Arindam Ghosh, Kolkata V. ITO, Ward - 52(1), KoL, Kolkata

ITA 435/KOL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2613 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2010
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 26-02-2010
• Court: TRIBUNAL
• Department Lawyers: O P AGARWAL
• Assessee Lawyers: N O N E
• Keywords: Unexplained investment; Opportunity of being heard
• Section: 143(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL : A BENCH : KOLKATA [ BEFORE SHRI D.K.TYAGI, J.M. & SHRI B.C. MEENA, A.M. ] I.T.A.NO. 435 (KOL) OF 2010 ASSESSMENT YEAR 2005-06 SRI ARINDAM GHOSH, -VS- INCOME-TAX OFFICER, WARD-52(1), KOLKATA (PAN-ADWPG9056F) KOLKATA. ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : N O N E RESPONDENT BY : SRI O.P.AGARWAL. O R D E R PER SRI B.C.MEENA, A.M. : THIS IS THE APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 27.11.2009 OF C.I.T.(A)-XXXIII, KOLKATA, PERTAIN ING TO ASSESSMENT YEAR 2005-06. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS :- 1. FOR THAT ON THE FACTS AND IN THE CIRCUM STANCES OF THE CASE, LD. C.I.T. APPEAL XXXIII BEING APPELLATE AUTHORITY BELOW OUGHT NOT HAVE PASSED THE ORDER DATED 27.11.2009 EX-PARTE HE OUGHT TO HAV E ALLOWED OPPORTUNITY OF BEING HEARD. 2. FOR THAT THE LD. APPELLATE AUTHORITY BEL OW OUGHT TO HAVE CONSIDERED MATERIAL FACTS ON RECORD AND HE OUGHT NOT TO HAVE C ONSIDERED WRONG FINDING OF THE LD. I.T.O. BEING ASSESSING AUTHORITY BELOW AS TRUE AND CORRECT. THE FINDING OF THE ASSESSING AUTHORITY BE LOW WAS ABSOLUTELY WRONG AND NOT BASED ON THE FACTS. 3. FOR THAT ASSESSING AUTHORITY BELOW FAILE D TO CONSIDER THE CONFIRMATION LETTER WRITTEN BY SALIL GHOSH CONFIRMING THE LOAN A MOUNT OF RS.50,000/- PAID BY HIM TO THE APPELLANT. 4. FOR THAT THE TOTAL INCOME OF THE APPELLA NT SHOULD BE ASSESSED AT RS.1,02,380.00 AND ADDITION OF RS.50,000.00 BE DELE TED. 5. FOR THAT THE LD. ASSESSING AUTHORITY BEL OW MISCONSTRUED AND MISUNDERSTOOD THE FACTS OF THE CASE AND THE ASSESSM ENT ORDER IS ARBITRARY CAPRICIOUS AND WITHOUT ANY BASIS AND THE IMPUGNED ORDER IS VITIATED THEREBY AS SUCH THE ASSESSMENT OF TOTAL IN COME BE MADE AFRESH. THE LD. APPELLATE AUTHORITY BELOW OUGHT NOT TO HAVE CONFIRMED SUCH ORDER PASSED BY ASSESSING AUTHORITY BELOW WITHOUT A NY BASIS. 6. FOR THAT THE LD. AUTHORITY BELOW HAS FA ILED TO EXAMINE IN BEFITTING MANNER THE CASH BOOK, LEDGER AND OTHER BOOKS OF ACC OUNTS AND PAPERS AND DOCUMENTS SAVE A ROUGH BOOK THE APPELLANT CRAVE S LEAVE TO PRODUCE ALL BOOKS OF ACCOUNTS, PAPERS AND DOCUMENTS MAINTAI NED ACCORDING TO PRINCIPLE OF ACCOUNTANCY AND THE STATUTE FOR THE TI ME BEING IN FORCE 2 BEFORE THE LD. APPELLATE AUTHORITY FOR EXAMINATION AND CONSIDERATION OF THE SAME. 2. THE ASSESSEE FILED HIS RETURN FOR THE ASSESSMENT YEAR UNDER APPEAL SHOWING TOTAL INCOME OF RS.1,02,380/-. THE ASSESSMENT WAS COMPLETED U/S. 143(3) DETERMINING TOTAL INCOME OF RS.1,52,380/-, THEREBY MA KING AN ADDITION OF RS.50,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT. THE A SSESSEE CAME IN APPEAL BEFORE THE C.I.T.(A) AGAINST SUCH ADDITION TO HIS TOTA L INCOME. ON PERUSAL OF THE ORDER OF THE C.I.T.(A), IT IS FOUND THAT THE HEARING OF THE CASE BEFORE HIM WAS FIXED ON SIX OCCASIONS, BUT NEITHER ANYBOD Y APPEARED ON BEHALF OF THE ASSESSEE ON THOSE DATES NOR WAS THERE AN Y ADJOURNMENT PETITION. IN VIEW OF THE ABOVE, THE C.I.T.(A) CAME TO THE CONCLUSION T HAT THE ASSESSEE WAS NOT INTERESTED IN PURSUING ITS APPEAL AND THUS DISMIS SED THE SAME FOR WANT OF PROSECUTION. 3. AT THE TIME OF HEARING BEFORE US, NONE WAS PRESENT O N BEHALF OF THE ASSESSEE. WE HAVE, THEREFORE, HEARD THE LD. DEPARTMENTA L REPRESENTATIVE, PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND OTHER M ATERIAL PLACED ON RECORD. WE FIND THAT THE C.I.T.(A) DID NOT ADJUDICATE THE VARIOUS GROUNDS OF APPEAL RAISED BEFORE HIM AND HE HAS SIMPLY DISMISSED THE ASSESSEES APPEAL ON THE SOLE GROUND THAT THE ASSESSEE DID NOT APPEAR ON THE DATES OF HEARING AND THUS THE ASSESSEE WAS NOT INTERESTED IN PURSING HIS APPEAL. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, IN OUR OPINION, IT WOULD MEET THE ENDS OF JUSTICE IF THE ORDER OF C.I.T.(A) IS SET ASIDE AND HE IS DIRECTED TO ALLOW FURTHER OPPORTUNITY TO THE ASSESSEE AND ALSO DECIDE THE APPEAL ON MERITS. WE ORDER ACCORDINGLY AND DIRECT THE C.I.T.(A) TO ALLOW ADEQUA TE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND WE ALSO DIRECT HIM TO A DJUDICATE UPON THE GROUNDS OF APPEAL RAISED BEFORE HIM BY PASSING A SPEAKING ORDER. WE MAY FURTHER POINT OUT THAT IF THE ASSESSEE FAILS TO AVAIL THIS OP PORTUNITY, THE C.I.T(A) SHALL BE AT LIBERTY TO TAKE APPROPRIATE DECISION IN ACCORDANCE WITH LAW. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURP OSES. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- [D.K.TYAGI] [B.C. MEENA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 29-04-2010 3 COPY FORWARDED TO : 1. SRI ARINDAM GHOSH, C/O. GHOSH BUILDERS, 57, BOSE PUKUR ROAD, KOLKATA-700 042 2. I.T.O., WARD-52(1), KOLKATA 3. C.I.T.(A)-XXXIII, KOLKATA 4. THE C.I.T., KOL- 5. THE DEPARTMENTAL REPRESENTATIVE, ITAT, KOLKATA. TRUE COPY, BY ORDER [DKP] DY. REGISTRAR.