Lakshminarasimhan Sridhar, Kolkata V. ITO, Ward - 32(3), Kolkata, Kolkata

ITA 2176/KOL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9410 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2011
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 08-12-2010
• Court: TRIBUNAL
• Assessee Lawyers: SISIR CHAK RABORTY
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 69C

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL : SMC-B BENCH : KOLKATA [BEFORE HON. SHRI C. D. RAO, ACCOUNTANT MEMBER ITA NO. 2176 (KOL) OF 2010 : ASSESSMENT YEAR : 200 6-07 LAKSHMINARASIMHAN SRIDHAR -VS.- INCOME TAX OFFICER/WARD-32(3) KOLKATA [PAN : ALTPS 5314 B] KOLKATA. [APPELLANT] [RESPONDENT] APPELLANT BY : SHRI SISIR CHAK RABORTY RESPONDENT BY : SHRI D.R. SINDHAL , CIT THE ASSESSEE HAS FILED THIS APPEAL FOR ASSESSMENT Y EAR 2006-07 AGAINST THE ORDER OF LD. CIT(A)-XIX, KOLKATA DATED 10.09.2010 ON THE FOLLOWI NG GROUNDS :- (I) THAT THE LD. ITO, WD.32(3) HAS ERRED BOTH IN FACTS AND IN LAW IN COMPUTING THE TOTAL INCOME ON THE BASIS OF TDS CERT IFICATE IS BAD IN LAW. (II) THAT THE LD. ITO, WD.32(3) HAS COMPLETED THE ASSESS MENT U/S. 147/144 OF THE INCOME TAX ACT, 1961 IN A HURRY WITH OUT GIVING A REASONABLE OPPORTUNITY TO YOUR APPELLANT OF BEING HEARD IS BEYOND THE NORM OF NATURAL JUSTICE AND ASSESSMENT O RDER IS LIABLE TO BE QUASHED. 2. BRIEF FACTS OF THE ISSUE ARE THAT WHILE DOING AS SESSMENT U/S. 147/144 ASSESSING OFFICER ADDED AN AMOUNT OF RS.62,740/- TO THE TOTAL INCOME OF THE ASSESSEE BY OBSERVING AS UNDER :- FROM THE RETURN IT APPEARS THAT THE ASSESSEE HAS D ECLARED A TURNOVER OF RS.6,31,000/- HOWEVER FROM TDS CERTIFICATES FILED T HE TURNOVER ADDED TO RS.6,93,740/-. THUS THE ASSESSEE SUPPRESSED TURNOVE R OF RS.62,740/-. AS THE PARTIES OF THE ASSESSEE HAVE STATED A HIGHER TURNOV ER IN THE TDS CERTIFICATE AND THE ASSESSEE HAS FAILED TO SUBSTANTIATE HIS TURNOVE R AND RETURN IN VIEW OF THE SAME THE SUM OF RS.62,740/- IS ADDED TO THE INCOME OF THE ASSESSEE. NO CLAIM OF EXPENSES IS ALLOWABLE IN RESPECT OF THE SAME AS THE SAME IS TO BE DISALLOWED U/S. 69C OF THE IT ACT, 1961. ON APPEAL LD. CIT(A) HAS CONFIRMED THE SAME BY OBSE RVING THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS NO COMPLIANCE WAS MADE BY THE ASSESSEE. 3. AGGRIEVED BY THIS NOW THE ASSESSEE IS IN APPEAL BEFORE US. ITA NO.2176/KOL/2010 2 4. AT THE TIME OF HEARING BEFORE US, THE LD. COUNSE L APPEARING ON BEHALF OF THE ASSESSEE REQUESTED FOR ADJOURNMENT. ON PERUSAL OF THE RECORD S AND THE GROUNDS TAKEN BY THE ASSESSEE, IT IS OBSERVED THAT THE MAIN GRIEVANCE OF THE ASSESSEE IS THAT THE ASSESSING OFFICER HAS PASSED THE ASSESSMENT U/S. 147/144 WITHOUT GIVING ANY OPPORTUN ITY OF BEING HEARD AND THUS THE ASSESSING OFFICER HAS VIOLATED THE PRINCIPAL OF NATURAL JUSTI CE. IT IS FURTHER OBSERVED IN THE STATEMENT OF FACT S FILED BEFORE THE LD. CIT(A) THE ASSESSEE HAS FILED RECONCILIATION BETWEEN TURNOVER TAKEN IN THE PROFIT AND LOSS ACCOUNT AS WELL AS TURNOVER DECLARE D IN THE TDS CERTIFICATE WHICH HAS NOT BEEN TAKEN INTO CONSIDERATION BY THE REVENUE AUTHORITIES . THEREFORE, IT IS DECIDED TO DISPOSE OF THE APPEAL BY REJECTING THE ADJOURNMENT APPLICATION. 4.1 LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE HAS AGREED FOR SETTING ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER. HOWEVER, THE LD. DEPARTMENTAL REPRESENTATIVE OBJECTED FOR SUCH SETTING ASIDE BY STATING THAT IT WILL NOT SERV E THE PURPOSE AS THE ASSESSEE HAS NOT AVAILED THE OPPORTUNITIES GIVEN BY THE ASSESSING OFFICER AS WEL L AS THE LD. CIT(A). THEREFORE, HE REQUESTED TO CONFIRM THE ORDER OF THE REVENUE AUTHORITIES. 5. AFTER HEARING THE RIVAL SUBMISSIONS AND KEEPING IN VIEW OF THE FACT THAT THE ASSESSING OFFICER HAS PASSED ASSESSMENT U/S. 147/144 OF THE A CT AND LD. CIT(A) HAS PASSED AN EX PARTE ORDER, IN THE INTEREST OF JUSTICE, I AM OF THE VIEW THAT THE ASSESSEE SHOULD BE GIVEN ONE MORE OPPORTUNITY AS THE ASSESSEE HAS ALREADY FILED RECON CILIATION STATEMENT BEFORE THE LD. CIT(A) ON ACCOUNT OF DIFFERENCE OF TDS CERTIFICATE AND THE AM OUNT TAKEN INTO PROFIT AND LOSS ACCOUNT. THEREFORE, I SET ASIDE THE ORDERS OF THE REVENUE AU THORITIES AND RESTORE THE SAME TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE SA ME AFRESH AFTER TAKING INTO CONSIDERATION THE RECONCILIATION STATEMENT AND AFTER GIVING REASONABL E OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17. 01. 2011. SD/- [ C. D. R AO ] ACCOUNTANT MEM BER DATED : 17 TH JANUARY, 2011. ITA NO.2176/KOL/2010 3 COPY FORWARDED TO THE - 1. LAKSHMINARASIMAN SRIDHAR, 95/1, BALLYGUNGE PLA CE, KOLKATA-700 019. 2. INCOME TAX OFFICER/WARD-32(3), 10B, MIDDLETON ROW, KOLKATA-700 019. 3. CIT(A)- (4) C IT- 5. D.R., I.T.A.T., KOLKATA. [TRUE COPY] BY ORDER DEPUTY/ASSISTANT REGISTRAR (KKC) I .T.A.T., KOLKATA.