Dr. Saumabha Dasgupta, Kolkata V. CIT(Appeal)-21 & ITO, Ward No. 55(3), Kolkata, Kolkata

ITA 1799/KOL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4096 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 09-09-2016
• Court: TRIBUNAL
• Assessee Lawyers: RAGHUNATH DAS
• Keywords: Depreciation; Application of stay; Initiation of penalty proceedings
• Section: 143(3); 142(1); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL,B BENCH KOLKATA BEFORE : SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER AND SHRI DR. A.L. SAINI, ACCOUNTANT MEMBER S.A. NO. 46/KOL/2016 IN ITA NO. 1799/KO L/2016 (A.Y 2009 -10) AND ITA NO. 1799/KOL/2016 A.Y 2009-10 DR. SAUMBHA DASGUPTA 197, JANAKINATH BOSE ROAD, PURBAYAN, SUBHASGRAM KOLKATA-700147 PAN : ADPPD5641L .APPELLANT VS I.T.O WARD 55(3), KOLKATA 54/1, RAFI AHMED KIDVAI ROAD, KOLKATA-700016 .RESPONDENT FOR APPELLANT : SHRI RAGHUNATH DAS, ADVOCAT E, AR FOR RESPONDENT : NONE DATE OF HEARING : 11-11-2016 DATE OF PRONOUNCEMENT : 14-12-2016 ORDER SHRI S.S.VISWANETHRA RAVI, JM: THE ABOVE STAY APPLICATION AND APPEAL BY THE AS SESSEE ARE AGAINST THE ORDER DATED 13-04-2016 PASSED BY THE CO MMISSIONER OF INCOME TAX(APPEALS)-21, KOLKATA FOR THE ASSESSME NT YEAR 2009-10, WHEREIN HE CONFIRMED THE DEMAND DT:29-06-2 012 AS RAISED BY THE AO U/SEC 156 OF THE ACT, WHICH INTURN ARISE AGAINST THE ORDER BY AO IMPOSING THE PENALTY U/S.271(1)(C) OF THE ACT. 2. THEREBY, THE ASSESSEE FILED THIS STAY APPLICATIO N IN SA NO. 46/KOL/2016 IN ITA NO.1799/KOL/2016 FOR AY 2009-10 PRAYING THIS TRIBUNAL S.P NO. 46/KOL/2016 [IN ITA NO. 1 799/KOL/2016] DR. SAUMAB HA DASGUPTA 2 TO GRANT STAY OF DEMAND OF RS.8,94,729/- OUTSTANDIN G FOR A.Y 2009-10 AS RAISED BY THE AO AND CONFIRMED BY THE CIT-A BY THEI R RESPECTIVE ORDERS. 3. THE ABOVE SAID STAY APPLICATION CAME UP FOR HEAR ING ON 4-11-2016 AND THE LD.AR SUBMITTED THAT THE PENALTY PROCEEDINGS AS CONDUCTED BY THE AO WAS NOT IN THE KNOWLEDGE OF THE ASSESSEE AND NO NOT ICES WERE RECEIVED BY THE ASSESSEE FROM THE CIT-A IN THE APPELLATE PROCEE DINGS AND URGED TO REMAND THE APPEAL TO THE FILE OF THE CIT-A, BUT, HO WEVER, THE LD.DR RAISED AN OBJECTION THAT THIS TRIBUNAL CANNOT DISPOSE OFF THE SAID APPEAL AS IT WAS NOT LISTED FOR HEARING BEFORE THE BENCH AND THE STA Y APPLICATION IS BEING LISTED FOR HEARING. TAKING INTO CONSIDERATION SUCH OBJECTION OF THE LD.DR, WE DIRECTED THE REGISTRY TO FIX THE STAY APPLICATION A LONG WITH SAID APPEAL ON 11- 11-2016. ON 11-11-2016 THE LD. DR HAS FILED ADJOURN MENT APPLICATION AND THE SAME IS REJECTED. THEREFORE, WE DISPOSE OFF THE CASE OF ASSESSEE AFTER HEARING THE LD. AR AND PERUSING THE MATERIAL AVAILA BLE ON RECORD ON MERITS. 4. BEFORE ADVERTING TO THE MERITS OF THE CASE, LET US EXAMINE THE FACTS OF THE CASE IN THE LIGHT OF THE SUBMISSIONS OF THE LD. AR AS MADE BY HIM DURING THE COURSE OF HEARING OF STAY APPLICATION THAT THE AO CONDUCTED THE PENALTY PROCEEDINGS BEHIND THE BACK OF THE ASSESSEE. THE AS SESSEE IS AN INDIVIDUAL AND IS A DOCTOR BY PROFESSION AND DERIVES HIS INCOM E FROM SALARY AND RECEIPTS THROUGH PROFESSION AND ON CT SCAN MACHINES . THE ASSESSEE FILED HIS RETURN OF INCOME THROUGH ONLINE BY DECLARING A TOTA L INCOME OF RS.15,52,822/- ON 16-01-2010. UNDER SCRUTINY NOTIC E U/S. 143(2) AND THEREAFTER, NOTICE U/S. 142(1) WAS ISSUED TO THE AS SESSEE. IN RESPONSE TO WHICH, THE ASSESSEE FILED AUDIT REPORT, PROFIT & LO SS ACCOUNT, BALANCE SHEET FOR THE YEAR UNDER CONSIDERATION. 5. DURING SUCH PROCEEDINGS, THE AO BASING ON AIR IN FORMATION FOUND THAT THE ASSESSEE DEPOSITED CASH TO AN EXTENT OF RS.20,8 3,060/- IN HIS SAVING BANK ACCOUNT AND BANK STATEMENT U/S. 133(6) OF THE ACT FROM THE BANK WAS OBTAINED. IN EXPLANATION, THE ASSESSEE PRODUCED THE EVIDENCE REGARDING S.P NO. 46/KOL/2016 [IN ITA NO. 1 799/KOL/2016] DR. SAUMAB HA DASGUPTA 3 CASH DEPOSITS AND FURTHER SUBMITTED THAT HE DEBITED AN AMOUNT OF RS.26,32,323/- AS INTEREST ON HIS PERSONAL LOAN AND SUCH PERSONAL LOAN WAS NOT AT ALL RELATED TO HIS PROFESSIONAL INCOME. NOT SATISFIED WITH THE ABOVE THE AO DETERMINED THE TOTAL INCOME AT RS.41,85,150/- BY MAKING ADDITION OF RS.26,32,323/- AND TO THAT EFFECT AN ORDER U/S. 143 (3) OF THE ACT WAS PASSED ON 29-12-2011 AT PAGE NO-24 OF PAPER BOOK . 6. AGGRIEVED BY SUCH ORDER U/S. 143(3) OF THE AO TH E ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT-A, WHEREIN THE ASSESSEE RA ISED ADDITIONAL GROUND CLAIMING 40% DEPRECIATION ON CT SCAN MACHINES AND A CCORDING TO CIT-A, THEREAFTER, THE ASSESSEE FILED AN LETTER DT:29-01-2 013 BEFORE HIM SEEKING TO WITHDRAW THE ADDITIONAL GROUND AND REQUESTED TO CON SIDER THE DEPRECIATION AT 15% AS CLAIMED IN THE ORIGINAL RETURN. ANOTHER C ONTENTION AS RAISED BY THE ASSESSEE BEFORE THE CIT-A WAS THAT IN RESPECT OF IN TEREST AMOUNT BEING THE INTEREST PAID ON PERSONAL LOAN DEBITED INADVERTENTL Y TO THE PROFIT AND LOSS ACCOUNT. HAVING HEARD THE ASSESSEE IN PERSON, THE C IT-A CONFIRMED THE ORDER OF THE AO AT PAGE NO-31 OF PAPER BOOK . 7. THE ASSESSEE ASSAILED THE ORDER OF CIT-A BEFORE THE TRIBUNAL AND THE ASSESSEE SUCCEEDED BEFORE THE TRIBUNAL. THE TRIBUNA L HELD THAT THOUGH THE NOMENCLATURE OF LOAN AS STATED BY THE ASSESSEE AS PERSONAL LOAN WOULD NOT MAKE INTEREST THEREON PER SE DISALLOWABLE AND WHEN THE LOAN AMOUNTS HAVE BEEN USED FOR THE PURPOSE OF BUSINESS AND IRRESPECT IVE OF THE NAME OF THE LOAN, INTEREST THEREON IS ALLOWABLE IN PARA-5 AT PAGE NO-36 OF PAPER BOOK. REGARDING THE CLAIM OF DEPRECIATION, THE TRIBUNAL H ELD THAT THE CT SCAN IS A LIFE SAVING MEDICAL MONITORING EQUIPMENT AND IT IS ELIGIBLE FOR ENHANCED DEPRECIATION AT 40%, WHILE HOLDING THE SAME, IT IS PERTINENT TO NOTE THAT, THE TRIBUNAL OBSERVED THAT IT IS THE DUTY OF THE AO TO ENSURE THAT AN ASSESSEE GETS ALL THE DEDUCTION AND ALLOWANCES STATUTORILY A LLOWABLE IRRESPECTIVE OF THE FACT THAT WHETHER THE ASSESSEE CLAIMED PROPERLY OR NOT IN PARA-6 AT PAGE NO- 36 OF PAPER BOOK. 8. THE REVENUE PREFERRED AN APPEAL BEFORE THE HONB LE HIGH COURT OF CALCUTTA, WHEREIN THE HONBLE CALCUTTA HIGH COURT H AS MODIFIED THE ORDER OF S.P NO. 46/KOL/2016 [IN ITA NO. 1 799/KOL/2016] DR. SAUMAB HA DASGUPTA 4 TRIBUNAL BY ALLOWING THE DEPRECIATION AT THE RATE O F 15% AS AGAINST 40% AS HELD BY THE TRIBUNAL AT PAGE NO-39 OF PAPER BOOK. IN PURSUANCE OF SUCH ORDER THE ASSESSEE PREFERRED AN APPLICATION BEFORE THE AO FOR AMENDMENT OF ASSESSMENT CLAIMING LOSS OF RS.17,19,676/- AT PAGE NO-40 OF PAPER BOOK . ACCORDING TO ASSESSEE, THE AO DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS.15,52,820/- AT PAGE NO-42 OF PAPER BOOK AND IMMEDIATELY, RAISED A DEMAND UNDER NOTICE U/S. 156 OF THE ACT TO PAY AN A MOUNT OF RS.5,36,162/- ON THE SAME DAY I.E 18-02-2015 AT PAGE NO-41 OF PAPER BOOK . 9. IMMEDIATELY, THEREAFTER, THE ASSESSEE QUESTIONED THE SAME BEFORE THE HONBLE HIGH COURT OF CALCUTTA IN W.P NO. 433 OF 20 15, WHEREIN THE HONBLE HIGH COURT OF CALCUTTA DISPOSED OF SUCH WRIT PETITI ON BY OBSERVING THAT THE ASSESSEE SHALL APPROACH THE APPELLATE AUTHORITY WIT HIN SIX WEEKS AND DIRECTED THE REVENUE TO NOT TO TAKE ANY COERCIVE AC TION AGAINST THE ASSESSEE TILL THE DISPOSAL OF SUCH APPEAL AT PAGE NO-46 OF PAPER BOOK . 10. ACCORDINGLY, THE ASSESSEE PREFERRED AN APPEAL B EFORE THE CIT-(A)-6 ON 19-6-2015 AT PAGE NO-47 OF PAPER BOOK, ACCORDING TO ASSESSEE AND IT IS EVIDENT FROM THE ORDER IMPUGNED IN PARA NO-3.1 THAT THE SAID APPEAL IS PENDING ADJUDICATION. 11. ACCORDING TO THE ASSESSEE THE APPEAL FILED AGAI NST ORDER U/SEC 271(1)(C) OF THE ACT WAS TRANSFERRED TO THE FILE OF CIT-(A)-21 FROM CIT-(A)- XXXVI WITHOUT ANY INTIMATION TO THE ASSESSEE AND SU BMITTED THAT THE ADDRESS OF THE ASSESSEE CHANGED AND THAT THE NEW AD DRESS WAS IN THE KNOWLEDGE OF THE REVENUE AUTHORITIES AND VERSION OF WHICH IS SUPPORTED BY HIS SUBMISSIONS IN PARA-8 AT PAGE NO-6 OF PAPER BOOK. THE CIT-(A)-21 CONFIRMED THE PENALTY AS IMPOSED BY THE AO AS WAS T HE OUTSTANDING DEMANDED UNDER NOTICE DATED 29-06-2012 OF RS.8,94,7 29/- IS THE IMPUGNED DEMAND AS RAISED BY THE AO U/SEC 156 OF THE ACT. S.P NO. 46/KOL/2016 [IN ITA NO. 1 799/KOL/2016] DR. SAUMAB HA DASGUPTA 5 12. AGGRIEVED, THE ASSESSEE FILED THIS APPEAL ALONG WITH STAY APPLICATION BEFORE THE TRIBUNAL. 13. BEFORE US THE LD. AR SUBMITS THAT THE NOTICE FO R INITIATION OF PENALTY PROCEEDINGS AS SUBMITTED ABOVE COULD NOT BE PROPERL Y SERVED ON THE ASSESSEE AS THE ASSESSEE CHANGED HIS ADDRESS. THE A SSESSEE CAME TO THE KNOWLEDGE OF SUCH PROCEEDINGS WHEN THE DEMAND AS IM PUGNED RECEIVED BY THE ASSESSEE. THE CHANGE OF ADDRESS WAS ALSO INTIMA TED TO THE RESPONDENT REVENUE IN THE APPELLATE PROCEEDINGS IN WHICH THE O RIGINAL ASSESSMENT ORDER PASSED U/S. 143(3) OF THE ACT WAS CHALLENGED AND EV EN THE ASSESSEE MENTIONED THE NEW ADDRESS BEFORE THE TRIBUNAL. THER EBY, THE ASSESSEE COULD NOT PROSECUTE THE APPEAL AND NO PROPER OPPORTUNITY WAS AFFORDED IN THE PENALTY PROCEEDINGS BEFORE THE AO AND THE CIT-A. TH E LD.AR ARGUED THAT THERE WAS NO SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO PROSECUTE HIS CASE BEFORE THE AO AND THE CIT-A AND THE ORDERS PASSED B Y THEM WERE EX-PARTE WHICH ARE AGAINST LAW. THE APPLICATION FOR ADJOURNM ENT WAS FILED BY THE LD. DR, WHICH WAS REJECTED FOR THE REASONS INDICATED AB OVE. 14. HEARD SUBMISSIONS OF LD.AR AND PERUSED THE MATE RIAL AVAILABLE ON RECORD. WE FIND THAT AS PER DIRECTION OF THE HONBL E HIGH COURT OF CALCUTTA THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT-A ON QU ANTUM ADDITION. AS MATTER STOOD THUS, THE REVENUE INITIATED PENALTY PR OCEEDINGS AGAINST THE ASSESSE AND THE NOTICES IN SUCH PROCEEDINGS COULD N OT BE SERVED IN VIEW OF THE CHANGE OF ADDRESS. THE ADDRESS IN THE IMPUGNED ORDER GOES TO SHOW THAT THE OLD ADDRESS OF THE ASSESSEE WAS MENTIONED THERE IN. WE FIND THAT THE ENTIRE PENALTY PROCEEDING WAS NOT IN THE KNOWLEDGE OF THE ASSESSEE. THE ASSESSEE RECEIVED DEMAND NOTICE DATED 29-06-2012, W HICH WAS CHALLENGED BEFORE THE CIT-A. ADMITTEDLY, THE ASSESSEE COULD NO T PROSECUTE THE APPEAL BEFORE THE CIT-A AND THE CIT-A PASSED AN EX-PARTE O RDER CONFIRMING THE IMPUGNED PENALTY. TAKING INTO CONSIDERATION THE FAC TS AND CIRCUMSTANCES OF THE CASE AND PERUSING THE MATERIAL AVAILABLE ON REC ORD AND THE SUBMISSIONS OF THE ASSESSEE BEFORE US, IN THE INTEREST OF JUSTI CE, WE DEEM IT FIT AND PROPER S.P NO. 46/KOL/2016 [IN ITA NO. 1 799/KOL/2016] DR. SAUMAB HA DASGUPTA 6 TO REMAND THE CASE TO THE FILE OF THE CIT-A FOR FRE SH ADJUDICATION OF THE CASE AFTER GIVING THE ASSESSEE ADEQUATE OPPORTUNITY OF H EARING. THUS, WE SET ASIDE THE IMPUGNED ORDER OF THE CIT-A IN ORDER TO G IVE ONE MORE OPPORTUNITY TO THE ASSESSEE IN THE INTEREST OF JUSTICE. ACCORDI NGLY, THE MATTER IS REMANDED TO THE CIT-A FOR FRESH ADJUDICATION OF THE ISSUE(S) INVOLVED IN THIS APPEAL. IN VIEW OF THIS, THE STAY APPLICATION FILED BY THE ASSESSEE BECOMES INFRUCTUOUS AND THE SAME IS ACCORDINGLY IS DISMISSE D. 15. IN THE RESULT, THE STAY PETITION FILED BY THE A SSESSEE IS DISMISSED AND APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH DECEMBER,2016 SD/- SD/- DR. A.L. SAINI S.S.VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 14 -12-2016 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT/APPLICANT : SHRI DR. SAUMABHA DASGUPTA 197 JANAKINATH BOSE ROAD, PURBAYAN P.O SUBHASGRAM, KOLK ATA- 700 0147. 2 RESPONDENT/DEPARTMENT : INCOME TAX OFFICER W 55(3) 54/1 RAFI AHMED KIDWAI ROAD, KOLKATA-16. 3. CIT, 4. CIT(A), 5. DR, KOLKATA BENCHES, KOLKATA **PP/SPS TRUE COPY] BY ORDER, ASSTT REGISTR AR.