Shri Sandeep Saria, Kolkata V. ACIT, Circle - 36, Kolkata , Kolkata

ITA 2289/KOL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1660 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 09-11-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SATYAJIT MONDAL AD DL
• Keywords: Opportunity of being heard
• Section: 143(3); 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC B ENCH : KOLKATA [BEFORE HONBLE SRI N.V.VASUDEVAN, JM ] I.T.A NO. 2289/KOL/20 17 ASSESSMENT YEAR : 2011-1 2 SHRI SANDEEP SARIA -VS.- A.C.I.T., CIRCL E-36, KOLKATA KOLKATA [PAN : ALEPS 2101 B] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI SUNIL S URANA, ADVOCATE FOR THE RESPONDENT : SHRI SATYAJIT MONDAL, AD DL. CIT DATE OF HEARING : 30.01.2018. DATE OF PRONOUNCEMENT : 02.02.2018. ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 07.09.2017 OF CIT(A)- 10, KOLKATA RELATING TO A.Y.2011-12. 2. THE ASSESSEE IS AN INDIVIDUAL.. HE DERIVES INCOM E FROM BUSINESS OF TRADING AND MANUFACTURING OF ENGINEERING GOODS, SPARE PARTS ETC . FOR A.Y.2011-12 THE ASSESSEE FILED RETURN OF INCOME DECLARING A TOTAL INCOME OF RS.31, 54,173/-. AN ORDER OF ASSESSMENT WAS PASSED U/S 143(3) OF THE INCOME TAX ACT, 1961 ( ACT) DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS.40,54,970/-. 3. THE ASSESSEE FILED APPEAL BEFORE THE CIT(A) CHAL LENGING VARIOUS ADDITIONS MADE BY THE AO IN THE ORDER OF ASSESSMENT. ACCORDING TO THE CIT(A) THE APPEAL OF THE ASSESSEE WAS FIXED FOR HEARING ON SEVERAL OCCASIONS AND NOTICE OF HEARING SENT TO THE ASSESSEE WERE RETURNED UNSERVED. THE CIT(A) HAD ALS O MENTIONED IN HIS ORDER THAT THE ASSESSEE HAD NOT INFORMED THE CHANGE OF ADDRESS AND THEREFORE THE APPEAL WAS BEING DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON RECOR D. THE CIT(A) FOUND NO GROUNDS WITH THE ORDER OF THE AO AND ACCORDINGLY DISMISSED THE A PPEAL OF THE ASSESSEE. 4. AGGRIEVED BY THE ORDER OF CIT(A) THE ASSESSEE HA S PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL RAISING THE FOLLOWING GROUNDS O F APPEAL : 2 ITA NO.2289/KOL/2017 SHRI SANDEEP SARIA A.YR.2011-12 2 1. FOR THAT THE ORDER OF THE LD. CIT (A) IS ARBITR ARY, ILLEGAL AND BAD IN LAW. 2. FOR THAT THE LD. C.I.T(A) ERRED IN PASSING THE A PPELLATE ORDER EXPARTE WITHOUT AFFORDING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD AND FURTHER NO NOTICE FIXING THE HEARING OF THE CASE WAS SERVED ON THE ASSESSEE. 3. FOR THAT THE LD. C.I.T(A) ERRED IN CONFIRMING TH E ACTION OF THE LD. AO IN DISALLOWING RS. 174391/- BEING 25% OF THE CONVEYANC E EXPENSES FULLY INCURRED FOR BUSINESS PURPOSES , NO DISCREPANCY WAS FOUND IN THE SELF MADE VOUCHERS AND IN THE VERY NATURE OF EXPENSES ONLY SELF MADE VOUCHERS ARE BEING KEPT. 4. FOR THAT THE LD. C.I.T(A) ERRED IN CONFIRMING TH E ACTION OF THE LD. AO IN DISALLOWING RS. 3,31,118/- BEING THE CARRIAGE INWAR D AND OUTWARD CHARGES WHEN THE PROVISIONS OF SEC. 194C AS WELL AS SECTION 40(A )(IA) WERE NOT APPLICABLE ON THESE PAYMENTS. 5. FOR THAT THE LD. C.I.T(A) ERRED IN CONFIRMING TH E ACTION OF THE LD. AO IN DISALLOWING RS. 165,1261- BEING 25% OF WAGES AND BO NUS EXPENSES FULLY INCURRED FOR BUSINESS PURPOSES , NO DISCREPANCY WAS FOUND IN THE SELF MADE VOUCHERS AND IN THE VERY NATURE OF EXPENSES ONLY SELF MADE VOUCHERS ARE BEING KEPT. 6. FOR THAT THE LD. C.I.T(A) ERRED IN CONFIRMING TH E ACTION OF THE LD. AO IN ADDING BACK RS. 2,30,159/- BEING CREDIT CARD EXPENSES WHEN NO SUCH EXPENSES WERE CLAIMED IN THE PROFIT AND LOSS ACCOUNT 7. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THE DISALLOWANCE OF RS. 174391/-, RS. 331118/-, RS. 165126/- AND RS. 230159 /- WERE NOT JUSTIFIED. 6. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THE ORDER OF THE CIT(A) BE MODIFIED AND THE ASSESSEE BE GIVEN THE RELIEF PRAYE D FOR. 7. FOR THAT THE ASSESSEE CRAVES LEAVE TO ADD, ALTER OR AMEND ANY GROUND BEFORE OR AT THE TIME OF HEARING. 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND SUBMISSIO NS ON GROUND NO.2 RAISED BY THE ASSESSEE BEFORE THE TRIBUNAL. THE ADDRESS FOR SERVI CE OF THE ASSESSEE REMAINS THE SAME AS WAS GIVEN BY THE ASSESSEE IN FORM NO.,35 FILED BY T HE ASSESSEE BEFORE THE CIT(A). IT WAS STATED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE CONTINUES TO RESIDE IN THE AFORESAID ADDRESS VIZ. SUNFLOWER APARTMENTS, 74, TO PSIA ROAD, KOLKATA-700046. THE 3 ITA NO.2289/KOL/2017 SHRI SANDEEP SARIA A.YR.2011-12 3 LD. COUNSEL ALSO SUBMITTED THAT NO NOTICE WERE SERV ED ON THE ASSESSEE. HE WAS UNABLE TO COMMENT AS TO WHY NOTICES WERE RETURNED UNSERVED O N THE ASSESSEE. I AM OF THE VIEW THAT THE ASSESSEE DID NOT HAVE PROPER OPPORTUNITY O F BEING HEARD BEFORE THE CIT(A). I, THEREFORE, SET ASIDE THE ORDER OF CIT(A) AND REMAND FOR CONSIDERATION AFRESH BY CIT(A) THE VARIOUS GROUNDS RAISED BY THE ASSESSEE BEFORE CIT(A) ON MERITS AFTER AFFORDING OPPORTUNITY OF BEING HEARD. I HOLD AND ORDER ACCOR DINGLY. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS TREA TED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT 02.02.2018. SD/- [ N.V.VASUDEVAN ] JUDICIAL MEMBER DATED : 02.02.2018. [RG SR.PS] COPY OF THE ORDER FORWARDED TO: 1. SHRI SANDEEP SARIA, SUNFLOWER APARTMENTS, 74, TO PSIA ROAD, KOLKATA-700046. 2. A.C.I.T., CIRCLE-36, KOLKATA. 3. CIT(A)-10, KOLKATA 4. C.I.T-12, KOLKA TA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECR ETARY HEAD OF OFFICE/ D.D.O., ITAT KOLKATA BENCHES 4 ITA NO.2289/KOL/2017 SHRI SANDEEP SARIA A.YR.2011-12 4