Shri Haradhan Mondal, South 24 Parganas V. ITO, Wd-53(4), Kolkata, Kolkata

ITA 1936/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9552 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 04-10-2016
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI A.T.VARKEY, JM & DR. A.L.SAINI, AM ./ ITA NO.1936/KOL/2016 ( / ASSESSMENT YEAR:2011-2012) SHRI HARADHAN MONDAL, PURUSHOTTAMPUR, BAGBAZAAR, SAGAR, SOUTH 24 PARGANAS, PIN-743373 VS. ITO, WARD-53(4) (NOW, WD 26(4), KOLKATA ./ ./PAN/GIR NO. : AJIPM 9666 M ( /APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : NONE REVENUE BY : SHRI BISWANATH DAS, JCIT / DATE OF HEARING : 02/01/2017 /DATE OF PRONOUNCEMENT 13/01/2017 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAIN ING TO THE ASSESSMENT YEAR 2011-2012, IS DIRECTED AGAINST THE ORDER PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-7, KOLKATA, IN APPEAL NO.541/CIT(A)-7/KOL/WD-26(4)/14-15, DATED 19.08.201 6, WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFI CER (AO) UNDER SECTION 144 OF THE INCOME TAX ACT 1961, (IN SHORT T HE ACT), DATED 14.03.2014. 2. BRIEF FACTS OF THE CASE QUA THE ASSESSEE ARE THA T ASSESSEE FILED ITS RETURN OF INCOME OF RS.4,90,030/-, ON DATED 10/03/2 012. THE ASSESSEE HAD DERIVED HIS INCOME FROM SELLING OF FISH. THE AS SESSEES CASE WAS SELECTED FOR SCRUTINY U/S.143(3) OF THE ACT AND THE AO HAS COMPLETED THE ASSESSMENT BY MAKING THE ADDITION @5% ESTIMATED THE NET PROFIT ON TURNOVER AT RS.15,87,932/-. ITA NO.1936/16 SHRI HARADHAN MONDAL 2 3. AGGRIEVED FROM THE ORDER OF THE AO, ASSESSEE FIL ED AN APPEAL BEFORE THE LD CIT(A), WHO HAS CONFIRMED THE ADDITIO N MADE BY THE AO BY PASSING AN EX-PARTE ORDER OBSERVING THE FOLLOWINGS :- 3.3 THE HON'BLE HIGH COURT OF M.P. IN THE CASE OF TUKOJIRAO HOLKAR VS. CWT(223 ITR 480) HAD HELD THAT 'IF THE P ARTY, AT WHOSE INSTANCE THE REFERENCE IS MADE AT, FAILS TO A PPEAR HEARING .... ,. THE COURT IS NOT BOUND TO ANSWER TH E REFERENCE.' SIMILARLY THEIR LORDSHIP, IN CASE OF CIT VS. B N BH ATTACHARYA( 118 ITR 461) ( RELEVANT PAGES 477 & 478) HAD HELD T HAT APPEAL NOT MEAN MERELY FILING OF APPEAL BUT EFFECTIVELY PU SUING IT.'RECENTLY HON'BLE ITAT DELHI (ITR NO. 2006/DEL/2 011 DATED 19.11. 2011) IN THE CASE OF WHIRLPOOL OF INDIA LTD. V DCIT HAD DISMISSED APPEAL FOR NOT ATTENDING HEARING INFERRIN G THAT THE ASSESSEE IS NOT INTERESTED IN PROSECUTING OF APPEAL . THEREAFTER IN ANOTHER DECISION IN THE CASE OF CHADHA FINLEASE LTD. VS. ACIT (ITA NO. 3013/DEL/2011 DATE OF ORDER 20/12/201 1) THE HON'BLE ITAT HAD DISMISSED THE APPEAL FOR NON-ATTEN DING HEARING INFERRING THAT THE ASSESSEE IS NOT INTEREST ED IN PURSUING THE APPEAL. IN THIS REGARD I AM ALSO SUPPORTED BY T HE DECISION IN THE CASE OF CIT VS. MULTIPLAN INDIA PVT. LTD. (38 I TD) 320(DEL). APART FROM THE DISMISSAL FOR WANT OF PERSUASION OF APPEAL, THE SAME IS LIABLE TO BE REJECTED ON MERIT ALSO WHICH I S DISCUSSED HEREINAFTER. 3.4 I HAVE PERUSED THE GROUNDS OF APPEAL, STATEMENT OF FACTS AND THE ASSESSMENT ORDER. THE ASSESSEE HAS NOT PROD UCED ANY MATERIAL TO CONTROVERT THE FINDING OF A O. FURTHER, FROM THE ABOVE CONDUCT OF THE ASSESSEE, IT IS CLEAR THAT THE ASSESSEE IS NOT INTERESTED IN PROSECUTING ITS APPEAL. IN THE EV ENT, I HAVE NO REASON TO INTERFERE WITH THE FINDINGS OF THE AO. IN SUCH CIRCUMSTANCES, I DISMISS THE CLAIM OF THE APPELLANT . 4. IN THE RESULT, THE APPEAL IS DISMISSED. 4. NOT BEING SATISFIED WITH THE ORDER OF LD. CIT(A) , THE ASSESSEE IS IN FURTHER APPEAL BEFORE US AND HAS TAKEN THE FOLLOWIN G GROUNDS OF APPEAL :- 1(A). FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE, CIT(A) ERRED IN PASSING AN EX-PARTE ORDER WITHOUT D ECIDING THE ISSUE ON MERIT. (B) FOR THAT THE ASSESSEE WAS PREVENTED BY A REASON ABLE CAUSE. AS SUCH ASSESSEE CANNOT BE PENALIZED FOR NO FAULT ON H IS PART. ITA NO.1936/16 SHRI HARADHAN MONDAL 3 2. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, CIT(A) OUGHT TO HAVE MADE A REASONABLE ESTIMATE OF ASSESSEES INCOME INASMUCH AS THE AO PASSED THE ASSESSMENT ORD ER MAKING ARBITRARY ESTIMATION. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY AROUND BEFORE OR AT THE TIME OF HEARING. 5. ALTHOUGH IN THIS APPEAL, THE ASSESSEE HAS RAISED FIVE GROUNDS OF APPEAL BUT AT THE TIME OF HEARING THE MAIN GRIEVANC E OF THE ASSESSEE HAS BEEN CONFINED TO GROUND NO.1(A) ONLY AND OTHER GROUNDS WERE NOT PRESSED. GROUND NO.1(A) RELATES TO AN EX-PARTE ORDER, PASSED BY LD. CIT(A) WITHOUT DECIDING THE ISSUE ON MERITS AND WITHOUT GI VING AN OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. 5.1 LD. AR FOR THE ASSESSEE HAS SUBMITTED THAT DURI NG THE APPELLATE PROCEEDING THE ASSESSEE HAS REQUESTED BEFORE LD. CI T(A) FOR ADJOURNMENT ON 15-6-2015 AND 6-11-2015. THE LD. AR FOR THE ASSE SSEE HAS POINTED OUT THAT THE EXP-PARTE ORDER PASSED BY LD. CIT(A) I S WITHOUT DECIDING THE ISSUE ON MERIT. THE LD. CIT(A) DID NOT CONSIDER THE ASSESSMENT ORDER AND OTHER MATERIAL AVAILABLE ON RECORD TO ADJUDICATE TH E CASE. THE LD. AR HAS POINTED OUT THAT ADHOC DEDUCTION AND ADHOC ESTIMATI ON OF PROFIT WITHOUT REJECTING THE BOOKS OF ACCOUNTS IS NOT PERMITTED IN LAW. AS LD. AO HAS PASSED THE ASSESSMENT ORDER BY MAKING ESTIMATE RATE OF 5% OF TOTAL TURNOVER WITHOUT BRINGING ANY MATERIAL ON RECORD. L D. THE AR HAS ALSO POINTED OUT THAT THE ESTIMATE NET PROFIT @5% OF THE TOTAL TURNOVER IS KIND OF ADHOC ADDITION. THE ASSESSEE HAS MENTIONED IN HIS GROUND OF APPEAL THAT CIT(A) OUGHT TO HAVE MADE A REASONABLE ESTIMATE OF ASSESSEES INCOME ITA NO.1936/16 SHRI HARADHAN MONDAL 4 INASMUCH AS THE AO PASSED THE ASSESSMENT ORDER MAK ING ARBITRARY ESTIMATION. 6. ON THE OTHER HAND, LD. DR FOR THE REVENUE HAS PR IMARILY REITERATED THE STAND TAKEN BY THE AO, WHICH WE HAVE ALREADY NO TED IN OUR EARLIER PARA AND IS NOT BEING REPEATED FOR THE SAKE OF BREV ITY. 7. HAVING HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD, WE ARE OF THE VIEW THAT THERE IS MERIT IN THE APPEA L FILED BY THE ASSESSEE. AS WE HAVE NOTED FROM THE GROUNDS OF APPEAL FILED B Y THE ASSESSEE THAT IT IS AN EX-PARTE ORDER WITHOUT DECIDING THE ISSUE ON MERIT. THE AO MADE ESTIMATE @5% OF THE TURNOVER WITHOUT ANY BASE. APAR T FROM THIS, LD. CIT(A) PASSED THE ORDER EX-PARTE WITHOUT THE PRESEN CE OF THE ASSESSEE. THEREFORE, CONSIDERING THE ABOVE FACTUAL POSITION, WE ARE OF THE VIEW TO REMIT THE CASE BACK TO FILE OF LD. CIT(A) TO ADJUDI CATE THE ISSUE AFRESH AFTER TAKING INTO ACCOUNT THE SUBMISSION AND EVIDENCES SU BMITTED BY THE ASSESSEE. EVEN LD. DR FOR REVENUE HAS ALSO AGREED T O REMIT THE CASE BACK TO THE FILE OF LD. CIT(A). ACCORDINGLY, WE REM IT THE CASE BACK TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO ADJUDICATE T HE ISSUE AFTER GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 13/0 1/2017. S D/ - (A.T.VARKEY) S D/ - (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; ! DATED 13/01/2017 ' $%& /PRAKASH MISHRA , 0 . / PS ITA NO.1936/16 SHRI HARADHAN MONDAL 5 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) % & , / ITAT, 1. / THE APPELLANT- SHRI HARADHAN MONDAL 2. / THE RESPONDENT.-ITO, WARD-53 (4), KOLKATA 3. 1 ( ) / THE CIT(A), KOLKATA. 4. 1 / CIT 5. 23 4 0056 , 56 , / DR, ITAT, KOLKATA 6. 4 78 / GUARD FILE. 2 0 //TRUE COPY//