Mahesh Kumar Sharma, Siliguri V. I.T.O., Ward -2(1), Siliguri, Siliguri

ITA 254/KOL/2010

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7885 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-11-2014
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2002-2003
• Appeal Filed On: 08-02-2010
• Court: TRIBUNAL
• Assessee Lawyers: V N PUROHIT CA LD AR
• Keywords: Unexplained cash credit; Gift; Opportunity of being heard
• Section: 147; 68

Judgement Text

ITA NO. 254/KOL/2010-A-AM- SH. MAHESH KR. SHARMA, S LG 1 , A IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH: KO LKATA ( ) , , BEFORE HONBLE SRI MAHAVIR SI NGH, JM & HONBLE SRI SHAMIM YAHYA, AM / I.T.A NO. 254/KOL/2010 / ASSESSMENT YEAR :2002-03 MAHESH KUMAR SHARMA VS. I.T.O WARD 2(1 ), SLG PAN: ALAPS 1892F ( % /APPELLANT ) ( &'% / RESPONDENT ) % / FOR THE APPELLANT : / SHRI V.N PUROHIT, CA, LD.AR &'% / FOR THE RESPONDENT: / SHRI ANIL KUMAR PANDE, LD. JCIT/SR.DR , - /DATE OF HEARING: 05-11-2014 , - /DATE OF PRONOUNCEMENT: 05-11-2014 / ORDER , SHRI SHAMIM YAHYA, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A) DATED 21/10/2009 PERTAINING TO ASSESSMENT YEAR 2002-03. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE REA D AS UNDER:- I. FOR THAT LD. CIT(A) SILIGURI HAS MATERIALLY ERR ED IN LAW AND FACTS OF THE CASE IN PASSING AN EX PARTE ORDER IN T HE INSTANT CASE I.E WITHOUT PROVIDING ANY OPPORTUNITY TO ASSESSEE. II. FOR THAT LD. CIT(A) SILIGURI HAS MATERIALLY ER RED IN LAW AND FACTS OF THE CASE IN CONFIRMING THE DISALLOWANCE O F TRAVELLING EXPENSES AMOUNTING TO RS.1,14,720/- I.E. 50% OF THE TOTAL EXPENDITURE CLAIMED IN THE PROFIT & LOSS ACCOUNT. III. FOR THAT LD. CIT(A) SILIGURI HAS MATERIALLY ER RED IN LAW AND FACTS OF THE CASE IN CONFIRMING THE DISALLOWANCE OF SHOP EXPENSES AMOUNTING TO RS.41,501/- I.E. 50% OF THE TOTAL EXP ENDITURE OF RS.83,002/- CLAIMED IN THE PROFIT & LOSS ACCOUNT ON SAID ACCOUNT. ITA NO. 254/KOL/2010-A-AM- SH. MAHESH KR. SHARMA, S LG 2 IV. FOR THAT LD.CIT(A) SILIGURI HAS MATERIALLY ERRE D IN LAW AND FACTS OF THE CASE IN CONFIRMING THE DISALLOWANCE O F COMMISSION & SALE PROMOTION EXPENSES AMOUNTING TO RS.2,53,030/- I.E. 100% OF TOTAL EXPENDITURE CLAIMED IN THE PROFIT AND LOSS AC COUNT ON SAID ACCOUNT. V. FOR THAT LD. CIT(A) SILIGURI HAS MATERIALLY ERR ED IN LAW AND FACTS OF THE CASE IN CONFIRMING THE DISALLOWANCE OF THE CASH GIFT RECEIVED FROM THE FOLLOWING PERSONS:- I. SMT. MUNI SHARMA RS.90,000/- II. SMT. ANITA SHARMA RS.60,000/- III. SMT. KIRAN SHARMA RS.1,60,000/- IV. SRI SAILENDRA SAHA RS.1,20,000/- V. SRI NARESH SHARMA RS.1,00,000/- VI. SRI UMA SHANKAR TIWARI RS.1,20,000/- THUS, AGGREGATING THE TOTAL SUCH GIFT OF RS.6,50,00 0/- AN UNEXPLAINED CASH CREDIT U/S. 68 OF THE I.T ACT61. VI. FOR THAT LD.CIT(A) SILIGURI HAS MATERIALLY ERRE D IN LAW AND FACTS OF THE CASE IN CONFIRMING RS.21,635/- ON ACCO UNT OF DIFFERENCE IN BALANCE SHEET. VII. FOR THAT LD.CIT(A) SILIGURI HAS MATERIALLY ERR ED IN LAW AND FACTS OF THE CASE IN CONFIRMING RS.22,567/- ON ACCO UNT OF DIFFERENCE IN PROFIT & LOSS ACCOUNT. VIII. FOR THAT THE ASSESSEE RESERVES THE TO PUT FO RTH FURTHER GROUND/GROUNDS BEFORE/ OR AT THE TIME OF HEARING. 3. IN THIS CASE THE ASSESSMENT WAS FRAMED U/S. 143( 3) OF THE I.T ACT 1961, PURSUANT TO RE- OPENING OF ASSESSMENT U/S. 147 OF THE ACT. AGAINST THE RETURNED INCOME OF RS.72,760/-, THE AO MADE THE FOLLOWING ADDITIONS :- 1. TRAVELLING EXPENSES DISALLOWED 50% AS PER DISCUSSION ABOVE. RS. 1,14, 720/- ITA NO. 254/KOL/2010-A-AM- SH. MAHESH KR. SHARMA, S LG 3 2. TELEPHONE EXPENSES (AS DISCUSSED ABOVE) RS. 38, 564/- 3. SHOP EXPENSES (- DO - ) RS. 41,550/- 4. COMMISSION & SALES PROMOTION (- DO -) RS.2 ,53,030/- B. GIFTS:- 1. MUNNI SHARMA ( AS DISCUSSED ABOVE) RS. 90,000/ - 2. ANITA SHARMA ( -DO- ) RS.60,000/- 3. KIRAN SHARMA (-DO-) RS.1,60,000/- 4. SAILENDRA SAHA (-DO-) RS.1,20,000/- 5. NARESH SHARMA (-DO-) RS.1,00,000/- 6. UMA SHANKAR TIWARI (-DO-) RS.1,20,000/- C. DIFFERENCE IN BALANCE SHEET RS. 21,634/- D DIFFERENCE IN PROFIT RS. 22,567/- ACCORDINGLY, THE TOTAL INCOME WAS ASSESSED AT RS.12 ,14,821/-. 4. AGAINST THE ABOVE ORDER, THE ASSESSEE APPEALED B EFORE THE LD.CIT(A). THE ASSESSEE APPEALED BEFORE HIM BOTH AGAINST THE RE-OPENING AS WELL AS MERITS OF THE CASE. THE LD.CIT(A) NOTED THAT ON DIFFERENT DATES HEARING WAS FIXED BU T REQUEST FOR ADJOURNMENT WAS ALLOWED BY THE LD.CIT(A). FINALLY, THE LD. CIT(A) AFTER CONSID ERING THE SUBMISSIONS OF THE ASSESSEE PASSED AN EXPARTE- ORDER. 5. AGAINST THE ABOVE APPELLATE ORDER THE ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD BOTH THE LD. COUNSEL AND PERUSED THE RECORD. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) HAS GROSSLY ERRED IN PASSING THE SAID EX-PARTE ORDER WITHOUT PROVIDING REASONABLE OPPORTUNITY OF HEARI NG TO THE ASSESSEE. THUS HE SUBMITTED THAT THE ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD BEFORE THE LD.CIT(A) SO ITA NO. 254/KOL/2010-A-AM- SH. MAHESH KR. SHARMA, S LG 4 THAT THE CASE CAN BE PROPERLY CANVASSED. THE LD. DR ON OTHER HAND HAS RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 4.1 AFTER CAREFUL CONSIDERATION, WE NOTE THAT IT IS NOT EMANATING FROM THE ORDER OF THE LD. CIT(A) THAT THE ASSESSEE HAS BEEN GIVEN PROPER OPP ORTUNITY OF BEING HEARD BY THE LD.CIT(A). IN THIS VIEW OF THE MATTER, WE ARE OF THE CONSIDERE D OPINION THAT INTEREST OF JUSTICE WILL BE SERVED IF THE MATTER IS REMITTED TO THE FILE OF THE LD. CIT(A). ACCORDINGLY, ALL THE ISSUES ARE REMITTED TO THE FILE OF THE LD.CIT(A). THE LD.CIT( A) IS DIRECTED TO CONSIDER THE ISSUES DENOVO AND PASS AN APPROPRIATE ORDER AFTER GIVING THE ASS ESSEE PROPER OPPORTUNITY OF BEING HEARD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSE AS STATED ABOVE. / - ORDER PRONOUNCED IN THE OPEN COURT ON 05/11/2014 SD/- SD/- [ , ] [ , ] [ MAHAVIR SINGH, JUDICIAL MEMBER ] [ SHAMIM YAHYA, ACCOUNTANT MEMBER ( - ) DATED :05/11/2014 ** PRADIP SPS , &2 32 / COPY OF THE ORDER FORWARDED TO: 1. . % / THE APPELLANT : SHRI MAHESH KUMAR SHARMA C/O SH RI SANJIB CHAKRABORTY, ASHIRBAD APARTMENT, 113, RISHI AUROBINDA ROAD (BESI DE JIBAN RAKSHA MEDICAL SHOP), HAKIMPARA, SILIGURI, PIN 734001. 2 &'% / THE RESPONDENT- I.T.O, WARD 2(1), SLG. 3. 5. / THE CIT, 4. ( )/ THE CIT(A) & / DR, KOLKATA BENCH 6.GUARD FILE . '2 & / TRUE COPY, / BY ORDER, / ASSTT REGIST RAR ITA NO. 254/KOL/2010-A-AM- SH. MAHESH KR. SHARMA, S LG 5