Smt Anita Devi Fogla, Dakshin Dinajpur V. ITO, Balurghat (D.Dinajpur), Dakshin Dinajpur

ITA 439/KOL/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70479 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2013
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 21-03-2012
• Court: TRIBUNAL
• Department Lawyers: A K DAS
• Assessee Lawyers: N O N E
• Keywords: Opportunity of being heard
• Section: 143(3); 68; 154

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE , /AND . . . . ' '' ''# '#'# '#, $% ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI ABRAHAM P. GEORGE, AM] & & & & / I.T.A NO. 439/KOL/2012 '( )* '( )* '( )* '( )*/ // / ASSESSMENT YEAR: 2007-08 SMT. ANITA DEVI FOGLA VS. INCOME-TAX OFFICER, B ALURGHAT (PAN: AACPF9700A) (,- /APPELLANT ) (./,-/ RESPONDENT ) DATE OF HEARING: 09.12.2013 DATE OF PRONOUNCEMENT: 19.12.2013 FOR THE APPELLANT: N O N E FOR THE RESPONDENT: SHRI A. K. DAS, SR. DR $0 / ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A), JALPAIGURI IN APPEAL NO. 06/BLG/CIT(A)/JAL/09-10 DATED 11.01.2012. ASSESSME NT WAS FRAMED BY ITO, WARD- BALURGHAT, U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2007-08 VIDE HIS ORDER DATED 29.12. 2009. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE ORDER OF CIT(A) CONFIRMING THE ADDITION OF UNSECURED LOAN TAKEN FROM PROMAN FINLEA SE SERVICES (P) LTD. AT RS. 4 LAC. FOR THIS, ASSESSEE HAS RAISED FOLLOWING TWO GROUNDS: 1. FOR THAT IN THE CIRCUMSTANCES AND ON THE FACTS OF THE CASE THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION MADE BY THE LD. AO IN RE SPECT OF THE LOAN TAKEN FROM PROMAN FINANCIAL SERVICES (P LTD. AT RS.4,00,000/ - TAKING BASE OF A CLERICAL MISTAKE COMMITTED AT THE END OF LD. A.O. BY MENTION ING AS LOAN TAKEN FROM PROMAN FINLEASE SERVICES (P) LTD. AS AGAINST PROMAN FINA NCIAL SERVICES (P) LTD.. 2. FOR THAT IN THE CIRCUMSTANCES AND ON THE FACTS O F THE CASE THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS IN PRINCIPLE IN CONFIRMING THE ADDIT ION ON THIS MERE CLERICAL MISTAKE COMMITTED AT THE END OF THE LD. A.O. WITHOUT GIVING ANY OPPORTUNITY TO THE APPELLANT FOR CLARIFICATION OF THE SAID CLERICAL MISTAKE COMMITTE D AT THE END OF THE LD. A.O. AND WITHOUT GIVING ANY OPPORTUNITY FOR GETTING IT RECTI FIED U/S. 154 FROM THE LD. A.O. 3. WE HAVE HEARD LD. DR AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE ASSESSEE HAS RAISED THE ISSUE THAT THERE O NLY CLERICAL MISTAKE COMMITTED AT THE END OF THE 2 ITA NO. 439/K/2012 SMT. ANITA DEVI FOGLA, AY:2007-08 AO THAT LOAN TAKEN IS FROM PROMAN FINANCIAL SERVICE S PVT. LTD. AND NOT FROM PROMAN FINLEASE SERVICES PVT. LTD. THIS FACT HAS BEEN DIS CUSSED BY CIT(A) IN HIS OBSERVATIONS AS UNDER: IN RESPECT OF THE OTHER LOAN, IT IS FOUND THAT THE LD AR MADE THE SUBMISSION IN RESPECT OF LOAN FROM PROMAN FINANCIAL SERVICES P LT D NOT FROM M/S PROMAN FINLEASE SERVICES P LTD. WHICH HAS BEEN ADDED BY TH E LD AO. IT IS FOUND IN THE GROUNDS OF APPEAL AND ALSO FROM THE STATEMENT OF FA CTS THAT THE AO MADE THE ADDITION IN RESPECT OF LOAN TAKEN FROM M/S PROMAN F INLEASE SERVICES P LTD. BUT THE AR MADE THE SUBMISSION AND PRODUCED THE DOCUMEN TS IN RESPECT OF ALLEGED LOAN FROM M/S PROMAN FINANCIAL SERVICES P LTD. THE LD AR DID NOT OFFER ANY EXPLANATION REGARDING THIS DISCREPANCY. IN ABSENCE OF ANY CLARIFICATION, IT CANNOT BE SAID THAT M/S PROMAN FINLEASE SERVICES P LTD AND M/S PROMAN FINANCIAL SERVICES P LTD IS ONE AND THE SAME COMPANY. AS SUCH , THE SUBMISSION MADE BY THE LD AR IS NOT TENABLE AND IN ABSENCE OF ANY MATE RIAL CONTRARY TO THE FINDINGS OF THE LD AO, THE ADDTION MADE BY THE AO IS CONFIR MED. 4. IN VIEW OF THE ABOVE, THE CONTENTION OF THE ASSE SSEE IS THAT THE CIT(A) SHOULD HAVE RECTIFIED THE CLERICAL MISTAKE AND FOR THAT AN OPPO RTUNITY TO THE ASSESSEE SHOULD HAVE BEEN PROVIDED. ON THE OTHER HAND, THE LD. DR HAS NOT OB JECTED TO THE SETTING ASIDE OF THIS ISSUE TO THE FILE OF THE CIT(A). IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ASSESSEE HAS TAKEN LOAN FROM PROMAN FINANCIAL S ERVICES PVT. LTD. AND CIT(A) SHOULD EXAMINE THIS ISSUE OF ADDITION OF RS. 4 LAC AND CON SEQUENTIAL INTEREST, IN THE LIGHT OF THE FACT THAT ASSESSEE HAS OBTAINED LOAN FROM THIS PARTY AND NOT FROM PROMAN FINLEASE SERVICES PVT. LTD. NEEDLESS TO SAY, ASSESSEE HAS TO PROVE THE INGREDIE NTS OF SECTION 68 OF THE ACT IN RESPECT OF PROMAN FINANCIAL SERVICES PVT. LTD. BEFORE CIT(A). IN CASE, CIT(A) WANTS TO SEND THE MATTER BACK TO AO FOR REMAND REPORT, HE IS FREE TO DO SO. IN SUCH CIRCUMSTANCES, WE SET ASIDE THIS ISSUE TO THE FILE OF CIT(A) AND HE WILL ALLOW REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE ISSUE. 5. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. ORDER IS PRONOUNCED IN THE OPEN COURT ON 19 TH DEC., 2013 SD/- SD- . . . . ' '' ''# '#'# '# , $% , (ABRAHAM P. GEORGE) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 19TH DECEMBER, 2013 12 '3' 4 JD.(SR.P.S.) 3 ITA NO. 439/K/2012 SMT. ANITA DEVI FOGLA, AY:2007-08 $0 5 . 6$ )7- COPY OF THE ORDER FORWARDED TO: 1 . ,- / APPELLANT SMT. ANITA DEVI FOGLA, PROP. OF M/S. RA MLAL ENTERPRISE, D.B. ROAD, GANGARAMPUR, DIST. DAKSHIN D INAJPUR. 2 ./,- / RESPONDENT ITO, BALURGHAT 3 . 0' ( )/ THE CIT(A), JALPAIGURI 4. 5. 0' / CIT JALPAIGURI. <= .' / DR, KOLKATA BENCHES, KOLKATA / ./ TRUE COPY, $0'>/ BY ORDER, ' /ASSTT. REGISTRAR .