Pradip Kumar Ghosh, Hooghly V. I.T.O Wd - 1(4),Burdwan, Burdwan

ITA 2339/KOL/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9499 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2017
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 16-11-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 04-09-2013
• Court: TRIBUNAL
• Assessee Lawyers: SOMNATH GOSH
• Keywords: Unexplained cash credit
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [BEFORE HONBLE SRI M.BALAGANESH., AM & SHRI PART HA SARATHI CHAUDHURY, JM] I.T.A NO. 2339/KOL/20 13 ASSESSMENT YEAR : 2006-0 7 SRI PRADIP KUMAR GHOSH -VS.- I.T.O., WARD -1(4), HOOGHLY BURDWAN [PAN : ADNPG 5541 L] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI SOMNATH GOSH, ADVOCATE FOR THE RESPONDENT : NONE DATE OF HEARING : 02.02.2017. DATE OF PRONOUNCEMENT : 02.02.2017. ORDER PER SHRI PARTHA SARATHI CHAUDHURY, JM THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM THE ORDER OF LD. CIT(A)- DURGAPUR DATED 18.12.2012 ON THE FOLLOWING GROUND S OF APPEAL. 1. FOR THAT THE EX-PARTE ACTION OF THE LD. COMMISSI ONER OF INCOME TAX (APPEALS) DURGAPUR OF SUSTAINING THE ADDITION IN THE SUM OF R S.1,50,000/- MADE ON THE SPECIOUS PRETEXT OF 'UNEXPLAINED CASH CREDIT' BY THE LD. INC OME TAX OFFICER, WARD 1(4), BURDWAN WITHOUT ANY PROOF IS AB INITIO VOID, ULTRA VIRES, A ND EX-FACIE NULL IN LAW. 2. FOR THAT THE LD. COMMISSIONER OF INCOME TAX (APP EALS) DURGAPUR ACTED UNLAWFULLY IN UPHOLDING THE ACTION OF THE LD. INCOME TAX OFFIC ER, WARD 1(4), BURDWAN OF RESORTING TO THE IMPUGNED ADDITION OF RS. 1,50,000/- BEING THE A MOUNT OF GENUINE LOAN RECEIVED FROM SHRI RAMPRASAD CHATTORAJ TREATING IT AS UNEXPLAINED CASH CREDIT IN THE HANDS OF THE APPELLANT WITHOUT ADDUCING ANY ADVERSE EVIDENCE ON RECORD AND HIS ALLEGED FINDINGS ON THAT BEHALF ARE ALTOGETHER ARBITRARY, UNWARRANTED A ND PERVERSE. 3. FOR THAT THE LD. COMMISSIONER OF INCOME TAX (APP EALS) DURGAPUR MISDIRECTED HIMSELF IN LAW IN UPHOLDING THE IMPUGNED ADDITION O F RS. 1,50,000/- MADE UNDER THE SPECIOUS APPLICATION OF THE PROVISIONS OF S. 68 OF THE INCOME TAX ACT, 1961 BY THE LD. INCOME TAX OFFICER, WARD 1(4), BURDWAN WITHOUT CONS IDERING THAT THE EVIDENCE RELATING TO THE NATURE AND SOURCES OF LOAN IN THE INSTANT CASE WERE CONCLUSIVELY PROVED BY THE FACTS BEYOND REASONABLE DOUBT AND THE PURPORTED FINDING O F DISBELIEVING ITS GENUINITY ON EXTRANEOUS ISSUES NOT AMENABLE TO REASON IS WHOLLY ILLEGAL, ILLEGITIMATE AND INFIRM IN LAW. 4. FOR THAT ON A TRUE AND PROPER INTERPRETATION OF THE SCOPE AND AMBIT OF THE PROVISIONS OF S. 68 OF THE INCOME TAX ACT, 1961, THE IDENTITY OF THE LOAN CREDITOR, HIS CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION BEING PROVED BY THE APPELLANT, THE PURPORTED FINDING OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) BURDWA N UPHOLDING THE IMPUGNED ADDITION OF RS. 1,50,000/- MADE BY THE LD. INCOME T AX OFFICER, WARD 1(4), BURDWAN ON 2 ITA NO.2339/KOL/2013 SHRI PRADIP KR GHOSH A.YR.2006-07 2 THE SPECIOUS ALLEGATION OF 'UNEXPLAINED CASH CREDIT ' BY REJECTING SUCH IMMACULATE EVIDENCE ADDUCED ON RECORD IS COMPLETELY UNFOUNDED, UNJUSTIFIED AND UNTENABLE IN LAW. 2. THE BRIEF FACTS APPEARING IN THIS CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF RUNNING A RICE MILL UNDER THE TR ADE NAME AND STYLE OF GADADHAR RICE MILL. THE ASSESEE FILED ITS RETURN FOR A.Y.2006-07 ON 16.10.2006 DECLARING TOTAL INCOME OF RS.2,68,000/-. THE CASE WAS EVENTUALLY TAKEN UP FOR SCRUTINY U/S 143(3) OF THE ACT WHEREIN NOTICES U/S 143(2) AND 143(1) OF THE ACT WE RE ISSUED AND DULY SERVED. IN RESPONSE TO THE SAID NOTICES THE AR OF THE ASSESSEE APPEARED FROM TIME TO TIME AND PRODUCED BOOKS OF ACCOUNT, BILLS AND VOUCHERS, BANK STATEMENTS AND RELEVANT PAPERS AND OTHER INFORMATION AS HAD BEEN CALLED FOR. THE ASSES SMENT WAS COMPLETED U/S 143(3) OF THE ACT WITH ASSESSED INCOME ARRIVING AT RS.5,75,43 0/-. 3. AT THE VERY OUTSET, WE OBSERVED ON PERUSAL OF THE CASE RECORDS THAT AT THE TIME OF HEARING BEFORE THE LD. CIT(A) NONE WAS PRESENT FOR THE ASSESSEE. THE RIGHTS AND LIABILITIES OF THE ASSESSEE WERE NOT ADJUDICATED BY THE FIRST APPELLATE AUTHORITY. THAT WITHOUT THE FINDING OF THE FIRST APPELLATE AUTHORIT Y IT WOULD NOT BE APPROPRIATE TO APPRECIATE THE ENTIRE FACTS AND CIRCUMSTANCES. THER EFORE TO MEET THE ENDS OF JUSTICE WE DEEM IT FIT AND PROPER TO SEND THIS CASE BACK TO TH E FILE OF LD.CIT(A) FOR FRESH ADJUDICATION AND DIRECT THE ASSESSEE TO APPEAR BEFO RE THE LD. CIT(A) FOR DETERMINATION OF ITS RIGHTS AND LIABILITIES IN THIS CASE. THE SERVIC E OF NOTICES IS DISPENSED WITH. WE ORDER ACCORDINGLY. 4. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 02.02.2017. SD/- SD/- [M.BALAGANESH] [ PARTHA SARATHI CHAUDHURY ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 02 . 02.2017. [RG PS] 3 ITA NO.2339/KOL/2013 SHRI PRADIP KR GHOSH A.YR.2006-07 3 COPY OF THE ORDER FORWARDED TO: 1. SRI PRADIP KUMAR GHOSH, C/O SHRI SOMNATH GHOSH, ADVOCATE, SEVEN BROTHERSLODGE, P.O.BUROSHIBTALA, P.S.CHINSURAH, DI ST. HOOGHLY.PIN-712 105. 2. I.T.O., WARD-1(4) KOLKATA. 3. CIT(A)-DURGAPUR 4. CIT-DURGAPUR. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSTT.REGISTRAR, ITAT, KOLKATA BENCHES