Raksha Saha, Uttar Dinajpur V. ITO, Ward - 1, Raiganj, Uttar Dinajpur

ITA 54/KOL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62105 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2012
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 11-01-2012
• Court: TRIBUNAL
• Department Lawyers: A K PRAMANICK
• Assessee Lawyers: N O N E
• Keywords: Gift; Reasonable cause; Condonation of delay; Reassessment proceedings
• Section: 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA () BEFORE , !' !' !' !' /AND #! $'# #! $'# #! $'# #! $'# , ) [BEFORE SHRI PRAMOD KUMAR, AM & SHRI MAHAVIR SINGH, JM] '% '% '% '% / I.T.A NO. 54/KOL/2012 $&' !() $&' !() $&' !() $&' !()/ // / ASSESSMENT YEAR : 2003-04 RAKSHA SAHA (PAN:AXQPS2366E) VS. INCOME-TAX OFFIC ER, WD-1, RAIGANJ (+, /APPELLANT ) (-+,/ RESPONDENT ) FOR THE APPELLANT: N O N E FOR THE RESPONDENT: SHRI A. K. PRAMANICK DATE OF HEARING: 24.05.2012 DATE OF PRONOUNCEMENT: 24.05.2012 . / ORDER IMMEDIATELY UPON CONCLUSION OF HEARING OF THIS APPE AL ON 24 TH MAY, 2012, THE BENCH PASSED THE FOLLOWING ORDER: 24 TH MAY, 2012 THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES AND THE MATTER STANDS REMITTED TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJUDICATION, AFTER GIVING YET ANOTHER OPPORTUNITY OF HEARING TO THE AS SESSEE. REASONED ORDER TO FOLLOW. PRONOUNCED IN THE OPEN COURT. IN ACCORDANCE WITH THE ABOVE, THE REASONED ORDER IS NOW SET OUT AS FOLLOWS: PER PRAMOD KUMAR, AM: BY WAY OF THIS APPEAL, THE ASSESSEE/APPELLANT HAS C HALLENGED CORRECTNESS OF CIT(A)S ORDER DATED 11 TH FEBRUARY, 2011, IN THE MATTER OF ASSESSMENT U/S. 1 43(3) R.W.S. 147 OF THE INCOME-TAX ACT, 1961, ON THE FOLLOWING GROUNDS: 1. FOR THAT THE ORDER OF THE LD. CIT(A) IS ARBITRA RY, EXCESSIVE AND HENCE BAD IN LAW. 2. FOR THAT ON THE FACTS OF THE CASE THE LD. CIT(A) , JALPAIGURI, WAS NOT JUSTIFIED IN PASSING THE ORDER EX PARTE, WITHOUT AFFORDING A PROPER OPPO RTUNITY OF BEING HEARD TO THE APPELLANT AND WITHOUT ACTUAL SERVICE OF ANY NOTICE OF HEARING TO THE APPELLANT. 3. FOR THAT ON THE FACTS OF THE CASE, THE INITIATIO N OF PROCEEDINGS BY ISSUE OF NOTICE U/S. 148, BY THE A.O. IN ABSENCE OF ANY RECORDED REASONS , IS LEGALLY INVALID AND ENTIRE PROCEEDINGS ON THE BASIS OF SUCH NOTICE IS VOID AND MAY PLEASE BE CANCELLED. 2 ITA 54/K/2012 RAKSHA SAHA A.Y. 03-04 4. FOR THAT ON THE FACTS OF THE CASE THE LD. CIT(A) ERRED IN LAW AND IN FACT IN SUSTAINING THE INITIATION OF PROCEEDINGS U/S. 148 BY THE A.O., WHICH IS LEGALLY UNJUSTIFIED IN ABSENCE OF ANY RECORDED REASONS. 5. FOR THAT ON THE FACTS OF THE CASE THE LD. CIT(A) , WAS NOT LEGALLY JUSTIFIED IN SUSTAINING THE ESTIMATION OF PROFITS, OF THE APPELLANT, BY THE A.O. AT RS.7,06,147/-, ON THE BASIS OF A SET OF IMAGINARY FIGURES, WORKED OUT ON ASSUMPTION AND PRESUMPTIONS AND THE SAME MAY PLEASE BE DELETED. 6. FOR THAT ON THE FACTS OF THE CASE THE LD. CIT(A) WAS NOT LEGALLY JUSTIFIED IN SUSTAINING THE ADDITION OF RS.1,60,000/- ON A/C OF GIFTS AND T HE ADDITION OF RS.2,52,000/-, ON A/C OF UNSECURED LOANS BOTH U/S. 68, OF THE ACT61, WHEN T HE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF TRANSACTIONS HAS BEEN ESTABLISHED AN D THE ADDITION MADE MAY PLEASE BE DELETED. 2. THE APPEAL IS TIME BARRED BY 111 DAYS BUT VIDE AFFIDAVIT DATED 6 TH JANUARY, 2012, THE APPELLANT HAS EXPLAINED THE REASONS FOR DELAY AND P RAYED FOR CONDONATION OF DELAY IN FILING THE APPEAL. IT IS POINTED OUT THAT THE APPELLANT WAS S UFFERING FROM HEPATITIS INFECTION, AND WAS MISLEAD BY THE TAX CONSULTANT TO SEEK REMEDY OF FIL ING A RECTIFICATION PETITION AGAINST THE IMPUGNED APPELLATE ORDER. IT IS THUS SUBMITTED THA T THERE WAS A REASONABLE CAUSE FOR DELAY. HAVING PERUSED THE PETITION SEEKING CONDONATION OF DELAY, AND HAVING HEARD LEARNED D.R ON THE SAME, WE ARE INCLINED TO CONDONE THE DELAY AND TAKE UP THE MATTER ON MERITS. 3. ONE OF THE GRIEVANCES RAISED BEFORE US IS AGAIN ST REOPENING THE ASSESSMENT WITHOUT RECORDING ANY REASONS FOR REOPENING WERE NEVER SERV ED UPON THE ASSESSEE. 4. WE, IN THE LIGHT OF HONBLE SUPREME COURT JUDGME NT IN THE CASE OF GKN DRIVESHAFT VS. ITO 259 ITR 19 CONSIDER IT APPROPRIATE TO DIRECT TH E ASSESSING OFFICER TO FURNISH A COPY OF THE REASONS FOR WHICH REASSESSMENT PROCEEDINGS WERE INI TIATED AND DEAL WITH THE OBJECTION, IF ANY, TO THE SAME BEFORE PASSING THE FRESH ASSESSMENT ORDER AFTER PROVIDING YET ANOTHER OPPORTUNITY OF HEARING TO THE ASSESSEE. IN THE EVENT NO REASONS F OR REOPENING ARE RECORDED OR IN THE EVENT ASSESSING OFFICER FINDS ASSESSEES OBJECTION TO THE REOPENING AS LEGALLY SUSTAINABLE, REASSESSMENT PROCEEDINGS WILL HAVE TO BE DROPPED. AS THE MATTER IS BEING REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER, AND AS IMPUGNED APPE LLATE AND ASSESSMENT ORDERS ARE EX PARTE ORDERS ANYWAY, WE ALSO DEEM IT FIT AND PROPER TO DI RECT THE ASSESSING OFFICER TO DEAL WITH , IF NECESSARY TO DO SO, ALL OTHER ISSUES ON MERITS AFTE R GIVING YET ANOTHER OPPORTUNITY OF HEARING TO THE ASSESSEE AND DEALING WITH THE SUBMISSIONS OF TH E ASSESSEE BY WAY OF A SPEAKING ORDER AND IN ACCORDANCE WITH THE LAW. THE ASSESSEE IS ALSO DIRE CTED TO FULLY COOPERATE IN EXPEDITIOUS DISPOSAL 3 ITA 54/K/2012 RAKSHA SAHA A.Y. 03-04 OF REMANDED ASSESSMENT. WITH THESE DIRECTIONS, MATT ER STANDS RESTORED TO THE FILE OF THE ASSESSING OFFICER AS ABOVE. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES IN THE TERMS INDICATED ABOVE. 6. ORDER PRONOUNCED IN OPEN COURT. SD/- SD/- #! $'# #! $'# #! $'# #! $'# , , (MAHAVIR SINGH) (PRAMOD KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER ( / / / /) )) ) DATED: 24 TH MAY, 2012 !01 $&23 $4! JD.(SR.P.S.) . 5 $$ 6(7- COPY OF THE ORDER FORWARDED TO: 1 . +, / APPELLANT MS. RAKSHA SAHA, C/O SANTOSH SAHA, ASHOK PALLY, RAIGANJ, UTTAR DINAJPUR, PIN-733 134 2 -+, / RESPONDENT, ITO, WARD-1, RAIGANJ 3 . $.& ( )/ THE CIT(A), JALPAIGURI 4. $.& / CIT, JALPAIGURI 5 . !>$? $& / DR, KOLKATA BENCHES, KOLKATA - $/ TRUE COPY, .&/ BY ORDER, # '3 /ASSTT. REGISTRAR .