Narendra Deo Dube, Kolkata V. I.T.O Wd - 51(4),kolkata., Kolkata

ITA 461/KOL/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1644 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 25-04-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 08-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT KUMAR KUREEL SRDR
• Keywords: Principle of natural justice
• Section: 143(3); 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI N.V.VASUDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 461 / KOL / 2013 ASSESSMENT YEAR :2007-08 NARENDRA DEO DUBE FD-70C, SECTOR-III, SALT LAKE CITY, KOLKATA-106 [ PAN NO.AGRPD 6877 H ] V/S . INCOME TAX OFFICER, WARD-51(4), 169, AJC BOSE ROAD, BAMBOO VILLA, KOLKATA-14 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI ANIL KOCHAR, ADVOCATE /BY RESPONDENT RAJAT KUMAR KUREEL, SR-DR /DATE OF HEARING 25-04-2017 /DATE OF PRONOUNCEMENT 02-06-2017 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-XXXII, KOLKATA DATED 21.12.2012. ASSESSMENT WAS FRAMED BY ITO WARD-51(4), KOLKATA U/ S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) VIDE HIS ORDER DATED 31.12.2009 FOR ASSESSMENT YEAR 2007-08. SHRI ANIL KOCHAR, LD. ADVOCATE APPEARED ON BEHALF O F ASSESSEE AND SHRI RAJAT KR. KUREEL, LD. DEPARTMENTAL REPRESENTATIVE REPRESE NTED ON BEHALF OF REVENUE. 2. THE GROUNDS RAISED BY ASSESSEE PER HIS APPEAL AR E AS UNDER:- 1. THAT ON FACTS AS WELL AS IN LAW THE LD. COMMISSI ONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN SUSTAINING THE ADDIT ION OF RS.28,00,000 MADE BY THE LD. ASSESSING OFFICER MERELY ON THE IRRELEVANT GROUND OF ALLEGED NON- UTILIZATION OF THE AMOUNT FOR PROCUREMENT OF LAND, DESPITE THE FACT THAT ITS RECEIPT IN THE HANDS OF THE ASSESSEE IS NOT DISPUTE D. ITA NO.461/KOL/2013 A.Y. 2007-08 NARENDRA DEO DUBE VS. ITO WD-51(4) KOL. PAGE 2 2. THAT ON FACTS AS WELL AS IN LAW THE LD. COMMISSI ONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN SUSTAINING THE ADDIT ION OF RS.4,00,000 (PAID TO GREEN CHILLIE) MADE BY THE LD. ASSESSING OFFICER ME RELY ON THE IRRELEVANT GROUND OF ALLEGED NON-UTILIZATION OF THE AMOUNT FOR PROCUREMENT OF LAND, DESPITE THE FACT THAT SOURCE OF AMOUNT IN THE HANDS OF THE AS IS NOT DISPUTED. 3. THAT ON FACTS AS WELL AS IN LAW THE LD. COMMISSI ONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN SUSTAINING THE ADDIT ION OF AMOUNT OF RS.77,00,000 (RECEIVED FROM SHRI A.K. MITRA) MADE B Y THE LD.AO AND WHILE DOING SO THE LD. CIT(APPEALS) IGNORED TO JUDICIOUSL Y CONSIDER THE EVIDENCES AND SUBMISSIONS FURNISHED BY THE ASSESSEE BEFORE HI M AND BEFORE THE ASSESSING OFFICER. 4. THAT ON FACTS AS WELL AS IN LAW THE LD. COMMISSI ONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN SUSTAINING ALL THE A DDITIONS MADE BY THE LD. ASSESSING OFFICER DESPITE THE FACT THAT PRINCIPLES OF NATURAL JUSTICE WERE NOT FOLLOWED BY THE ASSESSING OFFICER AND IGNORING THE FACT THAT THE STATEMENT OF SHRI A.K. MITRA WAS RECORDED ON 31.12.2009 BEHIND T HE BACK OF THE ASSESSEE, WAS USED AGAINST ASSESSEE WITHOUT ALLOWING ANY OPPO RTUNITY TO CONFRONT THE SAME BY THE ASSESSEE. 5. THAT, WITHOUT PREJUDICE TO THE FOREGOING GROUNDS , THE ASSESSMENT ORDER IS INVALID AND BAD IN LAW AS THE SAME WAS PREPARED AND PASSED BY THE LD. ASSESSING OFFICER BEYOND 31.12.2009, I.E. THE TIME OF LIMITATION PRESCRIBED IN SECTION 153 OF THE IN TAX ACT, 1961, A FACT WHICH C AN BE FOUND ON INVESTIGATION, THUS VOID AUTHORITIES BELOW-INITIO. 6. THAT THE APPELLANT CRAVES LEAVE TO MODIFY OR ADD TO THE GROUNDS OF THE APPEAL ON OR BEFORE THE FINAL HEARING OF THIS APPEA L. 3. AT THE OUTSET, LD. AR FOR THE ASSESSEE BEFORE US SUBMITTED THAT ALL THE ADDITIONS HAVE BEEN MADE ON THE BASIS OF STATEMENT RECORDED BY THE ASSESSING OFFICER U/S. 131 OF THE ACT OF SHRI A.K. MITRA. THE ASSESSEE HAS TAKEN UNSECURED LOAN FROM SHRI A.K. MITRA WHICH WAS NOT JUSTIFIED BY THE ASSESSEE AT THE TIME OF ASSESSMENT. IT WAS ALSO SUB MITTED THAT THE IMPUGNED ASSESSMENT ORDER HAS BEEN FRAMED BY THE AO ON 31.12 .2009 AND ON THE SAME DATE THE STATEMENT OF SHRI A.K. MITRA WAS RECO RDED U/S 131 OF THE ACT. THUS IT IS CLEAR THAT THE ASSESSMENT ORDER WAS PASS ED WITHOUT CONFRONTING THE STATEMENT OF SHRI A.K. MITRA TO THE ASSESSEE. IN VI EW OF THE ABOVE, LD. AR PRAYED BEFORE US TO RESTORE THE MATTER TO THE FILE OF AO FOR FRESH ADJUDICATION. LD. DR FAIRLY SUBMITTED THAT THE MATTERS NEED TO BE RESTORED TO THE FILE OF AO FOR FRESH CONSIDERATION. 4. WE HAVE HEARD RIVAL CONTENTIONS OF THE PARTIES A ND PERUSED THE MATERIALS AVAILABLE ON RECORD AND ALSO PERUSED THE ORDER OF AUTHORITIES BELOW. FROM THE FOREGOING DISCUSSION, WE FIND THAT ADDITIO NS HAVE BEEN MADE BY THE ITA NO.461/KOL/2013 A.Y. 2007-08 NARENDRA DEO DUBE VS. ITO WD-51(4) KOL. PAGE 3 AO ON THE BASIS OF STATEMENT RECORDED U/S. 131 OF T HE ACT WHICH WAS NOT CONFRONTED TO ASSESSEE FOR HIS REBUTTAL. WE ALSO FI ND THAT ASSESSEE HAS NOT RAISED ANY GROUND OF APPEAL BEFORE THE LD. CIT(A) F OR NON-CONFRONTATION OF THE STATEMENT RECORDED U/S. 131 OF THE ACT. NOW THE GRO UND IS RAISED FIRST TIME BEFORE US WHICH WE ARE INCLINED TO ADMIT AFTER HAVI NG RELIANCE IN THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF NTPC VS. CIT REPORTED IN 229 ITR 383 WHEREIN IT WAS HELD THAT THE ASSESSEE IS ENTITL ED TO RAISE THE LEGAL GROUND OF APPEAL. THUS, IN THE INTEREST OF NATURAL JUSTICE WE ARE INCLINED TO RESTORE THE ISSUE TO THE FILE OF AO FOR FRESH ADJUDICATION IN A CCORDANCE WITH LAW AND WITH THE DIRECTION TO PROVIDE THE COPY OF STATEMENT RECO RDED OF MR. A.K. MITRA U/S. 131 OF THE ACT TO THE ASSESSEE. HENCE, THIS GROUND OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 5. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT 02/ 06/2017 SD/- SD/- ( !') ( !') (N.V.VASUDEVAN) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP, SR.P.S $!% &- 02 / 06 /201 7 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-NARENDRA DEO DUBE, FD-70C, SECTOR-III, S ALT LAKE CITY, KOLKATA-16 2. /RESPONDENT-INCOME TAX OFFICER, WARD-51(4), 169 AJC BOSE ROAD, BAMBOO VILLA, KOLKATA- 14 3. %.%/0 1 1 2 / CONCERNED CIT KOLKATA 4. 1 1 2- / CIT (A) KOLKATA 5. 567 /0, 1 /0 , / DR, ITAT, KOLKATA 6. 7:; <= / GUARD FILE. BY ORDER/ 1! , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO 1 /0 ,