Amar Kumar Saha, Kolkata V. ITO, Wd-30(1), kolkata, Kolkata

ITA 577/KOL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9578 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 01-04-2014
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 44AD; 142(1); 144

Judgement Text

ITA NO. 577/KOL/2014 AMAR KUMAR SAHA 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA D B ENCH, KOLKATA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 577/KOL/2014 ASSESSMENT YEAR: 2006-07 SHRI AMAR KUMAR SAHA PAN: AUUPS1017R, 12/3/4, JAMIR LANE, BIDISHA APARTMENT, 1 ST FLOOR,KOLKATA-700 019. APPELLANT -VS.- I.T.O WARD 30(1), KOLKATA RESPONDENT APPEARANCES BY: SHRI V.N. PUROHIT, FCA, LD.AR FOR THE ASSESSEE SHRI D. CHAKRABORTY, JCIT, LD.DR FOR THE REVENUE DATE OF HEARING : 16-01- 2017 DATE OF PRONOUNCEMENT : 2 0 -01-2017 ORDER SHRI S.S.VISWANETHRA RAVI, JM: THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DT : 13-12-2013 PASSED BY THE COMMISSIONER OF INCOME TAX-(APPEALS), XIV, K OLKATA FOR THE ASSESSMENT YEAR 2006-07. ITA NO. 577/KOL/2014 AMAR KUMAR SAHA 2 2. IN THIS APPEAL THE ASSESSEE HAS RAISED AS MANY A S SEVEN GROUNDS OF APPEAL, AMONGST WHICH THE ONLY EFFECTIVE GROUND IN THIS APPEAL IS TO BE DECIDED WHETHER THE CIT-A JUSTIFIED CONFIRMING THE ADDITION MADE BY THE AO BY REJECTING THE BOOKS OF ACCOUNT AND DETERMINING THE INCOME OF ASSESSEE ON THE BASIS NET PROFIT ESTIMATED @ 8% OF THE GROSS TURNOV ER IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE ASSESSEE BEING INDIVIDUAL ENGAGED IN THE BUS INESS OF HANDLING AND FORWARDING OF COAL AND FILED HIS RETURN OF INCOME AT RS. 2,49,800/- ON 31-10- 2006. UNDER SCRUTINY, NOTICES U/S. 143(2)/142(1) OF THE ACT WERE ISSUED. IN RESPONSE TO WHICH ACCORDING TO AO NEITHER ANY ONE A PPEARED ON BEHALF OF THE ASSESSEE NOR FILED ANY EVIDENCE IN SUPPORT OF THE S AID RETURN FILED. ACCORDINGLY, THE AO DETERMINED THE INCOME OF ASSESSEE AT RS. 19, 46,644/- ESTIMATING THE NET PROFIT AT RS.13,84,931/- @ 8% ON THE GROSS TURN OVER AND MAKING ADDITION OF RS.5,61,713/- BEING UNDISCLOSED INCOME OF ASSESS EE BY PASSING AN ORDER U/S. 144 OF THE ACT DATED 30-12-2008. 4. IN FIRST APPEAL, BEFORE THE CIT-A THE LD.AR OF ASSESSEE CONTENDED THAT THE AO DID NOT PROVIDE SUFFICIENT OPPORTUNITY TO PR OSECUTE THE CASE. THE AO OUGHT NOT TO HAVE TO DETERMINED THE NET PROFIT AT 8 % IN PURSUANCE OF SECTION 44AD OF THE ACT. HOWEVER, THE CIT-A CONFIRMED THE ACTION OF THE AO IN REJECTING THE BOOKS OF ACCOUNT AND ESTIMATING THE N ET PROFIT AT RS.13,84,931/- I.E 8% OF GROSS TURNOVER OF RS.1,73,11,633/-. 5. BEFORE US THE LD.AR SUBMITS THAT THE ISSUE IN HA ND HAS BEEN DECIDED BY THE SMC BENCH, ITAT, KOLKATA IN ASSESSEES WIFE C ASE, SMT. BANI SAHA IN ITA NO.578/KOL/2014 FOR THE AY 2006-07 VIDE ORDER DATED 16-09-2015, WHEREIN THE TRIBUNAL (SMC BENCH) REMANDED THE ISSUE TO THE AO TO MAKE THE ASSESSMENT AFRESH AFTER GIVING PROPER AND SUFFICIEN T OPPORTUNITY OF BEING HEARD ITA NO. 577/KOL/2014 AMAR KUMAR SAHA 3 TO THE ASSESSEE. THUS, HE PRAYED US TO REMAND THE I SSUE TO THE FILE OF THE AO FOR THE SAME. 6. ON THE OTHER HAND, THE LD.DR RELIED ON THE ORDER S OF BOTH THE AUTHORITIES. 7. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIA L AVAILABLE ON RECORD. WE FIND THAT THE ASSESSMENT IN THIS CASE WAS COMPLE TED U/S. 144 OF THE ACT BY BEST OF JUDGMENT OF THE AO. IT IS ALSO OBSERVED THA T THE NOTICES ISSUED U/S. 143(3)/142(1) WERE ISSUED. IN COMPLIANCE OF SUCH NO TICES, NEITHER ANY ONE APPEARED NOR FILED ANY EVIDENCE BEFORE THE AO BY TH E ASSESSEE DURING THE ASSESSMENT PROCEEDINGS. WE FIND THAT THE LD.AR OF T HE ASSESSEE HAS RIGHTLY POINTED OUT THAT THE ISSUE IN HAND IS SQUARELY COVE RED BY SAID ORDER DATED 16- 09-2015 BY THE SMC BENCH, ITAT, KOLKATA AS THE FACT S OF THAT CASE ARE SIMILAR AND IDENTICAL. THE ITAT SMC BENCH HAS REMANDED THE ISSUE TO THE FILE OF THE AO, RELEVANT FINDING OF WHICH IS REPRODUCED FOR BET TER UNDERSTANDING:- 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D PERUSED THE RELEVANT MATERIAL ON RECORD. AS RIGHTLY SUBMITTED BY THE LD. C OUNSEL FOR THE ASSESSEE, THE ASSESSEE HAS NOT BEEN IN THE BUSINESS OF CIVIL CONS TRUCTION AND THE TURNOVER OF HER BUSINESS IN THE YEAR UNDER CONSIDERATION BEING MORE THAN ONE CRORE, THE PROVISIONS OF SECTION 44AD ARE NOT APPLICABLE IN HER CASE AND THE RELIANCE OF THE AUTHORITIES BELOW ON THE SAID PROVISION TO ESTIMATE THE INCOME O F THE ASSESSEE FROM THE BUSINESS OF HANDLING AND FORWARDING OF COAL BY APPLYING THE NET PROFIT RATE OF 8% IS CLEARLY MISPLACED. MOREOVER, A PERUSAL OF THE ASSESSMENT ORD ER PASSED UNDER SECTION 144 BY THE AO SHOWS THAT HE HAS NOT GIVEN THE RELEVANT DE TAILS OF ISSUE OF NOTICES UNDER SECTION 143(2) AND 142(1) DURING THE COURSE OF ASSE SSMENT PROCEEDINGS AND SERVICE OF SUCH NOTICES ON THE ASSESSEE. IN THE ABSENCE OF SUCH DETAILS, I FIND IT DIFFICULT TO ASCERTAIN AS TO WHETHER PROPER AND SUFFICIENT OPPOR TUNITY OF HEARING WAS GIVEN TO THE ASSESSEE OR NOT DURING THE COURSE OF ASSESSMENT PRO CEEDINGS AND THIS POSITION IS NOT DISPUTED OR CONTROVERTED EVEN BY THE LD.DR. HAVING CONSIDERED ALL THESE FACTS OF THE CASE, I CONSIDER IT FAIR AND PROPER AND IN THE INTE REST OF JUSTICE TO SEND THE MATTER BACK TO THE AO IN ORDER TO GIVE ONE MORE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, THE IMPUGNED ORDER OF THE LD.CIT(A) IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE AO WITH A DIRECTION TO MAKE THE ASSESSMENT AFRESH AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO EXTEND FULL COOPERATION TO THE AO IN ORDER TO ENABLE HIM TO COMPLETE THE ASSESSMENT AFRESH EXPEDITIOUSLY WITHOU T ANY FURTHER DELAY. IN VIEW OF THE ABOVE, WE DEEM IT FIT AND PROPER A ND IN THE INTEREST OF JUSTICE TO REMAND THE MATTER BACK TO THE FILE OF AO TO GIVE OPPORTUNITY OF BEING ITA NO. 577/KOL/2014 AMAR KUMAR SAHA 4 HEARD TO THE ASSESSEE. ACCORDINGLY, THE IMPUGNED OR DER OF THE CIT-A IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE AO WITH A DIRECTION TO MAKE THE ASSESSMENT AFRESH AFTER GIVING PROPER AND SUFF ICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTE D TO COOPERATE THE AO TO ENABLE HIM TO COMPLETE THE ASSESSMENT AFRESH EXPEDI TIOUSLY WITHOUT ANY FURTHER DELAY. HE SHALL BE AT LIBERTY TO FILE REQUI SITE EVIDENCES, IF ANY, TO SUBSTANTIATE HIS CLAIM. THUS, THIS GROUND OF ASSES SEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 20-0 1-2017. SD/- SD/- WASEEM AHMED S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 2 0-01-2017 COPIES TO : **PP/SPS (1) APPELLANT/ASSESSEE: SHRI AMAR KUMAR SAHA 12/3/4 JAMIR LANE, BIDISHA APARTMENT, 1 ST FLOOR, KOLKATA-700 019. (2) DEPARTMENT/RESPONDENT: THE INCOME TAX OFFICER, W 30(4),AAYKAR BHAWAN DAKSHIN, 2 GARIAHAT ROAD(S), KOKATA-700 068. (3)COMMISSIONER OF INCOME-TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL KOLKATA