Saroj Kumar Karmakar, Kolkata V. ACIT, Cir-47, Kolkata, Kolkata

ITA 1771/KOL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1450 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 01-08-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHARJEE CIT LD
• Assessee Lawyers: SANJAY KR SINH A CHOWDHURY LD
• Keywords: Capital asset; Application of stay
• Section: 2(14)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : A BENCH KOLKAT A BEFORE : SHRI S.S.VISWANETHRA RAVI, JUDIC IAL MEMBER AND SHRI DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER S.A NO. 85/KOL/2017 [IN ITA NO. 1771/KOL/2 017 A.Y 2013-14] AND ITA NO. 1771/KOL/2017 A.Y 2013-14 SAROJ KUMAR KARMAKAR VS. ASSISTANT COMMISSIONER O F PAN: BOJPK-9844L INCOME TA X, CIR-47, KOLKATA [APPLICANT/ASSESSEE ] [RESPONDENT/ DEPARTMENT ] APPLICANT/APPELLANT BY : SHRI SANJAY KR. SINH A CHOWDHURY,ADVOCATE, LD.AR RESPONDENT/DEPARTMENT BY : SHRI ARINDAM BHATT ACHARJEE, ADDL.CIT,LD.DR DATE OF HEARING : 08-09-2017 DATE OF PRONOUNCEMENT : 15-09-2017 ORDER SHRI S.S.VISWANETHRA RAVI, JM: THIS STAY APPLICATION FILED BY THE ASSESSEE SEEK ING GRANT OF STAY OF DEMAND OF RS. 89,91,830/-, WHICH IS ARISING OUT OF APPEAL IN ITA NO. 1771/KOL/2017 FOR THE A.Y 2013-14. 2. SRI SANJAY KR. SINHA CHOWDHURY,ADVOCATE, LD. AR APPEARED ON BEHALF OF ASSESSEE AND SRI ARINDAM BHATTACHARJEE, ADDL.CIT , LD. DEPARTMENTAL REPRESENTATIVE APPEARED ON BEHALF OF REVENUE. 3. THE LD.AR OF THE ASSESSEE SUBMITS THAT THE AO TR EATED THE SALE CONSIDERATION OF AGRICULTURAL LAND AS CAPITAL ASSE T AND DETERMINED THE CAPITAL GAIN AT RS.2,98,47,971/- AND DISALLOWED THE SAME. T HE SAID LAND IS A SALI LAND AND NOT CAPITAL ASSET WITHIN THE DEFINITION OF SECTION 2(14) OF THE ACT. OUT OF ABOVE SAID DEMAND, THE ASSESSEE ALREADY PAID OF RS.18,39,800/-. HE ALSO SUBMITS THAT THE CIT-A PASSED EX PARTE ORDER WITHOUT AFFORDING S.A NO. 85/KOL/17 & ITA N O. 1771/KOL/2017 SWARAJ KUMAR KARMAKAR 2 REASONABLE OPPORTUNITY TO THE ASSESSEE AND AS SUCH PRAYED TO STAY OF SAID DEMAND AND REMAND THE ISSUE INVOLVED IN THE APPEAL TO THE FILE OF THE CIT-A FOR HIS FRESH ADJUDICATION. 4. THE LD.DR ON THE OTHER HAND, SUBMITS THAT THE AS SESSEE DID NOT PRODUCE ANY EVIDENCE SHOWING THE PAYMENT OF TAX TO AN EXTENT OF RS.18,39,800/-. THE CIT-A AFFORDED MANY OPPORTUNIT IES TO THE ASSESSEE TO PROSECUTE HIS CASE, BUT HE DID NOT AVAIL THE SAME. THE LD.DR VEHEMENTLY OPPOSED IN GRANTING THE STAY OF ASSESSEE AND REMAND ING THE ISSUE TO THE FILE OF THE CIT-A. HE PRAYED TO DISMISS THE STAY APPLICA TION FILED BY THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE ASSESSEE DID NOT PRODUCE A NY EVIDENCE SHOWING THE AMOUNT WHICH ALREADY PAID IN HIS STAY APPLICATION. BUT, HOWEVER, HE SUBMITS THAT THE BANK ACCOUNT OF ASSESSEE WAS ATTACHED U/S. 226(3) OF THE ACT. WE FURTHER FIND THAT THE ISSUE IS TO BE DECIDED AS TO WHETHER THE LAND PROPERTY SOLD BY THE ASSESSEE IS AN AGRICULTURAL LAND OR CAP ITAL ASSET WITHIN THE MEANING OF SECTION 2(14) OF THE ACT, WHICH WAS NOT DECIDED BY THE CIT-A IN HIS ORDER. IT APPEARS FROM RECORD THAT THE ASSESSEE WAS REPRESENTED BY S/SH. SANDIP MODAK AND PRASANT DUTTA INITIALLY. THE REAFTER, THE ASSESSEE APPOINTED ANOTHER ADVOCATE, SRI SUMIT MONDAL IN THE FIRST APPELLATE PROCEEDINGS BEFORE THE CIT-A. AS PER THE CONTENTION S RAISED IN THE STAY APPLICATION, WE FIND THAT THE ADVOCATE REPRESENTING THE ASSESSEE APPEARED BEFORE THE CIT-A FROM 15-05-2017 AND REQUESTED FOR AN ADJOURNMENT TO 05- 06-2017. BUT, THE CIT-A PASSED EX PARTE ORDER ON 31-05-2017. THEREFORE, IN THE INTEREST OF JUSTICE AND TAKING INTO CONSIDER ATION THE SUBMISSIONS OF ASSESSEE, WE DEEM IT FIT AND PROPER TO REMAND THE I SSUE TO THE FILE OF THE CIT-A FOR HIS FRESH ADJUDICATION. THEREFORE, THE ST AY APPLICATION FILED BY THE ASSESSEE IS DISMISSED AND THAT OF THE APPEAL IN ITA NO. 1771/KOL/2017 FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE CIT-A ON 26-10-2017 AND ASSESSEE IS AT S.A NO. 85/KOL/17 & ITA N O. 1771/KOL/2017 SWARAJ KUMAR KARMAKAR 3 LIBERTY TO FILE ANY EVIDENCE TO PROSECUTE HIS CASE WITHOUT TAKING ANY FURTHER ADJOURNMENT. 6. IN THE RESULT, THE STAY APPLICATION FILED BY THE ASSESSEE IS LIABLE TO BE DISMISSED AND THAT OF THE ASSESSEES APPEAL IS ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 15-09-2017 SD/- SD/- DR. ARJUN LAL SAINI S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 15-09-2017 PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT SHRI SAROJ KUMAR KARMAKAR, VILL: PANIAR A, P.O PANCHLA, DIST: HOWRAH PIN 711302. 2 RESPONDENT THE ACIT, CIRCLE-47,KOLKATA 3 GOVT PLACE (WEST), KOLKATA-700001. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER SR.P.S, HEAD OF OFFICE ITAT KOLKATA