Salil Kumar Khan, Kolkata V. ITO, Ward - 1(2), Midnapore, Purba Medinipur

ITA 504/KOL/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54720 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 06-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 133(6)

Judgement Text

, 'C , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA ( ) . . , , , , , , ) [BEFORE SRI S.V. MEHROTRA, A.M. & SRI MAHAVIR SING H, J.M.] ! ! ! ! / I.T.A NO. 504/KOL/2009 ASSESSMENT YEAR : 2005-2006 SALIL KUMAR KHAN, PASCHIM MIDNAPORE -VS.- INCOM E TAX OFFICER, WARD-1(2), MIDNAPORE (PAN : AKZPK 4739 R) ( '# /APPELLANT ) ( $%'# / RESPONDENT ) FOR THE APPLICANT ( '# ) : SHRI K.C. KHANDELWAL, A.R. FOR THE RESPONDENT ( $%'# ) : SHRI D.J. MEHTA, D.R. &' ( ) * &' ( ) * &' ( ) * &' ( ) * /DATE OF HEARING : 20.12.2011 +, ) * +, ) * +, ) * +, ) * /DATE OF PRONOUNCEMENT : 20.12.2011 - / ORDER PER SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER/ . . , :- THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER OF LD. COMMISSIONER OF INCOME- TAX (APPEALS)-XXXVII, KOLKATA DATED 16.12.2008 FOR THE ASSESSMENT YEAR 2005-06. 2. THE ASSESSEE IN THE RELEVANT ASSESSMENT YEAR ACT ED AS A GOVERNMENT AGENT OF S.K. OIL (PDS) IN KESHPUR. HE HAD FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME OF RS.1,08,620/-. THE ASSESSING OFFICER HAD ISSUED NOTICE UNDER SECTI ON 133(6) TO IOC, IN COMPLIANCE TO WHICH, IOC FURNISHED THE TRANSACTION PARTICULARS WITH THE ASSESSEE DURING THE PERIOD 2004-05. FROM THE STATEMENT, IT WAS FOUND THAT THE ASSESSEE HAD P AID RS.5,03,660/- TO IOC FOR PURCHASE OF GOODS. BUT OUT OF THAT AMOUNT IOC HAD SENT GOODS ON LY FOR RS.2,01,464/- IN MARCH, 2005. HENCE, IOC IN ITS LEDGER ACCOUNT HAD SHOWN A SUM OF RS.3,02,197/- AS PAYABLE TO THE ASSESSEE AS ON 31.03.2005. BUT THE ASSESSEE IN HIS BALANCE-S HEET AS AT 31 ST MARCH, 2005 HAD SHOWN NEITHER OF ANY AMOUNT PAID AS ADVANCE TO IOC NOR AN Y AMOUNT RECEIVABLE FROM THE IOC. AFTER CONSIDERING THE ASSESSEES SUBMISSION, THE ASSESSIN G OFFICER MADE AN ADDITION OF RS.3,02,197/- BEING THE DISCREPANCY ON ACCOUNT OF NON-RECONCILIAT ION OF AMOUNTS PAID AS ADVANCE TO IOC. THE ASSESSING OFFICER ALSO DISALLOWED RS.55,558/- B EING 10% OF THE EXPENSES UNDER DIFFERENT HEADS AGGREGATING TO RS.5,55,584/-. LD. CIT(APPEALS ) PASSED THE ORDER EX-PARTE POINTING OUT THAT THE CASE WAS POSTED FOR HEARING, BUT THERE WA S NO RESPONSE. HE DISMISSED THE ASSESSEES APPEAL. AGGRIEVED, THE ASSESSEE HAS, INTER ALIA, TA KEN FOLLOWING THREE GROUNDS OF APPEAL :- (1) FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XXXVII DID NOT GIVE PROPER OPPORTUNITY OF BEING HEARD TO ADJUDICATE THE APPEAL . ITA NO. 504/KOL./2009 2 (2) FOR THAT IN THE FACTS OF THE CASE THE LD. COMMI SSIONER OF INCOME TAX (APPEALS) PASSED THE EX-PARTE ORDER WITHOUT GIVING A REASONABLE OPPORTUNITY OF BEING HEARD. (3) FOR THAT IN THE FACTS OF THE CASE THE NOTICE FO R FIXING OF HEARING WAS FIXED FOR HEARING ON DATED 12.12.2008, BUT THE NOTI CE WAS RECEIVED BY THE APPELLANT ON 17.12.2008. BUT IN FACTS OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS PASSED THE ORDER ON 16. 12.2008 WITHOUT GIVING PROPER OPPORTUNITY TO BE HEARD. THE XEROX CO PY OF NOTICE AND SERVE OF THE NOTICE IN YOUR APPELLANT IS ENCLOSED. 3. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND HAVE PERUSED THE RECORDS OF THE CASE. WE FIND THAT THE DATE OF HEARING BEFORE T HE LD. CIT(APPEALS) WAS 15.12.2008 AND HE PASSED THE ORDER ON 16.12.2008. THE CONTENTION OF A SSESSEE IS THAT THE DATE OF HEARING ON DATED 12.12.2008, WHICH NOTICE WAS NOT RECEIVED BY HIM. T HUS IT IS EVIDENT THAT THE ASSESSEE WAS NOT AFFORDED REASONABLE OPPORTUNITY OF BEING HEARD. WE, THEREFORE, RESPECTFULLY FOLLOWING THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF CO LLECTOR, LAND & ACQUISITION VS.- MST. KATIJI & ORS. (1987) 167 ITR 471 (SC), SET ASIDE TH E ORDER OF LD. CIT(APPEALS) AND RESTORE THE MATTER BACK TO HIS FILE FOR DECIDING THE APPEAL DE NOVO. 4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20/ 12 /2011. & . / - 20/12/2011. SD/- SD/- [ MAHAVIR SINGH / ] [S.V. MEHROTRA/ ( . . )] JUDICIAL MEMBER/ ACCOUNTANT MEMBER/ DATED : 20/ 12/ 2011 COPY OF THE ORDER FORWARDED TO: 1. SHRI SALIL KUMAR KHAN, K.C. KHANDELWAL & CO., CHART ERED ACCOUNTANTS, 10, CLIVE ROW, 5 TH FLOOR, KOLKATA-1 2 ITO, WARD-1(2), MIDNAPORE, 3. COMMISSIONER OF INCOME-TAX (APPEALS)- , KOLKATA 4. CIT- , KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA (TRUE COPY) BY ORDER ASSISTANT REGISTRAR, I.T.A.T., KOLKATA LAHA, SR. P.S.