Krishan Deo Agarwal, Kolkata V. ITO, Ward-35(3), Kolkata, Kolkata

ITA 166/KOL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1132 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-11-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 09-02-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: N O N E

Judgement Text

1 ITA NO.166/KOL/2015 KISHAN DEO AGARWAL, AY 2010-11 , C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE .., /AND . , ) [BEFORE SHRI A. T. VARKEY, JM & SHRI M.BALAGANESH, AM] I.T.A. NO. 166/KOL/2015 ASSESSMENT YEAR: 2010-11 KISHAN DEO AGARWAL (PAN: ACMPA8989J) VS. INCOME-TAX OFFICER, WD-35(3), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 01.11.2017 DATE OF PRONOUNCEMENT 01.11.2017 FOR THE APPELLANT N O N E FOR THE RESPONDENT SHRI SALLONG YADEN, ADDL. CIT, S R. DR ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-10, KOLKATA, DATED 19.12.2014 FOR AY 2010-11. 2. AT THE TIME OF HEARING FIXED IN THIS CASE TODAY I.E. ON 01-11-2017, NEITHER ANYBODY APPEARED ON BEHALF OF THE ASSESSEE NOR HAS HE FILED ANY APPLICATION SEEKING ADJOURNMENT DESPITE THE FACT THAT ON LAST OCCASION I.E. ON 11.0 9.2017 THE HEARING OF THE CASE WAS ADJOURNED AS NONE APPEARED ON BEHALF OF THE ASSESSE E AND ISSUED NOTICE TO ASSESSEE BY RPAD FIXING THE CASE FOR HEARING ON 01.11.2017. IT APPEARS FROM THIS CONDUCT OF THE ASSESSEE THAT ASSESSEE IS NOT SERIOUSLY INTERESTED IN PURSUING THIS APPEAL BEFORE THE TRIBUNAL. THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. B. N. BHATTACHARJEE & ANR. 118 ITR 461 (SC) OBSERVED THAT PREFERRING AN APPEAL MEANS E FFECTIVELY PURSUING IT AND THE LAW DOES NOT HELP A SLEEPING LITIGANT. HENCE, THE ASSESSEES APPEAL IS LIABLE TO BE DISMISSED AS UN- ADMITTED. WE, THEREFORE, RELYING UPON THE DECISION OF ITAT DELHI BENCH IN THE CASE OF CIT VS. MULTIPLAN INDIA (PVT.) LTD., 38 ITD 320 (DEL), DISMISS THE APPEAL OF THE ASSESSEE FOR NON-APPEARANCE. 2 ITA NO.166/KOL/2015 KISHAN DEO AGARWAL, AY 2010-11 3. WE, FURTHER, MAKE IT CLEAR THAT IF THE ASSESSEE IS ADVISED TO MOVE APPROPRIATE APPLICATION TO RECALL THIS ORDER, THEN HE IS AT LIB ERTY TO DO SO FOR JUST CAUSE AND THE TRIBUNAL MAY DECIDE IN ACCORDANCE TO LAW. 4. IN THE RESULT, APPEAL OF ASSESSEE IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- (M. BALAGANESH) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 1 ST NOVEMBER, 2017 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SHRI KISHAN DEO AGARWAL, PROP. TIRUP ATI LAMINATORS, 15, BRABOURNE ROAD, KOLKATA-700 001. 2 RESPONDENT I.T.O. WARD-35(3), KOLKATA. 3. THE CIT(A) , KOLKATA. 4. 5. CIT , KOLKATA. DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR. PVT. SECRETARY 3 ITA NO.166/KOL/2015 KISHAN DEO AGARWAL, AY 2010-11 7. HOWEVER, WE NOTE THAT THIS ASPECT OF THE MAT TER HAS NOT BEEN DWELT INTO BY THE AO AND THIS ASPECT NEED TO BE EXAMINED AS TO WHY THE AO TR EATED THE ASSESSEE NBFC COMPANY DIFFERENTLY ONLY IN THIS ASSESSMENT YEAR NEED TO BE EXAMINED. SINCE IN THE EARLIER ASSESSMENT YEARS AND SUBSEQUENT ASSESSMENT YEAR THE ASSESSEES RETURN OF INCOME HAS BEEN ACCEPTED AND EVEN REFUNDS HAVE BEEN ALLOWED, TREATING THE ASSE SSEE AN NBFC COMPANY AS BOGUS NEED TO BE SUPPORTED BY MATERIAL/EVIDENCE WHICH THE AO H AS SPELL OUT. THE LD. CIT(A) HAS CATEGORICALLY HELD THAT THERE IS NO MATERIAL ON THE BASIS OF WHICH THE CONCLUSION OF AO THAT THE ASSESSEE IS FAKE AND BOGUS CAN BE SUPPORTED WIT H. IN THE LIGHT OF SUCH A FINDING OF LD. CIT(A), AND THE SUBSEQUENT ACTION OF THE AO ACCEPTI NG THE RETURN OF INCOME OF THE ASSESSEE UPTO A.Y.2016-17 AND IN THE LIGHT OF RULE OF CONSIS TENCY AS EXPOUNDED BY VARIOUS CASE LAWS (SUPRA) WE THEREFORE ARE INCLINED TO SET ASIDE THE ORDER OF LD. CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF THE AO FOR DENOVO ADJUDICATION.