Shri Arun Kar, Asansol V. ACIT, Circle - 2, Asansol, Asansol

ITA 588/KOL/2010

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9049 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 9 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2002-2003
• Appeal Filed On: 22-03-2010
• Court: TRIBUNAL
• Assessee Lawyers: U DASGUPTA
• Keywords: Unexplained investment; Depreciation; Opportunity of being heard; Principle of natural justice; Reasonable cause; Non passing of speaking order
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C , KOLKATA [BEFORE & HON BLE SRI N.K.SAINI , A M & HON BLE SRI MAHAVIR SINGH, JM ] ITA NO .588/KOL/2010 ASSESSMENT YEAR : 2002 - 03 ( A PPELLANT ) (RESPONDENT) ARUN KAR,P ROP.HI - TECH ENGINEERING - VS - A.C.I.T., CIRCLE - 2 , ASANSOL ASANSOL (PAN: AESPK 3949 N) FOR THE APPELLAN T SHRI U.DASGUPTA, ADVOCATE FOR THE RESPONDENT SHRI VIJAY KUMAR, CIT(DR) DATE OF HEARING : 21.01.2015 DATE OF PRONO UNCEMENT : 21 .01.2015. ORDER PER SHRI N.K.SAINI , AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 07.11.2007 OF L D. C.I.T - (A) - ASANSOL AND PERTAINS TO A.YR.2002 - 03. 2. THIS APPEAL WAS EARLIER HEARD AND DISPOSED OF BY THIS BENCH OF THE TRIBUNAL , EX - PARTE VIDE OR DER DATED 04.04.2012. THER E AFTER, ON THE REQUEST OF THE ASSESSEE IN THIS MISCELLANEOUS APPLICATION NO.56/KOL/2012 , THE SAID EXPARTE ORDER DATED 04.04.2012 WAS RECALLED. IN THIS APPEAL THE REGISTRY HAS POINTED OUT THAT THE APPEAL WAS TIME BARRED BY 114 DAYS. THE ASSESSEE HAD MOVED AN APPLICATION DATED 10 TH MARCH, 2010 FOR CONDONATION OF DELAY. THE CONTENTS THEREIN ARE AS UNDER : - 1. THAT THE APPELLANT IS THE SOLE PROPRIETOR OF M/S. HI TECH ENGINEERING WITH PLACE OF BUSINESS AT DUT TA BAGAN, SEN RALEIGH ROAD, ASANSOL, AND THIS APPEAL HAS BEEN PREFERRED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (A), ASANSOL, IN RESPECT OF THE ABOVE ASST.YEAR, AGAINST HIS ORDER DATED 07.11.2007. 2. THAT THOUGH THE ORDER BY THE LD. CIT(A)W AS PASSED ON 7.11.2007, THE SAME WAS SERVED ON THE APPELLANT MR.ARUN KAR, AT ASANSOL CIT OFFICE, BY HAND DELIVERY IN THE MONTH OF SEPTEMBER, 2009, AND HAS BEEN RECEIVED BY THE APPELLANT HIMSELF PERSONALLY. ITA NO.588/KOL/2010 ARUN KAR,PROP.HI - TECH ENGINEERING, ASANSOL A.YR .2002 - 03 2 3. THAT THE APPEAL A GAINST THE SAID ORDER SHOULD H AVE BEEN FILED BEFORE THE HON BLE TRIBUNAL, WITHIN A PERIOD OF SIXTY DAYS FROM THE DATE OF RECEIPT AND THE LAST DATE OF FILING THE SAME WAS NOVEMBER, 2009. 4. THAT ON ACCOUNT OF PERSONAL HEALTH PROBLEMS THE APPELLANT WAS TOTALLY INDISPOSED AND WAS NOT IN A POSITION TO ATTEND OFFICE OR ATTEND TO HIS DAILY WORK DURING THE PERIOD FROM NOVEMBER, 2009 TO FEBRUARY, 2010 AND WAS UNDER MEDICAL TREATMENT IN ASANSOL AND ALSO IN NEW DELHI. 5. THAT SUBSEQUENTLY, IN THE MONTH OF MARCH, 2010, THE APPELLANT REJOINED OFFI CE AND HAS BEEN ABLE TO CONTACT HIS LAWYERS AND PREPARED THIS APPEAL AND HAS FILED THE SAME BEFORE THE HON BLE TRIBUNAL, KOLKATA. 6. THAT SINCE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM FILING THE APPEAL IN TIME IT IS HUMBLY PRAYED BEFORE YOUR H ON OURS THAT THE DELA Y IN FILING THE APPEAL MAY PLEASE BE CONDONED AND THE APPEAL MAY PLEASE BE ADMITTED TO BE HEARD ON MERITS. 7. THAT IT IS FURTHER SUBMITTED THAT HUGE TAX DEMAND HAS ALREADY BEEN RAISED ON THE INDIVIDUAL APPELLANT BY THE REVENUE, IN ORDER S PASSED EXPARTE, ALMOST AT ALL STAGES, WITHOUT CONSIDERING THE APPELLANT S SUBMISSION AND ARGUMENTS ALREADY FILED AND ON RECORD AND THE APPELLANT HAS BEEN PREJUDICED. 8. THAT THE HON BLE TRIBUNAL IS THE HIGHEST FACT FINDING AUTHORITY AND NON ADMITTANCE OF THIS APPEAL WILL LEAD TO GREAT FINANCIAL HARDSHIP AND INJUSTICE ON THE APPELLANT. 9. THAT IT IS HUMBLY PRAYED THAT THE APPEAL MAY PLEASE BE ADMITTED TO BE HEARD AND DECIDED ON MERITS. 2.1. IN SUPPORT OF THE ABOVE APPLICATION THE ASSESSEE ALSO FILED THE MEDICAL CERTIFICATES INCLUDING DISCHARGE SLIP OF GOVT. OF CIVIL HOSPITAL GADKHARA WHICH ARE PLACED ON RECORD. 2.2. DURING THE COURSE OF HEARING THE LD. COUNSEL OF THE ASSESSEE REITERATED THE CONTENTS OF THE MISCELLANEOUS APPLICATION AND REQUESTED FOR CO NDONATION OF DELAY. IN HIS RIVAL SUBMISSIONS THE LD. C.I.T., DEPARTMENTAL REPRESENTATIVE OPPOSED THE CONDONATION OF DELAY. 2.3 . AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND THE MATERIAL ON THE RECORD, IT IS NOTICED THAT THE ASSESSEE WAS SIC K AND ADMITTED IN THE HOSPITAL . SO, THERE WAS A REASONABLE CAUSE IN FILING THE APPEAL BELATED. WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS, ARE OF THE VIEW THAT IT IS A FIT CASE FOR CONDONING THE DELAY. ACCORDINGLY THE DELAY IS CONDONED AND THE A PPEAL IS ADMITTED. 3 . THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL : 1. FOR THAT THE APPELLANT ORDER PASSED BY THE LD.CIT(A) IS A NON SPEAKING ORDER PASSED WITHOUT GIVING ANY COGNIZANCE TO THE WRITTEN ARGUMENTS/SUBMISSIONS AND ITA NO.588/KOL/2010 ARUN KAR,PROP.HI - TECH ENGINEERING, ASANSOL A.YR .2002 - 03 3 EVIDENCES, FILED BY THE APPELLANT IN COURSE OF APPELLATE PROCEEDINGS AND THE SAME IS LEGALLY UNJUSTIFIED. 2. FOR THAT ON THE FACTS OF THE CASE THE LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION OF RS.4,18,054/ - ON A/C OF TELEPHONE EXPENSES WHEN THE SAME ARE ALL SUPP ORTED BY BILLS AND VOUCHERS, AND THE ADDITION MAY PLEASE BE DELETED. 3. FOR THAT ON THE FACTS OF THE CASE THE LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION OF RS.2,06,369/ - ON A/C OF LABOUR WAGES, WHEN THE SAME ARE ALL SUPPORTED BY DOCUMENTARY E VIDENCE, AND THE ADDITION MAY PLEASE BE DELETED. 4. FOR THAT ON THE FACTS OF THE CASE THE LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION OF RS.5,16,350/ - ON A/C OF SITE EXPENSES (WHEN THE TOTAL CLAIM OF EXPENDITURE UNDER THIS HEAD IS ONLY 8.5% OF GROSS RECEIPTS) ARE ALL SUPPORTED BY DOCUMENTARY EVIDENCE, AND THE ADDITION MAY PLEASE BE DELETED. 5. FOR THAT ON THE FACTS OF THE CASE THE LD. CIT(A) WAS NOT JUSTIFIED IN DISALLOWING THE CLAIM FOR DEPRECIATION OF RS.74,622/ - ON TRUCK AND MOTOR VEHICLES, USED BY THE APPELLANT IN OWN BUSINESS, AND THE SAME MAY PLEASE BE ALLOWED. 6. FOR THAT ON THE FACTS OF THE CASE THE LD. CIT(A) WAS NOT JUSTIFIED IN ADDING BACK AN AMOUNT OF RS.1,34,791/ - U/S 41(1) OF THE ACT 61, AS CESSATION OF LIABILITY, WHEN PURCHASES F ROM PARTIES HAS BEEN PAID BY A/C PAYEE CHEQUES IN SUBSEQUE3NT YEARS, AND THE SAME MAY PLEASE BE DEL E TED. 7. FOR THAT ON THE FACTS OF THE CASE THE LD. CIT(A) WAS NOT JUSTIFIED IN ADDING BACK AN AMOUNT OF RS.2,05,000/ - ON A/C OF UNEXPLAINED INVESTMENT IN DBD , WHEN THE SAME HAS BEEN MADE OUT OF BANK AND DULY REFLECTED IN BALANCE SHEET, AND MAY PLEASE BE DELETED. 8. FOR THAT ON THE FACTS OF THE CASE THE LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAINING AN ADDITION OF RS.19,475/ - ON INTEREST A/C AND THE SAME MAY PLEAS E BE DELETED. 9. FOR THAT ON THE FACTS OF THE CASE THE LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAINING AN ADDITION OF RS.7,991/ - ON DISCOUNT A/C AND THE SAME MAY PLEASE BE DELETED. 10. FOR THAT ON THE FACTS OF THE CASE THE LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAI NING AN ADDITION OF 1,01,000/ - ON BANK FDR A/C, WHEN THE SAME HAS BEEN MADE OUT OF BANK WITHDRAWALS, AND THE SAME MAY PLEASE BE DELETED. 11. FOR THAT ON THE FACTS OF THE CASE THE LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAINING AN ADDITION OF RS.10,100/ - ON F/ D INTEREST A/C AND THE SAME MAY PLEASE BE DELETED. 12. FOR THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND ANY FURTHER GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 4. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ORIGINAL ASSESSMENT ORDER U/S 1 43(3) OF THE I.T.ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) WAS PASSED IN THIS CASE ON 21.03.2005 AT A TOTAL INCOME OF RS.33,24,190/ - . BEING AGGRIEVED THE ASSESSEE FILED REVISION PETITION U/S 264 OF THE ACT BEFORE LD. CIT , WHO VIDE ORDER DATED 21.03 .2006 SET ASIDE THE ASSESSMENT ORDER AND DIRECTED THE AO TO M AKE THE ASSESSMENT DE NOVO. THEREAFTER THE AO PASSED THE ASSESSMENT ORDER U/S 144 OF THE ACT , EX PARTE AT AN INCOME OF RS.27,74,190/ - BY MAKING VARIOUS ADDITIONS. WHILE PASSING THE SAID ASSESSMENT ORDER THE AO MENTIONED THAT THE CASE WAS GETTING BARRED BY LIMITATION ON 31.12.2006 AND NOBODY APPEARED WHEN THE CASE WAS FIXED FOR HEARING. ITA NO.588/KOL/2010 ARUN KAR,PROP.HI - TECH ENGINEERING, ASANSOL A.YR .2002 - 03 4 4.1. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A), WHO ALSO DECIDED THE APPEAL OF THE ASSES SEE EX PARTE AND SUSTAINED THE MAJORITY OF THE ADDITIONS MADE BY THE AO. WHILE DOING SO THE LD. CIT(A) OBSERVED IN PARAS 3 AND 4 OF THE IMPUGNED ORDER AS UNDER : - 3. MORE THAN SEVERAL HEARINGS WERE ALSO ALLOWED BY THE UNDERSIGNED ON 12.09.2007, 11.10.200 7, 13.10.2007 AND 06.11.2007. EXCEPT PROOF OF TDS ON ACCOUNT OF SALES TAX, NOTHING OTHER MATERIAL HAS BEEN SUBMITTED BEFORE THE UNDERSIGNED. HOWEVER, THE ASSESSEE HAS FILED HIS SUBMISSION DT. 11.10.2007. 4. HENCE I LEFT WITH NO ALTERNATE BUT TO FINALIZE T HE APPEAL ON THE BASIS OF MATERIAL MADE AVAILABLE BY THE A.R., AS HIS SUBMISSION AND THE ASSESSMENT ORDER. I HAVE CONSIDERED THE SUBMISSION OF THE APPELLANT AND ALSO HAVE GONE THROUGH THE ASSESSMENT ORDER. MY OBSERVATION AND DECISION ARE AS UNDER : 5. NO W THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE AO FRAMED THE ASSESSMENT EX PARTE AND MADE THE ADDITION S ARBITRARILY BY IGNORING THE RELEVANT DOCUMENTS FURNISHED BY THE ASSESSEE FOR HIS CLAIM. IT WAS FURT HER STATED THAT THE LD. CIT(A) ALSO SUSTAINED THE MAJORITY OF THE ADDITIONS WITHOUT APPRECIATING THE FACTS IN THE RIGHT PERSPECTIVE. HE REQUESTED THAT THE MATTER MAY BE SENT BACK TO THE AO FOR DECIDING AFRESH AFTER CONSIDERING THE DOCUMENTS AVAILABLE ON RE CORD. 6. IN HIS RIVAL SUBMISSIONS THE LD. DR RELUCTANTLY AGREED FOR THE ABOVE PROPOSAL OF THE LD. COUNSEL OF THE ASSESSEE. 7. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND THE MATERIALS AVAILABLE ON RECORD IT APPEARS THAT NEITHER THE AO NOR THE LD.CIT(A) HAD CONSIDERED THE FACTS OF THE PRESENT CASE IN THE RIGHT PERSPECTIVE AND DECIDED THE CASE IN THE ABSENCE OF THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . WE THEREFORE KEEPIN G IN VIEW THE PR INCIPLES OF NATURAL JUSTICE DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF AO TO BE DECIDED IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO.588/KOL/2010 ARUN KAR,PROP.HI - TECH ENGINEERING, ASANSOL A.YR .2002 - 03 5 8 . IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . O RDER PRONOUNCE D IN THE OPEN COURT ON 21 .01.2015. SD/ - SD/ - [ MAHAVIR SINGH ] [ N.K.SAINI ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE : 21 .01.2015. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . ARUN KAR, PROP. HI - TECH ENGI NEERING, DUTTA BAGAN, SEN RALEIGH ROAD, ASANSOL. 2 A.C.I.T., CIRCLE - 2, ASANSOL . 3 . CIT(A) - ASANSOL. 4. CIT - KOLKATA CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY, BY ORDER, ASST. REGISTRAR , ITAT, KOLKATA BENCHES