Smt. Sadhana Shil (L/H of Late Ajit Kumar Shil), Kolkata V. ITO, Ward 26(1), Kolkata, Kolkata

ITA 574/KOL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1642 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 23-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: BANIBRATA DUTTA A DDL
• Assessee Lawyers: K M ROY
• Keywords: Opportunity of being heard; Non compliance
• Section: 69C; 143(3); 263; 63

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [BEFORE HONBLE SRI N.V.VASUDEVAN, JM & SHRI J.SU DHAKAR REDDY, AM ] I.T.A NO.574/KOL/2017 ASSESSMENT YEAR : 2009-1 0 SMT. SADHANA SHIL -VS.- I.T.O., WARD-2 6(1) KOLKATA KOLKATA [PAN : ALXPS 1252 L] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI K.M.ROY, FCA FOR THE RESPONDENT : SHRI BANIBRATA DUTTA, A DDL.CIT DATE OF HEARING : 17.08.2017. DATE OF PRONOUNCEMENT : 23.08.2017. ORDER PER N.V.VASUDEVAN, JM THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 30.11.2016 OF CIT- (A)-V7 KOLKATA RELATING TO A.Y.2009-10. 2. GROUNDS OF APPEAL RAISED BY THE ASSESSEE READ A S FOLLOWS :- (1) FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN DISMISSING THE APPEAL FOR NON - APPEARANCE OF THE APPELLANT IGNORING THE FACT THAT THE APPELLANT BEING LEGAL REPRESENTATIVE OF LATE AJIT KUMAR SHIL , WHO IS AN AGED WIDOW AND HOUSEWIFE AND SHE REQUIRES FURTHE R TIME TO ARRANGE THE DOCUMENTS AND EXPLAIN THE TRANSACTIONS DONE BY HER DECEASED HUSBAND. (2) FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN DISPOSING THE APPEAL WITHOUT LOOKING INTO THE MERITS OF THE GROUNDS OF APPEAL AND THE DETAILS AND EXPLANATION FILED BEFORE ASSESSING OFFICER, IN THE COURSE OF HEARING. (3) FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN DISMISSING THE APPEAL AND CONFIRMING TO TH E ASSESSMENT COMPLETED BY THE ASSESSING OFFICER IN PURSUANCE OF THE ORDER UNDER S EC 263 IN AS MUCH AS THE RE - OPENING OF THE ORIGINAL ASSESSMENT COMPLETED U/S 14 3(3) WAS MERELY ON THE BASIS OF SURMISE AND CONJECTURE BECAUSE THE LEARNED COMMI SSIONER OF INCOME TAX HAS FORMED HIS OPINION ON THE BASIS OF SUSPICION THAT T HE ASSESSING OFFICER MIGHT HAVE OVERLOOKED TO VERIFY THE VARIOUS TRANSACTION AND IG NORING THE PRINCIPLE OF ' RES JUDICATA' AND HENCE THE ASSESSMENT MADE BY THE ASSE SSING OFFICER IN PURSUANCE OF THE ORDER U/S 263 IS AB - INITIO VOID. 2 ITA NO.574/KOL/2017 SMT. SADHANA SHIL A.YR.2009-10 2 (4) FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER OF CIT(A) IN CONFIRMING THE ASSESSMENT MADE BY THE ASSESSING OFF ICER IS BAD IN LAW IN AS MUCH AS THE REPAYMENT OF LOAN OF RS. 3107030/- WAS MADE OUT OF THE LOAN TAKEN. FROM BANKS, NBFC ETC AND HENCE THE SOURCE WAS FULLY EXPL AINED IN COURSE OF ASSESSMENT, AND HENCE PROVISIONS OF SECTION 69C IS NOT APPLICAB LE IN THIS CASE. (5) FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN CONFIRMING THE ASSESSMENT MADE BY THE ASSESSING OFF ICER BY ADDING BACK AGRICULTURAL INCOME , ON THE PRETEXT OF NON - SUBMI SSION OF EVIDENCES REGARDING PURCHASES AND SALES OF AGRICULTURAL PRODUCE WHICH A RE TRANSACTED IN UNORGANISED SECTOR AND NOT SOLD TO REGISTERED BODIES OR CORPORA TES . THEREFORE THE RELEVANT DOCUMENTS EVIDENCING PRODUCT ION AND SALE OF AGRICULTURAL GOODS COULD NOT BE PROVIDED AT THE TIME OF ASSESSME NT, AND ONLY AN EXPLANATORY STATEMENT WAS PRODUCED AT THE TIME OF HEARING. (6) FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN CONFIRMING THE ASSESSMENT MADE BY THE ASSESSING OFF ICER BY ADDING BACK THE AMOUNTS OF INVESTMENTS MADE TO M/S ANIRBAN HORTICUL TURE FOR RS. 240000 AND M/S APARUPA CAPITAL MANAGEMENT FOR RS. 100000 IN THE IN COME OF THE APPELLANT , SINCE THE SAME HAVE BEEN RECORDED IN THE BOOKS OF THE APP ELLANT WHICH CANNOT BE TREATED AS INCOME UNDER THE ACT. (7) FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN CONFIRMING THE ASSESSMENT MADE BY THE ASSESSING OFF ICER BY ADDING BACK THE FIGURES OF LOANS GIVEN TO M/S ARTLAND HOTEL (P) LTD FOR RS. 100000 AND M/S RAJHANS RESTAURANTS & HOTELS (P) LTD FOR RS. 316761 RESPECTIVELY IN THE INCOME OF THE APPELLANT , SINCE THE SAME HAVE BEEN RECORDED I N THE BOOKS OF THE APPELLANT WHICH CANNOT BE TREATED AS INCOME UNDER THE ACT. 3. SHRI AJIT KUMAR SHIL, AN INDIVIDUAL WAS CARRY ING ON HOTEL BUSINESS. FOR A.Y. 2009- 10 HE FILED RETURN OF INCOME ON 31.07.2009 DECLARIN G THE TOTAL INCOME OF RS.7,90,291/-. AN ORDER OF ASSESSMENT U/S 143(3) OF THE ACT DATED 30.08.2011 WAS PASSED BY THE AO DETERMINING THE TOTAL INCOME AT RS.10,51,892/-. 4. SHRI AJIT KUMAR SHIL DIED ON 03.05.2013. A SH OW CAUSE NOTICE U/S 263 OF THE ACT WAS ISSUED BY THE CIT DATED 04.09.2013. THE APPELLA NT HEREIN AS LEGAL HEIR OF LATE SHRI A.KR.SHIL PARTICIPATED IN THE PROCEEDINGS U/S 263. AN ORDER U/S.263 OF THE ACT DATED 11.02.2014 WAS PASSED IN AND BY WHICH THE ORDER OF ASSESSMENT DATED 30.08.2011 WAS 3 ITA NO.574/KOL/2017 SMT. SADHANA SHIL A.YR.2009-10 3 SET SIDE AND RESTORED TO THE FILE OF AO FOR RE-CONS IDERATION OF CERTAIN ISSUES SET OUT IN ORDER U/S 263 OF THE ACT. 5. PURSUANT TO THE AFORESAID ORDER OF CIT U/S 2 63 OF THE ACT AN ORDER OF CIT U/S143(3) R.W.SEC.263 OF THE ACT DATED 16.01.2015 WAS PASSED BY THE AO. IN THE SAID ORDER THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED AT A SU M OF RS.55,33,991/- THEREBY MAKING VARIOUS ADDITIONS IN ALL TOTALING RS.44,89,099/- TO THE INCOME OF THE ASSESSEE DETERMINED IN THE ORIGINAL ORDER OF ASSESSMENT U/S 143(3) OF T HE ACT. 6. AGGRIEVED BY THE AFORESAID ADDITIONS IN THE AFO RESAID ORDER, THE ASSESSEE PREFERRED APPEAL BEFORE CIT(A). IT APPEARS THAT THE ASSESSEE COULD NOT EFFECTIVELY REPRESENT THE CASE BEFORE CIT(A). CIT(A) HAS GIVEN THE DETAILS OF VARIOUS NOTICES ISSUED BY HIM AND THE NON COMPLIANCE BY THE ASSESSEE IN THE FORM OF A CHART WHICH IS AS FOLLOWS :- DATE OF ISSUE OF NOTICE DATE FIXED FOR HEARING 21.08.2015 17.09.2015 NONE APPEARED 12.10.2015 13.11.2015 NONE APPEARED 16.11.2015 09.12.2015 NONE APPEARED 09.12.2015 A/R RAJIB SAHA APPEARED AND TOOK ADJ.TO 29.12.2015 22.01.2016 NONE APPEARED 22.01.2016 JOGENDER PRAJAPATI, ADV APPEARED AND TO OK ADJ. TO 16.02.2016 16.02.2016 JOGENDER PRAJAPATI, ADV. APPEARED AND T OOK ADJ. TO 07.03.2016 08.03.2016 21.03.2016 NONE APPEARED 13.04.2016 29.04.2016 NONE APPEARED 03.05.2016 07.06.2016 NONE APPEARED 29.07.2016 12.08.2016 NONE APPEARED THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE FOR NON PROSECUTION. 7. IT IS THE PLEA OF THE ASSESSEE BEFORE THE TR IBUNAL THAT THE VARIOUS DOCUMENTS REQUIRED FOR THE PURPOSE OF THE CASE WERE OLD AND W ERE IN THE POSSESSION OF THE ASSESSEES HUSBAND AND THE ASSESSEE COULD NOT TRACE THE SAME. MOREOVER, SHE BEING AN OLD LADY WITHOUT PROPER ASSISTANCE WAS TOTALLY IN T HE DARK ABOUT THE AFFAIRS OF HER LATE HUSBAND. PROPER COMPLIANCE COULD NOT BE MADE IN THE PROCEEDINGS BEFORE THE REVENUE 4 ITA NO.574/KOL/2017 SMT. SADHANA SHIL A.YR.2009-10 4 AUTHORITIES . THE ASSESSEE HAS PRAYED THAT ORDER OF CIT(A) SHOULD BE SET ASIDE AND THE ISSUES RAISED BY THE ASSESSEE BEFORE CIT(A) SHOULD BE DIRECTED TO BE DECIDED ON MERITS AFTER AFFORDING THE ASSESSEE OPPORTUNITY OF BEING H EARD. THE LD. DR RELIED ON THE ORDER OF CIT(A). 8. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND TAKING INTO CONSIDERATION THE CIRCUMSTANCES STATED BY THE ASSESSEE BEFORE US, WE ARE OF THE VIEW THAT THE ASSESSEE SHOULD BE AFFORDED AN OPPORTUNITY OF BEING HEARD BE FORE CIT(A). WE THEREFORE SET ASIDE THE ORDER OF CIT(A) AND REMAND THE MATTER TO CIT(A) TO DECIDE THE ISSUE ON MERITS VARIOUS GROUNDS RAISED BY THE ASSESSEE BEFORE CIT(A ). THE ASSESSEE WILL COOPERATE IN THE PROCEEDINGS BEFORE CIT(A) AND DILIGENTLY COMPLY WITH ALL THE DIRECTIONS OF CIT(A). THE APPEAL OF THE ASSESSEE IS ACCORDINGLY TREATED A S ALLOWED FOR STATISTICAL PURPOSES. THE OTHER GROUNDS OF APPEAL DO NOT REQUIRE ANY CONSIDER ATION IN VIEW OF THE DECISION ON GROUND NO.1. 9. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 2 3.08.2017. SD/- SD/- [J.SUDHAKAR REDDY] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 23.08.2017. [RG PS] COPY OF THE ORDER FORWARDED TO: 1.SMT. SADHANA SHIL, 14-BL-A, NORTH PLAZA HOUSING C OMPLEX, 10, UMAKANTA SEN LANE, KOLKTA-700063. 2. I.T.O., WARD-26(1), KOLKATA. 3. CIT(A)-7, KOLKATA PR.C.I.T.-9 , KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVA TE SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S 5 ITA NO.574/KOL/2017 SMT. SADHANA SHIL A.YR.2009-10 5