Gunadhar Parui, Kolkata V. ITO, Ward - 38(1), Kolkata, Kolkata

ITA 245/KOL/2010

• Counselvise Citation: 24523514 RSA 2010
• Duration Of Justice: 5 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-09-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 14-07-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 05-02-2010
• Court: TRIBUNAL
• Department Lawyers: APURBA KR DASJCIT
• Assessee Lawyers: VARSHA JALAN LD
• Keywords: Unexplained investment; Gift; Opportunity of being heard; Additional evidence; Bonafide mistake
• Section: 69; 143(3)

Judgement Text

ITA NO . 245 /KOL/201 0 - A - AM GUNADHAR PARUI 1 IN THE INCME TAX APPELLATE TRIBUNAL, A BENCH, KOLKATA BEFORE : SHRI MAHAVIR SINGH ,JUDICIAL MEMBER, AND SHRI M. BALAGANESH , ACCOUNTANT MEMBER I.T.A NO. 245 /KOL/201 0 A.Y 200 6 - 0 7 GUNADHAR PARUI VS. I.T.O WARD 38 ( 1 ), KOLKATA PAN: A F HPP8607C ( APPELLANT ) ( RESPONDENT ) FOR THE APPELLANT/ASSESSEE: MISS VARSHA JALAN, ADVOCATE, LD.AR FOR THE RESPONDENT/DEPARTMENT : SHRI APURBA KR. DAS,JCIT, SR.DR DATE OF HEARING: 0 1 - 09 - 2015 DATE O F PRONOUNCEMENT: 01 - 09 - 2015 ORDER SHRI M.BAL A GANESH, AM THIS APPEAL OF THE ASSESSEE ARISES OUT OF THE ORDER OF LD. CIT(A), KOLKATA IN APPEAL NO. 604 / CIT(A) - XXIV/38(1)/08 - 09 DATED 23 - 11 - 2009 DATED 2 3 - 11 - 2009 ARISING OUT OF THE ORDER OF A SSESSMENT FRAMED U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) VIDE HIS ORDER DATED 2 9 - 12 - 2008 FOR THE ASSESSMENT YEAR 200 6 - 07 . 2. THE ONLY ISSUE IN THIS APPEAL IS TO BE DECIDED W HETHER THE LD. CIT(A) IS CORRECT IN CONF IRMING THE ADDITION IN CONFIRMING THE ADDITION OF R S.20,75,300/ - MADE U/S. 69 OF THE ACT. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A N INDIVIDUAL ENGAGED IN THE BUSINESS OF RUNNING AND MANAGING BUSINESS OF PRE - PRESS UNIT, FILM MAKING AND DIGITAL UNIT AS A PROPRIETARY CONCERN UNDER THE NAME AND STYLE M/S. G.D PROCESS. DURING THE ASSESSMENT YEAR UNDER APPEAL THE LD.AO FOUND THAT THE ASSESSEE HAD PURCHASED DIGITAL PRINTING MACHIN E FOR RS. 5 7,53,000/ - AND MADE INVESTMENT IN FD IN THE SUM OF RS. 15 LAKHS AND LOAN WAS BORROWED FROM UNITED BANK OF INDIA TO THE TUNE OF RS.51,77, 7 00/ - . THE LD.AO MADE AN ADDITION U/S. 69 OF THE ACT A SUM OF RS.2075300(RS.5753000+15,00,000 - 51,77,700) AS UNEXPLAINED INVESTMENT AS NO SATISFACTORY EXPLANATION WAS OFFERED BY THE ASSESSEE BEFORE THE LD.AO. ON 1 ST APPEAL, THE ASSESSEE FURNISHED A CASH FLOW STATEMENT EXPLAINING THE SOURCES FOR MAKING THE AFORESAID INVESTMENT, BUT CURIOUSLY WHEN ASKED BY THE LD.CIT(A) AS TO WHY THESE DETAILS ITA NO . 245 /KOL/201 0 - A - AM GUNADHAR PARUI 2 WERE NOT FILED BEFORE LD .AO THE ASSESSEE SOUGHT TO WITHDRAW THIS GROUND AS NOT PRESSED. ACCORDINGLY, THIS ISSUE WAS DISMISSED BY THE LD.CIT(A) AS NOT PRESSED. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS : - 1. FOR THAT ON THE FACTS AND IN THE CIRCU MSTANCES OF THE CASE, LD.CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ACTION OF THE LD.AO IN MAKING THE ADDITION OF R S.20,75,300/ - ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT BY WRONGLY INVOKING THE PROVISION OF SEC.69 OF THE ACT. 4 . MISS VARSHA JALAN, ADVOCATE, LD.AR ARGUED ON BEHALF OF THE ASSESSEE AND SHRI APURBA KR. DAS, LD.JCIT/DR ARGUED ON BEHALF OF THE REVENUE. 5 . THE LD.AR ARGUED THAT THE ADDITIONAL EVIDENCES IN THE FORM OF BALANCE SHEET OF THE PROPRIETARY CONCERN OF THE ASSESSEE, PERSONAL B ALANCE SHEET OF ASSESSEE, CONFIRMATION FROM UBI FOR MONIES DRAWN THEREON, BALANCE SHEET AND IT RETURN OF WIFE OF ASSESSEE, SMT TANUSHRI PARUI, BALANCE SHEET AND AFFIDAVIT FROM MOTHER FOR GIFT (SMT DARSHAN BALA PARUI ) ARE FILED. THE LD.AR PRAYED FOR ADMI SSION OF ADDITIONAL EVIDENCE AND PLEADED FOR ONE MORE OPPORTUNITY TO BE GIVEN TO THE ASSESSEE FOR EXPLAINING THE CASE IN A BETTER FASHION. THE LD.AR FURTHER ARGUED THAT THE THEN LD.AR OF THE ASSESSEE WAS UNDER THE IMPRESSION THAT ONCE THE PARTICULAR DETA ILS WERE NOT FILED BEFORE THE AO THEN THE SAME COULD NOT BE FILED BEFORE THE APPELLATE AUTHORITIES AND A CCORDINGLY HAD COME FORWARD TO WITHDRAW THE GROUND AS NOT PRESSED BEFORE THE LD.CIT(A). SHE PLEADED THAT DUE TO THIS BONAFIDE MISTAKE COMMITTED BY T HE THEN LD. AR OF THE ASSESSEE BEFORE THE LD.CIT(A), THE ASSESSEE SHOULD NOT BE PENALIZED WITH PAYMENT OF UNDUE TAXES. IN RESPONSE TO THIS , THE LD. DR VEHEMENTLY ARGUED THAT THE APPEAL PER SE WILL NOT LIE BEFORE THE LD.CIT(A) ON THIS ISSUE AS THE ASS ESSEE HAD VOLUNTARILY WITHDRAWN THIS GROUND AS NOT PRESSED BEFORE THE LD.CIT(A). 6 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE ASSESSEE SURRENDERED THIS GROUND BEFORE THE LD.CIT(A) AS NOT PRESSED. T HE LD.CIT(A) WITHOUT ADJUDICATING ON MERITS DISMISSED THE GROUN D AS NOT PRESSED . HENCE, THE ACTION OF THE LD.CIT(A) CANNOT BE FAULTED WITH. WE ADMIT THE ADDITIONAL EVIDENCES FILED BY THE LD.AR BEFORE US AS TH EY GO INTO THE RO OT OF THE MATTER FOR DECIDIN G THE APPEAL BEFORE US . F ROM THE MATERIAL S AVAILABLE ON RECORD AND FROM THE PAPER BOOK FILED BY THE ASSESSEE, WE ITA NO . 245 /KOL/201 0 - A - AM GUNADHAR PARUI 3 FIND THAT APPARENTLY THE SOURCES FOR MAKING THE INVESTMENT IN FDS AND PURCHASE OF DIGITAL PRINTING MACHINE ARE EXPLAINABLE FROM THE FUND FLOW STATEMENT , AFFIDAVIT FOR THE GIFT RECEIVED AND BALANCE SHEET FI LED BEFORE US. WE HOLD THAT THE ADDITION HEREIN HAS BEEN SUSTAINED IN THE FIRST APPEAL ONLY DUE TO IMPROPER REPRESENTATION OF THE FACTS AND DETAILS BY THE ASSESSEE. HOWEVER, IN THE FAC TS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST AND JUSTICE AND FAIR PLAY , WE DEEM IT FIT AND APPROPRIATE TO SET ASIDE THIS ISSUE TO THE FILE OF THE LD.AO TO DECIDE THIS ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER TAKING IN ACCOUNT THE DETAILS FIL ED BY THE ASSESSEE IN THIS REGARD. NEEDLESS TO MENTION THAT THE ASSESSEE BE GIVEN REASONABLE OPPORTUNITY OF BEING HEARD. 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSE . THIS ORDER IS PRONOUNCED IN OPEN COURT ON 01 /09/2015 COPY OF THE ORDER FORWARDED TO: 1. . THE APPELLANT : GUNADHAR PARUI C/O M/S. GUPTA & MANGLIK 1/1A PRINCIP ST, 4 TH FL. R.NO. 4D KOLKATA - 72. 2 THE RESPONDENT - ITO W 38(1) PODDAR COURT 18 RABINDRA SARANI, 4 TH FL., KOL - 1 3 4. . / THE CIT, / T HE CIT(A) 5 . DR, KOLKATA BENCH 6 . GUARD FILE . TRUE COPY, BY ORDER, ASSTT REGISTRAR ** PRADIP SPS - SD/ - ( MAHAVIR SINGH, JUDICIAL MEMBER ) SD/ - ( M. BAL A GANESH, ACCOUNTANT MEMBER) DATE 01 /09/2015