Sri Dilip Modak, Kolkata V. THE ITO, WD-2692), KOLKATA, Kolkata

ITA 321/KOL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4223 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 28-11-2016
• Assessment Year: 2012-2013
• Appeal Filed On: 01-03-2016
• Court: TRIBUNAL
• Section: 133(6)

Judgement Text

ITA NO. 321/KOL/16 SRI DILIP MODAK 1 IN THE INCOME TAX APPELLATE TRIBUNAL,A BENCH KOLKATA BEFORE : SHRI M.BALAGANESH, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 321/KOL/2016 A.Y: 2012-13 SRI DILIP MODAK VS. I.T.O.,W 26(2), KOLKATA PAN: ADWPM 6959M (APPELLANT) (RESPONDENT) APPEARANCES BY: SHRI B.C JAIN,FCA, AR SHRI ARUP CHATTERJEE, JCIT, DR DATE OF HEARING : 28-11-2016 DATE OF PRONOUNCEMENT : 30-11-2016 O R D E R SHRI S.S. VISWANETHRA RAVI, JM :- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 14-01-2016 PASSED BY THE COMMISSIONER OF INCO ME TAX(APPEALS),7, KOLKATA FOR THE ASSESSMENT YEAR 20 12-13. 2. THE ONLY GROUND IS TO BE DECIDED IN THIS APPEA L AS TO WHETHER THE CIT-A JUSTIFIED IN PASSING EX PARTE ORDER CONFIRMIN G THE ADDITION MADE BY THE AO ON ACCOUNT OF DISCREPANCY FOUND IN THE P & L AND STATEMENT OF ACCOUNTS OF THE ASSESSEE AND IN THE FACTS AND CIRCU MSTANCES. 3. THE ASSESSEE IS AN INDIVIDUAL CONDUCTING HIS BUS INESS IN THE NAME AND STYLE M/S. UMA COMMUNICATION & UMASHREE BASTRAL AYA AND DISTRIBUTOR OF IDEA CELLULAR AND RETAILER SHIP OF S AREES. THE ASSESSEE FILED HIS RETURN OF INCOME DECLARING A TOTAL INCOME OF RS .3,40,860/- ON 30-09- 2012. UNDER SCRUTINY, NOTICES U/S. 143(2) AND 142(1 ) OF THE ACT WERE ITA NO. 321/KOL/16 SRI DILIP MODAK 2 ISSUED. IN RESPONSE TO WHICH, THE ASSESSEE PRODUCED VARIOUS DETAILS AND DOCUMENTS AS REQUIRED BY THE AO UNDER THE SAID NOTI CES ISSUED. DURING THE SCRUTINY PROCEEDINGS THE AO FOUND THAT THE ASSE SSEE HAS SHOWN AN AMOUNT OF RS.1,58,69,346/- TOWARDS PURCHASE OF PROD UCTS I.E. SIM,RCV AND VTOPUP FROM M/S. IDEA CELLULAR LTD. THE AO SOUG HT INFORMATION FROM SAID M/S. IDEA CELLULAR LTD U/S. 133(6) OF THE ACT, WHEREIN THE SAID M/S. IDEA CELLULAR LTD FURNISHED PURCHASES TO AN EXTENT OF RS.1,89,13,912/-. ACCORDING TO AO, THE ASSESSEE COULD NOT EXPLAIN THE DISCREPANCY OF RS.30,44,566/- [RS.1,89,13,912 RS.1,58,69,346]. T HE AO ALSO FOUND THAT THE ASSESSEE HAS PAID COMMISSION OF RS.34,83,3 29/- WHEREIN SOME PAYMENTS WERE MADE WITHOUT DEDUCTING TDS. ACCORDING LY, AN AGGREGATE AMOUNT OF RS.69,660/- OUT OF RS.34,83,329/- WAS DIS ALLOWED U/S. 40(A)(IA) OF THE ACT BY THE AO AND ADDED THE BOTH TO THE TOTAL INCOME OF THE ASSESSEE AND DETERMINED THE TOTAL INCOME OF ASS ESSEE AT RS.34,55,080/-. 4. AGAINST SUCH ASSESSMENT ORDER, THE ASSESSEE CHAL LENGED THE SAME BEFORE THE CIT(A). ACCORDING TO CIT-A, INSPITE OF R ECEIPT OF NOTICE ISSUED U/S. 250 OF THE ACT, THE ASSESSEE COULD NOT PROSECU TE HIS CASE BEFORE HIM AND ACCORDINGLY, HE CONFIRMED THE IMPUGNED ADDITION AS MADE BY THE AO. 5. BEFORE US THE LD.AR OF THE ASSESSEE CONTENDS THA T THE CIT-A PASSED AN EX PARTE ORDER AND FURTHER SUBMITTED THAT THE AS SESSEE SOUGHT ADJOURNMENT BEFORE THE CIT-A BY FILING PETITIONS FR OM TIME TO TIME. 5.1 WITH REGARD TO DISCREPANCY AS FOUND BY THE AO, THE LD.AR CONTENDED THAT THE ASSESSEE SHOWN THAT THE M/S. IDEA CELLULA R LTD HAS TAKEN THE COST OF PRODUCTS AS WELL AS DIRECT INCENTIVES PAID TO RETAILERS TOGETHER. SUCH INCENTIVES WERE BEING PAID BY M/S. IDEA CELLUL AR LTD DIRECTLY TO ITS RETAILERS AND IT DID NOT REACH TO THE ACCOUNTS OF A SSESSEE. THEREBY THE ASSESSEE SHOWN SUCH AMOUNT IN JOURNAL ENTRY AND HE URGED TO REMAND THE ISSUE TO THE FILE OF THE CIT-A FOR FRESH ADJUDI CATION. ITA NO. 321/KOL/16 SRI DILIP MODAK 3 6. ON THE CONTRARY, THE LD. DR RELIED ON THE ORDER S OF AUTHORITIES BELOW. 7. HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATE RIAL AVAILABLE ON RECORD. WE FIND THAT THE CIT-A INITIALLY FIXED THE DATE OF HEARING ON 17-09- 2015, BUT NONE APPEARED REPRESENTING THE ASSESSEE B EFORE HIM. FROM THE IMPUGNED ORDER OF THE CIT-A, IT IS OBSERVED THA T NOTICE U/S. 250 OF THE ACT INTIMATING THE DATE OF HEARING ON 06-10-20 15 WAS RECEIVED BY THE ASSESSEE AND ASSESSEE SOUGHT ADJOURNMENT BEFORE HIM. THEREAFTER, THE CASE WAS ADJOURNED FOR SOME OCCASIONS THE ASSE SSEE REMAINED ABSENT AND ON SOME OCCASIONS ASSESSEE SOUGHT ADJOUR NMENTS BY FILING PETITIONS. IN SUCH CIRCUMSTANCES, IN THE INTEREST O F JUSTICE AND TAKING INTO CONSIDERATION THE SUBMISSIONS OF THE LD.AR OF ASSES SEE THAT THE ASSESSEE IS INTENDING TO FILE THE RECONCILIATION STATEMENT B EFORE THE CIT-A IN RESPECT OF DISCREPANCY AS FOUND BY THE AO UNDER SCRUTINY AS SESSMENT, WE DEEM IT FIT AND PROPER TO REMAND THE CASE TO THE FILE OF THE CIT-A FOR FRESH ADJUDICATION. THE ASSESSEE SHALL BE AT LIBERTY TO F ILE/PRODUCE EVIDENCES, IF ANY TO SUBSTANTIATE HER CLAIM AND SHALL CO-OPERATE WITH THE CIT-A IN THE APPELLATE PROCEEDING WITHOUT SEEKING ANY FURTHER AD JOURNMENT. ACCORDINGLY, THE GROUND RAISED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSE. 8. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 30 TH NOVEMBER,2016 SD/- SD/- M.BALAGANESH S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 30 /11/ 2016 ITA NO. 321/KOL/16 SRI DILIP MODAK 4 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT/ ASSESSEE: SHRI DILIP MODAK KULPI ROAD, BARUIPUR, KACHARI BAZAR, 24 PARGANAS (SOUTH),PIN 7433 02. 2 THE RESPONDENT/ DEPARTMENT: INCOME TAX OFFICER, WARD 26(2), AAYKAR BHAWAN, DAKSHIN 2 GARIAHAT ROAD ( S),KOL-68 3 / THE CIT(A) 4.THE CIT 5 . DR, KOLKATA BENCH 6 . GUARD FILE . **PP/SPSTRUE COPY, BY ORDER, ASSTT REGISTRA R