Shri Mihir Konar, Burdwan V. ITO, Ward - 1(2), Burdwan, Burdwan

ITA 206/KOL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83035 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2014
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 08-02-2012
• Court: TRIBUNAL
• Department Lawyers: SUSANTA KR MUKHERJEE LD
• Keywords: Unexplained investment; Opportunity of being heard; Additional evidence; Reasonable cause
• Section: 144

Judgement Text

ITA NOS.206 & 207.K/12-A-AM SH. MIHIR KONAR & SMT C HHANDA KONAR 1 , A IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH: KO LKATA ( ) , 1 , BEFORE HONBLE SRI SHAMIM YAHYA, AM & HONBLE SRI GEORGE MATHAN, JM $ / ITA NO. 206/KOL/2012 A.Y 2004-05 SRI MIHIR KONAR PAN: AIFPK 7636M - - - VERSUS - . I.T.O WARD 1(2), BURDWAN ( % / APPELLANT ) ( &'% / RESPONDENT ) $ / ITA NO. 207/KOL/2012 A.Y 2004-05 SMT. CHHANDA KONAR PAN: AESPK 5954M - - - VERSUS - . I.T.O WARD 1(2), BURDWAN ( % / APPELLANT ) ( &'% / RESPONDENT ) FOR THE APPELLANT: FOR THE RESPONDENT : /SHRI SUSANTA KR. MUKHERJEE, ADVOCATE, LD.AR / SHRI DAVID Z. CHANGTHU, LD.ACIT/SR.DR * + /DATE OF HEARING: 08-08-2014 * + /DATE OF PRONOUNCEMENT: 08--08-2014 / ORDER PER BENCH THESE APPEALS FILED BY THE SEPARATE ASSESSEE ARE D IRECTED AGAINST THE RESPECTIVE ORDERS OF THE LD. COMMISSIONER OF INCOME TAX (APPEA LS), ASANSOL DATED 13.03.2008 PERTAINING TO ASSESSMENT YEAR 2004-05. SINCE THE M ATTERS ARE INTER-CONNECTED, THEY ARE HEARD TOGETHER, THESE ARE BEING DISPOSED OFF BY THI S COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. IT IS NOTICED THAT IN ITA NO. 206/KOL/2012 THE RE IS A DELAY IN FILING THE APPEAL BY 1335 DAYS. FURTHER IN ITA NO. 207/KOL/2012 THERE IS A DELAY IN FILING THE APPEAL BY 1395 DAYS. BOTH THE ASSESSES HAVE FILED THE CONDONATION PETITIONS. IT HAS BEEN SUBMITTED THAT THE DELAY HAS BEEN ATTRIBUTED TO THE FACT THAT BOTH T HE ASSESSES HAS A COMMON COUNSEL, WHO WAS ARRESTED DUE TO UNNATURAL DEATH OF HIS WIFE ON 22-11-2005. ALL THE RELATED PAPERS OF ITA NOS.206 & 207.K/12-A-AM SH. MIHIR KONAR & SMT C HHANDA KONAR 2 BOTH THE ASSESSES WERE KEPT WITH HIM. DUE TO UNNATU RAL DEATH OF LD. COUNSELS WIFE AND HIS ARREST, HE BECAME MENTALLY UPSET AND FAILED TO FILE THE APPEAL BEFORE THE TRIBUNAL IN TIME. WHEN ASSESSEE(S) SUBSEQUENTLY RECEIVED ALL THE CASE RELATED PAPERS, THEY [BOTH THE ASSESSEES] CAME TO KNOW THAT THEIR SECOND APPEAL W AS NOT FILED BEFORE THE TRIBUNAL IN TIME. THUS, THIS HAS LEAD TO THE DELAY IN FILING BOTH THE APPEALS. 3. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORD ON THE ISSUE OF CONDONATION PETITIONS FILED BY BOTH THE ASSESSES. UPON CAREFUL CONSIDERATION, WE AGREE WITH THE SUBMISSIONS OF BOTH THE ASSESSEES THAT THE DEFAULT WAS DUE TO THE FAULT OF ASSESSEES LD. COUNSEL. ASSESSEES LD. COUNSEL WAS ARRESTED DUE T O NATURAL DEATH OF HIS WIFE AND FAILED TO FILE OF BOTH THE APPEALS IN TIME BEFORE THE TRIBUN AL. IN THESE CIRCUMSTANCES, WE ARE OF THE OPINION THAT THERE WAS REASONABLE CAUSE FOR DELAY I N FILING THE APPEALS OF BOTH THE ASSESSEES. ACCORDINGLY, WE CONDONE THE DELAY AND ADMIT THE AP PEALS OF BOTH THE ASSESSEES. ITA NO.206/KOL/2012 A.Y 2004-05 [ BY SHRI MIHIR KO NAR, ASSESSEE] 4. THE GROUND OF APPEAL RAISED BY THE ASSESSEE READ S AS UNDER:- THAT THE ASSESSEE FILED RETURN FOR THE ASSESSMENT YEAR 2004-05 DISCLOSING TOTAL INCOME OF RS.99,640/-. THE CASE WAS SELECTED FOR SCRUTINY. THE ASSESSING OFFICER DISALLOWED THE FRESH CAPITAL INTRODUCED BY THE ASSESSEE AT THE TUNE OF RS.9,57,647.00 AND INHANCIN G THE AGRICULTURAL INCOME AT THE TUNE OF RS.30,000.00 WHICH WAS OUT OF JURISDICTION OF THE ASSESSING OFFICER. AND HE ALSO DISALLOWED SUNDRY CR EDITORS AT THE TUNE OF RS.,2,345/-. THAT THE ASSESSING OFFICER COULD NOT ABLE TO UNDERSTAND WHICH THE A.R TRIED TO EXPLAIN BEFORE HIM. AND THE LD. C OMMISSIONER (APPEAL) CONFIRMED THE ORDER OF THE ASSESSING OFFICER. THAT THE LD. COMMISSIONER (APPEALS) NOT JUSTIFIED BY SUSTAINING ADDITION OF RS.9,57,647.00 ON ACCOUNT OF NEW CAPITAL INTRODUCED IN NURSING HOME. AND ADDITION OF RS.30,000/- ON ACCOUNT OF AGRICULTURAL INCOME. AND WAS NOT JUSTIFIED IN MAKING ADDITION ON ACCOUNT OF SUNDRY CREDITOR OF T HE TUNE OF RS.2,345/-. ITA NOS.206 & 207.K/12-A-AM SH. MIHIR KONAR & SMT C HHANDA KONAR 3 ITA NO.207/KOL/2012 A.Y 2004-05 [ BY SMT CHHANDA K ONER, ASSESSEE] 5. THE GROUND OF APPEAL RAISED BY THE ASSESSEE READ S AS UNDER:- THAT THE ASSESSEE FILED RETURN FOR THE ASSESSMENT YEAR 2004-05 DISCLOSING TOTAL INCOME FOR RS.1,21,780/-. THE CASE WAS SELECT ED FOR SCRUTINY. THE ASSESSING OFFICER DISALLOWED THE FRESH CAPITAL IN TRODUCED BY THE ASSESSEE AT THE TUNE OF RS.4,78,823/-. AND DISALLOWED TRANSP ORT INCOME FOR RS.21,084/- AND UNSECURED LOAN FOR RS.2,43,000/- W HICH WAS TAKEN FROM FRIENDS AND RELATIVES AND DISALLOWED THE AGRICULT URAL INCOME OF RS.12,000/- WHICH WAS DISCLOSED BY THE ASSESSEE I N HER INCOME AS BOGUS INCOME. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS ERRED IN LAW AS WELL AS IN FACT BY SUSTAINING THE TOTAL ADDITION OF (RS.4,78,823/-, RS.21,084/- , RS.2,43,000/-) RS.7,42,907/- WAS NOT JUSTIFIED. 6. BOTH THE ASSESSES WERE PARTNERS IN A FIRM NAMED M/S. EVE LAND NURSING HOME. THE AO NOTED THAT BOTH THE ASSESSEES INTRODUCED FR ESH CAPITAL IN THE SAID FIRM. THE AOS QUERY REGARDING THE SOURCE OF INVESTMENT WAS UNCOMP LIED. HENCE, THE AO HAS PROCEEDED TO MAKE ASSESSMENT U/S. 144 OF THE I.T ACT 1961 RE GARDING UNEXPLAINED INVESTMENT. BEFORE THE LD. CIT(A) IN APPEAL, THE ASSESSEE HAD SUBMITTE D SEVERAL ADDITIONAL EVIDENCES. HOWEVER, THE LD.CIT(A) HAD DECLINED TO ACCEPT THE S AME. THERE WERE SOME OTHER ADDITIONAL EVIDENCES PERTAINING TO TRANSPORT INCOME AND UNSEC URED LOAN. THESE ADDITIONS WERE ALSO MADE ON THE GROUND THAT THE ASSESSEE HAD NOT PROVID ED ANY EVIDENCE. THE LD. CIT(A) HAS CONFIRMED THESE ADDITIONS ALSO. 7. NOW BEFORE US THE LD. COUNSEL HAS PLEADED THAT T HE ASSESSEES CASE WAS NOT PROPERLY CANVASSED BEFORE THE LOWER AUTHORITIES. HE ALSO P LEADED BEFORE US THAT NOW HE HAS BEEN ENGAGED BY THE ASSESSEE, IF A OPPORTUNITY IS PROVID ED, HE WOULD BE IN A POSITION TO GIVE FURTHER DETAILS BEFORE THE AUTHORITIES BELOW. 8. THE LD. DR IS HEARD. ITA NOS.206 & 207.K/12-A-AM SH. MIHIR KONAR & SMT C HHANDA KONAR 4 9. UPON CAREFUL CONSIDERATION, WE ARE INCLINED TO AGREE WITH THE SUBMISSIONS OF THE OF THE LD. COUNSEL OF THE ASSESSEE. ACCORDINGLY, THE ISSUES RAISED IN BOTH THE APPEALS ARE REMITTED BACK TO THE FILE OF THE AO. THE AO SHALL C ONSIDER THE SAME AFRESH AFTER GIVING THE ASESSEE PROPER OPPORTUNITY OF BEING HEARD. 10. IN THE RESULT, THE ABOVE APPEALS OF BOTH THE A SSESSEES STAND ALLOWED FOR STATISTICAL PURPOSE AS STATED ABOVE. . + ORDER PRONOUNCED IN THE OPEN COURT ON 08/08/2014 SD/- SD/- [ 1 , ] [ , ] [ GEORGE MATHAN, JUDICIAL MEMBER ] [ SHAMIM YAHYA, ACCOUNTANT MEMBER ( + ) DATED :08/08/2014 ** PRADIP SPS * &2 32 / COPY OF THE ORDER FORWARDED TO: 1. . % / THE APPELLANT : 1)SHRI MIHIR KONAR & 2) SMT. CH HANDA KONAR, KANSARIPARA P.O KALNA, DIST: BURDWAN. 2 &'% / THE RESPONDENT- THE I.T.O WARD 1(2), AAYKAR BH AWAN, COURT COMPOUND,BURDWAN.HOWRAH. 3. 5. 6. / THE CIT, 4. ( )/ THE CIT(A) & / DR, KOLKATA BENCH GUARD FILE . '2 & / TRUE COPY, / BY ORDER, / ASSTT REGISTRAR