Sri Rajesh Lakhotia., Gangtok V. A.C.I.T Cir - Gangtok, Gangtok

ITA 169/KOL/2013

• Counselvise Citation: 16923514 RSA 2013
• Duration Of Justice: 2 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 22-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: G SUGLA
• Section: 144

Judgement Text

I.T.A. NO . 1 69 / KOL ./20 1 3 ASSESSMENT YEAR: 200 8 - 200 9 PAGE 1 OF 2 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA SMC BENCH, KOLKATA BEFORE SHRI P.K. BANSAL , ACCOUNTANT MEMBER I.T.A. NO. 1 69 / KOL / 20 1 3 ASSESSMENT YEAR : 200 8 - 20 0 9 SHRI RAJESH LAKHOTIA, .. ....... ................ ........ . APPELLANT PROP. M/S. BAKER S CAFE, M.G. MARG, GANGTOK, SIKKIM, [PAN : A GTPL 1676 Q ] - VS. - ASSISTANT COMMISSIONER OF INCOME TAX, . ...... ..... . RESPONDENT CIRCLE - GANGTOK, SIKKIM APPEARANCES BY: SHRI G. SUGLA, ADVOCATE , FOR THE ASSESSEE S MT. MADHUMALATI GHOSH , JCIT, SR. D.R., FO R THE DEPARTMENT DATE OF CONCLUDING THE HEARING : JUNE 01 , 2 01 5 DATE OF PRONOUNCING THE ORDER : JUNE 01 , 201 5 O R D E R THIS APPEAL HAS BEEN FILED BY THE ASSESSE E AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) , SILIGURI D ATED 2 2 . 11 .20 1 2 FOR THE ASSESSMENT YEAR 200 8 - 0 9. 2. THE ASSESSEE HAS TAKEN AS MANY AS FOUR GROUNDS OF APPEAL, BUT THE LD. A.R. BEFORE US VEHEMENTLY CONTENDED THAT WHILE MAKING THE ADDITION AND ESTIMATING THE NET PROFIT THE ASSESSING OFFICER HAS NOT GIVEN ANY OPPORTUNITY TO THE A SSESSEE. THE ASSESSMENT HAS BEEN COMPLETED UNDER SECTION 144 BY ESTIMATING THE PROFIT @ 20% OF THE TOTAL TURNOVER EXCEPTING THE TURNOVER AS PER THE BOOKS OF ACCOUNT OF THE ASSESSEE. IN RESPONSE TO THE NOTICE THE ASSESSEE HAD MADE THE SUBMISSIONS, BUT THE S UBMISSIONS MADE BY THE ASSESSEE HAS NOT BEEN CONSIDERED VIDE CBDT S INSTRUCTION NO. 8/2008 DATED 29.07.2008 AND THE ASSESSMENT WAS COMPLETED UNDER SECTION 144 BY THE ASSESSING OFFICER. 3. LD. D.R., ON THE OTHER HAND, RELIED ON THE ORDER OF AUTHORITIES BE LOW. I.T.A. NO . 1 69 / KOL ./20 1 3 ASSESSMENT YEAR: 200 8 - 200 9 PAGE 2 OF 2 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDER THE SAME ALONG WITH THE ORDERS OF TAX AUTHORITIES BELOW. IN THIS CASE, I NOTED THAT THE ASSESSMENT HAS BEEN COMPLETED BY THE ASSESSING OFFICER UNDER SECTION 144 REJECTING THE CLAIM OF THE AS SESSEE VIDE LETTER DATED 23.11.2009. I NOTED THAT BEFORE REJECTING THE CONTENTION OF THE ASSESSEE THE ASSESSING OFFICER HAS NOT GIVEN ANY OPPORTUNITY TO THE ASSESSEE, BUT COMPLETED THE ASSESSMENT UNDER SECTION 144 OF THE ACT . I, THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY TO BOTH THE PARTIES SET ASIDE THE ORDER OF ASSESSING OFFICER AND RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION THAT THE ASSESSING OFFICER SHALL MAKE A FRESH ASSESSMENT ON THE ASSESSEE AND GIVE PROPER OP PORTUNITY TO THE ASSESSEE SO THAT THE ASSESSEE CAN DEFER ALL THE ALLEGATIONS AND REPLY ALL THE QUERIES WHATEVER THE ASSESSING OFFICER MAY DESIRE. I ACCORDINGLY SET ASIDE THE ORDER OF CIT(APPEALS). 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JUNE 0 1 , 201 5 . SD/ - P.K. BANSAL ( ACCOUNTANT MEMBER) KOLKATA, THE 1 ST D AY OF JUNE , 201 5 COPIES TO : (1) SHRI RAJESH LAKHOTIA, PROP. M /S. BAKER S CAFE, M.G. MARG, GANGTOK, SIKKIM, (2) ASSISTANT COMMISSIONER OF INCOME TAX , CIRCLE - GANGTOK, SIKKIM (3) COMMISSIONER OF INCOME - TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA B ENCHES, KOLKATA LAHA/SR. P.S .