Anurag Jhunjhunwala , Kolkata V. ITO, Ward - 34(2) , Kolkata

ITA 2535/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9366 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 06-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P K MONDAL CIT SR DR REVEN
• Assessee Lawyers: MANISH TIWARI
• Keywords: Unexplained cash credit; Unexplained expenditure; Opportunity of being heard; Principle of natural justice
• Section: 69C; 143(3); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (SMC), KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT] I.T.A. NO. 2535/KOL/2018 ASSESSMENT YEAR: 2014-15 SHRI ANURAG JHUNJHUNWALA...............................................................APPELLANT 24/26, HEMANT BASU SARANI, MANGALAM, 5 TH FLOOR, R. NO. 507, KOLKATA 700 001. [PAN: AFJPJ 1107 M] ITO, WARD 34(2) KOLKATA............................RESPONDENT 110, SHANTI PALLY, KOLKATA 700 107. APPEARANCES BY: SHRI MANISH TIWARI, FCA APPEARING ON BEHALF OF THE ASSESSEE. SHRI P.K. MONDAL, ADDL. CIT, SR. DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : APRIL 04, 2019 DATE OF PRONOUNCING THE ORDER : APRIL 04, 2019 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 10, KOLKATA DATED 18.09.2018 PASSED EX-PARTE WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE. 2. THE ASSESSEE IN THE PRESENT IS AN INDIVIDUAL WHO FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 31.07.2014 DECLARING A TOTAL INCOME OF RS. 19,95,320/-. IN THE ASSESSMENT COMPLETED U/S 143(3) VIDE AN ORDER DATED 19.12.2016, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE AO AT RS. 36,34,873/- AFTER MAKING THE FOLLOWING THREE ADDITIONS: 1. ADDITION U/S 68 RS. 25,37,553/- (SALE PROCEEDS OF SHARES GIVING RISE TO LONG TERM CAPITAL GAIN AS CLAIMED BY THE ASSESSEE TREATED AS UNEXPLAINED CASH CREDIT) 2. UNEXPLAINED EXPENDITURE ON COMMISSION U/S 69C RS. 76,127/- 3. DISALLOWANCE U/S 14A RS. 25,873/- 2 I.T.A. NO. 2535/KOL/2018 ASSESSMENT YEAR: 2014-15 SHRI ANURAG JHUNJHUNWALA 3. AGAINST THE ORDER PASSED BY THE AO U/S 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE VIDE HIS APPELLATE ORDER DATED 18.09.2018 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN SUPPORT OF THE ASSESSEES CASE ON THE PRELIMINARY ISSUE AS RAISED IN GROUND NO. 1 CHALLENGING THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE, THE LEARNED COUNSEL FOR THE ASSESSEE HAS INVITED MY ATTENTION TO PARAGRAPH NO. 3 OF THE IMPUGNED ORDER OF THE LD. CIT(A) TO SHOW THAT THE APPEAL OF THE ASSESSEE WAS FIXED FOR HEARING BY THE LD. CIT(A) ONLY ON TWO DATES I.E. 12.09.2018 AND 18.09.2018. HE HAS SUBMITTED THAT THE ASSESSEE SOUGHT ADJOURNMENT ON 12.09.2018 AND SINCE A VERY SHORT ADJOURNMENT WAS GRANTED BY THE LD. CIT(A), HE COULD NOT PREPARE THE PAPER BOOK OR WRITTEN SUBMISSION IN A VERY SHORT TIME GIVEN BY THE LD. CIT(A). HE HAS CONTENDED THAT THE LD. CIT(A) HOWEVER DID NOT GIVE ANY FURTHER OPPORTUNITY TO THE ASSESSEE AND DISMISSED THE APPEAL OF THE ASSESSEE VIDE AN EX-PARTE ORDER PASSED ON 18.09.2018 ITSELF. KEEPING IN VIEW ALL THESE RELEVANT FACTS POINTED OUT BY THE LEARNED COUNSEL FOR THE ASSESSEE, I FIND THAT THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE VIDE HIS IMPUGNED ORDER PASSED EX- PARTE WITHOUT GIVING A PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THERE IS A CLEAR VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. EVEN THE LEARNED DR HAS NOT BEEN ABLE TO REBUT OR CONTROVERT THIS POSITION WHICH IS CLEARLY EVIDENT FROM THE RECORD. I, THEREFORE, SET 3 I.T.A. NO. 2535/KOL/2018 ASSESSMENT YEAR: 2014-15 SHRI ANURAG JHUNJHUNWALA ASIDE THE IMPUGNED ORDER PASSED BY LD. CIT(A) EX-PARTE AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT AFTER GIVING THE ASSESSEE PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH APRIL, 2019. SD/- (P.M. JAGTAP) VICE PRESIDENT DATED: 04/04/2019 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. SHRI ANURAG JHUNJHUNWALA, 24/26, HEMANT BASU SARANI, MANGALAM, 5 TH FLOOR, ROOM NO. 507, KOLKATA 700 001. 2. ITO, WARD-34(2), 110, SHANTI PALLY, KOLKATA 700 107. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA