Bimal Kanti Basa, Mayurbhanj V. Principal CIT, Cuttack

ITA 293/CTK/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1371 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 13-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K GAUTAM
• Keywords: Principle of natural justice; Assessment record; Condonation of delay; TDS; FORM 26AS
• Section: 143(3); 201; 263

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI C.M.GARG , JM & SHRI L.P. SAHU, AM . / ITA NO. 293 /CTK/20 1 9 (THROUGH : VIRTUAL HEARING ) ( / A SSESSMENT Y EAR : 201 4 - 201 5 ) S RI BIMALKANTI BASA, WARD NO.09, DEULASAHI, BARIPADA, MAYURBHANJ VS. ACIT, BALESWAR CIRCLE, BALESWAR PAN NO. : A CZPB 0538 P ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI MOHIT SHETH, AR /R EVENUE BY : SHRI M.K.GAUTAM, CIT DR / DATE OF HEARING : 10 / 1 2 /20 20 / DATE OF PRONOUNCEMENT : 14 / 1 2 /20 20 / O R D E R PER L.P.SAHU , AM : TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 18.06.2019 , PA SSED BY THE ACIT, BALESWAR CIRCLE, BALESWAR, THEREBY GIVING EFFECT TO THE ORDER PASSED U/S.263 OF THE ACT BY THE PR.CIT, CUTTACK, DATED 29.03.2019 FOR THE ASSESSMENT YEAR 2014 - 2015. 2. AS PER THE OFFICE NOTE, THIS APPEAL OF THE ASSESSEE IS BARRED BY 25 DAY S. IN THIS REGARD, THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY ALONG WITH AFFIDAVIT EXPLAINING THE DELAY IN FILING THE APPEAL, TO WHICH THE LD. DR DID NOT OBJECT. WE HAVE CONSIDERED THE APPLICATION ALONG WITH THE AFFIDAVIT FILED BY THE A SSESSEE AND FOUND THAT THERE IS SUFFICIENT CAUSE HAS BEEN EXPLAINED BY THE ASSESSEE IN DELAY IN ITA NO. 293 /CTK/201 9 2 FILING THE APPEAL. ACCORDINGLY, WE CONDONE THE DELAY OF 25 DAYS IN FILING THE PRESENT APPEAL. 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS : - GROUNDS OF AP PEAL 4. THAT THE AFORESAID ASSESSMENT ORDER PASSED U/S 263 OF I.TAX ACT AS EX - PARTE WITHOUT GIVING REASONABLE OPPORTUNITIES OF BEING HEARD. 5. THAT THE ASSESSEE COULD NOT PARTICIPATE IN SAID ASSESSMENT PROCEEDING DUE TO ACUTE ILLNESS OF HIS WIFE. AS THE ASSESSEE WAS OUTSIDE THE STATE OF ODISHA FOR A LONGER PERIOD FOR CRITICAL OPERATION OF HIS WIFE, NON APPEARANCE IN ASSESSMENT PROCEEDING WAS NOT INTENTIONAL. 6. THAT AS PER AUDITED PROFIT & LOSS AND BALANCE SHEET FOR THE AY 2014 - 2015 RELEVANT TO FY 2013 - 2014 THE ASSESSEE HAS DULY DISCLOSED CONTRACTUAL RECEIPT RS. 140922.00 OF HINDUSTAN UNILIVER LTD AND RS. 235543.00 TOWARDS INTEREST ON TERM DEPOSIT IN AUDITED PROFIT & LOSS A/C AND IT IS TALLIED AS PER 26AS INFORMATION. A DOWNLOAD COPY FROM TRACES AN D AUDITED PROFIT & LOSS A/C ARE ENCLOSED HEREWITH FOR YOUR KIND PERUSAL. 7. THAT UNDISCLOSED CONTRACTUAL RECEIPT FROM HINDUSTAN UNILIVER LTD RS. 235543.00 AS STATED IN ASSESSMENT ORDER U/S 263 OF I.TAX ACT IS NOT CORRECT. BUT IT ACTUALLY RELATES TO INT EREST ON TERM DEPOSIT FROM UCO BANK AS IT IS CLEARLY EVIDENT FROM 26AS INFORMATION AS WELL AS IN AUDITED PROFIT & LOS A/C. 8. THAT IN VIEW OF AFORESAID FACTS IT CLEARLY REVEALED THAT THE ASSESSEE HAS NOT FURNISHED ANY INACCURATE PARTICULARS NOR CONCEAL ED ANY INCOME FOR THE ASSESSMENT PERIOD 2014 - 2015 WITH REFERENCE TO ORDER PASSED U/S 263 OF I.TAX ACT. 9. THAT THE INCOME IS ENHANCED OVER THE ASSESSED INCOME PASSED BY ITO WARD 2,U/S 143(3) BARIPADA BY RS. 235543.00 FOR THE IMPUGNED ASSESSMENT YEAR IS ILLEGAL, UNJUSTIFIED, OUT OF OVERSIGHT AND DUE TO IMPROPER VERIFICATION. THEREFORE, IN VIEW OF AFORESAID FACT AND CIRCUMSTANCES IT IS STATED THAT T HE ADDITION OF RS. 235543.00 IS LIABLE TO BE QUASHED IN THE INTEREST OF EQUITY AND NATURAL JUSTICE. 4. BRIE F FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND DERIVES INCOME FROM WHOLESALE TRADING IN FAST MOVING CONSUMER GOODS (FMCG) IN ADDITION TO CONTRACT WORKS. THE ASSESSEE FILED HIS RETURN OF INCOME ON 02.12.2014 SHOWING TOTAL INCOME AT RS.16,15, 570/ - . THE AO HAS COMPLETED ASSESSMENT U/S.143(3) OF THE ITA NO. 293 /CTK/201 9 3 ACT DETERMINING TOTAL INCOME AT RS.23,74,840/ - . SUBSEQUENTLY, THE PR.CIT CALLED FOR THE ASSESSMENT RECORD AND AFTER EXAMINATION OF THE SAME FOUND THAT THE ASSESSEE HAS NOT REPLIED TO THE SHOW CAUSE N OTICE ISSUED U/S.263 OF THE ACT. ACCORDINGLY, THE PR.CIT DIRECTED THE AO TO MODIFY THE ASSESSMENT ORDER PASSED BY HIM BY MAKING FURTHER ADDITION UNDER THE HEAD OF UNDISCLOSED CONTRACT RECEIPT FROM HUL, HOLDING THE ASSESSMENT ORDER PASSED BY THE AO IS ERRON EOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. 5. AGAINST THE ABOVE ORDER OF PR.CIT, THE ASSESSEE FILED AN APPEAL BEFORE THE INCOME TAX APPELLATE TRIBUNAL. 6. LD. AR BEFORE US SUBMITTED THAT THE ASSESSEE COULD NOT PARTICIPATE IN SAID ASSESSMENT PROCEEDIN G DUE TO ACUTE ILLNESS OF HIS WIFE. AS THE ASSESSEE WAS OUTSIDE THE STATE OF ODISHA FOR A LONGER PERIOD FOR CRITICAL OPERATION OF HIS WIFE, NON APPEARANCE IN ASSESSMENT PROCEEDING WAS NOT INTENTIONAL. IT WAS ALSO SUBMITTED BY LD. AR THAT AS PER AUDITED PRO FIT & LOSS AND BALANCE SHEET FOR THE AY 2014 - 2015 RELEVANT TO FY 2013 - 2014 THE ASSESSEE HAS DULY DISCLOSED CONTRACTUAL RECEIPT RS. 140922.00 OF HINDUSTAN UNILIVER LTD AND RS. 235543.00 TOWARDS INTEREST ON TERM DEPOSIT IN AUDITED PROFIT & LOSS A/C AND IT IS TALLIED AS PER 26AS INFORMATION. IT WAS ALSO CONTENDED BY LD. AR THAT UNDISCLOSED CONTRACTUAL RECEIPT FROM HINDUSTAN UNILIVER LTD RS. 235543.00 AS STATED IN ASSESSMENT ORDER U/S 263 OF I.TAX ACT IS NOT ITA NO. 293 /CTK/201 9 4 CORRECT. BUT IT ACTUALLY RELATES TO INTEREST ON TERM DEPOSIT FROM UCO BANK AS IT IS CLEARLY EVIDENT FROM 26AS INFORMATION AS WE LL AS IN AUDITED PROFIT & LOS ACCOUNT. IT WAS ALSO SUBMITTED BY LD. AR THAT THE ASSESSEE IN HIS AUDITED PROFIT AND LOSS ACCOUNT FOR THE AFORESAID ASSESSMENT YEAR HAS DULY DISCLOSED T HE CONTRACTUAL RECEIPTS AMOUNTING TO RS.1,40,922/ - AND INTEREST ON TERM DEPOSIT OF RS.2,35,543/ - WHICH IS DULY TALLIED BY THE FORM 26AS INFORMATION, THEREFORE, LD. AR SUBMITTED THAT THERE IS NO SUPPRESSION OF RECEIPTS/INCOME DURING THE YEAR. ACCORDINGLY, L D. AR SUBMITTED THAT THE ORDER PASSED U/S.263 IS ILLEGAL AND DESERVES TO BE QUASHED. 7. ON THE OTHER HAND, LD. CIT DR RELIED ON THE ORDERS OF PR.CIT AND SUBMITTED THAT FROM FORM NO. 26AS THE PR.CIT OBSERVED THAT ASSESSEE HAD RECEIVED GROSS CONTRACT AMOUNT OF RS.3,76,465/ - WITH CORRESPONDING TDS CREDIT OF RS.25,464/ - U/S.194C FROM HINDUSTAN UNILEVER LTD. , HOWEVER, IN THE PROFIT & LOSS ACCOUNT THAT THE ASSESSEE HAD DISCLOSED CONTRACTUAL RECEIPT OF RS.1,40,922/ - ONLY , HENCE THE RE IS A SUPPRESSION OF SUPPRESSE D RECEIPT/INCOME OF RS.2,35,543/ - (RS.3,76,465 - RS.1,40,922) . THE AO HAS FAILED TO BRING THE ESCAPED TURNOVER OF RS.2,35,543/ - RECEIVED FROM HUL TO TAX, WHICH HAS RIGHTLY BEEN DIRECTED BY THE PR.CIT TO THE AO TO ADD UNDER THE HEAD UNDISCLOSED CONTRACT RECE IPT FROM HUL. ACCORDINGLY, LD. DR SUBMITTED THAT THE ORDER PASSED BY THE PR.CIT DESERVES TO BE UPHELD. ITA NO. 293 /CTK/201 9 5 8. AFTER HEARING BOTH THE SIDES AND PERUSING THE ENTIRE MATERIAL AVAILABLE ON RECORD AND ORDERS OF BOTH THE AUTHORITIES BELOW, WE FIND THAT THE SOLE ISSU E FOR INVOCATION OF SECTION 263 OF THE ACT BY THE PR. CIT IS THAT THE AO HAS NOT EXAMINED THE SUPPRESSION OF CONTRACT RECEIPT OF RS.2,35,543/ - . HOWEVER, WE FIND THAT THE AMOUNT OF RS.2,35,543/ - IS THE INTEREST ON TERM DEPOSIT OF RS.2,35,543/ - WHICH IS DULY TALLIED AS IS EVIDENT FROM FORM 26AS INFORMATION AS WELL AS AUDITED PROFIT AND LOSS ACCOUNT. THAT BEING SO, WE OBSERVE THAT THERE IS NO SUPPRESSION OF RECEIPTS/INCOME DURING THE YEAR. ACCORDINGLY, WE QUASH ORDER PASSED U/S.263 BY LD. PR. CIT AND ALLOW THE APPEAL OF THE ASSESSEE. 9 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 / 12 / 20 20 . SD/ - ( C.M.GARG ) SD/ - (L.P.SAHU) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK ; DATED 14 / 12 /20 20 PRAKASH KUMAR MISHRA, SR.P.S. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , /ITAT, CUTTACK 1. / THE APPELLANT - SRI BIMALKANTI BASA, WARD NO.09, DEULASAHI, BARIPADA, MAYURBHANJ 2. / THE RESPONDENT - ACIT, BALESWAR CIRCLE, BALESWAR 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / G UARD FILE. //TRUE COPY//