Bijay Shankar Agarwal , Howrah V. ITO, Ward - 46(1) , Kolkata

ITA 2541/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9367 (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: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 06-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K MONDAL CIT SR D R RESPO
• Assessee Lawyers: V K JAIN
• Keywords: Unexplained cash credit; Opportunity of being heard; Set aside
• Section: 69C; 68

Judgement Text

ITA NO. 2541/KOL/2018 ASSESSMENT YEAR: 2012-2013 BIJAY SHANKAR AGARWAL 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) I.T.A. NO. 2541/KOL/2018 ASSESSMENT YEAR: 2012-2013 BIJAY SHANKAR AGARWAL,............................. .............................APPELLANT 17/2, MUKHRAM KANORIA ROAD (1-31), 14, GOLABARI, HOWRAH-711 101 [PAN: ASXPA 9800 H] -VS.- INCOME TAX OFFICER,................................ ...................................RESPONDENT WARD-46(1), KOLKATA APPEARANCES BY: SHRI V.K. JAIN, FCA, FOR THE APPELLANT SHRI P.K. MONDAL, ADDL. CIT, SR. D.R. , FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : APRIL 04, 2019 DATE OF PRONOUNCING THE ORDER : APRIL 04, 2019 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-14, KOLKATA DA TED 26.09.2018 PASSED EX-PARTE, WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED B Y HIM DECLARING TOTAL INCOME OF RS.1,62,075/-. IN THE ASSESSMENT COMPLETE D UNDER SECTION 143(3)/147 VIDE AN ORDER DATED 19.12.2017, THE TOTA L INCOME OF THE ASSESSEE WAS DETERMINED BY THE ASSESSING OFFICER AT RS.9,61,575/- AFTER MAKING TWO ADDITIONS OF RS.5,50,000/- AND RS.2,49,5 00/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT UNDER SECTION 68 AND UNEXPL AINED EXPENDITURE UNDER SECTION 69C RESPECTIVELY. ITA NO. 2541/KOL/2018 ASSESSMENT YEAR: 2012-2013 BIJAY SHANKAR AGARWAL 2 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3)/147, AN APPEAL WAS FILED BY THE ASSESSEE BEF ORE THE LD. CIT(APPEALS) AND SINCE THERE WAS NO COMPLIANCE ON T HE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SA ID APPEAL FOR HEARING ON 28.08.2018 AND 24.09.2018, THE LD. CIT(APPEALS) DIS MISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION VIDE HIS APPELLATE ORDER DATED 26.09.2018 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEA L BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN SUPPORT O F THE PRELIMINARY ISSUE RAISED IN THIS APPEAL CHALLENGING THE IMPUGNED ORDE R PASSED BY THE LD. CIT(APPEALS) EX-PARTE, THE ASSESSEE HAS FILED AN AF FIDAVIT EXPLAINING THE REASONS FOR NOT COMPLYING WITH THE NOTICES OF HEARI NG ISSUED BY THE LD. CIT(APPEALS) AS UNDER:- 1. THAT, I HAVE NOT BEEN PROVIDED THE PROPER OPPO RTUNITY BY THE LD COMMISSIONER OF INCOME TAX (APPEALS)-14/K OLKATA. THE FIRST NOTICE OF HEARING OF APPEAL BEFORE HIM DA TED 14.08.2018 FIXING THE HEARING ON 28.08.2018 WAS REC EIVED AFTER THE DATE OF HEARING ON 29.08.2018 AT 5:15 P.M AT THE COMMUNICATION ADDRESS OF THE APPELLANT. I BROUGHT T HE MATTER IN THE KNOWLEDGE OF ID CIT(A) ON 31.08.2018. 2. THAT ANOTHER NOTICE DATED 06.09.2018 FIXING THE HEARING ON 24.09.2018 WAS RECEIVED ON 22.09.2018 (S ATURDAY) AT THE COMMUNICATION ADDRESS OF THE APPELLANT. THE APPELLANT CONTACTED WITH NOTICE, AUTHORIZED REPRESENTATIVE FO R THIS CASE ON 28.09.2018 AT 6:14 P.M. 3. THE APPELLANT PLEADS THAT BY ANY CHANCE THE HEAR ING FIXED ON 24.09.2018, WOULD NOT HAVE BEEN POSSIBLE T O ATTEND AS THE TIME ALLOWED WAS ALMOST ABSENT. THE APPELLANT A LSO STATE THAT HIS ANOTHER APPEAL CASE FOR AY 2013-14 WAS ALS O FIXED ON 24.09.2018 AND FOR THAT CASE THE ADJOURNMENT WAS SO UGHT AND GRANTED. 4. THE APPELLANT FILED THE WRITTEN SUBMISSION AND DOCUMENTARY EVIDENCES IN PAPER BOOK WITH THE OFFICE OF THE LD CIT(A) ON 08.10.2018 FOR AY 2012-13 AND ALSO FOR AY 2013-14. 5. HOWEVER THE LD CIT (A) PASSED THE EX-PARTE ORDE R FOR APPEAL OF AY 2012-13 ON 26.09.2018 FOR THE REASON O F NON- PROSECUTION. ITA NO. 2541/KOL/2018 ASSESSMENT YEAR: 2012-2013 BIJAY SHANKAR AGARWAL 3 KEEPING IN VIEW THE AFFIRMATIONS MADE BY THE ASSESS EE ON OATH IN THE AFFIDAVIT AS ABOVE, I AM SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE NON-COMPLIANCE OF THE ASSESSEE TO THE NOTICES ISSUE D BY THE LD. CIT(APPEALS) FIXING HIS APPEAL FOR HEARING ON TWO O CCASIONS. I, THEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT( APPEALS) AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT AFTER GIVING THE ASSESSEE PROPER AND SUFFI CIENT OPPORTUNITY OF BEING HEARD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATE D AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON APRIL 04, 201 9. SD/- (P.M. JAGTAP) VICE-PRESIDENT (KZ) KOLKATA, THE 4 TH DAY OF APRIL, 2019 COPIES TO : (1) SHRI BIJAY SHANKAR AGARWAL, 17/2, MUKHRAM KANORIA ROAD (1-31), 14, GOLABARI, HOWRAH-711 101 (2) INCOME TAX OFFICER, WARD-46(1), KOLKATA (3) COMMISSIONER OF INCOME TAX (APPEALS)-14, KOLKAT A, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.