Smt. Subhra Basu, Kolkata V. ITO, Ward - 52(2), Kolkata, Kolkata

ITA 1680/KOL/2009

• Counselvise Citation: 168023514 RSA 2009
• Duration Of Justice: 2 year(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-10-2011
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2000-2001
• Appeal Filed On: 24-09-2009
• Court: TRIBUNAL
• Department Lawyers: R K SAHA LD DR
• Assessee Lawyers: V N DUTTA LD
• Keywords: Business expenditure; Opportunity of being heard
• Section: 144; 143(3)

Judgement Text

, C , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH- C , CALCUTTA () BEFORE . ., , ,, , SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER. ! ! ! ! /AND ' ' ' ' # # # # $ % $ % $ % $ % &# &# &# &# , SHRI N.VIJAYKUMARAN, JUDICIAL MEMBER. !' !' !' !' / ITA NO. 1680/KOL/2009 (#) *+/ ASSESSMENT YEAR: 2000-01 SMT. SUBHRA BASU PAN: AMAPS 2732B INCOME-TAX OFFICER, W 52(2) KOLKATA (-. / APPELLANT ) - # - - VERSUS -. (01-./ RESPONDENT ) -. 2 3 / FOR THE APPELLANT: '/ SHRI V.N.DUTTA, LD. AR 01-. 2 3 / FOR THE RESPONDENT: '/ SHRI R.K.SAHA, LD.DR &# 4 2 5 /DATE OF HEARING : 20-10-2011 6* 2 5 /DATE OF PRONOUNCEMENT:20-10-2011 7 / ORDER ' # $ % &# , , , , , , ,, , SHRI N. VIJAYA KUMARAN, JUDICIAL MEMBER THIS IS THE APPEAL BY THE ASSESSEE AND IT IS DIREC TED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-XXXIII, KOLKAT A DATED 29-05-2009. THE ASSESSMENT YEAR INVOLVED IS 2000-01. 2. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL:- 1. FOR THAT WITHOUT GIVING ANY NOTICE U/S 143 (2) O F THE ACT THE ASSESSMENT MADE U/S 144 /147 OF THE ACT IS OPPOSED TO REQUIREMENT O F LAW AND BAD IN LAW. 2. FOR THAT THE NOTICE US 148 OF THE ACT WAS BAD IN LAW IN AS MUCH AS NO REASONABLE BELIEF WAS PROVIDED TO THE ASSESSEE. ITA NO. 1680/KOL/2009-C-NVK 2 3. FOR THAT THE INCOME FROM JEWELLERY SHOULD HAVE A SSESSED AS INCOME UNDER THE HEAD LONG TERM CAPITAL GAIN WHICH WAS APPEARED FROM THE PHOTOCOPY OF THE ACKNOWLEDGEMENT OF THE RETURNED FILED IN PLACE OF U NDISCLOSED INCOME. 4. FOR THAT THE CIT (A) ERRED IN CONFIRMING THE RS. 1,50,000/- AS UNDISCLOSED INCOME IN RESPECT OF PURCHASE OF FLAT WITHOUT HAVIN G ANY MATERIAL ON THE RECORD. 5. FOR THAT THE CIT (A) ERRED IN CONFIRMING THE ADD ITION OF RS. 1,12.152/- AS UNDISCLOSED INCOME 6. FOR THAT THE ASSESSIRG OFFICER WAS WRONG IN MAKI NG DISALLOWANCE IN WHOLE OF THE CLAIM O BUSINESS EXPENDITURE OF RS.83.279/- AND SUCH DISALLOWANCE IS ARBITRARY AND UNWARRANTED. 7. FOR THAT THE OTHER WOUNDS OF APPEAL MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL. 3. THE ASSESSEE IS AN INDIVIDUAL AND DERIVES INCOME AS OF TUITION FEES, CAR RENT AND THE ALLEGED SALE PROCEEDS OF JEWELLERY. FOR THIS YEAR RELEVANT THE ASSESSEE FILED RETURN OF INCOME IN 20.09.2001 SHOWING TOTAL INCOME OF RS. 62,140/-. TH E RETURN WAS INITIALLY PROCESSED U/S. 143(1). THEREAFTER, THE AO OBSERVED THAT FROM THE 143(3) ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2002-03 THIS ASSESSEE DURING THIS RELEVANT ASS ESSMENT YEAR UNDER APPEAL SOLD JEWELLERY TO THE TUNE OF RS.2,75,000/-, WHICH WAS NOT AVAILABLE IN THE BALANCE SHEET FOR THE EARLIER ASSESSMENT YEAR 1999-2000. THE AO, THEREFORE OF THE VIEW THAT THE JEWELLERY PRESUMED HAVE BEEN PURCHASED OUT OF UNDISCLOSED SOURCE DURING TH E RELEVANT PERIOD AND SHIELDED UNDER THIS HEAD AS APPEARING IN THE INCOME & EXPENDITURE ACC OUNT FOR THE FINANCIAL YEAR ENDED WITH 31.3.2000 RELEVANT TO THE ASSESSMENT YEAR UNDER APP EAL BEFORE US. THIS PROMPTED THE AO TO REOPEN THIS YEAR ASSESSMENT BY SLAPPING 148 NOTICE ON THE ASSESSEE. 4. DURING HEARING BEFORE US LD. COUNSEL FOR THE A SSESSEE WOULD SUBMIT THAT THE ASSESSEE IS NOT HARPING ON THE ISSUE OF REOPENING. AFTER HEARI NG THE DEPARTMENTAL REPRESENTATIVE, WE DECIDE THAT REOPENING IS VALID AS THE ASSESSEE HAS NOT FILED THE RETURN IN RESPONSE TO NOTICE. THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F JHAVERI STOCK BROKERS 291/500(SC) CLEARLY SUPPORTS THE ACTION OF THE DEPARTMENT IN P ROCESSING WITH 144/147 ASSESSMENT. WE UPHOLD THE ACTION OF REOPENING. 5. COMING TO THE MERITS LD. COUNSEL FURTHER ASSESS EE WOULD SUBMIT THAT THE ASSESSEE BEING A MIDDLE CLASS WOMAN AND NOT PROPERLY ASSISTED IN DEFENDING HER CASE ONE MORE OPPORTUNITY ITA NO. 1680/KOL/2009-C-NVK 3 MAY BE GIVEN TO THE ASSESSEE TO SUBMIT ARE DETAIL S AND THE ASSESSEE COULD ESTABLISH THE SOURCE OF MONEY FOR PURCHASING FLAT ETC. IN OTHER WORDS, IT IS A PRAYER ON BEHALF OF THE ASSESSEE FOR PROVIDING ONE MORE OPPORTUNITY. HOWEVER, LD.DR OB JECTED AND SUBMITTED THAT SUFFICIENT OPPORTUNITY HAS BEEN GIVEN TO THE ASSESSEE AND HE RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 6. ON CONSIDERATION OF THE RIVAL SUBMISSION AND O N PERUSAL OF RECORDS THE ISSUE NEVER BEEN PROPERLY DEFENDED BY THE ASSESSEE AT THE ASS ESSMENT STAGE NOR AT THE LEVEL OF LD.CIT(A). THE DECISION OF THE KOLKATA TRIBUNAL (2011) 11 ITR (AT) PAGE 17 IN THE CASE OF SUSHIL KUMAR DAS VS. ITO, WHEREIN IT HAS BEEN HELD THAT THOUGH THE AMOUNT ERRONEOUSLY OFFERED TO TAX INTO THE RETURN, THE ASSESSEE IS ENTITLED TO RAISE PLE A BEFORE APPELLATE AUTHORITIES AGAINST THE ASSESSMENT. THE AO CANNOT ASSESS AN AMOUNT WHICH IS NOT TAXABLE UNDER THE LAW., THOUGH SHOWN BY THE ASSESSEE IN THE RETURN. THE AO SHOULD TAX THE RIGHT PERSON, THE RIGHT TAX DUE. HENCE, WE SET ASIDE THE ORDER OF THE LD.CIT(A) AND DIRECT THE AO TO DECIDE THE ISSUE ON MERITS AS WE HAVE ALREADY UPHELD THE REOPENING AS VALID. IT IS NEEDLESS TO MENTION THAT THE AO SHOULD AFFORD A REASONABLE OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. THE ASSESSEE SHOULD COOPERATE WITH THE DEPARTMENT AND SHOULD FILE ALL DETAILS N ECESSARY FOR COMPLETING THE ASSESSMENT IN ACCORDANCE WITH LAW. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED PA RTLY FOR STATISTICAL PURPOSE. 7 & 8 &# 9 : THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT 20- 10-11 , ,, , SD SD/- / ( . ., ) ( S.V. MEHROTRA, ACCOUNTANT MEMBER) ( # $ % &# , ) ( N.VIJAYKUMARAN, JUDICIAL MEMBER ) ( (( (5 5 5 5) )) ) DATE:20-.10-11 *PRADIP* ;< (#=% (> ITA NO. 1680/KOL/2009-C-NVK 4 7 2 0(($ ?$*@ / COPY OF THE ORDER FORWARDED TO: 1. . -. / THE APPELLANT : SMT. SUBHRA BASU 282R, N.S.C BOS E ROAD, KOL-47. 2 01-. / THE RESPONDENT- INCOME-TAX OFFICER, W 52(2), KO LKATA. 3. (7# / THE CIT, 4. (7# ( )/ THE CIT(A), 5 . (9 0(# / DR, KOLKATA BENCH 6 . GUARD FILE . 1$ 0(/ TRUE COPY, 7#&/ BY ORDER, !% /ASSTT REGISTRAR