Shri Ranjit Karmakar, Kolkata V. Income Tax Officer, Ward-49(2), Kolkata, Kolkata

ITA 2827/KOL/2013

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5896 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 20-12-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA
• Assessee Lawyers: S JHAJHARIA
• Keywords: Assessment record; Onus to prove
• Section: 68; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA B BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER) ITA NO. 2827/KOL/2017 ASSESSMENT YEAR: 2006-07 SHRI RANJIT KARMAKAR....................APPELLANT RISHI BANKIM SARANI HARIHARPUR (WEST) KOLKATA 700 027 [PAN : AMRPK 9705 F] INCOME TAX OFFICER, WARD-49(2), KOLKATA.............................................................RESPONDENT APPEARANCES BY: SHRI S. JHAJHARIA, A/R & SHRI SUJOY SEN, A/R, APPEARED ON BEHALF OF THE ASSESSEE. SHRI S. DASGUPTA, ADDL. CIT, D/R. APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JULY 18 TH , 2018 DATE OF PRONOUNCING THE ORDER : JULY , 2018 ORDER PER J. SUDHAKAR REDDY, AM :- THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-XXXII, KOLKATA (HEREINAFTER THE LD. CIT(A)), DT. 03/10/2013, PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT), RELATING TO ASSESSMENT YEAR 2006-07. 2. IN THIS APPEAL, THE ASSESSEE AGITATES THE ADDITION OF RS.1,40,000/-, MADE U/S 68 OF THE ACT. THE ASSESSEE FILED ADDITIONAL GROUNDS ALLEGING THAT NO NOTICE U/S 143(2) OF THE ACT, WAS ISSUED OR SERVED ON THE ASSESSEE BY THE ASSESSING OFFICER. 2.1. THE ASSESSEE SUBMITS THAT NO NOTICE U/S 143(2) OF THE ACT, WAS ISSUED OR SERVED BY THE ASSESSING OFFICER AS REQUIRED BY LAW. HE FILED COPIES OF ORDER SHEET ENTRIES IN SUPPORT OF THIS FACT. THE LD. D/R SUBMITS THAT, THE ASSESSING OFFICER, IN THE FIRST PAGE OF HIS ORDER SPECIFICALLY STATED THAT, NOTICE U/S 143(2) OF THE ACT HAS BEEN ISSUE AND SERVED UPON THE ASSESSEE. HE FURTHER SUBMITS THAT THE POWER OF ATTORNEY HOLDER OF THE ASSESSEE, SHRI NAKUL KARMAKAR HAS STATED, IN THE STATEMENT OF FACTS FILED BEFORE THE LD. CIT(A) AS WELL AS IN THE ORIGINAL GROUNDS OF APPEAL FILED BEFORE THE TRIBUNAL, THAT NOTICE U/S 2 ITA NO. 2827/KOL/2017 ASSESSMENT YEAR: 2006-07 SHRI RANJIT KUMAR 143(2) OF THE ACT WAS SERVED ON THE ASSESSEE. HE FURTHER POINTED OUT THAT THE ASSESSEE HAD NOT RAISED THIS CONTENTION IN ALL THE EARLIER PROCEEDINGS AND THAT THE ADMISSION OF THE POWER OF ATTORNEY HOLDER OF THE ASSESSEE PROVES SERVICE OF NOTICE U/S 143(2) FO THE ACT. HE ADMITTED THAT ON A PERUSAL OF THE RECORD, NO PROOF OF SERVICE OF NOTICE U/S 143(2) OF THE ACT, IS FOUND, BUT ARGUED THAT IT HAS BEEN ACKNOWLEDGED THAT NOTICE IS SERVED. 2.2. IN REPLY, THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THERE IS NO ESTOPPEL AGAINST LAW AND FACT AND THAT THE POWER OF ATTORNEY HOLDER OF THE ASSESSEE, WHO HAPPENS TO BE HIS FATHER AND WHO IS AN OLD PERSON, SIMPLY SIGNED THE PAPERS PREPARED BY THE AUDITOR AND THIS FACTUAL INACCURACY HAD COME TO LIGHT ON A LATER DATE. HE RELIED ON THE DECISION OF THE ITAT MADRAS BENCH OF THE TRIBUNAL IN THE CASE OF R.T. BALASUBRAMANIAM VS, ITO [1994] 50 ITD 513 (MAD.)(SMC), FOR THE PROPOSITION THAT, THERE IS NO ESTOPPEL AGAINST LAW. 3. ON MERITS, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT, THE ASSESSEE HAD TAKEN LOANS FROM NINE (9) PERSONS AND IN SUPPORT OF THEIR IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTIONS, THE ASSESSEE HAD FURNISHED CONFIRMATION LETTERS, AFFIDAVITS, SOURCES OF FUNDS, COPIES OF PAN CARDS AND CONFIRMATION OF ACCOUNTS. HE RELIED ON A NUMBER OF CASE-LAW AND ARGUED THAT THE ASSESSEE HAD DISCHARGED THE BURDEN OF PROOF THAT LAY ON HIM. 3.1. THE LD. D/R RELIED ON THE ORDER OF THE ASSESSING OFFICER AS WELL AS THE LD. CIT(A) AND SUBMITTED THAT THE ASSESSEE FAILED TO DEMONSTRATE THE GENUINENESS OF THE TRANSACTION AND THE CREDITWORTHINESS OF THE LOAN CREDITORS. HE PRAYED THAT THE ORDERS OF THE REVENUE AUTHORITIES BE UPHELD. 4. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS:- BEFORE GOING INTO THE ISSUE OF SERVICE OF NOTICE U/S 143(2) OF THE ACT, WE CONSIDER THE ISSUE ON MERITS. THE ASSESSEE, IN OUR VIEW, HAS PROVED THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTIONS IN THE CASE OF ALL THE 9 CREDITORS. THE AMOUNTS TAKEN FROM THESE PEOPLE WERE REPAID ON VARIOUS DATES BY THE ASSESSEE AND THERE IS NOT OUTSTANDING. THE DETAILS HAVE BEEN RECORDED BY THE LD. 3 ITA NO. 2827/KOL/2017 ASSESSMENT YEAR: 2006-07 SHRI RANJIT KUMAR CIT(A) AT PAGE 6 OF HIS ORDER. THOUGH, THERE IS DISCREPANCY, AS THE NAME OF MITALI DUTTA WAS OMITTED, IN VIEW OF THE EVIDENCE FILED BY THE ASSESSEE IN SUPPORT OF THE TRANSACTIONS, WE ARE OF THE CONSIDERED OPINION THAT THE ADDITION HAS TO BE DELETED. THE ASSESSEE HAS PROVED THE IDENTITY, CREDITWORTHINESS AS WELL AS THE GENUINENESS OF THE TRANSACTION. NO CONTRARY EVIDENCE IS BROUGHT ON RECORD BY THE LD. ASSESSING OFFICER. THE ADDITION HAS BEEN MADE BASED ON SURMISES AND CONJECTURES, WITHOUT INVESTIGATION. HENCE, WE DELETE THE ADDITION IN QUESTION ON MERITS. WE DO NOT ADJUDICATE THE ISSUE OF SERVICE OF NOTICE U/S 143(2) OF THE ACT, AS IT WOULD REQUIRE VERIFICATION OF THE ASSESSMENT RECORD. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART. KOLKATA, THE DAY OF JULY, 2018. [ S.S. VISWANETHRA RAVI ] [ J. SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : .07.2018 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. SHRI RANJIT KARMAKAR RISHI BANKIM SARANI HARIHARPUR (WEST) KOLKATA 700 027 2. INCOME TAX OFFICER, WARD-49(2), KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES