Sri Arjun Chettri, East Sikkim V. DCIT, Circle-2, Siliguri, Siliguri

ITA 449/KOL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1739 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-08-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 07-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHARJEE ACIT
• Keywords: Opportunity of being heard; Peak credit
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENCH KOLKATA BEFORE SHRI N. V. VASUDEVAN, JM & DR. A.L.SAINI, AM ./ ITA NO.449/KOL/2017 ( / ASSESSMENT YEAR: 2012-13 SRI ARJUN CHETTRI C/O. PANKAJ FUEL CENTRE, P.O. MAJHITAR, RANGPO, EAST SIKKIM 737136. VS. D.C.I.T, CIRCLE 2, SILIGURI AAYAKAR BHAWAN, MATIGARA, PARBHAN NAGAR, SILIGURI 734010. ./ ./PAN/GIR NO. : AETPC 6283 Q (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI SUNIL SURANA, CA RESPONDENT BY : SHRI ARINDAM BHATTACHARJEE, ACIT / DATE OF HEARING : 01/08/2017 /DATE OF PRONOUNCEMENT : 04/08/2017 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAINING TO ASSESSMENT YEAR 2012-13, IS DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX(APPEALS), SILIGURI, DATED 28.12.2016, WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) DATED 31.03.2015. 2. THE BRIEF FACTS QUA THE ISSUE ARE THAT THE ASSESSEE IS AN INDIVIDUAL WHO FURNISHED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2012-13 ON 11.01.2013 DECLARING TOTAL INCOME OF RS.13,97,900/-. THE ITA NO.449/KOL/2017 SRI ARJUN CHETTRI ASSESSMENT YEAR: 2012-13 PAGE | 2 RETURN FURNISHED BY THE ASSESSEE HAS BEEN SELECTED FOR SCRUTINY U/S143(2) OF THE ACT AND THE ASSESSING OFFICER MADE THE ADDITION ON ACCOUNT OF UNDISCLOSED CASH DEPOSITS IN BANK, BASED ON THE PEAK CREDIT BALANCE OF CASH OF RS.30,09,111/-. THE ASSESSING OFFICER ALSO MADE ADDITION U/S 44AE, BECAUSE THE AO FOUND THAT THE ASSESSEE WAS OWNER OF NINE GOODS VEHICLE. 3. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A). A PERUSAL OF CIT(A)S ORDER SHOWS THAT HE HAS DECIDED THE APPEAL EX-PARTE. ORDER OF CIT(A) MENTIONS THAT NOTICE U/S 250 OF THE ACT WAS SERVED AND NONE APPEARED ON BEHALF OF THE ASSESSEE. IN PAGE-2 OF THE CIT(A)S ORDER IT HAS BEEN MENTIONED THAT NOTICES DATED; 06.07.15, 18.03.16, 01.11.16, 22.11.16 AND 13.12.16 WERE ISSUED. THE ORDER OF CIT(A) ALSO MENTIONS THAT NONE OF THE NOTICES WERE SERVED ON THE ASSESSEE AND NO NEW ADDRESS IS AVAILABLE. THUS, IT IS CLEAR THAT NONE OF THE NOTICES OF HEARING WAS SERVED ON THE ASSESSEE. 4. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE FILED THE FOLLOWING GROUNDS OF APPEAL:- 1. FOR THAT THE ORDER OF THE LD. CIT(A) IS ARBITRARY, ILLEGAL AND BAD IN LAW. 2. FOR THAT THE LD. CIT(A) ERRED IN DISMISSING THE APPEAL EX PARTE WITHOUT GIVING THE APPELLANT A REASONABLE OPPORTUNITY OF BEING HEARD. ITA NO.449/KOL/2017 SRI ARJUN CHETTRI ASSESSMENT YEAR: 2012-13 PAGE | 3 3. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.30,09,111/- WHEN THE ASSESSEE WAS A SIKKIMESE RESIDENT, THE BANK ACCOUNT WAS IN THE BRANCH AT SIKKIM THE INCOME EARNED AT SIKKIM WAS DULY INCORPORATED IN THE FINANCIAL STATEMENTS AND SUCH INCOME WAS EXEMPT UNDER THE PROVISIONS OF THE I.T ACT, 1961. 4. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ADDITION OF THE ENTIRE DEPOSIT OF RS.30,09,111/-. 5. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.5,40,000/- BY APPLYING THE PROVISIONS OF SEC.44AE OF THE I.T ACT WHICH WAS UNJUSTIFIED AND UNCALLED FOR PARTICULARLY WHEN THE INCOME WAS EARNED IN SIKKIM. 6. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER OF THE CIT(A) BE MODIFIED AND THE ASSESSEE BE GIVEN THE RELIEF PRAYED FOR. 7. FOR THAT THE ASSESSEE CRAVES LEAVE TO ADD, ALTER OR AMEND ANY GROUND BEFORE OR AT THE TIME OF HEARING. 5. WE ARE OF THE VIEW THAT THE ASSESSEE DID NOT GET PROPER OPPORTUNITY OF BEING HEARD BEFORE CIT(A) AND EX PARTE ORDER OF CIT(A) DISMISSING THE APPEAL OF THE ASSESSEE HAS TO BE SET ASIDE. THE LD. COUNSEL FOR THE ASSESSEE ALSO POINTED OUT THAT ORDER OF CIT(A) MAY BE SET ASIDE AND THE ISSUES RAISED BEFORE CIT(A) BE REMANDED TO THE AO FOR FRESH CONSIDERATION. IT HAS BEEN SUBMITTED THAT AT THE ASSESSMENT STAGE THE ASSESSEE DID NOT MAKE THE COMPLIANCE BEFORE THE ASSESSING OFFICER AND DID NOT SUBMIT THE ADEQUATE DETAILS REQUIRED BY THE ASSESSING OFFICER, THE ASSESSEE COULD NOT ATTEND THE HEARING OF THE ASSESSING OFFICER AND IT WOULD BE IN THE INTEREST OF JUSTICE THAT THE MATTER SHOULD BE REMANDED TO THE AO. THE LD. DR DID NOT OBJECT TO THE PRAYER MADE BY THE LD. COUNSEL FOR THE ASSESSEE. ITA NO.449/KOL/2017 SRI ARJUN CHETTRI ASSESSMENT YEAR: 2012-13 PAGE | 4 6. WE ACCEPT THE PRAYER OF THE ASSESSEE AND SET ASIDE THE ORDER OF CIT(A) AND REMAND THE VARIOUS ISSUES RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL BEFORE CIT(A) FOR FRESH CONSIDERATION BY THE AO WITH A LIBERTY TO THE ASSESSEE TO PROVE HIS CASE BY PRODUCING SUFFICIENT EVIDENCE/MATERIAL TO THE SATISFACTION OF THE AO. FOR STATISTICAL PURPOSES THE APPEAL OF THE ASSESSEE IS ALLOWED. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE, IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 04/08/2017 . SD/- (N. V. VASUDEVAN) SD/- (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; DATED 04/08/2017 RS , SR.PS. / COPY OF THE ORDER FORWARDED TO : TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/D.D.O, I.T.A.T, KOLKATA BENCHES, KOLKATA . 1. / THE APPELLANT SRI ARJUN CHETTRI 2. / THE RESPONDENT- D.C.I.T, CIRCLE 2, SILIGURI 3. ( ) / THE CIT(A), :KOLKATA. 4. / CIT 5. , , / DR, ITAT, KOLKATA 6. / GUARD FILE.