Virendra Kumar, Kolkata V. ITO, Ward - 28(2), Kolkata, Kolkata

ITA 2285/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48218 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2011
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 21-06-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 28-12-2010
• Court: TRIBUNAL
• Department Lawyers: M BHATTACHARYA
• Assessee Lawyers: MIRAZ D SHAH
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH B, KOLKATA () BEFORE , , , , , SHRI MAHAVIR SINGH, JUDICIAL MEMBER. /AND . .. .!' !'!' !'. .. . , #$ SHRI C.D.RAO, ACCOUNTANT MEMBER % % % % / ITA NO . 2285/KOL/2010 &' ()/ ASSESSMENT YEAR : 2005-06 (+, / APPELLANT ) VIRENDRA KUMAR, KOLKATA (PAN: AMWPK 3820 A) - & - - VERSUS - . (./+,/ RESPONDENT ) I.T.O., WARD-28(2), KOLKATA +, 0 1 #/ FOR THE APPELLANT: SHRI MIRAZ D.SHAH ./+, 0 1 #/ FOR THE RESPONDENT: SHRI M.BHATTACHARYA #2 / ORDER . .. .!' !'!' !'. .. . , , , , #$ #$ #$ #$ PER SHRI C.D.RAO, AM THE APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER DATED 09.09.2010 OF THE CIT(A)-XIV, KOLKATA PERTAINING TO A.YR. 2005-06. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GR OUNDS OF APPEAL :- 1. FOR THAT THE LD. CIT(APPEALS) ERRED IN CONFIRMI NG THE ORDER PASSED BY THE LD.ASSESSING OFFICER. 2. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LD. CIT(A) AND THE LD. ASSESSING OFFICER ERRED BOTH IN LAW AS WELL AS IN F ACT IN ADDING BACK THE SUM OF RS.4,97,700/- TO THE TOTAL INCOME OF THE APPELLANT BY TREATING ADVANCE FROM CUSTOMER AS INCOME FROM OTHER SOURCES. 3. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LD. CIT(A) AND THE LD. ASSESSING OFFICER ERRED BOTH IN LAW AS WELL AS IN F ACT IN ADDING BACK THE SUM OF RS.60,000/- TO THE TOTAL INCOME OF THE APPELLANT BY TREATING THE CAPITAL INTRODUCED AS INCOME FROM OTHER SOURCES. 2 4. THE APPELLANT CRAVES LEAVE TO AMEND, ALTER, OR T O ADD ANY FURTHER GROUNDS BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 3. THE BRIEF FACTS OF THIS ISSUE ARE THAT TH E AO WHILE DOING THE SCRUTINY ASSESSMENT THE AO HAS ADDED AN AMOUNT OF RS.4,97,700/- ON ACCO UNT OF UNSUBSTANTIATED LIABILITIES UNDER THE HEAD ADVANCES FROM CUSTOMERS AND RS.60,00 0/- AS UNEXPLAINED SOURCES REGARDING INTRODUCTION OF CAPITAL BY OBSERVING THAT THE ASSESSEE IS NOT IN A POSITION TO FURNISH ANY E VIDENCE OR EXPLANATION IN SUPPORT OF HIS CLAIMS OF LIABILITY FOR ADVANCES FR OM CUSTOMER AMOUNTING TO RS.4,97,700/- AND THE SOURCE OF INTRODUCTION TO CA PITAL AMOUNTING TO RDS.60,000/- DURING THE RELEVANT YEAR. 3.1. ON APPEAL THE LD. CIT(A) HAS CONFIRMED THE SAME BY OBSERVING THAT I FEEL THAT EVEN DURING THE APPELLATE PROCEEDINGS THE ASSESSEE HAS FAILED TO PRODUCE ANY EVIDENCE REGARDING THE NATURE AND SOURC E OF THE ABOVE TWO AMOUNTS CREDITED IN HIS BOOKS OF ACCOUNTS. THEREFOR E, I CONFIRM THIS ADDITION MADE BY THE A.O. 3.2. AGGRIEVED BY THIS THE ASSESSEE IS IN APP EAL BEFORE US. 4. AT THE TIME OF HEARING THE LD. COUNSEL A PPEARING ON BEHALF OF THE ASSESSEE HAS SUBMITTED THAT NOW THE ASSESSEE IS IN A POSITION TO FULFILL THE REQUIREMENTS CALLED BY THE AO. HE COULD NOT REPRESENT THE CASE BEFORE THE LD. CIT(A) FOR VARIOUS REASONS. THEREFORE, HE REQUESTED TO SET ASIDE THESE TWO ISSU ES TO THE FILE OF THE AO FOR FRESH CONSIDERATION. 5. ON THE OTHER HAND, THE LD. DR APPEARING ON BEHALF OF THE REVENUE COULD NOT CONTRADICT THE SAID REQUEST OF THE LD. COUNSEL FOR THE ASSESSEE. 6. AFTER HEARING THE RIVAL SUBMISSIONS AND ON PERUSAL OF THE MATERIALS AVAILABLE ON RECORD, IT IS OBSERVED THAT THE LD. CIT(A) HAS DISP OSED OFF THIS APPEAL EX-PARTE. EVEN THE AO HAS MADE THESE ADDITIONS ON ACCOUNT OF PRESU MPTIONS IN ABSENCE OF EVIDENCES CALLED FOR. SINCE THE ASSESSEE IS NOW IN A POSITION TO SUBSTANTIATE THE ARGUMENTS BEFORE THE AO, IN THE INTEREST OF JUSTICE, WE SET ASIDE TH ESE TWO ISSUES TO THE FILE OF THE AO FOR FRESH CONSIDERATION AS PER LAW AFTER GIVING REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO AT LIBERTY TO FI LE THE ADDITIONAL EVIDENCES IN SUPPORT OF HIS SUBMISSIONS. WE ORDER ACCORDINGLY. 3 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21.06.2011. SD/- SD/- MAHAVIR SINGH, JUDICIAL MEMBER . .. .!' !'!' !'. .. . , ,, , #$ #$ #$ #$ , C.D.RAO, ACCOUNTANT MEMBER. ( (( ('$ '$ '$ '$) )) ) DATE: 21.06.2011 #2 0 .3 4#3(5- COPY OF THE ORDER FORWARDED TO: 1. VIRENDRA KUMAR, C/O D.J.SHAH & CO., KALYAN BHAWAN, 2 ELGIN ROAD, KOLKATA-700020. 2 THE I.T.O., WARD-28(2), KOLKATA 3. THE CIT, 4. THE CIT(A)-XIV, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA /3 ./ TRUE COPY, #2&:/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES R.G.(.P.S.)