M/s. Tirupati Construction, Hooghly V. ITO, Ward - 1(2), Hooghly, Hooghly

ITA 339/KOL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48153 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 28-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V A RAJU
• Assessee Lawyers: S K MUKHERJEE
• Section: 142(1)

Judgement Text

, , , , , , ,, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA [ . . . . . . . . , ,, , , ,, , . . . . . .. . ! ! ! ! , ' ' ' ' ] [BEFORE HONBLE SHRI B. R. MITT AL, JM & HONBLE SHRI SHRI S.V. MEHROTRA, AM] #$ #$ #$ #$ / I.T.A NO. 339/KOL/2011 %& '() %& '() %& '() %& '()/ // / ASSESSMENT YEAR : 2006-07 M/S. TIRUPATI CONSTRUCTION -VS.- INCOME TAX OFFICER/WARD-1( 2) KOLKATA. [PAN : AAEFT3968 N ] HOOGHLY. (,- /APPELLANT ) (/0,-/ RESPONDENT ) ,- / FOR THE APPELLANT : 1 /SHRI S. K. MUKHERJEE /0,- / FOR THE RESPONDENT : 1 / SHRI V. A. RAJU 2 /O R D E R [ . . . . . .. . ! ! ! ! , ] PER S.V. MEHROTRA, JM THE ASSESSEE HAS FILED THIS APPEAL FOR ASSESSMENT YEAR 2006-07 AGAINST ORDER OF CIT(A)- XXXVI, KOLKATA DATED 13.12.2010. 2. THE ASSESSEE, IN THE RELEVANT ASSESSMENT YEAR, C ARRIED ON THE BUSINESS OF SALE OF FLATS IN THE CAPACITY OF AOP. IT HAD FILED ITS RETURN OF INCOME DECLARING TOTAL INCOME OF RS.31,100/- ON 28.03.2007. THE ASSESSMENT WAS COMPLETED AT A TOTAL INCOME OF RS.25,27,139 AFTER MAKING AN ADDITION OF RS.24,96,039/- BY PASSING ORDER U/S. 14 4 OF THE ACT. THE ASSESSING OFFICER HAS POINTED OUT IN THE ASSESSMENT ORDER IN GREAT DETAIL, THE NO TICES WHICH WERE ISSUED U/S. 143(2) & 142(1) AND SUMMON ISSUED U/S. 131(1) OF THE ACT. AS THERE WAS NO COMPLIANCE, ASSESSING OFFICER HAD PASSED ORDER ON THE BASIS OF EVIDENCE AVAILABLE ON RECORD. BEFORE THE LD. CIT(A), ASSESSEE HAD DISPUTED PRIMARILY NON-SERVICE OF NOTICE U/S. 143(2). THE LD . CIT(A) AFTER DETAILED CONSIDERATION OF FACTS CONCLUDED THAT NOTICE U/S. 143(2) WAS DULY SERVED O N THE ASSESSEE WITHIN THE STIPULATED DATE AND THEREFORE, THE ASSESSING OFFICER PASSED A VALID ASS ESSMENT. AS REGARDS QUANTUM ADDITION, LD. CIT(A) OBSERVED THAT SINCE ASSESSEE HAS NOT FILED A NY GROUND OF APPEAL AGAINST QUANTUM ADDITION, THE TOTAL ADDITION OF RS.24,96,039/- MADE BY THE AS SESSING OFFICER UNDER VARIOUS HEADS WAS REQUIRED TO BE UPHELD. ITA NO. 339/KOL/2011 2 3. BEFORE US, ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL :- (I) THAT THE NOTICE U/S. 143(2) & 142(1) WAS SERVED ON DATED 03.04.08 WHICH IS BEYOND THE PERIOD OF ISSUING NOTICE UNDER THE SA ID SECTION. (II) THAT SEVERAL NOTICES U/S. 143(2) & 142(1) WAS ISSUE D WHICH IS OUT OF JURISDICTION OF INCOME TAX ACT, 1961. (III) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION OF RS.25,27,14 0/- ON AN UNEXPLAINED SALES AND OTHERS. 4. LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LD. CIT(A) REGARDING NON-SERVICE OF NOTICE U/S. 143 (2). HE FURTHER SUBMITTED THAT, IN THE ALTERNATIVE, MATTER MAY BE RESTORED BACK TO LD. CIT(A) FOR DECID ING THE ISSUE ON MERITS. 5. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATI VE SUBMITTED THAT THE ASSESSEE DID NOT COOPERATE IN THE ASSESSMENT PROCEEDINGS WHICH IS EV IDENT FROM THE ASSESSMENT ORDER. HE SUBMITTED THAT SINCE ASSESSEE DID NOT OBJECT TO THE QUANTUM A DDITION BEFORE THE LD. CIT(A), THEREFORE, THE SAME DESERVE TO BE UPHELD. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAV E PERUSED THE ORDERS OF THE AUTHORITIES BELOW. ADMITTEDLY, THE ASSESSMENT WAS COMPLETED U/S . 144 AND BEFORE THE LD. CIT(A), THE ASSESSEES MAIN PLANK OF ARGUMENT WAS NON-SERVICE O F NOTICE U/S. 143(2). THE LD. CIT(A) HAS ELABORATELY CONSIDERED THE NON-SERVICE OF NOTICE U/ S. 143(2) AND HAS CONCLUDED THAT THE SAME WAS DULY SERVED ON THE ASSESSEE. AFTER GOING THROUGH TH E RECORD, WE DO NOT FIND ANY INFIRMITY ON THIS COUNT. NOW, COMING TO THE ADDITION ON MERITS, WE FI ND THAT, IT IS TRUE THAT BEFORE THE LD. CIT(A), ASSESSEE HAD NOT TAKEN ANY SPECIFIC GROUND OF APPEA L REGARDING QUANTUM ADDITION, BUT BEFORE US, THE ASSESSEE HAS TAKEN GROUND OF APPEAL ON THIS COUNT. WE FIND THAT NEITHER BEFORE THE ASSESSING OFFICER NOR BEFORE THE LD. CIT(A), THE ASSESSEE COULD GET A N OPPORTUNITY TO EXPLAIN THE QUANTUM ADDITION MADE BY THE ASSESSING OFFICER. THEREFORE, WE CONSID ER IT PROPER IN THE INTEREST OF JUSTICE, TO AFFORD AN OPPORTUNITY TO THE ASSESSEE TO EXPLAIN QUANTUM A DDITION BEFORE THE LD. CIT(A). HOWEVER, CONSIDERING THE CONDUCT OF THE ASSESSEE, WE ARE OF THE OPINION THAT THE MATTER SHOULD BE RESTORED TO THE LD. CIT(A) ONLY AFTER THE ASSESSEE PAYS COST OF RS.5,000/- AND DEPOSIT THE SAME BEFORE THE LD. CIT(A) CAN TAKE COGNIZANCE OF ASSESSEES APPEAL. IT IS MADE CLEAR THAT THE ASSESSEE WILL NOT DISPUTE THE SERVICE OF NOTICE AS WE HAVE UPHELD THE SAME. A CCORDINGLY, WHILE SUSTAINING THE CONCLUSION OF LD. CIT(A) ON THE ISSUE OF SERVICE OF NOTICE U/S. 1 43(2), WE RESTORE THE MATTER BACK TO THE FILE OF LD . CIT(A) TO DECIDE THE QUANTUM ADDITION ON MERITS AFT ER GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE ITA NO. 339/KOL/2011 3 SUBJECT TO PAYMENT OF COST OF RS.5,000/- DUE TO NON -COOPERATION OF THE ASSESSEE BEFORE THE ASSESSING OFFICER. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 2 2 2 2 '3 '3 '3 '3 4 44 4 3% 3% 3% 3% 5 5 5 5 6 6 6 6 7' 7' 7' 7' ORDER PRONOUNCED IN THE OPEN COURT ON 26. 0 5. 2011. SD/- SD/- [ . . , ] [ . . ! , ' ] [ B. R. MITTAL ] [ S.V. MEHROTRA ] JUDICIAL MEMBER ACCOUNTANT MEMBER 7' / DATED : 26TH MAY, 2011. 2 8 /9 :9(; - COPY OF THE ORDER FORWARDED TO: 1. ' /APPLICANT- M/S. TIRUPATI CONSTRUCTION, MORAN ROA D, POST GONDALPARA, CHANDANNAGAR, HOOG HLY. 2 /0,- / RESPONDENT : INCOME TAX OFFICER/WARD-1(2), HOOGHL Y. 3. 2% / CIT 4. 2% ( )/ CIT(A) 5. '5 /% / DR, KOLKATA BENCHES, KOLKATA [ 09 / / TRUE COPY] 2%3 / BY ORDER < / #= /DEPUTY/ASSTT. REGISTRAR . [KKC '>? %@= A' /SR.PS]