Smt. Pratima Rani Basak, Kolkata V. ITO, Ward - 49(4), Kolkata, Kolkata

ITA 1629/KOL/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83143 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 9 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2014
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 28-11-2011
• Court: TRIBUNAL
• Department Lawyers: RAVI JAIN
• Assessee Lawyers: JHAJHARIA
• Keywords: Bogus purchase; Opportunity of being heard
• Section: 133A; 234B; 145

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C , KOLKATA [BEFORE HONBLE SRI SHAMIM YAHYA, AM & HONBLE SR I GEORGE MATHAN, JM] ITA NO.1629/KOL/2011 ASSESSMENT YEAR : 2008-09 ( APPELLANT ) (RESPONDENT) SMT. PRATIMA RANI BASAK .. -VS- I.T.O., WARD-49(4 ), KOLKATA KOLKATA (PAN:AGZPB 5203 F) FOR THE APPELLANT SHRI JHAJHARIA, FCA FOR THE RESPONDENT SHRI RAVI JAIN, CIT(DR) DATE OF HEARING : 12.09.2014 DATE OF PRONOUNCEMENT : 12. 09.2014. ORDER PER SHRI SHAMIM YAHYA, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. C.I.T.(A)- XXXII, KOLKATA DT. 20.05.2011 AND PERTAIN TO ASSESS MENT YEAR 2008-09. 2. THE GROUNDS OF APPEAL RAISED IN ASSESSEES APPEA L READ AS UNDER :- 1. FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCE S OF THE CASE THE LD.CIT(A) WAS WHOLLY WRONG AND UNJUSTIFIED IN DISMISSING THE APPE AL WITHOUT PROPERLY CONSIDERING THE FACTS AS WELL AS THE MERIT OF THE ASSESSEE AND WITH OUT PROVIDING SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE. THE DECISION OF THE LD.CIT (A) WAS WHOLLY BIASED, UNREASONABLE, UNCALLED FOR AND BAD IN LAW. 2. FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) WAS WHOLLY WRONG AND UNJUSTIFIED IN CONFIRMING THE AOS ACTION IN DISALLOWING THE PURCHASE OF OLD GOLD ORNAMENTS TO THE TUNE OF RS.6,89,649/- TREATIN G IT AS BOGUS PURELY ON ASSUMPTION AND PRESUMPTION OWING TO THE ALLEGED NON-AVAILABILI TY OF SOME OF THE SELLERS AND FURTHERMORE RELYING WITHOUT ANY BASIS ON THE TOTALL Y ROUGH AND CASUAL ENTRIES IN THE KACHHA KHATA IMPOUNDED DURING SURVEY U/S 133A OF TH E ACT, WITHOUT CONSIDERING THE FACTS THAT ALL THOSE PURCHASES WERE DULY RECORDED I N THE REGULAR BOOKS OF A/C AND REFLECTED IN THE TRADING A/C. THE DECISIONS OF THE AO AND THE LD.CIT(A) WERE WHOLLY BIASED, UNREASONABLE, UNCALLED FOR AND BAD IN LAW. 3,. FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCE S OF THE CASE THE LD.CIT(A) WAS WHOLLY WRONG AND UNJUSTIFIED IN CONFIRMING THE SAID DISALL OWANCE OF PURCHASE OF OLD GOLD ORNAMENTS TO THE TUNE OF RS.6,89,649/- WITHOUT FIND ING ANY DEFECT OR DISCREPANCY AS SUCH IN THE BOOKS OF ACCOUNT AND ALSO WITHOUT REJECTING THE BOOKS OF ACCOUNT U/S 145 OF THE ITA.NO.1629/KOL/2011 SMT.PRATIMA RA NI BASAK,KOL A.YR.2008-09 2 ACT. THE DECISIONS OF THE AO AND THE LD.CIT(A) WERE WHOLLY BIASED, UNREASONABLE, UNCALLED FOR AND BAD IN LAW. 4. WITHOUT PREJUDICE TO THE GROUND NOS.2 & 3 ABOVE AND EVEN OTHERWISE, THE LD.CIT(A) WAS WHOLLY WRONG AND UNJUSTIFIED IN NOT DECIDING T HAT IN THE EVENT OF THE SAID DISALLOWANCE OF PURCHASE OF OLD GOLD ORNAMENTS TO T HE TUNE OF RS.6,89,649/-, THE AMOUNT OF SALES MADE OR THE UNSOLD STOCK LYING, AGAINST TH OSE ALLEGEDLY BOGUS PURCHASES AND WHICH WERE RECORDED IN THE BOOKS AND CREDITED IN TH E TRADING A/C SHOULD BE CORRESPONDINGLY REDUCED FROM THE VALUE OF TOTAL SAL ES AND THE UNSOLD STOCK VIS--VIS THE NET PROFIT SHOWN IN THE P&L A/C. THE DECISIONS OF T HE AO AND THE LD.CIT(A) WERE WHOLLY BIASED, UNREASONABLE, UNCALLED FOR AND BAD IN LAW. 5. FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) WAS WHOLLY WRONG AND UNJUSTIFIED IN CONFIRMING THE A.OS ACTIO N IN MAKING ARBITRARY ADDITION OF RS.64,859/- ON A/C OF THE VALUE OF ALLEGED UNDISCLO SED CLOSING STOCK OF SILVER WEIGHING 4,717.010 GM SIMPLY RELYING WITHOUT ANY BASIS ON TH E TOTALLY ROUGH AND CASUAL ENTRIES IN THE KACHHA KHATA IMPOUNDED U/S 133A AND WITHOUT REJ ECTING THE BOOKS OF ACCOUNT U/S 145 OF THE ACT. THE DECISIONS OF THE AO AND THE LD. CIT(A) WERE WHOLLY BIASED, UNREASONABLE, UNCALLED FOR AND BAD IN LAW. 6. FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) WAS WHOLLY WRONG AND UNJUSTIFIED IN CONFIRMING THE AOS ACTION IN CHARGING INTEREST OF RS.15,120/- AND RS.62,370/- U/S 234A AND 234B OF THE ACT RESPEC TIVELY AS THE ASSESSEE WHOLLY DENIES THE LIABILITY TO PAY ANY SUCH INTEREST. THE ACTIONS OF BOTH THE AO AND THE LD.CIT(A) WERE WHOLLY UNJUSTIFIED, UNCALLED FOR AND BAD IN LAW. 7. FOR THAT YOUR PETITIONER CRAVES THE RIGHT TO PU T ADDITIONAL GROUNDS AND/OR TO ALTER/AMEND/MODIFY THE PRESENT GROUNDS BEFORE OR AT THE TIME OF HEARING. 3. AT THE OUTSET, IN THIS CASE THE LD.COUNSEL OF T HE ASSESSEE SUBMITTED THAT THE APPELLATE ORDER HAS BEEN PASSED BY THE LD. CIT(A) W ITHOUT HEARING THE ASSESSEE. HE SUBMITTED THAT ADDITIONS HAVE BEEN CONFIRMED BY THE LD. CIT(A) ON THE GROUND THAT NO EVIDENCE COULD BE PRODUCED BY THE ASSESSEE. THE LD. COUNSEL OF THE ASSESSEE PRAYED THAT AN OPPORTUNITY MAY BE GRANTED TO THE ASSESSEE TO CANVASS THE CASE BEFORE LD. CIT(A). 4. UPON CAREFUL CONSIDERATION WE FIND THAT INTEREST OF JUSTICE WILL BE SERVED IF THE ASSESSEE IS GIVEN ONE MORE OPPORTUNITY BEFORE THE L D.CIT(A) TO CANVASS THE CASE. ACCORDINGLY WE REMIT THIS ISSUE TO THE FILE OF THE LD. CIT(A). THE LD. CIT(A) IS DIRECTED TO CONSIDER THIS ISSUE AFRESH AFTER GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. ITA.NO.1629/KOL/2011 SMT.PRATIMA RA NI BASAK,KOL A.YR.2008-09 3 5. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE S TANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12.09.2014. SD/- SD/- [ GEORGE MATHAN ] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 12.09.2014. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1. SMT.PRATIMA RANI BASAK, PROP. OF M/S.BASAK JEWELLER S, C/O M/S SALARPURIA JAJODIA & CO., 7, C.R.AVENUE, KOLKATA-700072. 2 I.T.O., WARD-49(4), KOLKATA. 3 . CIT(A)-XXXII, KOLKATA. 4. CIT KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY, BY ORDER, ASST. REGISTRAR , ITAT, KOLKATA BENCHES