Madan Mohan Saha, Kolkata V. I.T.O Wd - 38(2),kolkata., Kolkata

ITA 240/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99799 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2015
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 05-02-2013
• Court: TRIBUNAL
• Department Lawyers: ALOK KR NAG JCITSR
• Assessee Lawyers: K M ROY
• Keywords: Unexplained cash credit; Gift
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B KOLKATA [BEFORE HON BLE SHRI MAHAVIR SINGH, JM & SHRI WASEE M AHMED , AM ] ITA NO. 240 /KOL/2013 ASSESSMENT YEAR : 2008 - 09 MADAN MOHAN SAHA - VERSUS - I.T.O., WARD - 38(2), KOLKATA KOLKATA (PAN: ALAPS 7 089 J) (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI K.M.ROY, FCA FOR THE RESPONDENT : SHRI ALOK KR.NAG, JCIT,SR.DR DATE OF HEARING : 01.09.2015. DATE OF PRONOUNCEMENT : 16 .09.2015. ORDER PER SHRI WASEE M AHMED , AM THIS APPEAL OF T HE ASSESSEE ARISE S OUT OF THE ORDER OF LD. CIT(A) - XXIV, KOLKATA IN APPEAL NO . 865 /CIT(A) - XXIV / 38(2)/ 11 - 12 DATED 28.09. 2012 FOR A.Y. 2008 - 09 . ASSESSMENT WAS FRAMED BY ITO, WARD - 38(2), KOLKATA U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) VIDE ORDER DATED 09.12.2010. 2. THE ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL IS THAT THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ORDER OF THE LD. AO FOR IMPOSITION OF PENALTY U/S 271(1)(C) OF THE ACT. 3. BRIEFLY STATED FACTS ARE THAT THE A SSESSEE IS AN INDIVIDUAL , SENIOR CITIZEN AND HAS INCOME UNDER THE HEAD BUSINESS AND FROM OTHER SOURCES. THE ASSESSEE FILES ITS RETURN OF INCOME FOR A.Y.2008 - 09 DECLARING THE TOTAL INCOME OF RS.4,14,510/ - . NOTICE U/S 143(2) WAS ISSUED BY THE LD. AO FOR FR AMING THE SCRUTINY ASSESSMENT AND ULTIMATELY AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE ASSESSMENT ORDER WAS PASSED ON 09.12.2010. AFTER MAKING CERTAIN ADDITION/DISALLOWANCES AMOUNTING TO RS.3,03,138/ - ONLY . T HE SUMMARY OF THE ADDITIONS/DISAL LOWANCES STAND AS UNDER : - ITA NO. 240/KOL/2013 MADAN MOHAN SAHA A..Y. 2008 - 09 2 CONCEALED/UNDISCLOSED INTEREST INCOME EARNED ON RIP WITH INDIAN BANK 40238/ - UNDERSTATEMENT OF ASSETS (RIP WITH INDIAN BANK) 17324/ - CONCEALED/UNDISCLOSED INTEREST INCOME EARNED ON DEPOSITS WITH HDFC BANK ` 5053/ - DEPOSITS WITH HDFC BANK TREATED AS UNEXPLAINED CASH CREDIT U/S 68 205000/ - GIFT FROM SAMPA SAHA TREATED AS UNEXPLAINED CASH CREDIT U/S 68 35523/ - HOWEVER, THE LD. AO INITIATED PENALTY U/S 271(1)(C) OF THE ACT AND RECORDED THE SAME AT THE TIME OF A SSESSMENT ORDER . DURING THE PENALTY PROCEEDINGS THE ASSESEE PLEADED THAT HE IS AN OLD MAN AGED 78 YEARS AND SUFFERING FROM HIGH TENSION AND THE NON - DISCLOSURE OF THE ABOVE FACTS IN HIS RETURN OF INCOME WERE DUE TO NEGLIGENCE OF THE ACCOUNTANT. HOWEVER, AO NEGLECTED THE PLEA OF THE ASSESSEE AND PASSED A PENALTY ORDER ON 04.04.2011, IMPOSING MINIMUM PENALTY @100% OF THE TAX SOUGHT TO BE EVADED WHICH AMOUNTS TO RS.93,669/ - . AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A), WHO HAS UPHELD THE A CTION OF THE LD. AO WITHOUT ADDUCING ANY REASON THEREON. AGGRIEVED, THE ASSESSEE IS NOW IN APPEAL BEFORE US AND RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1. THAT THE PENALTY ORDER PASSED IS BAD IN LAW AS NO REASONABLE OPPORTUNITY OF HEARING WAS GRANTED T O THE APPELLANT. 2. THAT THE PENALTY ORDER, HAVING FAILED TO BRING ABOUT ANY POSITIVE EVIDENCE OF CONCEALMENT OF INCOME SUFFERS FROM INFIRMITY AND SHOULD BE CANCELLED. 3. THAT THE LD. CIT(APPEAL) HAS ERRED IN FACTS AND LAW IN SUSTAINING THE ORDER OF LOWER AUTHORITY ON THE SOLE GROUND THAT QUANTUM PROCEEDINGS HAS NOT BEEN CHALLENGED. 4. THAT THE APPELLANT RESERVES RIGHT TO RAISE ADDITIONAL GROUND AT THE TIME OF HEARING. 4. SHRI K.M.ROY, FCA, THE LD. AR APPEARED ON BEHALF OF THE ASSESSEE AND SHRI ALOK KR.NA G, JCIT, SR.DR, THE LD. DR APPEARED ON BEHALF OF THE REVENUE. 5. THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD NOT DELIBERATELY OR INTENTIONALLY CONCEALED ANY PARTICULARS OF HIS INCOME IN HIS INCOME TAX RETURN. HOWEVER, THE ACCOUNTANT HAS NEG LECTED TO DECLARE CERTAIN FACTS IN THE RETURN OF INCOME ITA NO. 240/KOL/2013 MADAN MOHAN SAHA A..Y. 2008 - 09 3 AND THE LD. AR SUBMITTED THAT NO REASONABLE OPPORTUNITY OF HEARING WAS GRANTED TO THE APPELLANT BEFORE THE LD. CIT(A). 6. THE LD. DR RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 7. WE HAVE HEARD T HE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AT THE OUTSET IT HAS BEEN NOTICED THAT THE ORDER PASSED BY THE CIT(A) IS NON - SPEAKING ORDER AND THE REASONABLE OPPORTUNITY HAS ALSO NOT BEEN GRANTED TO THE ASSESSEE. IN VIEW OF THE ABOV E FACTS AND CIRCUMSTANCES AND IN THE INTEREST OF JUSTICE, WE DEEM IT FIT TO RESTORE THE MATTER TO THE FILE OF THE LD. CIT(A) WITH THE DIRECTION TO VERIFY THE SUBMISSIONS OF THE LD. AR AND PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. 8. IN THE RESULT THE A PPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. O RDER PRONOUNC ED IN TH E COURT ON 16.09.2015. SD/ - SD/ - [MAHAVIR SINGH] [ WASEEM AHMED ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE : 16.09.2015. R.G .(.P.S.) COPY OF THE ORDER FORWARDED TO : 1 . MADAN MOHAN SAHA, 361/B, RABINDRA SARANI, KOLKATA - 700006. 2 I.T.O., WARD - 38(2 ), KOLKATA. 3 . THE CIT - X III , KOLKATA 4. THE CIT(A) - XXIV , KOLKATA. 5 . DR, KOLKATA BENCHES, KOLKATA TRUE COPY , BY ORDER, DEPUTY /AS ST. REGISTRAR , ITAT, KOLKATA BENCHES ITA NO. 240/KOL/2013 MADAN MOHAN SAHA A..Y. 2008 - 09 4