ITO, Ward - 38(2), Kolkata, Kolkata V. M/s. New Asia Steel Rolling Mill, Kolkata

ITA 2091/KOL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2663 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-04-2010
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 09-12-2009
• Court: TRIBUNAL
• Department Lawyers: JYOTI KUMARI
• Assessee Lawyers: N O N E
• Keywords: Income from undisclosed sources; Opportunity of being heard; Source of fund; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA [BEFORE HONBLE SRI D. K. TYAGI, JM & HONBLE SRI C . D. RAO, AM] I.T.A. NO. 2091/KOL/2009 ASSESSMENT YEAR : 2002-03 INCOME-TAX OFFICER, WD-38(2), KOLKATA -VS- M/S. NEW ASIA STEEL ROLLING MILL (PA NO. AACFN 8946 O) (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. JYOTI KUMARI RESPONDENT BY : N O N E O R D E R PER D. K. TYAGI, JM : THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AG AINST THE ORDER OF THE LD. CIT(A), KOLKATA DATED 14.08.2009 IN DELETING THE AD DITION OF RS.6,39,166/-. . 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F THE ASSESSEE. THEREFORE, WE DISPOSE OF THE APPEAL OF THE REVENUE AFTER HEARING THE LD. DR. 3. THE FACTS OF THE CASE AS REVEALED FROM THE ASSES SMENT ORDER IN BRIEF ARE THAT THE ASSESSEE IN ITS BALANCE SHEET FOR THE PERIOD ENDED 31.3.2002 HAD SHOWN ADVANCE PAYMENT OF SALES TAX OF RS.6,39,166/-. THE AO WROT E TO THE ASSTT. COMMISSIONER OF COMMERCIAL TAXES, BURTOLLA WHO INFORMED THAT THERE WAS NO ADVANCE PAYMENT OF SALES TAX DURING FY 2001-02. A SHOW CAUSE LETTER WAS ISS UED ON 14.1.21005 BUT THE SAME RETURNED BACK UNSERVED . THEREAFTER THE LETTERS W ERE SERVED THROUGH AFFIXATION BY THE INSPECTOR. THE AUDITOR OF THE FIRM SUBMITTED VIDE PETITION DATED 28.3.2005 THAT THE NECESSARY DOCUMENTS OF PAYMENT OF SALES TAX AND REC ORDS AND DOCUMENTS EVIDENCING AVAILABLE/ALLOWABLE CREDITS OF ADVANCE TAX WERE PRO DUCED BEFORE HIM BY SRI SANJIV KR. JAISWAL, ONE OF THE PARTNERS OF THE FIRM. IT HAS A LSO BEEN STATED THAT FROM THE REPLY OF AC OF COMMERCIAL TAXES IT APPEARED THAT THE PARTY HAS PRODUCED EVIDENCE FOR CLAIM FOR CREDIT OF SALES TAX ARISING OUT OF THEIR PURCHASE/S ALE AND NOT OF ANY DIRECT PAYMENT BY HIM. THIS EXPLANATION WAS NOT CONSIDERED TO BE SAT ISFACTORY BY THE AO AS THE SALES TAX AUTHORITY DID NOT CONFIRM THE ABOVE, AS STATED BY T HE AUDITOR. THEREFORE, THE SUM OF RS.6,39,166/- WAS TREATED BY THE AO AS UNDISCLOSED INVESTMENT FROM UNDISCLOSED SOURCES OF INCOME OF THE ASSESSEE FIRM AND ADDED TH E SAME TO THE TOTAL INCOME OF THE ASSESSEE. IN APPEAL, THE LD. CIT(A) DELETED THE SAI D ADDITION BY ACCEPTING THE SUBMISSIONS OF THE ASSESSEE AGGRIEVED BY THE SAID ORDER, NOW THE REVENUE IS IN APPEAL BEFORE US. 2 4. THE LD. DR AT THE TIME OF HEARING BEFORE US, REL IED ON THE ORDER OF THE AO AND SUBMITTED THAT THE LD. CIT(A) HAS GIVEN RELIEF TO T HE ASSESSEE WITHOUT VERIFYING THE CONTENTION OF THE ASSESSEE. HE SHOULD HAVE ACTUALL Y SENT THE MATTER BACK TO THE AO FOR VERIFICATION OR SHOULD HAVE SOUGHT THE REMAND REPOR T ON THE SUBMISSION OF THE ASSESSEE FROM THE AO. THEREFORE, THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE AO. 5. WE HAVE HEARD THE LD. DR AND PERUSED THE MATERIA L AVAILABLE ON RECORD. WE FIND THAT THE LD. CIT(A) DELETED THE ADDITION BY OB SERVING THAT THE AO HAD RAISED THE QUERY STATING THAT THERE WAS AN ADVANCE PAYMENT OF RS.6,39,166/- WHICH WAS NEGATED BY THE A.C. COMMERCIAL TAX AS THE ASSESSEE DID NOT PAY ANY AMOUNT TOWARDS SALES TAX. ACCORDING TO HIM THIS DID NOT NECESSARILY MEAN THAT THE ASSESSEE ALSO HAD NO BALANCE IN HIS SALES TAX LEDGER ACCOUNT WHICH WAS DULY SHOWN B Y HIM IN THE PRECEDING YEAR. THIS ASPECT OF THE MATTER REMAINS UNVERIFIED BY THE AO, WHICH REQUIRES VERIFICATION AT THE END OF THE AO. IN THIS VIEW OF THE MATTER, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE ISSUE TO THE FILE OF THE AO FOR FRESH A DJUDICATION AFTER ALLOWING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE APPEAL OF THE REVENUE IS, THEREFORE, ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 9.4.2010 SD/- SD/- (C. D. RAO) ( D. K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 9TH APRIL, 2010 COPY FORWARDED TO THE :- 1) ITO, WARD-38(2), KOLKATA. 2) M/S. NEW ASIA STEEL ROLLING MILL, 8/1, RAJA RAJ KISSEN STREET, KOLKATA-700 006. 3) CIT(A), KOLKATA. 4) CIT, KOLKATA. 5) D. R. ITAT, KOLKATA. (TRUE COPY) BY ORDER DEPUTY REGISTRAR JD. (SR. P.S.) I.T.A.T., KOLKATA