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

ITA 578/KOL/2014

• Counselvise Citation: 57823514 RSA 2014
• Duration Of Justice: 1 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 01-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEBASISH LAHIRI
• Assessee Lawyers: V N PUROHIT
• Keywords: Opportunity of being heard
• Section: 144; 44AD; 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC , KOLKATA (BEFORE SHRI P. M. JAGTAP , ACCOUNTANT MEMBER ) ITA NO. 578 /KOL/201 4 : ASSTT. YEAR : 2006 - 2007 BANI SAHA PAN: A NLPS 79 41N VS ITO, WARD - 30(1 ) , KOLKATA (APPELLANT) (RESPONDENT) A PPELLANT BY : SHRI V.N.PUROHIT, C.A. RESPONDENT BY : SHRI DEBASISH LAHIRI , JCIT, SR.DR DATE OF HEARING : 15 .09 .2015 DATE OF PRONOUNCEMENT : 16 .09 .2015 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISS IONER OF INCOME - TAX (APPEALS) - XIV , KOLKATA DATED 13.12.2013 FOR THE ASSESSMEN T YEAR 2006 - 07 WHEREBY HE UPHELD THE ASSESSMENT ORDER PASSED BY THE AO UNDER SECTI ON 144 ESTIMATING THE INCOME OF THE ASSESSEE FROM BUSINESS AT RS.10,65,450/ - AS AGAINST THE INCOME OF RS.2,32,400/ - RETURNED BY THE ASSESSEE. 2. T HE ASSESSEE IN THE PRESENT CASE IS A N INDIVIDUAL, WHO IS ENGAGED IN THE BUSINESS OF HANDLING AND FORWARDING O F COAL. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY HER ON 31.10.2006 DECLARING TOTAL INCOME OF RS.2,32,400/ - . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, NOTICES ISSUED BY THE AO UNDER SECTION 143(2) AND 142(1) REMAINED UNCOMPLIED WITH BY THE ASSESSEE, AS NOTED BY THE AO IN THE ASSESSMENT ORDER. HE, THEREFORE, PROCEEDED TO COMPLETE THE ASSESSMENT EX PARTE TO THE BEST OF HIS JUDGMENT UNDER SECTION 144 OF THE ACT. IN THE ASSESSMENT SO COMPLETED VIDE ORDER DATED 30.12.2008, THE TOTAL I NCOME OF THE ASSESSEE FROM THE BUSINESS OF HANDLING AND FORWARDING OF COAL WAS ESTIMATED BY THE AO BY APPLYING THE NET PROFIT 2 ITA NO. 578 /KOL/201 4 BANI SAHA ASSESSMENT YEAR: 2006 - 07 RATE OF 8%, WHICH WORKED OUT TO RS.10,65,450/ - . FOR MAKING THIS ESTIMATE THE AO PLACED RELIANCE ON THE PROVISIONS OF SECTION 44AD OF THE ACT OBSERVING THAT THE BUSINESS OF THE ASSESSEE WAS OF CONTRACTUAL NATURE. 3. ON APPEAL, THE LD. CIT(A) UPHELD THE ORDER PASSED BY THE AO UNDER SECTION 144 OF THE ACT AND CONFIRMED THE ESTIMATION OF INCOME OF THE ASSESSEE MADE THEREIN RELYING AGAIN ON THE PROVISIONS OF SECTION 44AD OF THE ACT. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4 . I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND PERUSED THE RELEVANT MATERIAL ON RECORD . AS RIGHTLY SU BMITTED BY THE LD. COUNSEL FOR THE ASSESSEE , THE ASSESSEE HAS NOT BEEN IN THE BUSINESS OF CIVIL CONSTRUCTION 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 HE R CASE AND THE RELIANCE OF THE AUTHORITIES BELOW ON THE SAID PROVISION TO ESTIMATE THE INCOME OF 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 ASSESS MENT ORDER PASSED UNDER SECTION 144 BY THE AO SHOWS THAT HE HAS NOT GIVEN THE RELEVANT DETAILS OF ISSUE OF NOTICES UNDER SECTION 143(2) AND 142(1) DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND SERVICE OF SUCH NOTICES ON THE ASSESSEE. IN THE ABSENCE OF SU CH DETAILS, I FIND IT DIFFICULT TO ASCERTAIN AS TO WHETHER PROPER AND SUFFICIENT OPPORTUNITY OF HEARING WAS GIVEN TO THE ASSESSEE OR NOT DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND THIS POSITION IS NOT DISPUTED OR CONTROVERTED EVEN BY THE LD. DR. HAVIN G CONSIDERED ALL THESE FACTS OF THE CASE, I CONSIDER IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO SEND THE 3 ITA NO. 578 /KOL/201 4 BANI SAHA ASSESSMENT YEAR: 2006 - 07 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 HEARD 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 WITHOUT ANY FURTHER DELAY. 5 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH SEPTEMBER, 2015. SD/ - ( P.M.JAGTAP ) ACCOUNTANT MEMBER DATED: 16 /09/ 2015 TALUKDAR/SR.PS COPY OF ORDER FORWARDED TO: 1 BANI SAHA , 12/3/4, JAMIR LANE, BIDISHA APARTMENT, 1 ST FLOOR, KOLKATA 7 00 01 9 2 ITO, WARD - 30(1 ) , KOLKATA 3 THE CIT(A), 4 5 CIT, 5. D.R. TRUE COPY, BY ORDER, ASSTT. REGISTRAR , ITAT, KOLKATA