Shri Prahlad Agarwala, Jalpaiguri V. ITO, Ward - 1(1), Jalpaiguri, Jalpaiguri

ITA 453/KOL/2011

• Counselvise Citation: 45323514 RSA 2011
• Duration Of Justice: 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2011
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 16-03-2011
• Court: TRIBUNAL
• Department Lawyers: GOUTAM MONDAL
• Assessee Lawyers: S L KOCHAR
• Keywords: Unexplained cash credit; Gift; Opportunity of being heard
• Section: 68

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH B, KOLKATA () BEFORE , , , , , SHRI MAHAVIR SINGH, JUDICIAL MEMBER. /AND . .. .!' !'!' !'. .. . , #$ SHRI C.D.RAO, ACCOUNTANT MEMBER % % % % / ITA NO . 453/KOL/2011 &' ()/ ASSESSMENT YEAR : 2004-05 (+, / APPELLANT ) SHRI PRAHLAD AGARWALA, JALPAIGURI (PAN: ACCPA 3538 M) - & - - VERSUS - . (./+,/ RESPONDENT ) I.T.O., WARD-1(1), JALPAIGURI +, 0 1 #/ FOR THE APPELLANT: SHRI S.L.KOCHAR ./+, 0 1 #/ FOR THE RESPONDENT: SHRI GOUTAM MONDAL #2 / ORDER ( (( ( . .. .!' !'!' !'. .. . ) )) ), , , , #$ PER SHRI C.D.RAO, AM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER DATED 10/12/2010 OF THE CIT(A)-JALPAIGURI PERTAINING TO A.YR. 2004-05 2. THE ASSESSEE HAS RAISED THE FOLLOWING GRO UNDS OF APPEAL :- 1. THAT THE APPELLATE ORDER IS ILLEGAL, ARBITRARY, BAD IN LAW AS WELL AS IN FACTS. 2. THAT ON THE FACTS OF THE CASE THE LEARNED APPELL ATE COMMISSIONER IS NOT JUSTIFIED IN TREATING THE GIFTS RS.93,000/- AS INCOME OF THE ASSESSEE U/S 68 OF THE I.T.ACT. 3. THAT THE LD. APPELLATE COMMISSIONER GROSSLY ERRE D IN ESTIMATING YEARLY EDUCATIONAL EXPENSES INCLUDING FOODING EXPENSES ETC. OF SUJIT A GARWAL AND THEREBY BY ADDING A SUM OF RS.48,000/- TO THE TOTAL INCOME WITHOUT ANY PROPER BASIS. 4. THAT FURTHER GROUND OR GROUNDS OF APPEAL MAY BE SUBMITTED DURING THE COURSE OF HEARING. 3. AT THE TIME OF HEARING THE LD. COUNSEL APPE ARING ON BEHALF OF THE ASSESSEE HAS CONTENDED THAT THE AO HAS MADE THE ABOVE TWO ADDITI ONS RS.93,000/- ON ACCOUNT OF UNEXPLAINED CASH CREDITS AND RS.48,000/- ON ACCOUNT OF LOW DRAWINGS AND THE LD. CIT(A) HAS CONFIRMED THE SAME WITHOUT GIVING PROPER OPPORTUNITY TO THE ASSESSEE THOUGH ON SEVERAL OCCASIONS THE ASSESSEE WANTED TO SUPPORT HIS SUBMISSIONS WITH EVIDENCES. THEREFORE, HE REQUESTED TO GIVE ONE MORE OPPORTUNITY TO SUBSTANTIATE HIS 2 CLAIM. THUS HE REQUESTED TO SET ASIDE THE ORDERS OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE AO. 4. ON THE OTHER HAND, THE LD. DR APPEARING ON B EHALF OF THE REVENUE COULD NOT OBJECT TO THIS REQUEST OF THE LD. COUNSEL FOR THE A SSESSEE. 5. AFTER HEARING THE RIVAL SUBMISSIONS AND ON C AREFUL PERUSAL OF MATERIALS AVAILABLE ON RECORD, IT IS OBSERVED THAT THE REVENUE HAS DISP UTED THE GIFTS BASED ON SOME JUDICIAL PRONOUNCEMENTS AND FURTHER THE ASSESSEE HAS FAILED TO PROVE THE CREDITWORTHINESS OF THE DONORS. SIMILARLY ON ACCOUNT OF LOW DRAWINGS AL SO, THE REVENUE HAS NOT ACCEPTED THE CONTENTION OF THE ASSESSEE BY SAYING THAT THE A SSESSEE HAS FAILED TO FURNISH THE FULL DETAILS AND HEAD-WISE BREAK UP OF DIFFERENT EXPENSE S TO JUSTIFY THE WITHDRAWAL. SINCE THE ASSESSEE IS IN A POSITION TO SUBSTANTIATE THE C LAIM OF THE ASSESSEE BEFORE THE AO, IN THE INTEREST OF JUSTICE WE RESTORE THESE TWO ISSUES TO THE FILE OF THE AO TO RE-DECIDE THE SAME AS PER LAW AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13.06.2011. SD/- SD/- MAHAVIR SINGH, JUDICIAL MEMBER . .. .!' !'!' !'. .. . , ,, , #$ #$ #$ #$ , C.D.RAO, ACCOUNTANT MEMBER. ( (( ('$ '$ '$ '$) )) ) DATE: 13.06.2011 #2 0 .3 4#3(5- COPY OF THE ORDER FORWARDED TO: 1. SHRI PRAHLAD AGARWALA, S/O BEHARILAL AGARWALA, KAMA RPARA, P.O. & DIST.JALPAIGURI. 2 THE I.T.O., WARD-1(1), JALPAIGURI 3. THE CIT, 4. THE CIT(A)-JALPAIGURI. 5. DR, KOLKATA BENCHES, KOLKATA /3 ./ TRUE COPY, #2&:/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES R.G.(.P.S.)