Manak Chand Daga, Kolkata V. I.T.O.,Ward-35(4), Kolkata

ITA 196/KOL/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9624 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 14-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Opportunity of being heard; Set aside
• Section: 40A(3); 143(3)

Judgement Text

ITA NO. 196/KOL/2020 ASS ESSMENT YEAR: 2010-2011 MANAK CHAND DAGA 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B(SMC) BENCH, KOLKATA [VIRTUAL COURT HEARING] BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT I.T.A. NO. 196/KOL/2020 ASSESSMENT YEAR: 2010-2011 MANAK CHAND DAGA,.................................. ................................APPELLANT 32, EZRA STREET, 5 TH FLOOR, KOLKATA-700001 [PAN: AGQPD7082B] -VS.- INCOME TAX OFFICER,................................ ...................................RESPONDENT WARD-35(4), KOLKATA, AAYAKAR BHAWAN POORVA, 110, SHANTI PALLY, NEAR RUBY HOSPITAL, KOLKATA-700107 APPEARANCES BY: SHRI S.M. SURANA, ADVOCATE, FOR THE APPELLANT SHRI DHRUBAJYOTI ROY, JCIT, SR. D.R., FOR THE RESPO NDEN T DATE OF CONCLUDING THE HEARING : JULY 07, 2020 DATE OF PRONOUNCING THE ORDER : JULY 07, 2020 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-10, KOLKATA DA TED 29.11.2019 PASSED EX-PARTE, WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O N 26.09.2010 DECLARING TOTAL INCOME OF RS.6,02,990/-. IN THE ASS ESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 15.03.2013 , THE TOTAL INCOME OF ITA NO. 196/KOL/2020 ASS ESSMENT YEAR: 2010-2011 MANAK CHAND DAGA 2 THE ASSESSEE WAS DETERMINED BY THE ASSESSING OFFICE R AT RS.15,76,300/- AFTER MAKING, INTER ALIA, THE FOLLOWING THREE ADDIT IONS:- (I) DISALLOWANCE UNDER SECTION 40A(3) OF THE ACT RS.5,41,713/ - (II) BOGUS PAYMENT OF COMMISSION RS. 2,450/ - (III) UNEXPLAINED CASH CREDIT UNDER SECTION 68 RS.2.15.000/ - 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEF ORE THE LD. CIT(APPEALS) CHALLENGING THE AFORESAID THREE ADDITI ONS MADE BY THE ASSESSING OFFICER TO HIS TOTAL INCOME. DURING THE C OURSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT(APPEALS), A WRITTEN SUBMISSION WAS FILED BY THE ASSESSEE ALONG WITH THE RELEVANT DOCUMENTARY EVIDENCE. THE SAME WAS FORWARDED BY THE LD. CIT(APPEALS) TO THE ASSESS ING OFFICER FOR VERIFICATION AND COMMENTS. IN THE REMAND REPORT SUB MITTED TO THE LD. CIT(APPEALS), THE ASSESSING OFFICER OFFERED HIS COM MENTS AND AFTER TAKING INTO CONSIDERATION THE SAME AS WELL AS THE MATERIAL AVAILABLE ON RECORD, THE LD. CIT(APPEALS) PROCEEDED TO CONFIRM ALL THE T HREE ADDITIONS MADE BY THE ASSESSING OFFICER TO THE TOTAL INCOME OF THE AS SESSEE AND DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE T RIBUNAL. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LD. COUN SEL FOR THE ASSESSEE HAS SUBMITTED THAT NO OPPORTUNITY OF BEING HEARD WAS GI VEN BY THE ASSESSING OFFICER TO THE ASSESSEE DURING THE COURSE OF REMAND PROCEEDINGS AND THE LETTERS STATED TO BE ISSUED BY HIM TO THE ASSESSEE ON 01.04.2019 WERE NEVER RECEIVED BY THE ASSESSEE. HE HAS ALSO SUBMITT ED THAT EVEN THE LD. CIT(APPEALS) DID NOT GIVE ANY SPECIFIC OPPORTUNITY TO THE ASSESSEE TO REBUT THE OBSERVATIONS/FINDINGS OF THE ASSESSING OF FICER IN THE REMAND REPORT BY FILING A REJOINDER, INASMUCH AS, THE NOTI CE OF HEARING STATED TO BE FIXED BY HIM ON 27.11.2019 WAS NEVER RECEIVED BY THE ASSESSEE. HE HAS ITA NO. 196/KOL/2020 ASS ESSMENT YEAR: 2010-2011 MANAK CHAND DAGA 3 URGED THAT THIS MATTER MAY, THEREFORE, BE SENT BACK TO THE ASSESSING OFFICER FOR GIVING AN OPPORTUNITY TO THE ASSESSEE T O PUT FORTH HIS CASE ON THE ISSUES UNDER CONSIDERATION. ALTHOUGH THE LD. D. R. HAS SUBMITTED IN THIS REGARD THAT THE ASSESSING OFFICER HAVING ALREADY SU BMITTED A REMAND REPORT TO THE LD. CIT(APPEALS) GIVING HIS OBSERVATI ONS AND FINDINGS ON THE ISSUES UNDER CONSIDERATION, THE MATTER MAY BE SENT BACK TO THE LD. CIT(APPEALS), IT IS OBSERVED THAT THE SAID OBSERVAT IONS/FINDINGS WERE RECORDED BY THE ASSESSING OFFICER IN HIS REMAND REP ORT WITHOUT GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND INTEREST OF JUSTICE WILL BE SERVED IF THE MATTER IS SENT BACK TO THE ASSESSING OFFICER FOR PROPER EXAMINATION/VERIFICATI ON AFTER GIVING THE ASSESSEE PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. I ACCORDINGLY SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT( APPEALS) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH AFTER PROPER EXAMINATION/VERIFICATION AND AFTER GIV ING THE ASSESSEE PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. A S UNDERTAKEN BY THE LD. COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL MA KE DUE COMPLIANCE BEFORE THE ASSESSING OFFICER AND SHALL EXTEND ALL T HE POSSIBLE COOPERATION IN ORDER TO ENABLE THE ASSESSING OFFICER TO MAKE TH E ASSESSMENT AFRESH EXPEDITIOUSLY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JULY 07, 2020 . SD/- (P.M. JAGTAP) VICE-PRESIDENT) KOLKATA, THE 7 TH DAY OF JULY, 2020 COPIES TO : (1) SHRI MANAK CHAND DAGA, 32, EZRA STREET, 5 TH FLOOR, KOLKATA-700001 (2) INCOME TAX OFFICER, WARD-35(4), KOLKATA, AAYAKAR BHAWAN POORVA, ITA NO. 196/KOL/2020 ASS ESSMENT YEAR: 2010-2011 MANAK CHAND DAGA 4 110, SHANTI PALLY, NEAR RUBY HOSPITAL, KOLKATA-7001 07 (3) COMMISSIONER OF INCOME TAX (APPEALS)-10, KOLKATA; (4) COMMISSIONER OF INCOME TAX- , KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.