Shri Ashis Chatterjee, Kolkata V. ITO, Ward - 34(2), Kolkata

ITA 1770/KOL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2690 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-04-2010
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 06-04-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 20-10-2009
• Court: TRIBUNAL
• Department Lawyers: K K TRIPATHI
• Assessee Lawyers: SOUMITRA CHOW DHURY
• Keywords: Opportunity of being heard; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA [BEFORE HONBLE SRI D. K. TYAGI, JM & HONBLE SRI B . C. MEENA, AM] I.T.A. NO. 1770/KOL/2009 ASSESSMENT YEAR :2004-05 SRI ASHIS CHATTERJEE -VS- INCOME-TAX OFFICER, W D-34(2), KOLKATA (PA NO.AEKPC 3531 P) (APPELLANT) (RESPONDENT) APPELLANT BY : SRI SOUMITRA CHOWDHURY RESPONDENT BY : SRI K. K. TRIPATHI O R D E R PER D. K. TYAGI, JM : THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF THE LD. CIT(A), KOLKATA DATED 29.09.2009 FOR ASSESSMENT YEA R 2004-05 ON THE FOLLOWING GROUNDS : 1.FOR THAT THE LD. COMMISSIONER OF INCOME TAX (APP EALS) ERRED BOTH IN LAW AND IN FACT BY CONFIRMING THE ADDITION MADE BY THE ASSESSI NG OFFICER ON AN ESTIMATE BASIS AMOUNTING TO RS.3,80,000 AND RS. 1,50,000 INSTEAD O F RS.L,18,350 AND RS.74,000 AS DISCLOSED BY THE APPELLANT IN THE PROFIT AND LOSS A CCOUNT. THAT THIS ESTIMATION HAS GOT NO BASIS AND I OR REASON. 2. FOR THAT THE LD. COMMISSIONER OF INCOME TAX (APP EALS) ERRED BOTH IN LAW AND IN FACT BY CONFIRMING THE ADDITION OF RS.9,50,000 ADDED BY THE ED. ASSESSING OFFICER WITH A TOTAL INCOME WHICH WAS DISCLOSED BY THE APPELLANT A S OPENING CAPITAL IN HIS BALANCE- SHEET. 3. FOR THAT THE ED. COMMISSIONER OF INCOME TAX (APP EALS) ERRED BOTH IN LAW AND IN FACT BY CONFIRMING THE ADDITION MADE BY THE LD. ASSESSIN G OFFICER AMOUNTING A SUM OF RS.9,61,760 ON ACCOUNT OF ALLEGED INVESTMENT MADE B Y THE APPELLANT IN THE ACCOUNTING YEAR 2003-04 CORRESPONDING TO THE ASSESSMENT YEAR 2 004-05. THOUGH THERE WAS NO SUCH INVESTMENT MADE BY THE APPELLANT DURING THE YEAR UN DER APPEAL. 4. FOR THAT THE ORDER PASSED BY THE ED. COMMISSIONE R OF INCOME TAX (APPEALS) IS ILLEGAL, ARBITRARY AND VOID-AB-INITIO. 5. FOR THAT THE APPELLANT CRAVES LEAVE TO RAISE ADD ITIONAL GROUND OR TO MODIFY ANY OF THE GROUNDS BEFORE OR AT THE TIME OF HEARING OF THE APP EAL. 3. AT THE TIME OF HEARING, AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AO PASSED THE ASSESSMENT ORDER EX PARTE MA KING VARIOUS ADDITIONS ON ESTIMATE BASIS AND THE SAME HAS BEEN CONFIRMED BY THE LD. CI T(A). HE THEREFORE, PRAYED THAT THE ORDERS OF THE LOWER AUTHORITIES MAY BE SET ASIDE AN D THE MATTER MAY KINDLY BE RESTORED TO THE FILE OF THE AO FOR FRESH ADJUDICATION AFTER ALL OWING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. ON THE OTHER HAND, THE LD. DR SUPPORTED OF THE O RDERS OF THE LOWER AUTHORITIES. 2 5. AFTER HEARING BOTH THE PARTIES, PERUSING THE MAT ERIAL AVAILABLE ON RECORD AND THE ORDERS OF THE LOWER AUTHORITIES, WE FIND THAT THE A O PASSED THE ASSESSMENT ORDER EX PARTE. THEREFORE, IN THE INTEREST OF NATURAL JUSTIC E AND FAIR PLAY, ONE MORE OPPORTUNITY BE GIVEN TO THE ASSESSEE. HENCE, THE MATTER IS RESTOR ED TO THE FILE OF THE AO FOR FRESH ADJUDICATION AFTER AFFORDING A REASONABLE OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COOPERATE IN THE ASSES SMENT PROCEEDINGS BEFORE THE AO OTHERWISE ADVERSE VIEW MAY BE TAKEN. THE APPEAL OF THE ASSESSEE IS, THEREFORE, ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES 7. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- (B. C. MEENA) ( D. K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 6 TH APRIL, 2010 COPY FORWARDED TO THE :- 1) SRI ASHIS CHATTERJEE, 222, JODHPUR PARK, 3 RD FLOOR, KOLKATA-68. 2) ITO, WARD-34(2), KOLKATA. 3) CIT(A), KOLKATA 4) CIT, KOLKATA. 5) D. R. ITAT, KOLKATA. (TRUE COPY) BY ORDER DEPUTY REGISTRAR JD. (SR. P.S.) I.T.A.T., KOLKATA