Malati Rani Das, Kolkata V. ITO, Ward - 2(1), Hooghly, Hooghly

ITA 562/KOL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62134 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2012
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 11-04-2011
• Court: TRIBUNAL
• Department Lawyers: A K PRAMANIK
• Keywords: Income from undisclosed sources; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA [BEFORE SHRI MAHAVIR SINGH, HONBLE JM & SHRI C.D.R AO, HONBLE AM ] / I.T.A NO.562/KOL/2011 / ASSESSMENT YEAR : 2003-04 MALATI RANI DAS VS- I.T.O., WARD-2(1), HOOGHLY C/O. MR. SOMNATH GHOSH, ADVOCATE 2, GARSTIN PLACE, ROOM NO.203, KOLKATA- 700 001 (PAN:AGIPD 4469L) ( /APPELLANT ) ( / RESPONDENT ) DATE OF HEARING: 22.06.2012 DATE OF PRONOUNCEMENT: 22.06.2012 FOR THE APPELLANT : SHRI SOMNATH GHOSH FOR THE DEPARTMENT : SHRI A.K.PRAMANIK /ORDER PER SHRI C.D.RAO, A.M . THE ABOVE APPEAL IS FILED BY THE ASSESSEE AGGRIEVED BY THE ORDER OF LD. CIT(A)-XXXVI, KOLKATA DATED 02.02.2011 PASSED UNDER SECTION 250 R.W.S. 147/143(3) OF THE INCOME-TAX ACT, 1961 FOR THE ASSE SSMENT YEAR 2003-04. 2. THE ONLY ISSUE RAISED BY THE ASSESSEE IN THIS CASE IS RELATING TO ADDITION OF AN AMOUNT OF RS.16,87,543/-. THE AO HAS ADDED AN AMOUNT OF RS.16,87,543/-, BEING THE OPENING CAPITAL BY OBSERV ING THAT THE ASSESSEE HAS FAILED TO PRODUCE ANY DOCUMENTS AND/OR ANY EXPLANAT ION IN REGARD TO SOURCE OF SUCH SUBSTANTIAL AMOUNT OF INVESTMENT BY WAY OF RE- INVESTMENT PLANS, FIXED DEPOSITS AND PURCHASE OF LAND DURING THE FINANCIAL YEAR UNDER CONSIDERATION. 3. ON APPEAL, THE LD. CIT(A) HAS CONFIRMED THE SAME BY OBSERVING AS UNDER: THE CASE WAS FIXED FOR HEARING FIRST ON 06/07/2010 AND THEREAFTER ON 21/12/2001 BY SENDING NOTICE U/S. 250 OF THE ACT B Y REGISTERED POST. BOTH THE TIMES, POSTAL DEPARTMENT RETURNED THE ENVELOP WITH COMMENTS NOT 2 ITA 562/KOL/2011 MALATI RANI DAS ASSESSMENT YEAR : 2003-04 KNOWN / NOT FOUND. THEREAFTER, THE NOTICE U/S. 25 0 OF THE ACT WAS PROPERLY SERVED ON THE APPELLANT BY THE ASSESSING OFFICER ON 07/01/2011. THE HEARING WAS FIXED ON 24/01/2011. NOBODY ATTEND ED NOR FILED ANY WRITTEN SUBMISSION OR SOUGHT ADJOURNMENT. IT IS TH US PRESUMED THAT THE APPELLANT HAS NOTHING TO SAY IN SUPPORT OF GROUNDS OF APPEAL AND THE APPELLANT IS NOT INTERESTED IN PURSUING THE APPEAL . IT APPEARS FROM THE ASSESSMENT ORDER THAT THE AO DISALLOWED OPENING CA PITAL BALANCE OF RS.16,87,543/- AS UNACCOUNTED INCOME AS THE APPELL ANT FAILED TO EXPLAIN SOURCE OF ACCUMULATION OF THE SAME. THERE IS NOTHI NG ON RECORD TO CONTROVERT THE DECISION OF THE AO. ACCORDINGLY, AP PEAL IS DISMISSED. 4. FURTHER AGGRIEVED BY THIS, NOW THE ASSESSEE IS I N APPEAL BEFORE US. 5. AT THE TIME OF HEARING, THE LD. COUNSEL, APPEARI NG ON BEHALF OF THE ASSESSEE, HAS SUBMITTED THAT THE LD. CIT(A) HAS PAS SED THE EX-PARTE ORDER WITHOUT GIVING OPPORTUNITY OF BEING HEARD TO THE AS SESSEE. NOW, THE ASSESSEE IS IN A POSITION TO SUBSTANTIATE THE INVESTMENTS, WHIC H WERE POINTED OUT BY THE AO. THEREFORE, HE REQUESTED TO SET ASIDE THE MATTER TO THE FILE OF THE AO. 6. ON THE OTHER HAND, THE LD. D.R. SUBMITTED THAT T HE CASE MAY BE SET ASIDE TO THE LD. CIT(A), SINCE HE PASSED THE EX PARTE ORDER. 7. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF THE MATERIALS AVAILABLE ON RECORD, IT IS OBSERVED THAT THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE BY OBSERVING THAT THE AS SESSEE HAS FAILED TO EXPLAIN THE SOURCE OF ACCUMULATION OF THE OPENING BALANCE. IN OUR CONSIDERED OPINION, THE LD. CIT(A) IS NOT JUSTIFIED TO MAKE SUCH SHORT OF OBSERVATION WITHOUT GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE OR HIS A UTHORIZED REPRESENTATIVE. THEREFORE, IN OUR CONSIDERED VIEW, THE ORDER OF THE LD. CIT(A) IS NOT IN CONFORMITY WITH THE PROVISIONS OF SECTION 250(6) OF THE I.T.ACT, 1961. HENCE, WE DEEM IT FIT AND PROPER TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND, IN THE INTEREST OF JUSTICE, RESTORE THE ISSUE TO THE FILE OF THE AO TO RECONSIDER THE SAME AFRESH, AFTER GIVING REASONABLE OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE, IN THE 3 ITA 562/KOL/2011 MALATI RANI DAS ASSESSMENT YEAR : 2003-04 LIGHT OF THE SUBMISSION MADE BY THE ASSESSEE, AT TH E TIME OF HEARING, THAT THE ASSESSEE IS NOW ABLE TO SUBSTANTIATE THE INVESTMENT . WE ORDER ACCORDINGLY. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 22.06.2012. SD/- SD/- (MAHAVIR SINGH) (C.D.RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER ( ) )) ) DATED : 22 ND JUNE, 2012 '# $% & TALUKDAR/SR.P.S. ' ( )(*- COPY OF THE ORDER FORWARDED TO: 1. / MALATI RANI DAS, C/O. MR. SOMNATH GHOSH, ADVOCATE, 2, GARSTIN PLACE, ROOM NO.203, KOLKATA- 700 001 2 / RESPONDENT, ITO, WARD-2(1), HOOGHLY 3. , ( )/ THE CIT(A), KOLKATA 4. , / CIT, KOLKATA 5. - . / DR, KOLKATA BENCHES, KOLKATA ( / TRUE COPY, / / BY ORDER, 0 % /ASSTT. REGISTRAR . 4 ITA 562/KOL/2011 MALATI RANI DAS ASSESSMENT YEAR : 2003-04