Abhijit Pandit, Howrah V. I.T.O.,Ward-46(1), Kolkata

ITA 2273/KOL/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2884 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 11-10-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Assessee Lawyers: MANISH TIWARI
• Keywords: Set aside

Judgement Text

ITA NO.2273/KOL/2019 ABHIJIT PANDIT, AY 2008-09 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA [BEFORE SHRI J. SUDHAKAR REDDY, AM AND SHRI A. T. VARKEY, JM] I.T.A. NO. 2273/KOL/2019 ASSESSMENT YEAR: 2008-09 ABHIJIT PANDIT (PAN: AFXPP3479E) VS. INCOME-TAX OFFICER, WARD-46(1), KOLKATA. APPELLANT RESPONDENT DATE OF HEARING (VIRTUAL) 11.05.2021 DATE OF PRONOUNCEMENT 18.06.2021 FOR THE APPELLANT SHRI MANISH TIWARI, FCA FOR THE RESPONDENT SMT. RANU BISWAS, ADDL. CIT ORDER PER SHRI A. T. VARKEY, JM: THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX-14, KOLKATA DATED 31.03.2017 FOR ASSE SSMENT YEAR 2008-09. 2. AT THE OUTSET, THE LD. AR DREW OUR ATTENTION TO THE FACT THAT THE IMPUGNED ORDER OF THE CIT(A) IS AN EX PARTE ORDER WHICH FACT WE FIND IT TO BE CORRECT. ACCORDING TO THE LD. AR, THE ASSESSEE COULD NOT APPEAR BEFORE THE LD. CI T(A) BECAUSE THE NOTICE OF THE HEARING WAS RECEIVED BY THE ASSESSEE AFTER THE IMPU GNED ORDER WAS PASSED. THEREFORE, ACCORDING TO HIM, THERE IS VIOLATION OF NATURAL JUS TICE, SINCE THE ASSESSEE DID NOT GET OPPORTUNITY TO APPEAR AND PLEAD ITS CASE BEFORE THE LD. CIT(A) DURING THE HEARING. FURTHER, THE LD. AR BROUGHT TO OUR NOTICE THAT THE ORDER OF A.O WAS ALSO EX PARTE. ACCORDING TO HIM, THE AO WITHOUT GIVING OPPORTUNITY TO THE ASSESSEE TO PARTICIPATE IN THE ASSESSMENT PROCEEDINGS HAD FRAMED THE ASSESSMENT OR DER. ACCORDING TO THE LD. AR, THE ASSESSEE IS A SALARIED PERSON AND SOMEONE HAS MISUS ED HIS BANK ACCOUNT AND MADE CERTAIN ACCOMMODATION TRANSACTIONS WHICH NEED TO BE EXPLAIN ED BEFORE THE A.O, SO THAT THE CORRECT TAX CAN BE ASSESSED IN THE RIGHT/CORRECT HA ND IN ACCORDANCE WITH LAW. I.T.A. NO.2273/KOL/2019 ASSESSMENT YEAR: 2008-09 ABHIJIT PANDIT 2 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE IN HA ND, THE LD. DR DOES NOT HAVE ANY OBJECTION IF THE MATTER IS REMITTED BACK TO THE A.O FOR DE NOVO ASSESSMENT. 4. IN THE LIGHT OF THE AFORESAID DISCUSSION, WE ARE NOT REPEATING THE FACT FOR THE SAKE OF BREVITY. WE NOTE THAT THE A.O HAS NOTED THAT DESPIT E NOTICES BEING SENT TO THE ASSESSEE, HE HAS NOT COMPLIED WITH THE SAME AND THEREFORE, THE A .O HAS MADE THE ADDITION OF RS.3.15 CRORES. AT THE OUTSET, WE MAKE IT CLEAR THAT WE ARE NOT STATING ANYTHING ON THE MERITS OF THE ADDITION MADE BY THE A.O. THE ASSESSEES MAIN GRIEV ANCE IS THAT DUE TO CERTAIN UNAVOIDABLE REASON, HE COULD NOT PARTICIPATE IN THE ASSESSMENT PROCEEDINGS WHICH PROMPTED THE A.O TO MAKE THE IMPUGNED ADDITION IN R ESPECT OF THE BANK TRANSACTION. THE ASSESSEES PRAYER IS THAT THE MATTER MAY BE REMITTE D BACK TO THE A.O FOR DE NOVO ASSESSMENT. WE NOTE THAT SINCE THE ASSESSEE COULD N OT PARTICIPATE IN THE ASSESSMENT PROCEEDINGS, THE ENTIRE ADDITION OF THE BANK TRANSA CTION HAS BEEN MADE. IN SUCH A SCENARIO, WE TAKE NOTE OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF TIN BOX COMPANY VS. CIT REPORTED IN (2001) 249 ITR 216 (SC ) WHEREIN THE HONBLE SUPREME COURT HAS DIRECTED THAT THE ASSESSEE SHOULD BE GIVE N PROPER OPPORTUNITY DURING THE ASSESSMENT PROCEEDINGS AND FAILURE TO DO SO THEN TH E MATTER SHOULD BE REMITTED BACK TO THE A.O. THE ORDER OF THE HONBLE SUPREME COURT IN TIN BOX CO. (SUPRA) IS AS UNDER: 1. IT IS UNNECESSARY TO GO INTO GREAT DETAIL IN TH ESE MATTERS FOR THERE IS A STATEMENT IN THE ORDER OF THE TRIBUNAL, THE FACT-FINDING AUTHORITY, THAT R EADS THUS : 'WE WILL STRAIGHTAWAY AGREE WITH THE ASSESSEE'S SUB MISSION THAT THE INCOME-TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORTUNITY OF BEING H EARD.' 2. THAT THE ASSESSEE COULD HAVE PLACED EVIDENCE BEF ORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL IS REALLY OF NO CONSEQUENCE FOR IT IS THE ASSESSMENT ORDER THAT COUNTS. THAT ORDER MUST BE MADE AFTER THE ASSESSEE HAS BEEN GIVEN A REASONA BLE OPPORTUNITY OF SELLING OUT HIS CASE. WE, THEREFORE, DO NOT AGREE WITH THE TRIBUNAL AND THE H IGH COURT THAT IT WAS NOT NECESSARY TO SET ASIDE THE ORDER OF ASSESSMENT AND REMAND THE MATTER TO THE ASSESSING AUTHORITY FOR FRESH ASSESSMENT AFTER GIVING TO THE ASSESSEE A PROPER OP PORTUNITY OF BEING HEARD. 3. TWO QUESTIONS WERE PLACED BEFORE THE HIGH COURT, OF WHICH THE SECOND QUESTION IS NOT PRESSED. THE FIRST QUESTION READS THUS : '1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN NOT SETTING ASIDE THE ASSESSMENT ORDER IN SPITE OF A FI NDING ARRIVED AT BY IT THAT THE INCOME-TAX OFFICER HAD NOT GIVEN A PROPER OPPORTUNITY OF HEARING TO TH E ASSESSEE ?' I.T.A. NO.2273/KOL/2019 ASSESSMENT YEAR: 2008-09 ABHIJIT PANDIT 3 4. IN OUR OPINION, THERE CAN ONLY BE ONE ANSWER TO THIS QUESTION WHICH IS INHERENT IN THE QUESTION ITSELF : IN THE NEGATIVE AND IN FAVOUR OF THE ASSES -SEE. 5. THE APPEALS ARE ALLOWED. THE ORDER UNDER CHALLEN GE IS SET ASIDE. THE ASSESSMENT ORDER, THAT OF THE COMMISSIONER (APPEALS) AND OF THE TRIBUNAL ARE ALSO SET ASIDE. THE MATTER SHALL NOW BE REMANDED TO THE ASSESSING AUTHORITY FOR FRESH CONSI DERATION, AS AFORE-STATED. NO ORDER AS TO COSTS. 5. RESPECTFULLY FOLLOWING THE DECISION OF THE HONB LE SUPREME COURT IN THE TIN BOX CO. (SUPRA), WE SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE A.O FOR DE NOVO ASSESSMENT AFTER GIVING PROP ER OPPORTUNITY TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO BE DILIGENT AND TO FILE HIS WRITTEN SUBMISSION, DOCUMENTS ETC. WHICH HE INTENDS TO RELY UPON AND THE AO TO FRAME THE AS SESSMENT ORDER IN ACCORDANCE TO LAW. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 18.06.202 1. SD/- SD/- [ J. SUDHAKAR REDDY ] [ A. T. VARKEY] ACCOUNTANT MEMBER JUDICIAL MEMB ER DATED: 18.06.2021. RS COPY OF THE ORDER FORWARDED TO: 1. SHRI ABHIJIT PANDIT, 197, ANDUL ROAD, HAWRAH-711 109. 2. ITO, WARD-46(1), KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), //TRUE COPY// BY ORDER ASSISTANT REGISTRAR , KOLKATA BENCHES