Ashok Kumar Mandelia, Kolkata V. ITO, Ward 34 (2), Kolkata

ITA 305/KOL/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 8631 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 09-09-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 148; 144

Judgement Text

1 I.T.A. No. 305/Kol/2021 Assessment Year: 2012-13 Ashok Kumar Mandelia . आयकर अपीलȣय अधीकरण, Ûयायपीठ –“SMC” कोलकाता, IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH: KOLKATA [Before Shri A. T. Varkey, Judicial Member] I.T.A. No. 305/Kol/2021 Assessment Year: 2012-13 Ashok Kumar Mandelia (PAN: ADTPM5642E) Vs. I.T.O., Ward-34(2), Kolkata Appellant Respondent Date of Hearing (Virtual) 07.02.2022 Date of Pronouncement 18.02.2022 For the Appellant Shri Somnath Ghosh, Advocate For the Respondent Shri Archana Gupta, Sr. D/R ORDER Per Shri A.T.Varkey, JM: This appeal is preferred by the assessee against the order of the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre [hereinafter referred to as ‘CIT(A)’] dated 20/04/2021 for the AY: 2012-13. 2. At the outset, the Ld.A/R of the assessee, Shri Somnath Ghosh submitted that the impugned Ld. CIT(A)’s order as well as the order of the Assessing Officer are ex-parte orders. According to him the Assessing Officer has passed a best judgment assessment u/s 144 of the Act without giving an opportunity to the assessee to file all the documents before the Assessing Officer to substantiate his claim that Rs.5,00,000/- received during the year under consideration was a loan and not income chargeable to tax. And according to him, since he did not receive/accrue income which breaches the threshold limit prescribed by the Finance Act, for this assessment year therefore he did not file the return of income. According to the Ld. A/R, merely because the assessee received Rs.5,00,000/- (through banking channel), the Assessing Officer on suspicion has reopened the assessment for Assessment Year 2012-13. According to the Ld. A/R the amount of Rs.5,00,000/- was nothing but temporary loan taken from the company in which his sons were directors. According to the Ld. A/R, even though the Assessing Officer asserts that he has sent the 2 I.T.A. No. 305/Kol/2021 Assessment Year: 2012-13 Ashok Kumar Mandelia . notices u/s 148 on 28/03/2019 for Assessment Year 2012-13 through mail, however, according to the Ld. A/R it has to be appreciated that this was the nascent year when the “e- proceedings” were started and, therefore, the assessee was not aware of the notices sent through the e-mails etc. According to the assessee he came to know about the reopening of assessment only on 09/12/2019, when he received a postal intimation to that effect. Thereafter he immediately filed the return on 14/12/2019 and filed objection against re- opening of the assessment on 16/12/2019 which according to the assessee has not been disposed off by the Assessing Officer and rather has completed the assessment without hearing the assessee on 17/12/2019 u/s 144 of the Act. Therefore according to Ld AR, since the assessee did not get a proper opportunity before the Assessing Officer to explain the Rs.5,00,000/- which is the bone of contention during the re-assessment proceedings as discussed, he relying on the judgment of the Hon’ble Supreme Court in the case of Tin Box Company vs Commissioner Of Income-Tax [2001] 249 ITR 216 (SC), prayed that the assessee’s case may be remitted back to the file of the Assessing Officer for reassessment. 3. I find force in the submissions of the Ld. A/R in the background of the discussions (supra) and taking note of the decision of the Hon’ble Supreme Court in the case of Tin Box Company (supra), I am inclined to accede to the plea of the assessee. The Hon’ble Supreme Court in the case of Tin Box Company (Supra) held as under:- “2. That the assessee could have placed evidence before the first appellate authority or before the Tribunal is really of no consequence for it is the assessment order that counts. That order must be made after the assessee has been given a reasonable opportunity of selling out his case. We, therefore, do not agree with the Tribunal and the High Court that it was not necessary to set aside the order of assessment and remand the matter to the assessing authority for fresh assessment after giving to the assessee a proper opportunity of being heard. 3. Two questions were placed before the High Court, of which the second question is not pressed. The first question reads thus : "1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in not setting aside the assessment order in spite of a finding arrived at by it that the Income-tax Officer had not given a proper opportunity of hearing to the assessee ?" 4. In our opinion, there can only be one answer to this question which is inherent in the question itself : in the negative and in favour of the assessee. 5. The appeals are allowed. The order under challenge is set aside. The assessment order, that of the Commissioner (Appeals) and of the Tribunal are also set aside. The matter shall now be remanded to the assessing authority for fresh consideration, as aforestated. No order as to costs. 3 I.T.A. No. 305/Kol/2021 Assessment Year: 2012-13 Ashok Kumar Mandelia . In light of the aforesaid facts discussed, I am inclined to set aside the impugned order of the Ld. CIT(A) and remand the issue back to the file of the Assessing Officer for de novo assessment. The assessee is at liberty to raise all the issues including the legal issue against validity of the re-opening since the Assessing Officer has not disposed off the objection of the assessee as noted (supra); and the assessee is directed to be diligent and file all the documents to substantiate its claim before the Assessing Officer. With the aforesaid observations, the appeal of the assessee is allowed for statistical purposes 4. In the result, appeal of the assessee is allowed for statistical purposes. Order is pronounced in the open court on 18 th February, 2022. Sd/- (A. T. Varkey) Judicial Member Dated: 18 th February, 2022 SC, Sr. PS Copy of the order forwarded to: 1. Appellant- C/o S.N. Ghosh & Associates, Advocates, 2, Garstin Place, 2 nd Floor, Suite No 203, Off Hare Street, Kolkata – 700 001 2. Respondent – Income Tax Officer, Ward-34(2), Kolkata 3. The CIT(A)-National Faceless Appeal Centre (NFAC) 4. CIT- , Kolkata 5. DR, Kolkata Benches, Kolkata (sent through e-mail) True Copy By Order Assistant Registrar ITAT, Kolkata Benches, Kolkata