Millan Kumar Ray, Bhubaneswar V. ITO, Ward-5(1), Bhubaneswar

ITA 30/CTK/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4416 (ITAT-CUTTACK)
• Duration Of Justice: 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 18-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Additional evidence
• Section: 147

Judgement Text

P A G E 1 | 5 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE SHRI CHANDRA MOHAN GARG , JUDICIAL MEMBER ITA NO. 30 /CTK/201 9 ASSESSMENT YEA R: 2010 - 2011 MILLAN KUMAR ROY, FLAT NO.VIM - 255, SAILASHREE VIHAR, BHUBANESWAR. VS. ITO, WARD 5(1), BHUBANESWAR PAN/GIR NO. APFPR 2316 N (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI SHESHADEBA DAS, AR REVENUE BY : SHRI SUBHENDU DUTTA, DR DATE OF HEARING : 14 / 0 5 / 201 9 DATE OF PRONOUNCEMENT : 14 / 0 5 / 201 9 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS) - 2 , BHUBANESWAR DATED 30.11.2018 FOR THE ASSESSMENT YEAR 201 0 - 2011. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. FOR THAT THE ORDER IS ILLEGAL ARBITRARY ERRONEOUS AND IS BASED ON INCORRECT APPRECIATION OF FACTS AND CIRCUMSTANCES OF THE CASE AS SUCH THE SAME DESERVES TO BE QUASHED IN LIMINE. 2. FOR THAT THE ORDER OF THE FORUM BELOW IS BAD IN LAW IN AS MUCH AS TH E SAME IS NOT MAINTAINABLE IN EYE OF LAW ON THE ITA NO.30/CTK/2019 ASSESSMENT YEAR: 2010 - 2011 P A G E 2 | 5 GROUND THAT THE LEARNED CIT (APPEAL) WITHOUT GIVING REASONABLE OPPORTUNITY AND WITHOUT CONSIDERING THE COMPLIANCES GIVEN BY THE APPELLANT, PASSED THE IMPUG N ED ORDER AS SUCH THE SAID ORDER IS IN VIOLATION OF T HE PRINCIPLE OF NATURAL JUSTICE. 3. FOR THAT THE ORDER DTD.30.11.2018 PASSED BY LEARNED CIT (APPEAL) IS NONEST IN THE EYE OF LAW SINCE THE ID. CIT(APPEAL) CONFIRMED THE ORDER OF ASSESSMENT U/S.144/147 OF THE IT ACT, ON FLIMSY GROUND THAT THE EVIDENCES WE RE NOT PRODUCED BEFORE THE ASSESSING OFFICER AND PRODUCED BEFORE THE CIT(APPEAL) AS FRESH EVIDENCE BUT THE LAW IS WELL SETTLED THAT ON PRODUCTION OF THE EVIDENCES BEFORE THE APPELLATE AUTHORITY AS FRESH EVIDENCE, THE CIT(APPEAL) COULD HAVE ADJUDICATED THE SAME EITHER HIMSELF OR BY WAY OF CALLING A REMAND REPORT FROM THE ASSESSING OFFICER. 4. FOR THAT THE ORDERS OF FORUM BELOW ARE ILLEGAL SINCE THE APPELLANT HAS DISCLOSED THE RECEIPT OF RS.23,87,513/ - AS CONTRACT RECEIPT FROM USHA INDIA PROJECTS (P) LTD. AN D OFFERED INCOME OF RS.1,91,318/ - UNDER THE HEAD OF PROFIT AND GAINS FROM THE BUSINESS IN HIS RETURN OF INCOME. HENCE, THE SAME AMOUNT CAN IN NO CIRCUMSTANCES BE ADDED FURTHER AND AS SUCH THE SAME IS LIABLE TO BE DELETED FOR THE INTEREST OF JUSTICE. 3. AT THE TIME OF HEARING, LD A.R. OF THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER PASSED ASSESSMENT U/S.144 R.W.S 147 OF THE ACT WITHOUT GIVING OPPORTUNITY TO THE ASSESSEE TO PRODUCE THE RELEVANT DOCUMENTS IN SUPPORT OF THE ADDITION OF RS.23,87,513/ - BEFORE THE ASSESSING OFFICER. HOWEVER, DURING THE FIRST APPELLATE PROCEEDINGS, THE ASSESSEE PRODUCED THE RELEVANT DOCUMENTS I.E. THE CONTRACT RECEIPT OF RS.23,87,513/ - FROM USHA INDIA PROJECTS (P) LTD. AND OFFERED INCOME OF RS.1,91,318/ - UNDER THE HEAD OF ITA NO.30/CTK/2019 ASSESSMENT YEAR: 2010 - 2011 P A G E 3 | 5 PROFIT AND GAINS FROM THE BUSINESS IN HIS RETURN OF INCOME . LD AR SUBMITTED THAT THE CIT(A) REFUSED TO ACCEPT THE RECEIPTS ON THE GROUND THAT NO SUCH SUBMISSION/EVIDENCE WAS FILED BEFORE THE ASSESSING OFFICER. IT WAS THE PRAYER OF LD A.R. OF THE ASSE SSEE THAT THE MATTER BE RESTORED TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO ACCEPT THE DOCUMENTARY EVIDENCE IN SUPPORT OF THE CLAIM OF THE ASSESSEE. 4. LD D.R. FAIRLY AGREED TO THE SUBMISSION OF LD A.R. OF THE ASSESSEE. 5. I HAVE HEARD THE RI VAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD OF THE TRIBUNAL. IN THIS CASE, THE ASSESSMENT WAS MADE U/S.144/147 OF THE ACT AND THE ASSESSEE WAS PREVENT TO FURNISH THE REQUIRED DOCUMENTS IN SUPPORT OF ITS CLAIM. HOWEVER, AT THE TIME OF FIRST APPELLATE PROCEEDINGS, WHEN THE RELEVANT DOCUMENTS WERE FILED, THE CIT(A) DID NOT ACCEPT THE SAME ON THE GROUND THAT NO FRESH SUBMISSION WILL BE FILED BY THE ASSESSEE UNLESS THE ASSESSEE IS COVERED BY THE EXCEPTIONS PROVIDED IN RULE 46 A OF I.T.RULES, 1962 AND CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. 6. I T WOULD NOT BE IN THE INTEREST OF JUSTICE TO DENY THE ADMISSION OF CRUCIAL EVIDENCE BY SIMPLY STATING THAT IT WAS NOT ITA NO.30/CTK/2019 ASSESSMENT YEAR: 2010 - 2011 P A G E 4 | 5 PRODUCED BEFORE THE ASSESSING OFFICER. FOR THIS, RELIAN CE IS PLACED ON THE DECISION OF PATNA BENCH OF THE TRIBUNAL IN THE CASE OF DWARKA PRASAD VS. ITO , 63 ITD 1 (TM - PAT ). SINCE THE ASSESSMENT WAS PASSED U/S.144/147 OF THE ACT EXPARTE, QUA - ASSESSEE, T HEREFORE, COMMISSIONER OF INCOME TAX (APPEALS) SHOULD HAVE ADMITTED THE ADDITIONAL EVIDENCE FILED BEFORE HIM. IN VIEW OF THIS DISCUSSION AND BEARING IN MIND THE ENTIRETY OF THE CASE, I DEEM IT FIT AND PROPER TO REMIT THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO ACCEPT THE REQUIRED DETAILS/DOCUMENTS IN SUPPORT OF THE CLAIM OF THE ASSESSEE AND ADJUDICATE THIS ISSUE AFTER GIVING PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE ON THE EXPLANATIONS AND MATERIALS PRODUCED BY THE ASSESSEE BEFORE THE CIT (A) . THE ASSE SSEE IS ALSO DIRECTED TO PRODUCE THE MATERIALS AND EXPLANATIONS BEFORE THE ASSESSING OFFICER AND CO - OPERATE TO THE ASSESSING OFFICER FOR FRESH ADJUDICATION ON THIS ISSUE ONLY. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. OR DER PRONOUNCED ON 14 / 0 5 /201 9 . S D/ - ( CHANDRA MOHAN GARG ) JUDICIALMEMBER CUTTACK; DATED 14 / 0 5 /20 9 ITA NO.30/CTK/2019 ASSESSMENT YEAR: 2010 - 2011 P A G E 5 | 5 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER SR. PVT. SECRETARY, ITAT, CUTTACK 1. THE APPELLANT : MILLAN KUMAR ROY, FLAT NO.VIM - 255, SAILASHREE VIHAR, BHUBANESWAR 2. THE RESPONDENT. ITO, WARD 5(1), BHUBANESWAR 3. THE CIT(A) - 2, BHUBANESWAR 4. PR.CIT - 2, BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//