BRAJESH KUMAR GUTGUTIA, Kolkata V. DCIT, Circle -1, Kolkata, Kolkata

ITA 621/KOL/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7909 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-11-2014
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 18-04-2012
• Court: TRIBUNAL
• Department Lawyers: VIVEK KR GUPTA
• Assessee Lawyers: M SATNALIWALA
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [BEFORE HONBLE SRI SHAMIM YAHYA, AM & HONBLE SR I GEORGE MATHAN, JM] ITA NO.621/KOL/2012 ASSESSMENT YEAR : 2007-08 ( APPELLANT ) (RESPONDENT) BRAJESH KUMAR GUTGUTIA , -VS- D.C.I.T., CIRCLE-I, KOLKATA KOLKATA (PAN:AHRPG 6636 G) ITA NO.620/KOL/2012 ASSESSMENT YEAR : 2007-08 ( APPELLANT ) (RESPONDENT) UTTAM KUMAR GUTGUTIA , -VS- D.C.I.T., CIRCLE-I, KOLKATA KOLKATA (PAN:ADZPG 1880 E) ITA NO.619/KOL/2012 ASSESSMENT YEAR : 2007-08 ( APPELLANT ) (RESPONDENT) RISHI TULSIYAN ,-VS- D.C.I.T., CIRCLE-I, KOLKATA KOLKATA (PAN:ABUPT 9280 A) FOR THE APPELLANT SHRI M.SATNALIWALA, FCA FOR THE RESPONDENT SHRI VIVEK KR.GUPTA, JCIT, SR.DR DATE OF HEARING : 10.11.2014 DATE OF PRONOUNCEMENT : 12. 11.2014. ORDER PER SHRI SHAMIM YAHYA, AM THESE APPEALS FILED BY SEPARATE ASSESSEES ARE DIR ECTED AGAINST RESPECTIVE ORDERS OF LD. C.I.T.(A)-I, KOLKATA AND PERTAIN TO A SSESSMENT YEAR 2007-08. SINCE THE ISSUES ARE CONNECTED AND THE APPEALS WERE HEARD TOG ETHER THESE HAVE BEEN CONSOLIDATED AND DISPOSED OF BY THIS COMMON ORDER. ITA NO.621/KOL/2012- BRAJESH KUMAR GUTGUTIA : 2. THE GROUNDS OF APPEAL RAISED BY ASSESSEE IN THIS APPEAL READ AS UNDER :- 1.THAT THE LD. CIT(A) WAS ERRED IN DISMISSING THE A PPEAL ON THE GROUND OF NON- SUBMISSION OF BANK STATEMENT OF APPELLANT AND THE P ARTNERSHIP FIRM M/S.DECO-DE-TREND ITA.NOS.621,620&619/KOL/2012 BRAJESH KR.GUTGUTIA, UTTAM KR.GUTGUTIA & RISHI TULSIYAN A.YR.2007-08 2 FOR CROSS VERIFICATION STATED IN CONCLUDING REMARK OF REMAND REPORT, WHEREAS (THE BANK STATEMENT OF M/S. DECO-DE-TREND FOR CROSS VERI FICATION WHICH WAS NEVER ASKED FOR DURING HEARING PROCEEDING BEFORE LD D.C.I.T.) AND ALSO WITHOUT CONSIDERING THE BANK STATEMENT OF APPELLANT AND M/S. PARTNERSHIP FIRM M/ S.DECO-DE-TREND FILLED BEFORE LD D.C.I.T. AND LD C.I.T.(A) ON 22/11/2011 AND PASS T HE ORDER ON 22/11/2011, THUS VIOLATING THE PRINCIPLE OF NATURAL JUSTICE. 2. THAT THE LD C.I.T.(A) WAS ERRED IN DISMISSING T HE APPEAL WITHOUT CONSIDERING THE FACTUAL POSITION, EVIDENCE, CONFIRMATION FILLED DUR ING HEARING PROCEEDING BEFORE LD D.C.I.T. AND LD C.I.T.(A) WHICH IS UNJUSTIFIED, A RBITRARY, UNLAWFUL AND THEREFORE LIABLE TO BE DELETED. 3. THAT THE APPELLANT PRAY BEFORE YOUR HONOUR TO CO NSIDER THE FACT, EVIDENCE AND EXPLANATION, AND FOR SALE OF JUSTICE OPPORTUNITY TO GET CROSS VERIFICATION OF SOURCE OF INVESTMENT AND PRAY TO DELETE THE ADDITION OF RS.33 ,99,777/- BY LD D.C.I.T. 4. THAT THE APPELLANT CRAVES TO ADD OR AMEND ANY GR OUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. ITA NO.620/KOL/2012- UTTAM KUMAR GUTGUTIA : 2.1. THE GROUNDS OF APPEAL RAISED BY ASSESSEE IN TH IS APPEAL READ AS UNDER :- 1.THAT THE LD. CIT(A) WAS ERRED IN RELYING ON CONCL UDING REMARK OF REMAND REPORT, OF LD D.C.I.T. THAT CONSIDERATION MONEY OF RS.33,61,5 30/- FOR LAND (ALLEGED ADDITION) TO THE BUILDER BUT PAYMENT TO THE EXTENT OF RS.27,19,2 42/- MADE BY THE APPELLANT ON 16/05/2006 AND 06/11/2006 AFTER THE DATE OF REGISTR ATION OF ALLEGED LAND I.E. ON 17/04/2006 IS EXPLAINED AND BALANCE OF RS.6,42,288/ - STAND UNEXPLAINED, WITHOUT CONSIDERING THE FACT, EVIDENCE & EXPLANATION WHICH EVIDENCED THAT THE PAYMENT FOR ALLEGED LAND COST HAVE BEEN ALREADY MADE BY THE APP ELLANT BEFORE REGISTRATION DEED OF LAND DTD. 17/04/2006 AS ALSO EVIDENCED IN CLAUSE 1, PAGE 8 OF DEED OF REGISTRY OF LAND DATED 17/04/2006 THAT THE VENDOR HAS RECEIPT ENTIRE CONSIDERATION MONEY OF RS.33,61,530/-. 2. THAT THE LD C.I.T.(A) WAS ERRED IN CONFIRMING T HE ADDITION OF RS.6,42,288/- MADE BY LD D.C.I.T. CIRCLE I IN THE REMAND REPORT WITH OUT CONSIDERING THE RELEVANT FACT AND SUPPORTING DOCUMENTS IN SUPPORT OF ALLEGED ADDI TION. THE ORDER MADE BY LD C.I.T.(A) WAS BASED ON WRONG FOOTING AND CONTRARY T O THE FACTUAL POSITION AND THEREFORE LIABLE TO BE STRUCK DOWN. 3. THAT THE LD C.I.T.(A) WAS ERRED IN NOT CONSIDER ING THE EVIDENCE (BANK STATEMENT OF DEO-DE-TREND) TO PROVE THE SOURCE OF PAYMENT FILLED BEFORE LD D.C.I.T. & LD C.I.T.(A) ON 22/11/2011 AND PASS THE ORDER ON 22/11 /2011 WHICH IS UNJUSTIFIED, ARBITRARY AND VIOLATING THE PRINCIPLE OF NATURAL JU STICE AND THEREFORE LIABLE TO BE DELETED. 4. THAT THE APPELLANT CRAVES TO ADD OR AMEND ANY GR OUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. ITA NO.619/KOL/2012- RISHI TULSIYAN 2.2. THE GROUNDS OF APPEAL RAISED BY ASSESSEE IN TH IS APPEAL READ AS UNDER :- 1.THAT THE LD. CIT(A) WAS ERRED IN RELYING ON CONCL UDING REMARK OF REMAND REPORT, OF LD D.C.I.T. THAT CONSIDERATION MONEY OF RS.33,93,3 96/- FOR LAND (ALLEGED ADDITION) TO THE BUILDER BUT PAYMENT TO THE EXTENT OF RS.20,00,0 00/- MADE BY THE APPELLANT ON D 06/11/2006 AFTER THE DATE OF REGISTRATION OF ALLEGE D LAND I.E. ON 17/04/2006 IS EXPLAINED AND BALANCE OF RS.13,48,940/- STAND UNEXPLAINED, WI THOUT CONSIDERING THE FACT, EVIDENCE & EXPLANATION WHICH EVIDENCED THAT THE PAYMENT FOR ALLEGED LAND COST HAVE BEEN ITA.NOS.621,620&619/KOL/2012 BRAJESH KR.GUTGUTIA, UTTAM KR.GUTGUTIA & RISHI TULSIYAN A.YR.2007-08 3 ALREADY MADE BY THE APPELLANT BEFORE REGISTRATION D EED OF LAND DTD. 17/04/2006 AS ALSO EVIDENCED IN CLAUSE 1, PAGE 8 OF DEED OF REGISTRY O F LAND DATED 17/04/2006 THAT THE VENDOR HAS RECEIPT ENTIRE CONSIDERATION MONEY OF RS .33,93,396/-. 2. THAT THE LD C.I.T.(A) WAS ERRED IN CONFIRMING T HE ADDITION OF RS.13,48,940/- MADE BY LD D.C.I.T. CIRCLE I IN THE REMAND REPORT WITH OUT CONSIDERING THE RELEVANT FACT AND SUPPORTING DOCUMENTS IN SUPPORT OF ALLEGED ADDI TION. THE ORDER MADE BY LD C.I.T.(A) WAS BASED ON WRONG FOOTING AND CONTRARY T O THE FACTUAL POSITION AND THEREFORE LIABLE TO BE STRUCK DOWN. 3. THAT THE LD C.I.T.(A) WAS ERRED IN NOT CONSIDER ING THE EVIDENCE (BANK STATEMENT OF DEO-DE-TREND) TO PROVE THE SOURCE OF PAYMENT FILLED BEFORE LD D.C.I.T. & LD C.I.T.(A) ON 22/11/2011 AND PASS THE ORDER ON 22/11 /2011 WHICH IS UNJUSTIFIED, ARBITRARY AND VIOLATING THE PRINCIPLE OF NATURAL JU STICE AND THEREFORE LIABLE TO BE DELETED. 4. THAT THE APPELLANT CRAVES TO ADD OR AMEND ANY GR OUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 3. ALL THE ASSESSES IN THIS CASE ARE PARTNERS IN A PARTNERSHIP FIRM M/S.DECO-DE- TREND. AO IN THIS CASE RECEIVED INFORMATION IN THE SHAPE OF ANNUAL INFORMATION RETURN FILED BY DISTRICT REGISTRAR OFFICE CENTRAL, CHENNAI . INFORMATION IS REGARDING PURCHASE OF IMMOVABLE PROPERTIES BY THE ASSESSEE. ON AOS EN QUIRY REGARDING THE SOURCE OF INVESTMENT AS REFLECTED IN THE INFORMATION RECEIVED THE ASSESSES INFORMED THAT THEY WERE OUT OF DRAWINGS FROM PARTNERSHIP FIRM M/S.DECO DE TREND. HOWEVER THE AO NOTED THAT THESE INVESTMENTS WERE NOT REFLECTED IN THE ASSESSEES BOOKS. HE PROCEEDED TO MAKE THE IMPUGNED ADDITIONS. 4. BEFORE THE LD. CIT(A) THE ASSESSEE SUBMITTED FRE SH DOCUMENTS FROM WHICH TRANSPIRED THAT THE ASSESSEE HAS PURCHASED IMMOVABL E PROPERTY FROM M/S.VIJAY SHANTHI BUILDERS LTD. THE LD. CIT(A) ALSO OBTAINED REMAND REPORT FROM THE AO. ON THE BASIS OF THE REMAND REPORT OF THE AO THE LD. CI T(A) OBSERVED THAT AFTER GOING THROUGH THE DOCUMENTS SUBMITTED BY THE ASSESSEE THE AO HAS FOUND THE IMPUGNED DEFICIENCIES AND HENCE IN THE CASE OF BRIJESH KUMAR GUTGUTIA THE LD. CIT(A) DISMISSED THE ASSESSEES APPEAL. HOWEVER, IN THE CASE OF RISH I TULSIYAN AND UMESH KUMAR GUTGUTIA LD. CIT(A) PARTLY ALLOWED THE ASSESSEES A PPEAL. NOW AGAINST THE ORDERS OF LD. CIT(A) ASSESSES ARE I N APPEAL BEFORE US. 5. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. WE FIND THAT THE IMPORTANT ASPECT OF THE EXPLANATION OF THE ASSESSEE S IN THIS REGARD IS THAT ASSESSEE HAVE MADE THE INVESTMENTS AFTER MAKING NECESSARY DRAWING S FROM THE PARTNERSHIP FIRM M/S.DECO DE TREND. NOW THE BANK STATEMENT OF M/S.DE CO DE TREND AND THE ITA.NOS.621,620&619/KOL/2012 BRAJESH KR.GUTGUTIA, UTTAM KR.GUTGUTIA & RISHI TULSIYAN A.YR.2007-08 4 CONCERNED ACCOUNTS OF THE FIRM ARE RELEVANT FOR PRO PER ADJUDICATION IN THIS CASE. WE FIND THAT IT IS NOT CLEAR FROM THE RECORDS AS TO WH ETHER THE ASSESSEE HAS SUBMITTED THESE DOCUMENTS OR AS TO WHETHER THESE DOCUMENTS WERE REQ UISITIONED AND EXAMINED BY THE APPELLATE AUTHORITIES. WE FURTHER FIND THAT IN THE APPELLATE ORDER THE LD. CIT(A) HAS SIMPLY AFFIRMED AOS REMAND REPORT WITHOUT GIVING A PROPER FINDING OF HIS OWN. IN THESE CIRCUMSTANCES IN OUR CONSIDERED OPINION INTER EST OF JUSTICE WILL BE SERVED IF THE ISSUES RAISED IN THIS APPEAL ARE REMITTED TO THE FI LE OF AO. ACCORDINGLY THE ISSUES RAISED IN THESE APPEALS ARE REMITTED BACK TO THE FI LE OF AO. THE AOS ARE DIRECTED TO CONSIDER THE CASE AFRESH AFTER GIVING THE ASSESSES PROPER OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT ALL THE APPEALS FILED BY ASSESSES STAND ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 12.11.2014. SD/- SD/- [ GEORGE MATHAN ] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 12.11.2014. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1. BRAJESH KUMAR GUTGUTIA, C/O-G.SAWADIA & CO., 50 WES TERN STREET, KOLKATA- 700012. 2 UTTAM KUMAR GUTGUTIA, C/O-G.SAWADIA & CO., 50 WESTE RN STREET, KOLKATA- 700012. 3 . RISHI TULSIYAN, C/O-G.SAWADIA & CO., 50 WESTERN STR EET, KOLKATA-700012. 4. D.C.I.T., CIRCLE-1, KOLKATA 5. CIT(A)-I, KOLKATA 6. CIT KOLKATA 7. CIT(DR), KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, ASST. REGISTRAR , ITAT, KOLKATA BENCHES ITA.NOS.621,620&619/KOL/2012 BRAJESH KR.GUTGUTIA, UTTAM KR.GUTGUTIA & RISHI TULSIYAN A.YR.2007-08 5