Dilip Kumar Dutta, Murshidabad V. ITO, Wd-4, Murshidabad, Murshidabad

ITA 328/KOL/2014

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3102 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 21-02-2014
• Court: TRIBUNAL
• Department Lawyers: S M DAS

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH: K OLKATA [BEFORE SHRI MAHAVIR SINGH, JM] I.T.A NOS.328 & 329/KOL/2014 ASSESSMENT YEARS: 2005-06 & 2006-07 DILIP KUMAR DUTTA VS. INCOME-TAX OFFICER, WD-4 , MURSHIDABAD (PAN:ADUPD5696H) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 02.02.2016 DATE OF PRONOUNCEMENT: 02.02.2016 FOR THE APPELLANT: SHRI INDRANIL BANERJEE, FCA FOR THE ASSESSEE: SHRI S. M. DAS, JCIT, SR. DR ORDER BOTH THESE APPEALS FILED BY ASSESSEE ARE ARISING OU T OF SEPARATE ORDERS OF CIT(A)-XXXVI, KOLKATA VIDE APPEAL NOS. 426 & 427/CIT(A)-XXXVI/KOL /WD-4,MSD/10-11 BOTH DATED 29.11.2013. ASSESSMENTS WERE FRAMED BY ITO, WD-4, MURSHIDABAD U/S. 147/143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT) FOR ASSESSMENT YEARS 2005-06 AND 2006-07 VIDE HIS SEPARATE ORDERS DATED 27.12.2010. 2. AT THE TIME OF HEARING, I HAVE GONE THROUGH THE ORDERS OF CIT(A) AND SEEN THAT THE ORDERS PASSED BY CIT(A) ARE EX PARTE AND WITHOUT GIVING RE ASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE, WHICH IS COMPLETELY ARBITRARY, UNJUSTIFIE D AND ILLEGAL. I ALSO FIND THAT THE ORDERS OF CIT(A) ARE CRYPTIC ONE AND NON-SPEAKING. THERE IS NO IOTA OF MERITS DISCUSSED IN THE ORDERS BY CIT(A). THE RELEVANT PORTION OF HIS ORDER FOR AY 2 005-06 IS REPRODUCED HEREUNDER: 3.2. APPELLANTS GROUNDS AND FACTS AVAILABLE ON R ECORD IS CAREFULLY CONSIDERED. DURING THE COURSE OF THE APPELLATE PROCEEDING IN SPITE OF THE REPEATE D OPPORTUNITY PROVIDED THE APPELLANT HAS NOT PRODUCED ANY EVIDENCE DUE TO NON-COMPLIANCE, THAT T HE PAYMENT MADE WERE NOT SALES COMMISSION BUT DISCOUNT ON SALES. THE A.O. IN THE ASSESSMENT ORDER HAS CATEGORICALLY OBSERVED THAT IN THE P&L ACCOUNT THE EXPENDITURE HAS BEEN CLAIMED UNDER A SE PARATE HEAD OF SALES COMMISSION. HAD IT BEEN DISCOUNT ON SALES, IT WOULD HAVE BEEN INDICATED IN THE SALES BILLS. BUT NO SUCH SALES BILLS WERE PRODUCED DURING ASSESSMENT. DURING THE COURSE OF A PPELLATE PROCEEDING DUE TO CONTINUOUS NON- COMPLIANCE, THERE WAS NO OCCASION FOR SUCH PRODUCTI ON. THEREFORE, IT IS CONCLUDED THAT THE AO HAS CORRECTLY HELD THAT THE PAYMENTS ARE IN THE NATURE OF SALES COMMISSION. AS NO TDS HAS BEEN DONE, THE EXPENDITURE CLAIMED HAS CORRECTLY BEEN DISALLOW ED AS PER PROVISIONS OF SECTION 40(A)(IA). THE DUTY OF THE CIT(A) IS TO PASS A SPEAKING ORDER AFTER CONTROVERTING ALL THE FACTS GIVEN BY ASSESSEE AND DECIDE THE ISSUE WITH REASONS. SINCE THIS WAS ABSENT IN HIS ORDER, I QUASH THE SAME 2 ITA NO.328 & 329/KOL/2014, DILIP KUMAR DUTTA AYS 2005-06 & 2006-07 2 AND REMIT BOTH THE APPEALS BACK TO HIS FILE FOR FRE SH ADJUDICATION WITH THE ABOVE DIRECTION. I ORDER ACCORDINGLY. BOTH THE APPEALS OF ASSESSEE AR E ALLOWED FOR STATISTICAL PURPOSES. 3. IN THE RESULT, BOTH THE APPEALS OF ASSESSEE AR E ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (MAHAVIR SINGH) JUDICIAL MEMBER DATED : 2 ND FEBRUARY, 2016 JD. SR. P.S COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SHRI DILIP KUMAR DUTTA, 70, B. B. SEN R OAD, KHAGRA, P.O. BERHAMPORE, DIST. MURSHIDABAD, PIN-742103. 2. RESPONDENT ITO, WARD-4, MURSHIDABAD. 3. CIT(A) , KOLKATA 4. CIT , KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .