Kashmirilal Farmania, Kolkata V. ITO, Ward - 35(3), Kolkata, Kolkata

ITA 2099/KOL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9429 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2011
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 22-11-2010
• Court: TRIBUNAL
• Department Lawyers: S I BARA
• Assessee Lawyers: V C JAIN
• Keywords: Opportunity of being heard; TDS; Set aside

Judgement Text

, SMC , , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH : KOLKATA () BEFORE . . . . . . . . , , , , ) [BEFORE HONBLE SRI D. K. TYAGI, JM] ! ! ! ! / I.T.A NO. 2099/KOL/2010 '#$ %&' '#$ %&' '#$ %&' '#$ %&'/ // / ASSESSMENT YEAR : 2006-07 KASHMIRILAL FARMANIA -VS- INCOME-TAX OFFICER, WD- 35(3), KOLKATA (PA NO.AAGPF 7586 G) ()* / APPELLANT ) (+)*/ RESPONDENT ) FOR THE APPELLANT: SRI V. C. JAIN FOR THE RESPONDENT : SRI S. I. BARA , / ORDER THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF THE LD. CIT(A), KOLKATA DATED 31.08.2010 FOR THE ASSESSMENT YEAR 2 006-07 ON THE SOLE GROUND OF CONFIRMING THE ADDITION OF RS.1,70,574/- BEING THE DISCREPANCY NOTICED WITH THE STATEMENT FILED BY THE ASSESSEE ON ACCOUNT OF COMMISSION AND BROKERAGE. 2. FACTS IN BRIEF ARE THAT DURING THE ASSESSMENT P ROCEEDINGS, THE ASSESSING OFFICER FOUND FROM THE ITS DETAILS THAT THE COMMISSION AND BROKER AGE SHOWN BY THE ASSESEE WAS SHORT BY RS.1,70,574/-. IN THE ABSENCE OF ANY RECONCILIATIO N OR EXPLANATION FILED AT THE ASSESSMENT STAGE, THE ASSESSING OFFICER ADDED THE DIFFERENCE TO THE I NCOME OF THE ASSESSEE. IN APPEAL, THE LD. CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER B Y OBSERVING THAT SINCE THERE IS NO MATERIAL TO SUPPORT THE RECONCILIATION FILED AT THE APPELLAT E STAGE, HE WAS UNABLE TO INTERFERE WITH THE ORDER OF THE ASSESSING OFFICER AND DISMISSED THE AS SESSEES GROUND OF APPEAL. AGGRIEVED BY THE SAID ORDER, THE ASSESSEE IS IN APPEAL BEFORE US . 3. AT THE TIME OF HEARING BEFORE US, THE LD. COUNSE L FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) CONFIRMED THE ADDITION AS MADE BY THE ASSESS ING OFFICER BY MERELY OBSERVING THAT THE ASSESSEE PRODUCED NO DOCUMENTARY EVIDENCE IN SUPPOR T OF THE RECONCILIATION AND COPIES OF TDS CERTIFICATES WERE ALSO NOT FILED. LEDGER COPIES OF BROKERAGE AND COMMISSION ACCOUNT WERE ALSO NOT FILED. HENCE, THE CONTENTIONS OF THE ASSESSEE WERE NOT VERIFIABLE. HE ALSO CONTENDED THAT THE ASSESSING OFFICER MADE THE ADDITION OF RS.1,70, 574/- BEING THE DISCREPANCIES NOTICED VIDE AS PER ITS DETAILS AVAILABLE IN THE SYSTEM AND STAT EMENT FILED BY THE ASSESEE WITHOUT PROVIDING SUFFICIENT AND EFFECTIVE OPPORTUNITY TO EXPLAIN THE SAME. HE, THEREFORE, URGED BEFORE THE BENCH TO SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES. 2 4. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDE RS OF THE LOWER AUTHORITIES AND PRAYED BEFORE THE BENCH TO CONFIRM THE SAME. 5. I HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BOT H THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. I FIND THAT THE CONTENTION OF TH E LD. COUNSEL FOR THE ASSESSEE IS THAT WITHOUT GIVING PROPER OPPORTUNITY TO EXPLAIN THE DISCREPANC IES AT THE ASSESSMENT STAGE THE ASSESSING OFFICER MADE THE ADDITION OF RS.1,70,574/- AND IN APPEAL, THE LD. CIT(A) ALSO CONFIRMED THE ADDITION BY ONLY OBSERVING THAT THE CONTENTIONS OF THE ASSESSEE ARE NOT VERIFIABLE. IN THIS VIEW OF THE MATTER AND IN THE INTEREST OF NATURAL JUSTIC E AND FAIR PLAY, I AM OF THE CONSIDERED OPINION THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE AS SESSEE TO SUBSTANTIATE HIS CASE BEFORE THE ASSESSING OFFICER AND ACCORDINGLY, I RESTORE THE MA TTER TO THE FILE OF THE ASSESSING OFFICER TO PASS A FRESH ASSESSMENT ORDER AFTER AFFORDING A REA SONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE APPEAL OF THE ASSESSEE IS, THEREFORE , ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- . . , (D. K. TYAGI) JUDI CIAL MEMBER ( - - - -) )) ) DATED : 3 RD JANUARY, 2011 %./ '#01 '2% JD.(SR.P.S.) , 3 +''4 54&6- COPY OF THE ORDER FORWARDED TO: 1 . )* / APPELLANT SRI KASHMIRILAL FARMANIA, 7A, CLIVE ROW , GROUND FLOOR, KOLKATA-700 001. 2 +)* / RESPONDENT : ITO, WARD-35(3), KOLKATA. 3 . ',# / THE CIT, , KOLKATA 4 . ',# ( )/ THE CIT(A), KOLKATA 5 . %=' +'# / DR, KOLKATA BENCHES, KOLKATA 4 +'/ TRUE COPY, ,#>/ BY ORDER, ? 1 /DEPUTY REGISTRAR .