Rakesh Agarwal, Kolkata V. ITO, ward-45(1), Kolkata

ITA 368/KOL/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4785 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 22-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Assessee Lawyers: P K HIMMATSINGHKA
• Keywords: Unexplained investment; Opportunity of being heard
• Section: 143(3)

Judgement Text

ITA NO. 368/KOL/2017 ASSESSMENT YEAR: 2009-2010 RAKESH AGARWAL 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA D BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER I.T.A. NO. 368/KOL/2017 ASSESSMENT YEAR: 2009-2010 RAKESH AGARWAL,.................................... ..................................APPELLANT 214, RABINDRA SARANI, GROUND FLOOR, KOLKATA-700 007 [PAN: ACRPA 1991 P] -VS.- INCOME TAX OFFICER,................................ ...................................RESPONDENT WARD-45(1), KOLKATA, 3, GOVERNMENT PLACE (WEST), KOLKATA-700 001 APPEARANCES BY: SHRI P.K. HIMMATSINGHKA, A.R., FOR THE APPELLANT SMT. RANU BISWAS, JCIT, SR. D.R. , FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : FEBRUARY 14, 2019 DATE OF PRONOUNCING THE ORDER : FEBRUARY 14, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ):- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-13, KOLKATA DA TED 04.10.2016 PASSED EX-PARTE DISMISSING THE APPEAL OF THE ASSESS EE. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O N 05.11.2009 DECLARING TOTAL INCOME OF RS.1,80,759/-. IN THE ASS ESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 29.12.2011 , THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE ASSESSING OFFICE R AT RS.1,05,70,616/- AFTER MAKING THE FOLLOWING TWO ADDITIONS:- (I) DISALLOWANCE OF LOSS ON SPECULATION RS. 3,90,691/ - (II) UNEXPLAINED INVESTMENT RS.1,00,00,000/ - ITA NO. 368/KOL/2017 ASSESSMENT YEAR: 2009-2010 RAKESH AGARWAL 2 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEF ORE THE LD. CIT(APPEALS) AND SINCE THERE WAS NO SATISFACTORY CO MPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(APPEALS) DIS MISSED THE APPEAL OF THE ASSESSEE VIDE HIS APPELLATE ORDER DATED 04.10.2 016 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN SUPPORT O F THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL CHALLENGING T HE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PARTE, THE ASSESS EE HAS FILED AN AFFIDAVIT EXPLAINING THE NON-COMPLIANCE BEFORE THE LD. CIT(AP PEALS) AS UNDER:- (5) THAT THE AGARWAL MAHESWARI AND CO. WAS APPOINTED AS THE AUTHORIZED REPRESENTATIVE TO APPEAR AND REPRESENT THE CASE BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-13. (6) THAT I WAS UNDER THE BONA FIDE BELIEF THAT PROPER COMPLIANCES WERE MADE FROM THE END OF THE SAID AUTHORIZED REPRESENTATIVE. (7) THAT AFTER RECEIPT OF THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL)-13 ON DT. 23.12.2016 IT CAME TO MY KNOWLEDGE THAT THERE WERE SOME NON-COMPLIANCE BY THE SAID AUTHORIZED REPRESENTATIVE. KEEPING IN VIEW THE ASSERTION MADE BY THE ASSESSEE IN THE AFFIDAVIT ON OATH, WE ARE SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR NON- COMPLIANCE ON THE PART OF THE ASSESSEE BEFORE THE L D. CIT(APPEALS) AND THE ASSESSEE DESERVES ONE MORE OPPORTUNITY OF BEING HEARD BY THE LD. CIT(APPEALS) IN THE INTEREST OF JUSTICE. WE, THEREF ORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PA RTE AND REMIT THE MATTER BACK TO THE ASSESSING OFFICER FOR DISPOSING OF THE APPEAL OF THE ITA NO. 368/KOL/2017 ASSESSMENT YEAR: 2009-2010 RAKESH AGARWAL 3 ASSESSEE AFRESH ON MERIT AFTER GIVING ONE MORE OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE. 5. AS UNDERTAKEN BY THE LD. COUNSEL FOR THE ASSESSE E, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE LD. CIT(APPEALS) AND SHALL EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT (APPEALS) TO DISPOSE OF THE APPEAL EXPEDITIOUSLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATE D AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON FEBRUARY 14, 2019. SD/- SD/- (SATBEER SINGH GODARA) (P.M. JAGTAP) JUDICIAL MEMBER VICE -PRESIDENT (KZ) KOLKATA, THE 14 TH DAY OF FEBRUARY, 2019 COPIES TO : (1) SHRI RAKESH AGARWAL, 214, RABINDRA SARANI, GROUND FLOOR, KOLKATA-700 007 (2) INCOME TAX OFFICER, WARD-45(1), KOLKATA, 3, GOVERNMENT PLACE (WEST), KOLKATA-700 001 (3) COMMISSIONER OF INCOME TAX (APPEALS)-13, KOLKAT A, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.