Koushalya Devi Somani, Kolkata V. ITO, Ward - 2, Malda, Kolkata

ITA 302/KOL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54505 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-08-2011
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 25-08-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 21-02-2011
• Court: TRIBUNAL
• Department Lawyers: S K ROY
• Assessee Lawyers: RAKESH JAIN
• Keywords: Gift; Opportunity of being heard
• Section: 144; 2

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [ () , , . .. . ! ! ! !. .. . , , , , '# ] ]] ] [BEFORE HONBLE SRI MAHAVIR SINGH, JM & HONBLE S RI C. D. RAO, AM] % % % % /ITA NO.302/KOL/2011 &' ()/ ASSESSMENT YEAR : 2005-06 (+, / APPELLANT ) - & - ( ./+, /RESPONDENT) KOUSHALYA DEVI SOMANI I.T.O., WARD-2, MALDA KOLKATA (PAN AXAPS 5301 D) -VERSUS- +, 0 1 '/ FOR THE APPELLANT: SHRI RAKESH JAIN ./+, 0 1 '/ FOR THE RESPONDENT: SHRI S.K.ROY '2 / ORDER ( (( ( . .. . ! ! ! !. .. . ) )) ), , , , '# PER SHRI C.D.RAO, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST ORD ER DATED 06.12.2010 OF THE CIT(A)-JALPAIGURI PERTAINING TO A.YR. 2004-05. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ACTION OF LD. ASSESSING OFFICER ON ESTIMATING ADDITIONAL TUITION INCOME OF RS.28,00 0/- WITHOUT ADJUDICATING UPON THE SAME WHICH IS BAD IN LAW AND ON FACTS. 2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ACTION OF LD. ASSESSING OFFICER FOR MAKING ADDITION OF RS.6,00,000/- U/S 68 OF THE I.T.ACT, WHICH IS BAD IN LAW AND ON FACTS. 3. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE APPELLANT CRAVES LEAVE TO SUBMIT FURTHER GROUNDS OF APPEAL AND/OR TO ADD, ALT ER, MODIFY, CHANGE THE GROUNDS OF APPEAL. 3. AT THE TIME OF HEARING THE LD. COUNSEL APPEARIN G ON BEHALF OF THE ASSESSEE HAS SUBMITTED THAT THE LD. AO HAS PASSED EX-PARTE ORDER WITHOUT PROPER OPPORTUNITY OF BEING HEARD TO ASSESSEE. AT THE TIME OF HEARING EVE N BEFORE THE FIRST APPELLATE AUTHORITY ALSO THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE AO HAS PASSED 2 THE ORDER U/S 144 IGNORING THE DETAILS SUBMITTED BY THE AR TO ESTABLISH THE IDENTITY AND CREDITWORTHINESS OF THE DONORS AND ALSO THE GENUINE NESS OF THE TRANSACTIONS. HE DID NOT ISSUE ANY SUMMONS TO THE DONORS TO ESTABLISH THE GI FT WERE BOGUS. THE DONORS AND THE ASSESSEE WERE CLOSE TO EACH OTHER SINCE THEIR CHILD HOOD. ALL THE DONORS ARE ASSESSED TO INCOME-TAX. THEIR CAPITAL ACCOUNTS AND BALANCE SHEE TS WILL PROVE THAT THEY HAD SUFFICIENT FUNDS IN THEIR HANDS AND THE TRANSACTION S WERE MADE THROUGH BANKING CHANNEL. THE AR ALSO FILED XEROX COPY OF THE AFFIDA VITS OF THE DONORS CONFIRMING THE GIFTS, COPIES OF THE RETURN FILING EVIDENCES ALONG WITH BALANCE SHEETS AND CAPITAL ACCOUNTS OF THE DONORS. HOWEVER, LD. CIT(A) HAS CON FIRMED THE ACTION OF AO WITHOUT SEEING THE DETAILS OF THE SAID DOCUMENTS OR WITHOUT OBTAINING THE REMAND REPORT. THEREFORE, HE REQUESTED TO SET ASIDE THE ORDERS OF LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE AO WITH THE DIRECTION TO CONSIDER T HE DOCUMENTS FILED BEFORE THE REVENUE AUTHORITIES AND DECIDE THE ISSUE AFRESH. 4. ON THE OTHER HAND, THE LD. DR APPEARING ON BEHAL F OF THE REVENUE HAS NOT OBJECTED FOR THE SAID REQUEST OF THE LD. COUNSEL FO R THE ASSESSEE. 5. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF MATERIALS AVAILABLE ON RECORD, IT IS OBSERVED THAT ASSESSEE H AS FILED A PAPER BOOK CONTAINING THE FOLLOWING PARTICULARS : 1. IT ACKNOWLEDGEMENT, COMPUTATION, INCOME & EXPENDITU RE & STATEMENT OF AFFAIRS OF KOUSHALYA DEVI SOMANI FOR A.Y.2005-06. 2. COMPUTATION, INCOME & EXPENDITURE & STATEMENT OF AF FAIRS OF KOUSHALYA DEVI SOMANI FOR AY 2006-07. 3. COMPUTATION, INCOME & EXPENDITURE & STATEMENT OF AF FAIRS OF KOUSHALYA DEVI SOMANI FOR A.Y. 2004-05. 4. DETAIL OF IDENTITY, CREDITWORTHINESS & GENUINENESS OF DONOR A. INDER CHAND JAIN PAN CARD, ELECTION CARD, IT ACKG ., COMPUTATION, PROFIT & LOSS, BALANCE SHEET, BANK STATEMENT & GIFT AFFIDAVIT. 3 B. MEERA DEVI JAIN PAN CARD, ELECTION CARD, ASSESSME NT ORDER, COMPUTATION, PROFIT & LOSS, BALANCE SHEET, BANK STA TEMENT & GIFT AFFIDAVIT. C. MANISH JAIN PAN CARD, ELECTION CARD, ASSESSMENT O RDER., COMPUTATION, PROFIT & LOSS, BALANCE SHEET, BANK STA TEMENT & GIFT AFFIDAVIT. D. PIJUSH JAIN PAN CARD, ELECTION CARD, ASSESSMENT O RDER., COMPUTATION, PROFIT & LOSS, BALANCE SHEET, BANK STA TEMENT & GIFT AFFIDAVIT. E. EKTA JAIN PAN CARD, ASSESSMENT ORDER, COMPUTATION , PROFIT & LOSS, BALANCE SHEET, BANK STATEMENT & GIFT AFFIDAVIT. 5.1. THE LD. CIT(A) HIMSELF HAS ACCEPTED THAT THE S UBMISSIONS MADE BY THE LD. COUNSEL OF THE ASSESSEE BEFORE US ARE MADE EVEN BEF ORE LD. CIT(A) WHICH IS APPARENT FROM THE IMPUGNED ORDER WHEREIN THE SUBMISSIONS OF THE LD. AR HAS BEEN REPRODUCED AS UNDER :- IN COURSE OF APPELLATE PROCEEDINGS, THE AR SUBMIT TED THAT IN SPITE OF TWO APPEARANCE OF THE AR OF THE ASSESSEE THE AO HAS PAS SED THE ORDER U/S 144 IGNORING THE DETAILS SUBMITTED BY THE AR TO ESTABLI SH THE IDENTITY AND CREDITWORTHINESS OF THE DONORS AND ALSO THE GENUINE NESS OF THE TRANSACTIONS. HE DID NOT ISSUE ANY SUMMONS TO THE DONORS TO ESTABLIS H THE GIFT WERE BOGUS. THE DONORS AND THE ASSESSEE WERE CLOSE TO EACH OTHER SI NCE THEIR CHILDHOOD. ALL THE DONORS ARE ASSESSED TO INCOME-TAX. THEIR CAPITAL AC COUNTS AND BALANCE SHEETS WILL PROVE THAT THEY HAD SUFFICIENT FUNDS IN THEIR HANDS AND THE TRANSACTIONS WERE MADE THROUGH BANKING CHANNEL. THE AR ALSO FILE D XEROX COPY OF THE AFFIDAVITS OF THE DONORS CONFIRMING THE GIFTS, COPI ES OF THE RETURN FILING EVIDENCES ALONG WITH BALANCE SHEETS AND CAPITAL ACC OUNTS OF THE DONORS. HOWEVER, LD. CIT(A) HAS CONFIRMED THE ACTION OF AO WITHOUT SEEING THE DETAILS OF THE SAID DOCUMENTS OR WITHOUT OBTAINING THE REMA ND REPORT. THEREFORE, HE REQUESTED TO SET ASIDE THE ORDERS OF LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE AO WITH THE DIRECTION TO CONSIDER THE DOCUME NTS FILED BEFORE THE REVENUE AUTHORITIES AND DECIDE THE ISSUE AFRESH. WITH THIS SUBMISSIONS, THE AR REQUESTED TO DELETE THE ADDITION. 5.2. KEEPING IN VIEW OF THE ABOVE WE ARE OF THE VIE W THAT NEITHER AO NOR LD. CIT(A) HAS TAKEN INTO CONSIDERATION OF THE SAID DOC UMENTS WHILE ASSESSING THE INCOME OF ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDERS OF THE REVENUE AUTHORITIES AND REMIT BACK THE ISSUE TO THE FILE OF AO TO DO THE ASSESSMENT AFRESH 4 DONOVO AS PER LAW AFTER GIVING A REASONABLE OPPORTU NITY OF BEING HEARD TO ASSESSEE AND AFTER TAKING INTO CONSIDERATION OF THE DOCUMENTS FI LED BY ASSESSEE WHICH ARE ON RECORD. WE ORDER ACCORDINGLY. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25.08.2011. SD/- SD/- [ , ] [ . !., '# ] [ MAHAVIR SINGH ] [ C. D. RAO ] JUDICIAL MEMBER ACCOUNTANT MEMBER ( (( (!# !# !# !#) )) ) DATE: 25.08.2011. R.G.(.P.S.) '2 0 .3 4'3(5- COPY OF THE ORDER FORWARDED TO: 1. KOUSHALYA DEVI SOMANI, 12/2, SOVARAM BAISAKH STREET , 2 ND FLOOR, KOLKATA- 700007. 2 THE I.T.O., WARD-2, MALDA. 3. THE CIT, 4. THE CIT(A)-JALPAIGURI. 5. DR, KOLKATA BENCHES, KOLKATA /3 ./ TRUE COPY, '2&:/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES