Sk. Sawkat Ali , North 24 Parganas V. ITO, Ward - 55(1), Kolkata , Kolkata

ITA 1854/KOL/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8765 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 29-08-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MADHU MALATI GHOSH
• Assessee Lawyers: S S ROY
• Keywords: Unexplained investment; Source of fund; Additional evidence; Reasonable cause
• Section: 144

Judgement Text

1 ITA NO. 1854/KOL/2018 SK. SAWKAT ALI, AY 2008-09 , C(SMC) , IN THE INCOME TAX APPELLATE TRIBUNAL C(SMC) BENCH: KOLKATA ( ) BEFORE . . , ) [BEFORE SHRI A. T. VARKEY, JM] I.T.A. NO. 1854/KOL/2018 ASSESSMENT YEAR: 2008-09 SK. SAWKAT ALI (PAN: AEYPA3970K) VS. INCOME-TAX OFFICER, WD-55(1), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 20.12.2018 DATE OF PRONOUNCEMENT 20.12.2018 FOR THE APPELLANT SHRI S. S. ROY, ADVOCATE FOR THE RESPONDENT SMT. MADHUMALATI GHOSH, ADDL. C IT ORDER THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAINST TH E ORDER OF THE LD. CIT(A)-6, KOLKATA DATED 22.02.2018 FOR AY 2008-09. 2. AT THE OUTSET, WE NOTE THAT THERE IS A DELAY OF 101 DAYS FOR FILING THE ASSESSEES APPEAL. THE ASSESSEE HAS FILED AN AFFIDAVIT ALONG WITH DOCTORS CERTIFICATE TO SHOW THAT THE ASSESSEE WAS SUFFERING FROM CHICKEN POX AND WAS UNA BLE TO FILE THE APPEAL ON TIME. AFTER HAVING GONE THROUGH THE CONDONATION APPLICATION AND DOCTORS MEDICAL CERTIFICATE, WE NOTE THAT THE DELAY IN FILING APPEAL ON TIME WAS NOT INT ENTIONAL AND THERE WAS REASONABLE CAUSE. THEREFORE, WE CONDONE THE DELAY AND PROCEED TO HEAR THE APPEAL ON MERITS. 3. THE ONLY GRIEVANCE OF THE ASSESSEE IS AGAINST TH E ACTION OF THE LD. CIT(A) IN CONFIRMING THE ADDITION OF RS.3,29,863/- WHICH WAS MADE BY THE AO AS UNEXPLAINED INVESTMENT OF THE ASSESSEE. BRIEF FACTS OF THE CAS E ARE THAT THE AO NOTED THAT THE ASSESSEE HAD MADE AN INVESTMENT TO THE TUNE OF RS.7,75,000/ -. ACCORDING TO AO FROM A PERUSAL OF THE BANK DETAILS AND OTHER SOURCES OF INCOME IT COU LD BE ONLY DISCERNED THAT THE ASSESSEE HAD AN AMOUNT OF RS.4,45,137/- WITH HIM. SINCE THE AS SESSEE DID NOT APPEAR AND HAD NOT GIVEN 2 ITA NO. 1854/KOL/2018 SK. SAWKAT ALI, AY 2008-09 JUSTIFICATION FOR THE REST OF THE AMOUNT TO MAKE TH E INVESTMENT, THE DIFFERENCE OF RS.3,29,863/- WAS ADDED AS UNEXPLAINED INVESTMENT O F THE ASSESSEE U/S. 144 OF THE INCOME- TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ). BEFORE THE LD. CIT(A), THE ASSESSEE CONTENDED THAT THE SOURCE OF THE INVESTMENT WAS FR OM SALE OF AGRICULTURAL PROPERTY WHICH WAS EXEMPT FROM TAX. HOWEVER, THE LD. CIT(A) DID N OT ALLOW THE ADDITIONAL EVIDENCE TO BE ADDUCED BEFORE HIM AND HE CONFIRMED THE ORDER OF TH E AO. AGGRIEVED, THE ASSESSEE IS BEFORE US. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. THE AFORESAID FACTS ARE NOT REPEATED FOR THE SAKE OF BREVITY. WE NOTE THAT THE AO HAS PASSED BEST JUDGMENT ASSESSMENT U/S. 144 OF THE ACT BECAUSE THE ASSESSEE DID NOT TURN UP BEFORE HIM WITH THE RELEVANT PAPERS TO SUBSTANTIATE THE INVESTMENT MADE BY ASSESSEE. THE AO NOTED THAT THERE IS A DIFFERENCE BETWEEN THE IN VESTMENT AND THE SOURCE OF INCOME, SO HE MADE AN ADDITION OF RS.3,29,863/-. BEFORE THE LD. CIT(A), THE ASSESSEE TRIED TO ADDUCE EVIDENCE TO SHOW THAT THE ASSESSEE HAD SOLD HIS AGR ICULTURAL PROPERTY AND THE SALE CONSIDERATION HE OBTAINED COULD EXPLAIN THE SOURCE OF THE INVESTMENT WAS NOT ENTERTAINED BY THE LD.CIT(A). WE NOTE THAT SINCE THE ASSESSEE COU LD NOT PRODUCE THE RELEVANT DOCUMENTS BEFORE THE AO FOR REASONS BEYOND HIS CONTROL [BECAU SE OF ILLNESS], THE LD. CIT(A) OUGHT TO HAVE CALLED FOR THE REMAND REPORT TO VERIFY THE VE RACITY OF THE DOCUMENTS PRODUCED BEFORE HIM, WHICH HE HAS NOT BOTHERED TO DO SO WHICH CULMI NATED IN CONFIRMATION OF THE ADDITION. WE ARE NOT IN AGREEMENT WITH THE AFORESAID ACTION O F LD.CIT(A). IN ANY CASE, THE DOCUMENTS TO SUBSTANTIATE THE INVESTMENT IS IN THE POSSESSION OF ASSESSEE, AND THE ADDITION WAS ORDERED BY AO BECAUSE THE ASSESSEE DID NOT TURN UP BEFORE HIM WITH THE RELEVANT PAPERS TO SUBSTANTIATE THE INVESTMENT MADE BY ASSESSEE. SO FOR THE INTEREST OF JUSTICE AND FAIR PLAY, WE SET ASIDE THE ORDER OF LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE AO FOR DE NOVO ADJUDICATION OF THIS ISSUE AND DIRECT THE ASSE SSEE TO PRODUCE ALL RELEVANT DOCUMENTS TO EXPLAIN THE SOURCE OF HIS INVESTMENT. NEEDLESS TO SAY, ASSESSEE SHOULD BE GIVEN OPPORTUNITY OF HEARING AND THE AO TO PASS A SPEAKING ORDER IN A CCORDANCE TO LAW. THEREFORE, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 3 ITA NO. 1854/KOL/2018 SK. SAWKAT ALI, AY 2008-09 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- (A. T. VARKEY) JUDICIAL MEMBER DATED: 20TH DECEMBER, 2018 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 APPELLANT SK. SAWKAT ALI, P.O. SURYAPUR, KHARDAH, DIST. 24 PARGANAS (NORTH). 2 RESPONDENT ITO, WARD-55(1), KOLKATA. 3 4 5 CIT(A)-6, KOLKATA. (SENT THROUGH E-MAIL) CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR