Manish Bhai, Kolkat V. ACIT, Circle - 22, Kolkata, Kolkata

ITA 2174/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1809 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 10-10-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A BHATTACHAR YYA
• Assessee Lawyers: M TIWARI LD
• Keywords: Salary income; Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA [BEFORE HONBLE SHRI M.BALAGANESH, AM & HONBLE S HRI S.S.VISWANETHRA RAVI, JM] I.T.A NO. 2174/KOL/20 17 ASSESSMENT YEAR : 2009-1 0 MANISH BHAI -VS- ACIT, CIRCLE-22, KOLK ATA . [PAN: ADVB 8328 G] (APPELLANT) (RESPOND ENT) FOR THE APPELLANT : SHRI M. TIWARI, LD . AR FOR THE RESPONDENT : SHRI A. BHATTACHARYYA, ADDL. CIT DATE OF HEARING : 20.08.2018 DATE OF PRONOUNCEMENT : 05. 09 .2018 ORDER PER M.BALAGANESH, AM 1. THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-17, KOLKATA [IN SHORT THE LD CI T(A)] IN APPEAL NO. 36/CIT(A)- 17/KOL DATED 22.02.2016 AGAINST THE ORDER PASSED BY THE ACIT, CIRCLE-22, KOLKATA [ IN SHORT THE LD AO] UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 30.12.2011 FOR THE ASSESSMENT YEAR 2009-10. 2. THE ASSESSEE HAS RAISED SEVERAL GROUNDS OF APPEA L: 1. THE LD. CIT(A) ERRED IN CONFIRMING THE DISALLOWA NCE OF HRA MADE BY THE AO AT RS. 2,80,349/-. 2. THE LD. CIT(A) ERRED IN CONFIRMING THE ESTIMATIO N OF INCOME FROM HOUSE PROPERTY MADE BY THE AO AT RS. 7,74,000/- 2 ITA NO.2174/KOL/2017 MANISH BHAI A.YR. 2009-10 2 3. THE LD. CIT(A) ERRED IN CONFIRMING THE ESTIMATIO N OF INCOME FROM OTHER SOURCES MADE BY THE AO AT RS. 6,34,639/-. 4. THE APPELLANT CRAVES LEAVE TO ADOPT ANY OTHER GR OUND OR MODIFY ANY GROUND ALREADY TAKEN SUPRA. 3. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSESS EE IS AN EMPLOYEE WITH CITI BANK NA AND HAD ELECTRONICALLY FILED HIS RETURN OF INCOME FOR T HE ASSESSMENT YEAR 2009-10 ON 09.01.2010 DECLARING TOTAL INCOME OF RS. 2,99,06,58 0/-. THE ASSESSEE PURSUANT TO HIS EMPLOYMENT HAD TO TRAVEL FREQUENTLY TO FOREIGN COUN TRIES AND ACCORDINGLY COULD NOT APPEAR BEFORE THE LD. AO AND FURNISH THE REQUIRED D ETAILS CALLED FOR. EVEN IN THE ASSESSMENT PROCEEDINGS, THE ASSESSEES FATHER APPEA RED FROM TIME TO TIME AND FURNISHED CERTAIN DETAILS CALLED FOR BY THE LD. AO. THE LD. A O OBSERVED THAT THE ASSESSEE HAD CLAIMED AN EXEMPTION TOWARDS HOUSE RENT ALLOWANCE ( HRA) OF RS. 2,80,349/- FOR WHICH NO EVIDENCE IN THE FORM OF PAYMENT OF RENT OR RENT AGREEMENT ETC. WERE FURNISHED. ACCORDINGLY, HE PROCEEDED TO DISALLOW THE CLAIM OF EXEMPTION TO HRA IN THE SUM OF RS. 2,80,349/- AND ADDED BACK TO THE SALARY INCOME OF THE ASSESSEE. 4. THE LD. AO OBSERVED THAT THE ASSESSEE OWNED FOUR RESIDENTIAL HOUSE PROPERTIES AND ONE COMMERCIAL PROPERTY IN VARIOUS PARTS OF THE COU NTRY. THE LD. AO OBSERVED THAT THE ASSESSEE HAD DECLARED ONLY ONE FLAT SITUATED AT FLA T NO. 1304 AT ASHOK TOWER, B, PAREL MUMBAI IN THE SCHEDULE OF THE HOUSE PROPERTY IN THE RETURN OF INCOME. HE OBSERVED THAT THE FLAT NO. 1303, ASHOK TOWER, B, PAREL MUMBAI T O THE EXTENT OF 1795 SQ. FT. AND SHOP NO. 50, BLOCK-B, AXIS MALL, IC, NEW TOWN, KOLKATA T O THE EXTENT OF 972 SQ. FT. WERE ACQUIRED BY HIM IN THE FAG END OF THE PREVIOUS YEAR RELEVANT TO THE YEAR UNDER APPEAL. THE PROPERTY AT FLAT 1B, 42/132, NEW BALLYGUNGE ROA D, KOLKATA-39 TO THE EXTENT OF 1200 SQ. FT. WAS IN ASSESSEES POSSESSION THROUGHOU T THE PREVIOUS YEAR WHEREIN THE ASSESSEE HAD DECLARED THE NET ANNUAL VALUE OF RS. 1 5020/-. SIMILARLY, THE ANNUAL LETTING 3 ITA NO.2174/KOL/2017 MANISH BHAI A.YR. 2009-10 3 VALUE OF FLAT AT DUPLEX 47, WOODS ANUDH, WAKAD, PUN E, TO AN EXTENT OF 2100 SQ. FT. WAS SHOWN AT A LESSER FIGURE. THE TOTAL HOUSE PROPERTY INCOME OF THE ASSESSEE WAS UNDERSTATED ACCORDING TO LD. AO AND THE ANNUAL LETT ING VALUE IN RESPECT OF LAST TWO PROPERTIES MENTIONED SUPRA I.E. PROPERTY IN KOLKATA AND PROPERTY IN PUNE WERE TAKEN AT RS. 40,000/- AND RS. 70,000/- PER MONTH BY THE LD. AO RESPECTIVELY AND HOUSE PROPERTY INCOME COMPUTED ACCORDINGLY. THE LD. AO ALSO CONSID ERED A SUM OF RS. 6,34,639/- AS INCOME FROM OTHER SOURCES AS SHOWN BY THE ASSESSEE IN THE RETURN OF INCOME. 5. THE ASSESSEE PREFERRED AN APPEAL AGAINST THE FOL LOWING DISALLOWANCES/ADDITIONS MADE BY THE LD. AO BEFORE THE LD. CIT(A): A) DISALLOWANCE EXEMPTION OF HRA RS. 2,80,349/- B) ESTIMATING INCOME FROM HOUSE PROPERTY RS. 7,74, 000/- C) ESTIMATING INCOME FROM OTHER HOUSE PROPERTY RS. 6,34,639/- 6. THE LD. CIT(A) ISSUED NOTICES TO THE ASSESSEE AT 03.11.2015, 03.12.2015 AND 11.02.2016 ON WHICH DATE, NONE ATTENDED ON BEHALF O F THE ASSESSEE NOR ANY LETTER OF ADJOURNMENT PREFERRED THEREON. IN THE ABSENCE OF BA SIC DETAILS TO BE FURNISHED FROM THE END OF THE ASSESSEE AND DUE TO CONTINUOUS NON-COOPE RATION OF THE ASSESSEE, THE LD. CIT(A) PROCEEDED TO HOLD THAT NO INFERENCE IS CALLE D FOR IN THE ACTION OF THE LD. AO WITH REGARD TO ADDITION MADE TOWARDS INCOME FROM HOUSE P ROPERTY AND DISALLOWANCE OF CLAIM OF EXEMPTION TOWARDS HRA. 7. WITH REGARD TO ADOPTION OF INCOME FROM OTHER SOU RCES OF RS. 6,34,639/- THE LD. CIT(A) OBSERVED THAT THERE CANNOT BE ANY GRIEVANCE FOR THE ASSESSEE IN THIS REGARD INASMUCH AS THE SAID FIGURE HAS BEEN CONSIDERED BY THE ASSESSEE HIMSELF IN THE RETURN OF 4 ITA NO.2174/KOL/2017 MANISH BHAI A.YR. 2009-10 4 INCOME HENCE THIS GROUND OF APPEAL WAS ALSO DISMISS ED BY THE LD. CIT(A). AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS. THE LD. AR PLEADED BEFORE US THAT THE ASSESSEE HAD TO TRAVEL ABROAD ON SEVERAL OCCASIONS AND ACCOR DINGLY COULD NOT PRESENT HIMSELF ON THE SCHEDULED DATES OF HEARING BEFORE THE LD. CIT(A ) OR INSTRUCT EITHER HIS FATHER OR ANY AUTHORIZED REPRESENTATIVE. IN SUPPORT OF THIS CONTE NTIONS, THE LD. AR HAS PLACED COPY OF PASS PORT OF THE ASSESSEE FOR THE RELEVANT PERIOD T O PROVE THAT THE ASSESSEE WAS AWAY FROM THE COUNTRY DURING THE RELEVANT PERIOD.. HE PR AYED FOR LAST OPPORTUNITY BEFORE THE LD. CIT(A) FOR FURNISHING THE RELEVANT EVIDENCES IN SUPPORT OF VARIOUS CONTENTIONS OF THE ASSESSEE. THE LD. DR VEHEMENTLY OBJECTED TO THE SAME AND SUPPORTED THE ORDER OF THE LD. CIT(A). IN THE FACTS AND CIRCUMSTANCES OF THE C ASE, WE DEEM IT FIT AND APPROPRIATE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, TO REMAND THIS ISSUE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE ISSUES RAISED BEFORE HIM AFRESH IN AC CORDANCE WITH LAW ON OR BEFORE 28.02.2019. NEEDLESS TO MENTION THAT THE ASSESSEE B E GIVEN REASONABLE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS ALSO DIRECTED TO CO-O PERATE WITH THE LD CITA FOR EXPEDITIOUS DISPOSAL OF THE APPEAL AND NOT TO TAKE ADJOURNMENT EXCEPT DUE TO BONAFIDE OR EXCEPTIONAL CIRCUMSTANCES. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 05.09.2018 SD/- SD/- [S.S. VISWANETHRA RAVI] [ M.BAL AGANESH ] JUDICIAL MEMBER ACCOUNTANT MEM BER DATED : 05.09.2018 SB, SR. PS 5 ITA NO.2174/KOL/2017 MANISH BHAI A.YR. 2009-10 5 COPY OF THE ORDER FORWARDED TO: 1. MANISH BHAI, FLAT NO. T-1/3403, URBANA RESIDENTI AL PROJECT 783, ANANDAPUR ROAD, KOKATA-700107. 2. ACIT, CIRCLE-22, KOLKATA, 8 TH FLOOR, CR BUILDING, BAMBOOVILLA, 169, A.J. C. BOSE ROAD, KOLKATA-700014. 3..C.I.T.(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S