M/s Eve Land Nursing Home, Burdwan V. ACIT, Circle-1, Burdwan, Burdwan

ITA 2145/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1846 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2017
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 07-11-2016
• Court: TRIBUNAL
• Department Lawyers: S ALLONG YADEN CIT LD
• Assessee Lawyers: SUSANTA KR MUKHERJEE LD
• Keywords: Application of stay
• Section: 142(1); 133A; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : C BENCH KOLKAT A BEFORE : SHRI WASEEM AHMED, ACCOUNTANT M EMBER AND SHRI S.S.VISWANETHRA RAVI, JU DICIAL MEMBER ITA NO. 2145/KOL/2016 A.Y 2011-12 & S.A NO. 04/KOL/2017 [IN ITA NO. 2145/KOL/2 016 A.Y 2011-12] M/S. EVELAND NURSING HOME VS. ASSISTANT COMMISS IONER OF PAN: AABFE 6283C IN COME TAX, CIR-1, KOLKATA [APPLICANT ] [RESPONDENT ] APPLICANT/APPELLANT BY : SHRI SUSANTA KR. MUKHERJEE, ADVOCATE, LD.AR RESPONDENT/DEPARTMENT BY : SHRI SALLONG YADEN , ADDL.CIT, LD.DR DATE OF HEARING : 24-03-2017 DATE OF PRONOUNCEMENT : 05-05-2017 ORDER SHRI S.S.VISWANETHRA RAVI, JM: BOTH THE APPEAL AND STAY APPLICATION FILED BY T HE ASSESSEE ARE AGAINST THE ORDER DT. 30-08-2016 OF THE CIT-A, BURDWAN, WHEREIN THE CIT-A CONFIRMED THE ADDITION MADE BY THE AO. 2. THE ASSESSEE FILED THIS STAY APPLICATION SEEKING TO GRANT STAY OF DEMAND OF RS.46,53,488/- RAISED BY THE AO. 3. THE LD.AR OF THE ASSESSEE SUBMITS THAT A SURVEY U/S. 133A OF THE ACT WAS CONDUCTED ON 02-03-2011 AT THE PREMISES OF THE ASSE SSEE. THEREAFTER, THE ASSESSEE FILED ITS RETURN OF INCOME ELECTRONICALLY ON 29-10 -2011 SHOWING TOTAL INCOME AT RS.1,57,293/-. NOTICES U/S. 143(2) AND 142(1) OF TH E ACT WERE ISSUED TO THE ASSESSEE. IN RESPONSE TO WHICH, THE LD.AR OF THE AS SESSEE APPEARED TIME TO TIME TO EXPLAIN THE RETURN AS FILED. HOWEVER, THE AO AFTER DETAILED DISCUSSION IN HIS ORDER DETERMINED THE TOTAL INCOME OF ASSESSEE AT RS.1,16, 97,190/- MAKING SOME ADDITIONS BY AN ORDER DT. 10-03-2014 U/S.144 OF THE ACT. 4. AGGRIEVED BY SUCH ORDER OF THE AO, THE ASSESSEE CHALLENGED THE SAME BEFORE THE CIT-A. BEFORE HIM THE LD.AR OF THE ASSESSEE CHA LLENGED THE ORDER OF AO ON THE GROUND OF NOT AFFORDING REASONABLE OPPORTUNITY AND NOT GIVEN SUFFICIENT TIME TO ITA NO.2145/K/16 & S.A NO. 04/KOL/2017 EVELAND NURSING HOME 2 CROSS EXAMINE THE WITNESSES. THE CIT-A WITHOUT CONS IDERING THE SAME AND BY OBSERVING THAT THE ASSESSEE DID NOT PRODUCE SUPPORT ING MATERIAL CONFIRMED THE ORDER OF THE AO PASSED U/S. 144 OF THE ACT. THEREAF TER, THE ITO, WARD 1(3), BURDWAN VIDE LETTER NO. ITO/W-1(3)/BWN/AABFE6283C/2 016-17/538 DT. 25.11.2016 RAISED ARREAR DEMAND A SUM OF RS. 46,53, 488/-. THE ASSESSEE FILED A PETITION TO STAY THE SAME. THE ITO (TECH), BURWAN V IDE LETTER DT. 23-12-2016 INFORMED THE ASSESSEE THAT STAY PETITION FILED BY T HE ASSESSEE WAS REJECTED BY THE PR. CIT, BURDWAN. THEREFORE, AGGRIEVING BY SAID REJ ECTION THE ASSESSEE FILED THIS STAY APPLICATION ALONG WITH RELEVANT APPEAL BEFORE THE TRIBUNAL. 5. BEFORE US THE LD.AR SUBMITS THAT THE ASSESSEE AL READY PAID A SUM OF RS.9,08,742/- OUT OF TOTAL DEMAND OF RS.55,62,230/- . THE LD.AR ALSO SUBMITS THAT THERE WAS NO PROPER OPPORTUNITY WAS AFFORDED BY TH E AO AND THE CIT-A WITHOUT CONSIDERING THE GROUNDS OF APPEAL RAISED BEFORE HIM CONFIRMED THE SAID ORDER OF THE AO IN RAISING SUCH DEMAND. THEREFORE, THE LD.AR OF THE ASSESSEE SOUGHT TO REMAND THE MATTER TO THE AO FOR HIS FRESH CONSIDERATION. H E ALSO UNDERTAKEN BEFORE US THAT NOW THE ASSESSEE IS READY TO FILE ALL THE MATERIAL EVIDENCES IN SUPPORT OF THE CLAIM OF ASSESSEE. 6. ON THE OTHER HAND, THE LD.DR DID NOT OBJECT TO T HE SAME, BUT, HOWEVER, CONTENDED THAT THE AO HAS GIVEN AMPLE OPPORTUNITIES TO THE ASSESSEE, BUT THE ASSESSEE COULD NOT AVAIL THE SAME. HE RELIED ON THE ORDERS OF THE AO AND THE CIT-A. 7. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE AO PASSED HIS ORDER U/S. 144 OF THE A CT, WHICH WAS CONFIRMED BY THE CIT-A IN THE FIRST APPELLATE PROCEEDING. THUS, THE AO RAISED THE TOTAL DEMAND OF RS.55,62,230/- AGAINST THE ASSESSEE. OUT OF WHICH R S.9,08,742/- PAID BY THE ASSESSEE AND NOW THE DEMAND STANDS AT RS.46,53,488/ -. WE FURTHER FIND THAT BEFORE THE CIT-A THE ASSESSEE RAISED A GROUND THAT REASONABLE OPPORTUNITY TO CROSS EXAMINE THE WITNESSES WAS NOT AFFORDED BY THE AO. T HE CIT-A WITHOUT CONSIDERING THE SAME CONFIRMED THE SAID ORDER OF THE AO. IN VIE W OF THE ABOVE AND SUBMISSIONS OF THE LD.AR OF THE ASSESSEE THAT NOW THE ASSESSEE IS READY TO FILE RELEVANT MATERIAL TO SUBSTANTIATE ITS CLAIM BEFORE THE AO, WE DEEM IT FIT AND PROPER TO REMAND THE MATTER TO THE FILE OF THE AO FOR HIS FRESH CONSIDER ATION. THE AO SHALL PASS HIS ORDER AS PER LAW AFTER GIVING THE ASSESSEE ADEQUATE OPPOR TUNITY OF HEARING TO THE ITA NO.2145/K/16 & S.A NO. 04/KOL/2017 EVELAND NURSING HOME 3 ASSESSEE TO FILE THE REQUISITE EVIDENCES IN SUPPORT OF ITS CONTENTION/CLAIM. THE STAY APPLICATION FILED BY THE ASSESSEE IS REJECTED AND T HE APPEAL IN ITA NO. 2145/KOL/2016 IS ALLOWED FOR STATISTICAL PURPOSE. 8. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSE AND STAY APPLICATION OF ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AS DICTA TED ON 05- 05-2017 SD/- SD/- WASEEM AHMED S.S.VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 05-05-2017 COPY OF THE ORDER FORWARDED TO: 1. APPLICANT /A SSESSEE : M/S. EVE LAND NURSING HOME, BAIDYAPUR MORE, KALNA, BURDWAN-713409. 2 RESPONDENT /DEPARTMENT : THE A.C.I.T., CIR CLE - BURDWAN,PIN 713101. 3. CIT, 4. CIT(A), 5. DR, KOLKATA BENCHES, KOLKATA **PP/SPS TRUE COPY] BY ORDER, ASSTT REGIS TRAR.