Eco Properties Pvt. Ltd., Kolkata V. Duputy Commissioner of Income Tax-Cir-2, Kolkata, Kolkata

ITA 2859/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4500 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 26-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUDIPTA GUHA JCISRDR
• Assessee Lawyers: H V BHARADWAJ
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI N.V.VASUDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 2859 / KOL / 2013 ASSESSMENT YEAR :2006-07 ECO PROPERTIES PVT. LTD. AZIMGANJ HOUSE, 7, CAMAC STREET, KOLKATA-700 017 [ PAN NO.AACCP 7929 R ] V/S . DCIT, CIRCLE-2, AYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI H.V. BHARADWAJ, FCA /BY RESPONDENT SHRI SUDIPTA GUHA, JCI-SR-DR /DATE OF HEARING 18-07-2016 /DATE OF PRONOUNCEMENT 22-07-2016 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-I, KOLKATA DAT ED 08.10.2013. ASSESSMENT WAS FRAMED BY DCIT, CIRCLE-2, KOLKATA U/ S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) VIDE HIS ORDER DATED 28.11.2008 FOR ASSESSMENT YEAR 2006-07. SHRI HARSH VARDHAN BHARDWAJ, LD. AUTHORIZED REPRESE NTATIVE APPEARED ON BEHALF OF ASSESSEE AND SHRI SUDIPTA GUHA, LD. DEPAR TMENTAL REPRESENTATIVE APPEARED ON BEHALF OF REVENUE. 2. SOLE ISSUE RAISED BY ASSESSEE IN ITS APPEAL IS T HAT LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF ASSESSING OFFICER BY DISAL LOWING A SUM OF 3,52,056/- ITA NO.2859/KOL/2013 A.Y. 2006-07 ECO PROPERTIES PVT. LTD. V. DCIT, CIR-2, KOL . PAGE 2 ON ACCOUNT OF DEPOSIT RECEIVED BY ASSESSEE ON BEHA LF OF PURCHASER / TENANT OF THE OFFICE SPACE / FLAT. 3. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IN THE PRESENT CASE A PRIVATE LIMITED COMPANY AND ENGAGED IN THE BUSINESS OF BUIL DING CONSTRUCTION AND RENTAL BUSINESS. DURING THE YEAR, ASSESSEE EARNED I NCOME FROM ITS BUSINESS, HOUSE PROPERTY, CAPITAL GAINS AND FILED ITS RETURN ON 12.03.2007 DECLARING TOTAL INCOME OF 14,40,645/-. SUBSEQUENTLY, THE CASE WAS SELECTED F OR SCRUTINY AND THERETO A NOTICE ISSUED U/S. 143(2) OF THE ACT ON 2 8.09.2007. THE ASSESSEE IN ITS BALANCE-SHEET HAS SHOWN A LIABILITY FOR AN AMOU NT OF 3,52,056/- UNDER THE HEAD MUNICIPAL TAX DEPOSIT. THE ASSESSEE SUBMITTE D THAT SAID MONEY WAS ACCEPTED BY ASSESSEE ON BEHALF OF PURCHASER/TENANT OF THE FLAT WITH A VIEW TO MAKE THE PAYMENT TO THE MUNICIPAL CORPORATION. HOWE VER, ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS OBSERVE D THAT SAID DEPOSIT FROM FLAT OWNER/TENANT HAS NEITHER BEEN PAID TO THE MUNI CIPAL CORPORATION NOR REFUNDED TO THE FLAT OWNER/TENANT. ACCORDINGLY, AO TREATED THE SAME AS TRADING RECEIPT AND ADDED BACK TO THE TOTAL INCOME OF ASSES SEE. 4. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A) WHO UPHELD THE ACTION OF AO. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) ASSESSE E CAME IN SECOND APPEAL BEFORE US. 5. BEFORE US LD. AR SUBMITTED THAT THE LIABILITY TO WARDS MUNICIPAL TAX HAS BEEN PAID IN THE FINANCIAL YEAR 2007-08. IN SUPPORT OF THIS ASSESSEE HAS FILED ADDITIONAL EVIDENCE BEFORE US. THE LD. AR REQUESTED THE BENCH FOR THE VERIFICATION OF ADDITIONAL EVIDENCE TO REMIT THE MA TTER TO FILE OF AO. ON THE OTHER HAND, LD DR HAS RAISED NO OBJECTION IF THE MA TTER IS RESTORED BACK TO THE FILE OF AO. ITA NO.2859/KOL/2013 A.Y. 2006-07 ECO PROPERTIES PVT. LTD. V. DCIT, CIR-2, KOL . PAGE 3 6. WE HAVE HEARD RIVAL CONTENTIONS OF BOTH THE PART IES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AT THE OUTSET, IT IS OBSERVED THAT LD AR SUBMITTED ADDITIONAL EVIDENCE AND WHICH IS REQUIRED TO BE VERIFIED AT THE LEVEL OF ASSESSING OFFICER. WE FIND THAT THE AO MADE THE ADDITION FOR THE MONEY ACCEPTED FROM THE FLAT OWNERS AND TENANTS TOWARDS T HE LIABILITY OF MUNICIPAL CORPORATION WHICH WAS NOT PAID IN THE YEAR OF CONSI DERATION. HOWEVER BEFORE US THE LD. AR SUBMITTED THAT MUNICIPAL TAX HAS BEEN PAID IN THE FINANCIAL YEAR 2007-08. ACCORDINGLY WE IN THE INTEREST OF NATURAL JUSTICE AND FAIR PLAY ARE INCLINED TO RESTORE BACK THE MATTER TO THE FILE OF AO WITH THE DIRECTION TO EXAMINE THE ISSUE AFRESH AS PER LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE. HENCE, THIS GROUND OF ASSE SSEE IS ALLOWED FOR STATISTICAL PURPOSE. 7. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT 22/ 07/2016 SD/- SD/- ( !') ( !') (N.V.VASUDEVAN) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP $!% &- 22 / 07 /201 6 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ECO PROPETIES PVT. LTD. AZIMGANJ HOUSE, 7, CAMAC ST. KOL-17 2. /RESPONDENT-DCIT, CIRCLE-2, AYAKAR BHAWAN, P-7, CHO WRINGHEE SQ. KOL-69 3. %.%/0 1 1 2 / CONCERNED CIT KOLKATA 4. 1 1 2- / CIT (A) KOLKATA 5. 567 /0, 1 /0 , / DR, ITAT, KOLKATA 6. 7:; <= / GUARD FILE. BY ORDER/ 1! , /TRUE COPY/ / % 1 /0 ,