Bakkar Sk., Murshidabad V. ITO, Wd-3, Murshidabad, Murshidabad

ITA 501/KOL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9493 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 31-01-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 24-03-2014
• Court: TRIBUNAL
• Department Lawyers: N O N E
• Assessee Lawyers: N O N E
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH: K OLKATA [BEFORE SHRI J. SUDHAKAR REDDY, AM] I.T.A NO.501/KOL/2014 ASSESSMENT YEAR: 2009-10 BAKKAR SK. (PAN:BAXPS9885F) VS. INCOME-TAX OFFICE R, WD-3, BEHRAMPORE ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 31.01.2017 DATE OF PRONOUNCEMENT: 31.01.2017 FOR THE APPELLANT: N O N E FOR THE RESPONDENT: N O N E ORDER THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XXXVI, KOLKATA, VIDE APPEAL NO. 272/CIT(A)-XXXVI/KOL/WD.3,MSD/11-12 DATE D 11.12.2012 FOR AY 2009- 10 ON THE FOLLOWING GROUNDS: I. FOR THAT THE IMPUGNED APPELLATE ORDER DATED 11. 12.2012, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - XXXVI, KOLKA TA WHICH HAS BEEN RECEIVED BY THE APPELLANT ON 01.01.2013, IS CONTRARY TO LAW AND PER VERSE . II. FOR THAT THERE WERE NO DELIBERATE LATCHES AND/O R NEGLIGENCE ON THE PART OF THE APPELLANT. THE APPELLANT ENGAGED ADVOCATES, FOR CON DUCTING HIS CASE PROPERLY AND DILIGENTLY AT THE ASSESSMENT STAGE INASMUCH AS AT T HE APPEAL STAGE, WHO MIGHT HAVE FAILED TO APPEAR BEFORE THE AUTHORITIES AND FOR THIS YOUR APPELLANT CANNOT BE BLAMED. III. FOR THAT THE APPELLANT COULD NOT REPRESENT HIS CASE PROPERLY BEFORE THE AUTHORITIES BELOW IN SPITE OF HAVING ALL THE AUDITED BOOKS OF A CCOUNTS AND SUPPORTIVE DOCUMENTS WITH HIM. IV. FOR THAT FROM THE ASSESSMENT ORDER ITSELF IT IS REVEALED THAT THE DATE OF HEARING HAS BEEN FIXED ONLY ONCE I.E. ON 06.07.2011 WHICH IS NO T A JUSTIFIED REASON TO PASS A BEST JUDGMENT ASSESSMENT ORDER UNDER SECTION 144 OF THE INCOME TAX ACT, 1961. V. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - XXXVI HAS WRONGLY UPHELD THE UNJUSTIFIED ESTIMATED TURNOVER OF RS. 8, 00,00,000/- INSTEAD OF ACTUAL TURNOVER OF RS. 7,68,50,775/-. VI. FOR THAT NEITHER OF THE AUTHORITIES BELOW HAS A CCEPTED THE CONTENTION OF THE APPELLANT THAT ALTHOUGH THE ASSESSEE IS IN THE TRAD ING BUSINESS BUT ITS NATURE OR BUSINESS IS MORE LIKELY AS TO COMMISSION AGENT AND NOT AS A TRA DING BUSINESS AND THAT IS WHY THE ASSESSEE HAS ONLY ONE CUSTOMER IN ANDHRA PRADESH FO R WHOM HE WORKS IN WEST BENGAL AND FOR THIS REASON ONLY THE GROSS PROFIT RATE OF T HE ASSESSEE IS ONLY 0.73% AND NOT MORE THAN THAT. VII. FOR THAT WITHOUT ANY BASIS THE LEARNED ASSESSI NG OFFICER HAS WRONGLY ESTIMATED GROSS PROFIT RATE @ 3% AND THE LEARNED APPELLATE AU THORITY HAS WRONGLY INCREASED THE SAID GROSS PROFIT RATE @ 5%. 2 ITA NO.501/K/2014 BAKKAR SK.AY 2009-10 VIII. FOR THAT BOTH THE LEARNED COMMISSIONER OF INC OME TAX (APPEALS) XXXVI AS WELL AS THE LEARNED ASSESSING OFFICER ARE WRONG IN MAKING ADDITION OF RS.9.80,000/- AS UNEXPLAINED CASH DEPOSIT IN BANK ACCOUNT. IX. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - XXXVI HAS WRONGLY UPHELD THE ORDER OF THE ASSESSING AUTHORITY IN DISA LLOWING THE EXPENSES AS INCURRED BY THE APPELLANT AND DULY SHOWN IN HIS AUDITED BOOKS OF AC COUNTS EXCEPT A SUM OF RS. 1,66,977/- UNDER THE HEAD 'BANK INTEREST AND BANK CHARGE' AND RS. 1,70,0001- ON ADHOC BASIS UNDER THE HEAD 'OTHER EXPENSES'. X. FOR THAT THE APPELLANT CRAVES LEAVE TO TAKE ADDI TIONAL GROUND/ GROUNDS AND / OR TO AMEND, TO MODIFY, TO ALTER THE GROUND 1 GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THIS APPEAL, IF NECESSARY. 2. NONE WAS PRESENT ON BEHALF OF THE REVENUE. THE L D. DR HAS SOUGHT FOR ADJOURNMENT FOR EACH AND EVERY CASE THAT HAS BEEN L ISTED BEFORE ME TODAY BY FILING ONE LETTER MENTIONING THE ENTIRE CAUSE LIST IN IT IN TH E SMC B BENCH. THE REASON GIVEN IS THAT THE LD. SR. DR DECLINED TO RECEIVE FILES LI STED FOR HEARING TODAY FROM THE ADDL. CIT, SR. DR, ITAT, ADMN. AS HE WAS BUSY IN SOME OFF ICE WORK. AS I AM NOT CONVINCED WITH SUCH A REASON AND AS I CANNOT ALLOW THE BENCH TO COLLAPSE, I REJECT THE APPLICATION FOR ADJOURNMENT AND DISPOSED OF THE MATTER EX PARTE QUA THE REVENUE. 3. IN THIS CASE, NONE REPRESENTED THE ASSESSEE. I HAVE PERUSED THE MATTER. THERE IS A DELAY OF 388 DAYS IN FILING OF THE APPEAL. THE ASS ESSEE HAS FILED A PETITION FOR CONDONATION OF DELAY. ON PERUSAL OF THE SAME, I AM CONVINCED THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN FILING THE APPEAL IN TIME. THEREFORE, I CONDONE THE DELAY AND ADMIT THE APPEAL. 4. I ALSO FIND THAT THE LD. CIT(A) HAS PASSED AN EX PARTE ORDER AS THE ASSESSEE HAS NOT ATTENDED AT THE TIME OF HEARING BEFORE HIM. I A M CONVINCED THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FOR APPEARING BEFORE THE LD. CIT(A). HENCE, THIS IS A FIT CASE FOR SETTING ASIDE TO THE FILE OF THE LD. CIT(A ) FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- (J. SUDHAKAR REDDY) ACCOUNTANT MEMBER DATED : 31ST JANUARY, 2017 JD.(SR.P.S.) 3 ITA NO.501/K/2014 BAKKAR SK.AY 2009-10 COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT BAKKAR SK. POWER HOUSE PARA, BARUA, BE LDANGA, DISTRICT-MURSHIDABAD-742189. 2 RESPONDENT ITO, WARD-3, BEHRAMPORE, MURSHIDABAD. 3 . THE CIT(A), KOLKATA 4. 5. ACIT , KOLKATA. DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .