Shri Manob Aditya, Kolkata V. ITO, Ward - 50(4), Kolkata, Kolkata

ITA 2259/KOL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9198 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2011
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 29-03-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 24-12-2010
• Court: TRIBUNAL
• Department Lawyers: GOUTAM MONDAL
• Assessee Lawyers: A K BANERJEE
• Keywords: Opportunity of being heard; Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE , /AND , . . !' ) [BEFORE HONBLE SRI MAHAVIR SINGH, JM & HONBLE SHR I C. D. RAO, AM] # # # # / I.T.A NO. 2259/KOL/2010 $% &' $% &' $% &' $% &'/ // / ASSESSMENT YEAR : 2005-06 SHRI MANOB ADITYA VS INCOME-TAX OFFICER, WD-50 (4), KOLKATA (PAN-ACJPA 1821 A) ( )* /APPELLANT ) (+,)*/ RESPONDENT ) FOR THE APPELLANT: SHRI A. K. BANERJEE FOR THE RESPONDENT: SHRI GOUTAM MONDAL !- / ORDER PER MAHAVIR SINGH, JM ( , , , , ) THIS APPEAL BY ASSESSEE IS ARISING OUT OF THE ORDER OF CIT(A)-XXXII, KOLKATA IN APPEAL NO.141/CIT(A)-XXXII/08-09/50(4)/KOL VIDE DAT ED 30.07.2010. THE ASSESSMENT WAS FRAMED BY ITO, WD-50(4), KOLKATA U/S. 143(3)/14 7 READ WITH SECTION 145(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT) FOR ASSESSMENT YEAR 2005- 06 VIDE HIS ORDER DATED 29.12.2008. 2. THE ONLY ISSUE IN THIS APPEAL OF THE ASSESSEE IS AGAINST THE ORDER OF CIT(A) CONFIRMING THE ACTION OF ASSESSING OFFICER MAKING ADDITION OF RS.1,39,885/- AS INCOME FROM ADITYA PUBLIC SCHOOL. FOR THIS, THE ASSESSEE RAISED THE FOLLOWING TWO GROUNDS: 1. FOR THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.1,39,885/- MADE TO TOTAL INCOME AS THE CONCEALED INCOME FROM ADITYA PUBLIC SCHOOL, WITHOUT TAKING INTO CONSIDERATION OF ALL THE EVIDENCE ADDUCED TO HIM AND ARGUMENTS PL ACED BEFORE HIM BY THE APPELLANT. 2. FOR THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) WAS ERRONEOUS IN HOLDING THAT THE CLAIM FOR EXCLUSION OF THE ADDITIO N AMOUNTING TO RS.1,39,885/- FROM TOTAL INCOME COMPUTED IN THE ASSESSMENT ORDER COULD NOT BE ACCEPTED ON THE BASIS OF THE FINDINGS MADE BY HIM, WITHOUT APPL ICATION OF HIS MIND TO THE FACTS OF THE CASE AND EVIDENCE ADDUCED BY THE APPELLANT I N THE CASE. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE TAKEN US TO THE FINDINGS OF CIT(A), WHICH READS AS UNDER: 2 ITA 2259/201 0 MANOB ADITYA A.Y. 05-06 I HAVE CAREFULLY PERUSED THE ASSESSMENT ORDER AND THE SUBMISSION OF THE A/R. THE CLAIM OF THE ASSESEE IS NOT SUPPORTED THROUGH A NY EVIDENCE. THE ASSESEE HAS NOT ADDUCED ANY EVIDENCE TO SHOW THAT AFTER THE REC EIPTS WERE RECORDED IN SUCH CONSOLIDATED REGISTER THE SAME WERE ACTUALLY BEING SEPARATELY ENTERED INTO THE BOOKS OF ACCOUNT OF NETAJI PUBLIC SCHOOL. NO EXPLA NATION AS TO HOW SUCH BIFURCATION WAS DONE. 4. LD. COUNSEL FOR THE ASSESSEE STATED THAT THE ASS ESSEE HAS FILED COMPLETE DETAILS BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE CIT( A) AND EVEN NOW BEFORE US, HE HAS FILED COMPLETE DETAILS IN PAPER BOOK, AND TRIED TO SUBSTANTIATE HIS CLAIM THAT THESE RECEIPTS PERTAINED TO NETAJI PUBLIC SCHOOL AND NOT ADITYA PUBLIC SCHOOL. HE STATED THAT NEITHER ASSESSING OFFICER NOR CIT(A) HAS CONSIDERED THESE EVIDENCE. HE STATED THAT LET THE ISSUE BE EXAMINED BY ASSESSING OFFICER AFRESH I N VIEW OF THESE EVIDENCES. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 5. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT BOTH THE AUTHORITIES I.E. ASSES SING OFFICER AS WELL AS CIT(A) HAS NOTED THAT THE CLAIM OF THE ASSESSEE IS NOT SUPPORT ED THROUGH ANY EVIDENCE THAT THESE RECEIPTS PERTAINED TO NETAJI PUBLIC SCHOOL WHICH IS A SEPARATE ENTITY. AS THE CLAIM OF THE ASSESSEE IS THAT THESE RECEIPTS PERTAINED TO NETAJI PUBLIC SCHOOL, AT THIS STAGE, WE CANNOT MAKE INVESTIGATION OF THESE DOCUMENTS. HENCE LET TH IS ISSUE BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR RE-ADJUDICATION AS REQUESTED BY LD. COUNSEL FOR THE ASSESSEE. IN ALL FAIRNESS, WE SET ASIDE THIS ISSUE TO THE FILE O F THE ASSESSING OFFICER TO BE DECIDED IN THE LIGHT OF THE EVIDENCE PRODUCED. ASSESSING OFFI CER WILL PROVIDE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE AP PEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 7. ORDER IS PRONOUNCED IN THE OPEN COURT ON 29.03.2 011 . . !' , (C. D. RAO) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( ' ' ' ') )) ) DATED 29TH DAY OF MARCH, 2011 ./ $01 2 JD.(SR.P.S.) 3 ITA 2259/201 0 MANOB ADITYA A.Y. 05-06 !- 3 +4 5!4&6- COPY OF THE ORDER FORWARDED TO: 1 . )* / APPELLANT SHRI MANOB ADITYA, 182, JESSORE ROAD, KOLKATA-700 074. 2 +,)* / RESPONDENT ITO, WARD-50(4), KOLKATA. 3 . -$ ( )/ THE CIT(A), KOLKATA 4. 5. -$ / CIT KOLKATA 4 <= +$ / DR, KOLKATA BENCHES, KOLKATA ,4 +/ TRUE COPY, !-$>/ BY ORDER, 1 /ASSTT. REGISTRAR .