Swapan Kumar Saha, Kolkata V. I.T.O Wd - 31(1),kolkata, Kolkata

ITA 676/KOL/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3100 (ITAT-KOLKATA)
• Duration Of Justice: 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-04-2013
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 28-03-2013
• Court: TRIBUNAL
• Assessee Lawyers: DILIP KUMAR RAKSHIT
• Keywords: Opportunity of being heard

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [ () . .. . . .. . , ,, , , !' #! $'# #! $'# #! $'# #! $'#, ,, , ] ]] ] [BEFORE HONBLE SRI K.K.GUPTA, AM & HONBLE SRI MAHAVIR SINGH, JM] '& '& '& '& /ITA NO.676/KOL/2013 $'( !)*/ ASSESSMENT YEAR : 2006-07 (,- / APPELLANT ) - !' - ( /0,- /RESPONDENT) SWAPAN KUMAR SAHA I.T.O., WARD-31(1), KOLKATA . -VERSUS- KOLKATA (PAN:ALSPS 9693 J) 1 !' /S.P..NO.23/KOL/2013 '& '& '& '& /A/O ITA NO.676/KOL/2013 $'( !)*/ ASSESSMENT YEAR : 2006-07 (,- / APPELLANT ) - !' - ( /0,- /RESPONDENT) SWAPAN KUMAR SAHA I.T.O., WARD-31(1), KOLKATA. -VERSUS- KOLKATA (PAN : ALSPS 9693 J) ,- 2 3 / FOR THE DEPARTMENT SHRI SOMNATH GHOSH /0,- 2 3 / FOR THE ASSESSEE SHRI DILIP KUMAR RAKSHIT, SR.DR '!4 2 5 /DATE OF HEARING : 18.04.2013 6) 2 5 /DATE OF PRONOUNCEMENT : 18.04.2013. 7 / ORDER PER SHRI K.K.GUPTA, AM THIS APPEAL HAS BEEN PUT UP FOR HEARING BEFORE US A LONG WITH THE STAY PETITION ON THE GROUNDS RAISED BY THE ASSESSEE INDICATING TH E CONFIRMATION OF DISALLOWANCES HAVING NOT BEEN CONSIDERED AS AGITATED BEFORE THE L D. CIT(A), IN SO FAR AS, AN EXPARTE ORDER HAS BEEN PASSED WITHOUT INDICATING THE MERITS AND THE CONFIRMATION OF ADDITION OR DISALLOWANCE BY THE AO. A PRAYER HAS BEEN MADE T HAT THE ISSUE MAY BE RESTORED TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATION AFTER G IVING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE APPELLANT, IN SO FAR AS , THIS STAY PETITION MAY BE CONSIDERED AS INFRUCTUOUS INSTEAD OF GRANTING EARLY HEARING OF THE APPEAL. ITA NO.676/KOL/2013& S.P.23/KOL/2013 2 2. THE LD. DR HAD NO OBJECTION TO THE PRAYER OF RES TORATION FOR CONSIDERATION AFRESH IN SO FAR AS THE LD. CIT(A) IN HIS EXPARTE O RDER HAD TO DELIBERATE UPON THE MERITS ADDITION BROUGHT ON RECORD BY THE AO FOR DISMISSING THE ASSESSEES APPEAL. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND FIND THA T THE GROUNDS RAISED BY THE ASSESSEE APPELLANT READ AS UNDER :- 1. FOR THAT THE LD. COMMISSIONER OF INCOME TAX (AP PEALS) XIX, KOLKATA ACTED IN DEFIANCE OF LAW AS ENVISAGED IN THE PROVISIONS OF S .250(6) OF THE INCOME TAX ACT, 1961 IN DISMISSING THE APPEAL PREFERRED BY THE APPELLANT WITHOUT ADJUDICATING UPON THE GROUNDS URGED BEFORE HIM IN INFRINGEMENT OF THE STA TUTORY PRESCRIPTION AS MANDATORILY ENSHRINED IN LAW AND HIS PURPORTED ACTION ON THAT B EHALF IS ABSOLUTELY ULTRA VIRES, EX- FACIE VOID AND PERVERSE. 2. FOR THAT UNDER THE CIRCUMSTANCES OF THE CASE, TH E LD. COMMISSIONER OF INCOME TAX (APPEALS) XIX, KOLKATA ACTED UNLAWFULLY IN UPHOLDIN G THE IMPUGNED DISALLOWANCE RESORTED TO BY THE LD. INCOME TAX OFFICER, WARD-31 (3), KOLKATA BY INVOKING THE PROVISION OF S.40A(3) OF THE INCOME TAX ACT, 1961 I N THE SUM OF RS,45,95,442/- INCURRED FOR MAKING SALARY PAYMENT ON EXTRANEOUS CONSIDERATI ONS NOT GERMANE TO THE ISSUE AND HIS PURPORTED FINDING ON THAT BEHALF IS ALTOGETHER CAPRICIOUS, UNWARRANTED AND ERRONEOUS. 3. FOR THAT THE LD. COMMISSIONER OF INCOME TAX (APP EALS) XIX, KOLKATA FAILED TO APPRECIATE THAT NONE OF THE CONDITIONS PRECEDENT FO R THE ASSUMPTION OF JURISDICTION U/S40(A)(IA) OF THE INCOME TAX ACT, 1961 EXISTED AN D/OR FULFILLED IN THE INSTANT CASE BY THE LD. INCOME TAX OFFICER, ARD-31(1),KOLKATA AND T HE IMPUGNED ADDITION OF RS.44,95,552/- UPHELD WITHOUT PROVING ANY VIOLATION ON THAT BEHALF IS AB INITIO VOID, ULTRA VIRES AND EX-FACIE NULL IN LAW. 4. 1. FOR THAT THE LD. COMMISSIONER OF INCOME TAX ( APPEALS) XIX, KOLKATA WAS REMISS IN SUSTAINING THE IMPUGNED ADDITION OF RS.44,95,552/- MADE BY THE L.D INCOME TAX OFFICER, WARD-31(1), KOLKATA INVOKING THE PROVISIONS OF S.40 (A)(IA) REWAD WITH S.194C(1) OF THE INCOME TAX ACT, 1961 WITHOUT TAKING INTO CONSIDERAT ION THE INAPPLICABILITY THEREOF IN THE ASSESSMENT YEAR IN DISPUTE AND THE SPECIOUS ACTION ON THAT BEHALF IS COMPLETELY UNFOUNDED, UNJUSTIFIED AND UNTENABLE IN LAW. 4. THIS REQUIRES CONSIDERATION AFRESH BY THE LD. CI T(A),. IN THIS VIEW OF THE MATTER, WE CONSIDER THE APPEAL FILED BY THE ASSESSEE AS ALL OWED FOR STATISTICAL PURPOSES. NEEDLESS TO SAY THE ASSESSEE BE AFFORDED A REASONAB LE OPPORTUNITY OF BEING HEARD. THE STAY PETITION IN CONSEQUENCE THERETO BECOMES INFRUC TUOUS IS DISMISSED. 5. `IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES AND THE STAY PETITION FILED BY THE ASSESSEE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 18.04.2013. SD/- SD/- [ .#! $'# , ] [ .., ,, , ] [MAHAVIR SINGH ] [K.K.GUPTA] JUDICIAL MEMBER ACCOUNTANT MEMBER ( (( (5 5 5 5) )) ) DATE: 18.04.2013. ITA NO.676/KOL/2013& S.P.23/KOL/2013 3 R.G.(.P.S.) 7 2 /$$8 98):- COPY OF THE ORDER FORWARDED TO: 1. SWAPAN KUMAR SAHA, 94, LENIN SARANI, KOLKATA-700013 . 2 I.T.O., WARD-31(1), KOLKATA. 3 . CIT KOLKATA 4 . CIT(A)-XXXVI, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 08 /$/ TRUE COPY, 7'/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES