I.T.O Wd - 2(2),Durgapur, Durgapur V. Satyapriya Joardar, Durgapur

ITA 196/KOL/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4981 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 29-01-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: V N PUROHIT
• Keywords: Opportunity of being heard; Principle of natural justice; Source of fund
• Section: 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A, KOLKATA (BEFORE SHRI P. M. JAGTAP, A.M. & SHRI S.S.VISWANET HRA RAVI, J.M.) ITA NO. 196/KOL/2013 : AS STT. YEAR : 2009-2010 I.T.O., WARD-2(2) DURGAPUR VS SATYAPRIYA JOARDAR (PAN: ACZPJ 5490Q) (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI V.N.PUROH IT, FCA DATE OF HEARING : 05.01.2016 DATE OF PRONOUNCEMENT : 04-03-2016 ORDER PER SHRI S.S.VISWANETHRA RAVI, J.M . THIS APPEAL IS FILED BY THE REVENUE HAVING AGGRIEVE D BY THE ORDER DATED 19.09.2012 PASSED BY THE CIT(APPEALS), DURGAP UR IN APPEAL NO.236/CIT(A)/DGP/11-12 FOR THE ASSESSMENT YEAR 200 9-10 FRAMED UNDER SECTION 143(3) OF I.T.ACT. 2. CHALLENGING THE ABOVE IMPUGNED ORDER, THE APPELL ANT REVENUE RAISED THE FOLLOWING GROUNDS: 1. THE LD. CIT(A)-DURGAPUR, HAS ERRED IN DIRECTING THE AO TO VERIFY THE DOCUMENTS WHICH IS NOT IN ACCORDANCE WITH THE POWER GIVEN U/S 251 OF THE IT ACT, 1961. 2. YOUR APPELLANT HUMBLY RESERVES THE RIGHT TO AD DUCE/ AMEND ANY GROUND, WHICH MAY ARISE IN THE COURSE OF APPEAL PROCEEDINGS. 3. AT THE TIME OF HEARING IT IS NOTED THAT THE APPE AL HAS BEEN FILED BY THE REVENUE BELATEDLY BY 51 DAYS AND FOR CONDONATIO N OF DELAY, THE REVENUE HAS FILED AN AFFIDAVIT DULY ENDORSED BY THE ASSESSING OFFICER. AFTER GOING THROUGH THE AFFIDAVIT FILED BY THE REVE NUE AND CONSIDERING 2 ITA NO.196/KOL/2013 S ATYAPRIYA JOARDAR ASSESSMENT YEAR: 2009-10 THE SAME, WE ARE OF THE VIEW THAT THERE WAS A SUFFI CIENT CAUSE FOR DELAY IN FILING THE APPEAL BY THE REVENUE AND ACCORDINGLY THE DELAY IS CONDONED AND APPEAL IS ADMITTED FOR HEARING. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL HAVING DEALING WITH THE BUSINESS IN PROVIDING SECURITY SER VICES. THE ASSESSEE FILED ITS RETURN OF INCOME THROUGH METHOD OF E-FILI NG DECLARING INCOME OF RS.5,31,380/- WHICH WAS DULY PROCESSED AND SUBSE QUENTLY, ON SCRUTINY NOTICES UNDER SECTION 143(2) AND 142(1) WE RE ISSUED AND IN RESPONSE TO WHICH THE ASSESSEE APPEARED BEFORE THE AO, PRODUCED DOCUMENTS IN SUPPORT OF HIS PAYMENTS RELATING TO PF AND SERVICE TAX. DURING THE COURSE OF ASSESSMENT, THE AO FOUND THAT THE ASSESSEE DEBITED VARIOUS EXPENSES FROM HIS P&L A/C. AND THE SAME WER E NOT VERIFIABLE FROM THE CASH BOOK AS PRODUCED BY THE ASSESSEE. THE REFORE, THE AO BY INVOKING SECTION 145(3) ESTIMATED THE INCOME OF THE ASSESSEE @8% AGAINST THE TOTAL RECEIPTS OF RS.2,00,92,324/-, THU S ADDED RS.16,07,425/- TO THE INCOME OF THE ASSESSEE. THE AO ALSO FOUND ON EXAMINING BANK STATEMENTS FURNISHED BY THE ASSESSEE RELATING TO ST ATE BANK OF INDIA, CITY CENTRE BRANCH AND UNION BANK OF INDIA, BENACHI TI BRANCH WHEREIN THE ASSESSEE HAS PLEDGED VARIOUS FIXED DEPOSITS AMO UNTING TO RS.32.70 LAKHS AS COLLATERAL SECURITY TO OBTAIN OVERDRAFT. O N EXAMINATION, IT WAS FOUND BY THE AO THAT THE SAID FIXED DEPOSITS WERE N OT REFLECTED IN THE BALANCE-SHEET AND FOR THE NON-SUBMISSION OF THE EXP LANATION OF THE ASSESSEE, THE AO ADDED AN AMOUNT OF RS.32.70 LAKHS TO THE INCOME OF THE ASSESSEE AS UNDISCLOSED ASSET. FURTHER, THE AO ADDED RS.1,45,923/- TOWARDS ACCRUED INTEREST ON ABOVE FIXED DEPOSITS FO R NOT DISCLOSING THE SAME IN THE RETURN OF INCOME. THEREBY, IN TOTAL THE AO COMPUTED THE INCOME OF THE ASSESSEE AT RS.50,23,349/-. 3 ITA NO.196/KOL/2013 S ATYAPRIYA JOARDAR ASSESSMENT YEAR: 2009-10 5. AGGRIEVED BY THE ASSESSMENT ORDER UNDER SECTION 143(3), THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT-A, DURGAPU R WHEREIN HE CONTENDED THAT WITH REGARD TO ADDITION ON ESTIMATI ON AT 8% CAN BE VERIFIED FROM THE CASH BOOK REFERRING TO THE CIRCUM STANTIAL EVIDENCE FOR VERIFICATION OF HIS CLAIM OF EXPENSES. BUT HOWEVER, THE CIT(A) WAS OF THE VIEW THAT THERE IS NO PRIMARY EVIDENCE IN VERIF YING THE EXPENSES CLAIMED BY THE ASSESSEE. THE VERIFICATION OF SECOND ARY EVIDENCE CANNOT BE CONSIDERED IN THE ABSENCE OF PRIMARY EVIDENCE. T HEREBY THE CIT(A) CONFIRMED THE ORDER OF THE AO IN ESTIMATING THE INC OME OF THE ASSESSEE @8% AS AGAINST THE TOTAL RECEIPTS THEREON. 6. REGARDING THE ADDITION UNDER UNDISCLOSED FIXED D EPOSITS, THE CIT(A) IN THE INTEREST OF NATURAL JUSTICE REMANDED THE MATTER TO AO WITH A DIRECTION TO VERIFY THE CLAIM OF THE ASSESSEE REL ATING TO SUBMISSION MADE BY THE ASSESSEE THAT THE ASSESSEE COULD NOT EX PLAIN THE SOURCE OF THE SAID FIXED DEPOSITS. AGGRIEVED BY THE SAID ORDE R, THE REVENUE IS IN APPEAL BEFORE THIS TRIBUNAL QUESTIONING THE ACTION OF THE LD. CIT(A) IN REMANDING THE MATTER TO THE AO TO VERIFY DOCUMENTS WHICH IS BEYOND THE SCOPE OF POWER AVAILABLE TO HIM UNDER SECTION 2 51 OF THE ACT. 7. NONE APPEARED FOR THE REVENUE. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT DURING THE COURSE OF REASSESSMENT PR OCEEDINGS, HE COULD NOT EXPLAIN THE SOURCE OF FUNDS IN PURCHASING THE F IXED DEPOSITS TOTALING TO RS.32.70 LAKHS WHICH WAS OFFERED TO AS COLLATERA L SECURITY IN ORDER TO OBTAIN OVERDRAFT. THEREFORE, THE ASSESSEE CONTENDED BEFORE THE CIT(A) TO DIRECT THE AO TO VERIFY THE CLAIM OF THE ASSESSE E IN EXPLAINING THE SOURCE OF FUNDS IN PURCHASING THE FIXED DEPOSITS. 8. HEARD ASSESSEES REPRESENTATIVE AND PERUSED THE RECORD. THE MAIN STAND OF THE REVENUE AS TAKEN IN GROUNDS OF THIS AP PEAL IS THAT THE 4 ITA NO.196/KOL/2013 S ATYAPRIYA JOARDAR ASSESSMENT YEAR: 2009-10 COMMISSIONER DOES NOT HAVE THE POWERS IN REMANDING THE MATTER TO AO WITH A DIRECTION TO VERIFY THE CLAIM OF THE ASSESSE E UNDER SECTION 251 OF THE ACT WHEREAS IT IS OBSERVED FROM THE PROVISION O F SECTION 251 OF THE ACT THAT THE COMMISSIONER IS NOT HAVING THE POWER T O SEND BACK THE FILE TO AO TO VERIFY THE CLAIM OF THE ASSESSEE. THE ONLY POWER AVAILABLE TO HIM TO EXERCISE UNDER SECTION 251 OF THE ACT IS THA T HE MAY CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT, BESIDES TH E OTHER CLAUSES CONTAINED THEREIN. WE, THEREFORE, SET ASIDE THE IMP UGNED ORDER OF THE LD. CIT(A) ON THIS ISSUE AND REMIT THE MATTER BACK TO H IM WITH A DIRECTION TO DECIDE THE SAME ON MERIT, AFTER GIVING THE ASSES SEE PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH MARCH, 2016. SD/- SD/- ( P.M.JAGTAP) (S.S.VISWANETHRA RAVI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 04/03/2016 TALUKDAR/SR.PS COPY OF ORDER FORWARDED TO: 1 SATYAPRIYA JOARDAR, PROP. COMMAND SECURITY AGENCY, CBS-17, COURT COMPLEX, CITY CENTRE, DURGAPUR-16 2 I.T.O., WARD-2(2), DURGAPUR 3 THE CIT(A), 4 5 CIT, 5. D.R. TRUE COPY, BY ORDER, ASSTT. REGISTRAR , ITAT, KOLKATA