Nakul Chandra Manna, Purba Medinipur V. ITO, Wd.27(4), Haldia, Haldia

ITA 240/KOL/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1567 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 08-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K M ROY
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI A.T. VARKEY, JM & DR. A.L.SAINI, AM ./ ITA NO.240/KOL/2017 ( / ASSESSMENT YEAR : 2011-12 NAKUL CHANDRA MANNA, C/O, MAA BARGABHIMA SEA FOOD CENTRE, NANDAKUMAR, BAGDAGRAJALPAI, NARGHAT LS, PURBA MEDINIPUR-721669 VS. ITO-27(4), HALDIA ./ ./PAN/GIR NO. : AMFPM 8448 P ( /ASSESSEE ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI K.M. ROY, FCA /REVENUE BY : SHRI NICHOLAS MURMU, JCIT / DATE OF HEARING : 14/06/2017 !'# /DATE OF PRONOUNCEMENT 07/07/2017 / O R D E R PER DR.ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAI NING TO ASSESSMENT YEAR 2011-12, IS DIRECTED AGAINST THE O RDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX(APPEALS)-7, KOLKATA, IN APPEAL NO. 629/CIT(A)-7/KOL/WD-27(4)/16-17, DATED 08.11.2016, WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE AO U/S 144 OF THE INC OME TAX ACT 1961, (HEREINAFTER REFERRED TO AS THE ACT), DATED 18.03 .2014. ITA NO.240/17 NAKUL CHANDRA MANNA 2 2. BRIEF FACTS OF THE CASE QUA THE ASSESSEE ARE THA T THE ASSESSEE FILED ITS RETURN OF INCOME ELECTRONICALLY ON 05.03.2012 D ECLARING TOTAL INCOME OF RS. 10,57,620/-. THE RETURN OF INCOME OF THE ASSESS EE WAS PROCESSED U/S 143(1) OF THE ACT. LATER ON, THE ASSESSEES CASE WA S SELECTED FOR SCRUTINY U/S 143(2) OF THE ACT AND THE ASSESSING OFFICER COM PLETED THE ASSESSMENT BY MAKING ADDITION ON ACCOUNT OF UNEXPLA INED CASH DEPOSIT IN SAVING BANK ACCOUNT OF RS. 11,00,000/- AND THE D ISALLOWANCE UNDER CHAPTER VIA(DEDUCTION) OF RS. 77,275/-.THE ASSESSIN G OFFICER PASSED THE EX PARTE ORDER BECAUSE DURING THE ASSESSMENT PROCEE DINGS NONE APPEARED ON BEHALF OF THE ASSESSEE. THE ASSESSING O FFICER SENT SEVERAL NOTICES OF HEARING BUT NEITHER THE ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE APPEARED BEFORE THE LD. ASSESSING OF FICER THEREFORE, THE ASSESSING OFFICER PASSED THE ORDER U/S 144 OF THE A CT AS PER HIS BEST JUDGMENT ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD. 3. AGGRIEVED FROM THE ORDER OF THE ASSESSING OFFICE R, THE ASSESSEE FILED AN APPEAL BEFORE THE COMMISSIONER OF INCOME-TAX (AP PEAL) WHO HAS DISMISSED THE APPEAL OF THE ASSESSEE,OBSERVING THAT NONE APPEARED ON BEHALF OF THE ASSESSEE DURING THE APPELLATE PROCEED INGS. THE LD. CIT(A) ISSUED SEVERAL NOTICES I.E. NOTICES DATED 13.10.201 5, 11.05.2016, 12.09.2016, 4.10.2016 ETC. BUT NONE APPEARED ON BEH ALF OF THE ASSESSEE BEFORE THE LD. CIT(A), THEREFORE, THE LD. CIT(A) HA S PASSED EX PARTE ORDER WITHOUT PRESENCE OF THE ASSESSEE AND CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. ITA NO.240/17 NAKUL CHANDRA MANNA 3 4. NOT BEING SATISFIED WITH THE ORDER OF THE COMMIS SIONER OF INCOME TAX (APPEALS), THE ASSESSEE IS IN FURTHER APPEAL BEFORE US AND HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. THAT LD. CIT(A) HAS FAILED TO APPRECIATE THAT TH E CASH DEPOSIT OF RS. 11,00,000/- IN THE ACCOUNT FROM WHERE LOAN HAS BEEN OBTAINED AND REFLECTED IN THE AUDITED BOOKS OF ACCOUNTS CAN NEVE R BE CONSIDERED AS UNEXPLAINED. 2. THAT EVEN OTHERWISE LD. CIT(A) HAS FAILED TO PA SS A SPEAKING ORDER. 5. THE LD. COUNSEL FOR THE ASSESSEE HAS STATED BEFO RE US THAT THE LD. CIT(A) HAS FAILED TO PASS THE SPEAKING ORDER. THE L D. COUNSEL FURTHER SUBMITTED THAT THE ASSESSEE HAD AUDITED BOOKS OF AC COUNTS AND LOAN TAKEN BY HIM IS DULY GETTING REFLECTED IN AUDITED B OOKS OF ACCOUNTS. THE LD. COUNSEL FOR THE ASSESSEE THEREFORE, REQUESTED T HE BENCH TO SEND THE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO ADJUDI CATE THE ISSUE AFRESH. 6. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE DE FENDED THE ORDER PASSED BY THE ASSESSING OFFICER. 7. HAVING HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD, WE ARE OF THE VIEW THAT THE ASSESSEE HAS AU DITED BOOKS OF ACCOUNTAND THE LOAN TAKEN BY HIM IS DULY GETTING RE FLECTED IN THE BOOKS OF ACCOUNTS. THEREFORE, IN THE INTEREST OF JUSTICE AND CONSIDERING THE PRINCIPLES OF NATURAL JUSTICE WE ARE OF THE VIEW TH AT THIS ISSUE SHOULD BE EXAMINED BY THE LD. CIT(A) AFRESH AFTER GIVING AN A DEQUATE OPPORTUNITY TO THE ASSESSEE. THEREFORE, WE DIRECT THE ASSESSEE TO PRODUCE THE RELEVANT BOOKS OF ACCOUNTS AND DOCUMENTS/EXPLANATION TO THE LD. CIT(A) AND WE DIRECT THE ASSESSEE TO APPEAR BEFORE THE LD. CIT(A) ON 03.08.2017 AND NO ITA NO.240/17 NAKUL CHANDRA MANNA 4 SEPARATE NOTICE WILL BE ISSUED TO HIM, THIS IS TO E NSURE THAT ASSESSEE SHOULD PARTICIPATE IN THE APPELLATE PROCEEDINGS. WE ALSO DIRECT THE LD. CIT(A) TO PASS A SPEAKING ORDER AFTER GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, WE ALLOW THIS A PPEAL FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE , IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 07 / 07 /2017. SD/ - (A.T. VARKEY) SD/ - (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; $% DATED 07/ 07/2017 SB , SR.PS. / COPY OF THE ORDER FORWARDED TO : SENIOR PRIVATE SECRETARY HEAD OF OFFICE/D.D.O, I.T.A.T., KOLKATA BENCHES, KOLKATA 1. / THE ASSESSEE- NAKUL CHANDRA MANNA 2. / THE RESPONDENT.- ITO, WARD-27(4), HALDIA 3. ( ( ) / THE CIT(A), :KOLKATA. 4. ( / CIT 5. )* +, , ,# , / DR, ITAT, KOLKATA 6. + -. / GUARD FILE. ) //TRUE COPY// BY ORDER