Srikanta Padhi, Jajpur V. ITO, Cuttack

ITA 254/CTK/2013

• Counselvise Citation: 25422114 RSA 2013
• Duration Of Justice: 2 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-10-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 17-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUVENDU DUTTA
• Assessee Lawyers: S K SAHOO
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 68; 2; 143(3)

Judgement Text

INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK ( BEFORE SHRI P. M. JAGTAP , A.M. AND SHRI P. S. CHAUDHURY, J .M .) ITA NO.254/CTK /2013 : ASSESSMENT YEAR 2009 - 10 S RIKANTA PADHI, JAIPUR - V S - ITO, WARD - 1(2 ), CUTTACK (APPELLANT) PAN: AHBPP 0095Q (RESPONDENT) APPELLANT BY : SHRI S.K. SAHOO , A.R. . RESPONDENT BY : SHRI SUVENDU DUTTA, DR : O R D E R : PER SHRI P.M.J AGTAP , AM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A), CUTTACK DATED 28.02 .201 3 FOR THE ASSESSMENT YEAR 2009 - 10 WHEREBY HE CONFIRMED THE FOLLOWING THREE ADDITIONS MADE BY THE AO. A) RS.52,29,109/ - ON ACCOUNT OF UNEXPLAINED CASH CREDITS UNDER SECTION 68 B) RS.11,99,987/ - ON ACCOUNT OF SUPPRESSION OF SALES AND C) RS.8,96,850/ - DISALLOWANCE UNDER SECTION 40(A)(IA) 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL WHO IS ENGAGED IN THE BUSINESS OF DEA LING IN CEMENT, IRON AND A.C . SHEETS ON WHOLESALE BASIS. THE RETURN OF INCOME FOR THE YEAR UNDE R CONSIDERATION WAS FILED BY HIM ON 3 0. 03.2010 DECLARING A TOTAL INCOME AT RS. 5 , 90 , 417 / - . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS CALLED UPON BY THE AO TO FURNISH THE RELEVANT DETAILS AND DOCUMENTS REQUIRED FOR THE PURPOSE OF ASSESSMENT. ALTHOUGH THE ASSESSEE FURNISHED THE SAID DETAILS AND DOCUMENTS, THE SAME WERE FOUND TO BE INSUFFICIENT OR UNSATISFACTORY BY THE AO AND HE PROCEEDED TO COMPLETE THE ASSESSMENT UNDER 2 SECT ION 143(3) VIDE AN ORDER DATED 13.12.2011 DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS.1,51,69,853/ - AFTER MAKING THE FOLLOWING ADDITIONS. I) UNACCOUNTED PURCHASE IN CEMENT RS.15,57,212/ - II) SUPPRESSION OF GP - RS.23,202/ - III) UNEXPLAINE D MONEY UNDER SECTION 69A RS.42,80,000/ - IV) ADVANCES TREATED AS UNEXPLAINED UNDER SECTION 68 RS.65,09,136/ - V) SUPPRESSION OF SALES RS.11,99,987/ - , VI) DISALLOWANCE UNDER SECTION 40(A)(IA) RS.8,96,850/ - AND VII) UNDER VALUATION OF STOCK RS.1,13,049/ - 3 . AGAINST THE ORDER PASSED BY THE AO UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) DISPUTING ALL THE ADDITIONS MADE BY THE AO TO HIS TOTAL INCOME. AS PER THE REQUEST MADE BY THE ASSESSEE DURING THE COUR SE OF APPELLATE PROCEEDINGS BEFORE HIM, THE LD. CIT(A) REMANDED THE MATTER TO THE AO IN ORDER TO GIVE PROPER AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE OF BEING HEARD TO SUPPORT AND SUBSTANTIATE HIS CASE IN RESPECT OF VARIOUS ADDITIONS MADE IN THE ASSESSME NT. AS PER THE DIRECTION OF THE LD. CIT(A), VARIOUS ISSUES WERE AGAIN CONSIDERED BY THE AO DURING THE COURSE OF REMAND PROCEEDINGS AND THE REMAND REPORT WAS SUBMITTED BY HIM ON SUCH CONSIDERATION TO THE LD. CIT(A). WHEN THE SAID REMAND REPORT WAS CONFRONTE D BY THE LD. CIT(A) TO THE ASSESSEE, A WRITTEN REPLY WAS FILED BY THE ASSESSEE THERETO. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AS WELL AS THE MATERIAL AVAILABLE ON RECORD INCLUDING THE REMAND REPORT SUBMITTED BY THE AO, THE APPEAL OF THE ASSESSE E WAS DISPOSED OF BY THE LD. CIT(A) ALLOWING RELIEF TO THE ASSESSEE ON CERTAIN ISSUES BUT CONFIRMING/SUSTAINING THE ADDITIONS MADE BY THE AO ON THREE ISSUES, NAMELY, UNEXPLAINED ADVANCES UNDER SECTION 68, SUPPRESSION OF SALES AND DISALLOWANCE UNDER SECTION 40(A)(IA). STILL AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 3 4 . WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LIMITED CONTENTION RAIS ED BY THE LD. COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING BEFORE US IS THAT PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD WAS NOT GRANTED BY THE AO TO THE ASSESSEE ON ALL THE THREE ISSUES INVOLVED IN THIS APPEAL EITHER DURING THE COURSE OF ASSESSMEN T PROCEEDINGS OR DURING THE COURSE OF REMAND PROCEEDINGS. IN THIS REGARD, HE HAS INVITED OUR ATTENTION TO THE COPY OF WRITTEN NOTE OF ARGUMENT FILED BEFORE THE LD. CIT(A) PLACED AT PAGE NOS. 50 TO 56 OF HIS PAPER BOOK AS WELL AS COPY OF REPLY TO THE REMAND REPORT PLACED AT PAPER BOOK PAGE NOS. 86 TO 89 TO SUPPORT AND SUBSTANTIATE HIS CONTENTION. A PERUSAL OF THE S E DOCUMENT S SHOWS THAT THE ASSESSEE HAS NOT BEEN GIVEN PROPER AND SUFFICIENT OPPORTUNITY TO PUT FORTH HIS CASE ON ALL THE THREE ISSUES INVOLVED IN THE PRESENT APPEAL IN AS MUCH AS ADVERSE FINDINGS OF THE E NQUIRIES MADE BY THE AO DIRECTLY WITH THE THIRD PARTIES WERE NOT CONFRONTED TO THE ASSESSEE AND EVEN THE COUNTER COMMENTS OFFERED BY THE ASSESSEE ON THE REMAND REPORT WERE NOT GOT VERIFIED BY THE L D. CIT(A) FROM THE AO. WHEN THIS POSITION CLEARLY EVIDENT FROM THE RECORD WAS CONFRONTED TO THE LD. DR, HE HAS NOT BEEN ABLE TO DISPUTE OR CONTROVERT THE SAME. WE, THEREFORE, CONSIDER IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO SET ASIDE THE IMPUG NED ORDER OF THE LD. CIT(A) ON THE THREE ISSUES INVOLVED IN THIS APPEAL OF THE ASSESSEE AND RESTORE THE MATTER BACK TO THE AO WITH THE DIRECTION TO DECIDE THE SAID ISSUES AFRESH, 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 PURPOSES . ORDER PRONOUNCED IN THE CO URT ON 30 TH OCTOBER, 2015 SD/ - SD/ - ( P.S.CHAUDHURY ) ( P.M.JAGTAP ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 30 /10/2015 TALUKDAR,SR.PS 4 COPY TO : 1. SRIKANTA PADHI, C/O - CA SUDHIR KUMAR SAHOO, SAHOO & ASSOCIATES, CHHATRA BAZAR, COLLEGE SQUARE, CUTTACK - 753003 2. ITO, WARD - 1(2) , ARUNODAYA MARKET BUILDING, CUTTACK 3. CIT(A) - CUTTACK 4. CIT CUTTACK 5. D. R ., ITAT, TRUE COPY BY ORDER ASSTT. REGISTRAR I.T.A.T., CUTTACK