I.T.O Wd - 2(4),Durgapur., Durgapur V. Smt. Tanuka Saha (L/R of Arun Kumar Saha) C/O - M/S Kamala Service Station, Durgapur

ITA 175/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99999 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-11-2015
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 23-01-2013
• Court: TRIBUNAL
• Department Lawyers: S S ALAM
• Assessee Lawyers: N O N E

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI WASEEM AHMED , AM] I.T.A NO. 175/KOL/2013 ASSESSMENT YEAR: 2007-08 INCOME-TAX OFFICER, WD-2(4), DURGAPUR VS. SMT. T ANUKA SAHA (L/R OF ARUN KR. SAHA) (PAN: AIXPS9528C) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 29.10.2015 DATE OF PRONOUNCEMENT: 05.11.2015 FOR THE APPELLANT: SHRI S. S. ALAM, JCIT, SR. DR FOR THE RESPONDENT: N O N E ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A), DURGAPUR IN APPEAL NO.21/CIT(A)/DGP/2010-11 DATED 17.08.2012. PENALTY WAS IMPOSED BY ADDL.CIT, RANGE-1, DURGAPUR U/S. 271E R.W.S. 274 OF THE INCOM E-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2007-08 VIDE H IS ORDER DATED 29.06.2010. 2. AT THE OUTSET, IT IS NOTICED THAT THIS APPEAL OF REVENUE IS TIME BARRED BY 78 DAYS AND REVENUE HAS FILED CONDONATION PETITION. IN VIEW OF THE REASONS STATED IN CONDONATION PETITION AND WE DEEM IT REASONABLE, WE CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING. 3. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGAI NST THE ORDER OF CIT(A) SETTING ASIDE THE ORDER OF AO AND DIRECTING HIM TO DECIDE THE ISS UE ON MERITS. FOR THIS, REVENUE HAS RAISED FOLLOWING GROUND NO.2: 1. FOR THAT THE LD. CIT(A) EXCEEDED HIS JURISDICT ION IN DIRECTING THE ASSESSING OFFICER TO CONDUCT ENQUIRIES WITH THE ALLEGED RECIPIENTS AND A SCERTAIN WHETHER THE AMOUNTS SHOWN AS REPAYMENT BY CASH HAD ACTUALLY BEEN PAID, TANTAMOUN T TO SET ASIDE OF THE ORDER WHEN THE APPEAL SHOULD HAVE BEEN DECIDED ON MERITS. 4. BRIEFLY STATED FACTS ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT THE ASSESSEE HAS MADE REPAYMENT OF LOA N IN VIOLATION OF SECTION 269T OF THE ACT TO THE EXTENT OF RS.70,34,550/- TO ITS LOAN CRE DITORS OTHERWISE THAN BY ACCOUNT PAYEE CHEQUE OR ACCOUNT PAYEE BANK DRAFT. THE BREAK-UP O F SUCH PAYMENTS ARE AS UNDER: 1. NIRMALA SERVICE STATION : RS.31,40,000/- 2. SAHA ENTERPRISE : RS.38,94,550/- TOTAL REPAYMENT : RS.70,34,550/- 2 ITA NO.175/K/2013 SMT. TANUKA SAHA AY 2007-08 ACCORDING TO AO, NO EXPLANATION WAS FILED BEFORE HI M AND HENCE, HE LEVIED PENALTY U/S. 271E OF THE ACT. AGGRIEVED, ASSESSEE PREFERRED APP EAL BEFORE CIT(A), WHO SET ASIDE THE ISSUE TO THE FILE OF AO TO VERIFY THE CLAIM OF ASSE SSEE WHETHER THERE IS ANY REPAYMENT AND IF REPAYMENT IS MADE THROUGH ACCOUNT PAYEE CHEQUE O R NOT. AGGRIEVED AGAINST THIS DIRECTION, REVENUE IS NOW IN APPEAL BEFORE US. 5. WE HAVE HEARD LD. SR. DR AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE LEGISLATURE VIDE FINANCE ACT, 2001 HAS WITHDRAWN THE POWER OF FIRST APPELLATE AUTHORITY TO SET ASIDE THE ASSESSMENT ORD ER W.E.F. 01.06.2001 AND ACCORDINGLY, IN THE PRESENT CASE THE CIT(A) HAS NO POWER TO SET ASIDE THE ISSUE BACK TO THE FILE OF AO. BUT IN THE PRESENT CASE, THE ASSESSEE HAS NOT FILED ANY EXPLANATION BEFORE THE AO AND EVEN CIT(A) HAS NOT ADJUDICATED THE ISSUE ON MERITS. HEN CE, WE HAVE NO ALTERNATIVE EXCEPT TO SET ASIDE THE MATTER BACK TO THE FILE OF AO, BECAUS E WE ARE CONSCIOUS OF THE FACT THAT IT REQUIRES CONSIDERABLE TIME TO EXPLORE, INVESTIGATE AND ENQUIRE INTO, TO ASCERTAIN THE ACTUAL POSITION. AO IS DIRECTED TO PROVIDE REASONABLE OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE. APPEAL OF REVENUE IS ALLOWED FOR STATISTICAL PURPOS ES. 6. IN THE RESULT, THE APPEAL OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 7. ORDER IS PRONOUNCED IN THE OPEN COURT ON 05.11.2 015 SD/- SD/- (WASEEM AHMED) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 5 TH NOVEMBER, 2015 JD. SR. P.S COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT ITO, WARD-2(4), DURGAPUR 2 RESPONDENT SMT. TANUKA SAHA (L/R OF ARUN KUMAR SA HA) C/O M/S. KAMALA SERVICE STATION, AKBAR ROAD, DURGAPUR-713204 . 3 . THE CIT(A), DURGAPUR 4. 5. CIT DURGAPUR DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .