THE I.T.O., WARD-51(3), KOLKATA. 3. THE CIT, 4. THE CIT(A)-XXXII, KOLKATA, 5. DR, KOLKATA BENCHES, KOLKATA +0 */ TRUE COPY, ./'7/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES R.G.(.P.S.)