ITO, Ward-33(1), Kolkata, Kolkata V. Karan Singh Binayak, Kolkata

ITA 2223/KOL/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1317 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 12-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C, KOLKATA [BEFORE SHRI P.M. JAGTAP, AM AND SHRI ABY. T. VARKEY, JM] I.T.A. NO. 2223/KOL/2014 ASSESSMENT YEAR: 2008-09 INCOME TAX OFFICER......................................................APPELLANT WARD NO. 33(1) 10B, MIDDLETON ROW, 3 RD FLOOR, KOLKATA 700 071 M/S. KARAN SINGH BINAYAK...........RESPONDENT 4, HO CHI MINH SARANI, KOLKATA 700 071 [PAN: AECPB 2417 A] APPEARANCES BY: SHRI SAURABH KUMAR, ADDL. CIT (SR. DR) APPEARING ON BEHALF OF THE REVENUE. SHRI O.P. BAID, AR APPEARING ON BEHALF OF THE ASSESSEE. DATE OF CONCLUDING THE HEARING : MARCH 03, 2018 DATE OF PRONOUNCING THE ORDER : MARCH 07, 2018 ORDER PER P.M. JAGTAP, AM THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(APPEALS) 19, KOLKATA DATED 17.09.2014. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL WHO IS CARRYING ON THE BUSINESS AS BUILDERS, DEVELOPERS AND PROMOTER OF REAL ESTATE. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY HIM ON 26.09.2008 DECLARING HIS TOTAL INCOME AT NIL. IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 29.12.2010, THE FOLLOWING ADDITIONS WERE MADE BY THE A.O. TO THE TOTAL INCOME OF THE ASSESSEE: 1. ADVANCES RECEIVED BY FLAT BOOKING RS. 66,08,748/- 2. LIABILITY SHOWN OF DEVELOPMENT PROJECT RS. 86,80,985/- 3. ADVANCES ON PROPERTIES RS. 34,06,150/- 4. DISALLOWANCE UNDER SECTION 14A RS. 7,79,191/- 2 I.T.A. NO. 2223/KOL/2014 ASSESSMENT YEAR: 2008-09 M/S. KARAN SINGH BINAYAK 3. AGAINST THE ORDER PASSED BY THE A.O. UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND AFTER CONSIDERING THE SUBMISSIONS MADE BY THE ASSESSEE AS WELL AS THE MATERIAL AVAILABLE ON RECORD, THE LD. CIT(A) DELETED SUBSTANTIALLY ALL THE ADDITIONS MADE BY THE A.O. TO THE TOTAL INCOME OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE REVENUE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING GROUNDS: 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN ADMITTING FRESH EVIDENCES AT THE APPELLATE STAGE IN VIOLATION OF THE PROVISIONS OF RULE 46A(3) OF THE INCOME TAX RULES, 1962. 2. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(APPEALS) ERRED IN ALLOWING RELIEF TO THE ASSESSEE IN DELETING THE ADDITION OF RS. 66,08,748/- ON ACCOUNT OF ADVANCES RECEIVED FOR FLAT BOOKINGS AND SHOWN AS LIABILITY, DESPITE THE FACT THAT COMPLETION CERTIFICATE HAD BEEN ISSUED BY THE APPROPRIATE AUTHORITY ON THE BASIS OF SUCH FRESH EVIDENCES. 3. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(APPEALS) ERRED IN ALLOWING RELIEF TO THE ASSESSEE IN DELETING THE ADDITION OF RS. 86,80,985/- ON ACCOUNT OF LIABILITY SHOWN AGAINST DEVELOPMENT OF A PROJECT, DESPITE THE FACT THAT THERE WAS NO SUCH AGREEMENT, ON THE BASIS OF SUCH FRESH EVIDENCES. 4. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(APPEALS) ERRED IN ALLOWING RELIEF TO THE ASSESSEE IN DELETING THE ADDITION OF RS. 34,06,150/- ON ACCOUNT OF ADVANCE ON PROPERTIES ACCOUNT ON THE BASIS OF SUCH FRESH EVIDENCES. 5. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(APPEALS) ERRED IN ALLOWING RELIEF TO THE ASSESSEE IN DELETING THE ADDITION OF RS. 7,56,000/- ON ACCOUNT OF INTEREST PAID UNDER RULE 8D(2)(I) AND RS. 22,918/- UNDER RULE 8D(2)(III) ADVANCE ON PROPERTIES ACCOUNT ON THE BASIS OF SUCH FRESH EVIDENCES. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE GRIEVANCE OF THE REVENUE AS SPECIFICALLY PROJECTED IN THE GROUNDS RAISED IN ITS APPEAL IS THAT THE LD. CIT(A) HAS ALLOWED SUBSTANTIAL RELIEF TO THE 3 I.T.A. NO. 2223/KOL/2014 ASSESSMENT YEAR: 2008-09 M/S. KARAN SINGH BINAYAK ASSESSEE ON THE ISSUES UNDER DISPUTE BY RELYING ON FRESH EVIDENCES FILED BY THE ASSESSEE FOR THE FIRST TIME BEFORE HIM WITHOUT GIVING ANY OPPORTUNITY TO THE A.O. TO VERIFY THE SAME RESULTING IN VIOLATION OF PROVISIONS OF RULE 46A OF THE INCOME TAX RULES, 1962. IN THIS REGARD, THE LEARNED DR WAS REQUIRED TO POINT OUT SPECIFICALLY THE FRESH EVIDENCE FILED BY THE ASSESSEE FOR THE FIRST TIME BEFORE THE LD. CIT(A) WHICH HAVE BEEN RELIED UPON BY THE LD. CIT(A) TO GIVE RELIEF TO THE ASSESSEE ON THE ISSUES UNDER CONSIDERATION. HE, HOWEVER, HAS FAILED TO SPECIFICALLY POINT OUT ANY SUCH FRESH EVIDENCE. ON THE OTHER HAND, HE HAS AGREED THAT A PERUSAL OF THE IMPUGNED ORDER OF THE LD. CIT(A) DOES NOT SHOW ANY SUCH FRESH EVIDENCE FILED BY THE ASSESSEE FOR THE FIRST TIME BEFORE THE LD. CIT(A) WHICH HAS BEEN RELIED UPON BY THE LD. CIT(A) TO GIVE RELIEF TO THE ASSESSEE ON THE ISSUES UNDER CONSIDERATION. WE, THEREFORE, FIND NO MERIT IN THE GROUNDS RAISED BY THE REVENUE IN THIS APPEAL AND UPHOLDING THE IMPUGNED ORDER OF THE LD. CIT(A), WE DISMISS THIS APPEAL FILED BY THE REVENUE. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH MARCH, 2018. SD/- SD/- (ABY.T. VARKEY) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 07/03/2018 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. M/S. KARAN SINGH VINAYAK, 4, HO CHI MINH SARANI, KOLKATA 700 071. 4 I.T.A. NO. 2223/KOL/2014 ASSESSMENT YEAR: 2008-09 M/S. KARAN SINGH BINAYAK 2. ITO, WARD 33(1), 10B, MIDDLETON ROW, 3 RD FLOOR, KOLKATA 700 071. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, SR. P.S. / H.O.O. ITAT, KOLKATA