ITO, Wd-34(3), Kolkata, Kolkata V. Dhananjay Mukherjee, Kolkata

ITA 349/KOL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9332 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2017
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 16-01-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 27-02-2014
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN
• Assessee Lawyers: N O N E
• Keywords: Bogus purchase; Opportunity of being heard; Principle of natural justice
• Section: 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA [BEFORE SHRI M. BALAGANESH, AM & SHRI PARTHA SARAT HI CHAUDHURY, JM] I.T.A NO.349/KOL/2014 ASSESSMENT YEAR: 2009-10 INCOME-TAX OFFICER, WD-34(3), KOLKATA. VS. DHANO NJAY MUKHERJEE (PAN: AIWPM7352H) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 01.03.2017 DATE OF PRONOUNCEMENT: 01.03.2017 FOR THE APPELLANT: MD. GHAYAS UDDIN, JCIT, SR. DR ` FOR THE RESPONDENT:N O N E ORDER PER SHRI PARTHA SARATHI CHAUDHURY,, JM: THIS APPEAL BY REVENUE ARISES OUT OF THE ORDER OF C IT(A)-XX, KOLKATA VIDE APPEAL NO. 378/CIT(A)-XX/WD-34(3)/11-12/KOL DATED 22.11.20 13 ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, WHETHER THE LD. CIT(A) WAS CORRECT IN DELETING THE ADDITION OF RS.4,00,658/- O N ACCOUNT OF BOGUS PURCHASE. ALTERNATIVELY, LD. CIT(A) ERRED IN DELETING THE ADD ITION TO THE TUNE OF RS.3,81,690/- AS THIS AMOUNT WAS PAID IN CASH IN VIOLATION OF SECTION 40A (3) TO THE ALLEGED CREDITOR. 2. ON THE FACTS & CIRCUMSTANCES OF THE CASE, AND IN LAW, WHETHER THE LD. CIT(A) WAS CORRECT IN DELETING THE ADDITION OF RS.10,04,991/- ON ACCOU NT BOGUS PURCHASE AND ALLOWING THE RELIEF TO THE ASSESSEE IN TOTAL DISREGARD TO THE RULE 46A OF THE INCOME TAX RULES, 1962. 3. ON THE FACTS & CIRCUMSTANCES OF THE CASE, AND IN LAW, WHETHER THE LD. CIT(A) WAS CORRECT IN DELETING THE ADDITION OF RS.8,32,600/- ON ACCOUN T OF BOGUS EXPENDITURE UNDER THE HEAD SALARY. 4. ON THE FACTS & CIRCUMSTANCES OF THE CASE, AND IN LAW, WHETHER THE LD. CIT(A) WAS CORRECT IN DELETING THE ADDITION OF RS.55,81,331/- ON ACCOU NT OF SECURITY DEPOSITS RECEIVED FROM UNVERIFIED PERSONS. 5. THE APPELLANT CRAVES THE LEAVE TO MAKE ANY ADDIT ION, ALTERATION, MODIFICATION OF GROUNDS AT THE APPELLATE STAGE. 3. THE BRIEF FACTS APPEARING IN THIS CASE ARE THAT THE ASSESSEE IS THE PROPRIETOR OF M/S. D. M. AGENCY AND M/S. JATRA SANSTHA. M/S. D. M. AG ENCY DEALS IN TRADING OF NESTLE PRODUCTS WHEREAS M/S. JATRA SANSTHA IS INVOLVED WIT H PRODUCTION OF JATRAS (TRADITIONAL BENGALI FOLK DRAMA). THE ASSESSEE HAS FILED HIS RET URN OF INCOME FOR AY 2009-10 ON A TOTAL INCOME OF RS.3,22,220/- ON 26.10.2010. THE CASE WA S SELECTED FOR SCRUTINY IN TERMS OF ACTION PLAN AND NOTICES U/S. 143(2) AND 142(1) OF T HE INCOME-TAX ACT, 1961 (HEREINAFTER 2 ITA NO.349/K/2014 DHANONJAY MUKHERJEE, AY 2009-10 REFERRED TO AS THE ACT) WERE ISSUED AND SERVED ON THE ASSESSEE. THE ASSESSMENT WAS COMPLETED U/S. 143(3) OF THE ACT AT RS.90,04,210/- 4. WW HAVE PERUSED THE CASE RECORDS AND AT THE VER Y OUTSET, WE FIND FROM THE ORDER OF THE LD. CIT(A) THAT LOT OF FRESH EVIDENCES WERE FUR NISHED BEFORE THE FIRST APPELLATE AUTHORITY IN RESPECT OF PURCHASE ACCOUNT, SUNDRY CR EDITORS, SALARY AND WAGES TO ARTISTS AND OTHER STAFF, SECURITY DEPOSITS ACCOUNT. THAT, HOWE VER, THESE EVIDENCES WERE NOT SENT TO THE AO ASKING FOR A REMAND REPORT ON THE BASIS OF SUCH EVIDENCE ADDUCED IN COMPLIANCE WITH RULE 46A OF THE INCOME TAX RULES, 1962 IN EFFECT TH E VIEWS AND ADJUDICATION BY THE AO WAS NOT COMPLIED WITH SO FAR AS THESE FRESH EVIDENC ES ARE CONCERNED. IN THESE CIRCUMSTANCES, WE ARRIVE AT OUR CONSIDERED VIEW AND IN THE INTEREST OF NATURAL JUSTICE, THE MATTER IS SET ASIDE TO THE FILE OF THE AO FOR REASS ESSMENT DE NOVO AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND UPON CONSIDERING THE FRESH EVIDENCES TO BE SUPPLIED BEFORE HIM. 5. IN THE RESULT, THE APPEAL OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 01.03.201 7 SD/- SD/- (M. BALAGANESH) (PARTHA SARATHI CHAUDHURY ,) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 1 ST MARCH, 2017 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT ITO, WARD-34(3), KOLKATA 2 RESPONDENT SHRI DHANONJAY MUKHERJEE, 29, R. N. M UKHERJEE ROAD, KOLKATA-700 001. 3. THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA. DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .