KAMDHENU'S, Kolkata V. ITO, Ward - 53(4), Kolkata, Kolkata

ITA 706/KOL/2010

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0541 (ITAT-KOLKATA)
• Duration Of Justice: 5 year(s) 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 05-06-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 12-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOKE NAG
• Assessee Lawyers: VIGYANESHWAR NATH DUTTA
• Section: 144

Judgement Text

I.T.A. NO . 706 / KOL ./20 1 0 & ITA NO. 789/KOL/2010 ASSESSMENT YEAR: 200 5 - 20 0 6 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA BEFORE SHRI P.K. BANSAL , ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH , JUDICIAL MEMBER I.T.A. NO. 706 / KOL / 20 1 0 ASSESSMENT YEAR : 200 5 - 20 0 6 KAMDHENU S,.............................. ......... ... ........ . APPELLANT B - 43, BAGHAJATIN, KOLKATA - 700 092 [PAN : AA G FK 8113 K ] - VS. - I NCOME TAX OFFICER ,.. ......................... ... ....... ..... . RESPONDE NT WARD - 53(4), KOLKATA & I.T.A. NO. 789/KOL/2010 ASSESSMENT YEAR : 2005 - 2 006 INCOME TAX OFFICER,.......................................... . APPELLANT WARD - 53(4), KOLKATA - VS. - KAMDHENU S,.................................................. ... RESPONDENT B - 43, BAGHAJATIN, KOLKATA - 700 092 [PAN : AAGFK 8113 K] APPEARANCES BY: VIGYANESHWAR NATH DUTTA, ADVOCATE , FOR THE ASSESSEE SHRI ALOKE NAG , JCIT, SR. D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : JULY 0 7 , 2 01 5 DATE OF PRONOUNCING THE ORDER : JU LY 08 , 201 5 O R D E R PER P.K. BANSAL : BOTH THE CROSS APP EAL HAS ARISEN OUT OF THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - XXXIII, KOLKATA D ATED 3 1 . 1 2 .20 09 FOR THE ASSESSMENT YEAR 200 5 - 0 6. 2. AFTER HEARING THE RIVAL SUBMISSIONS AND GOING THROUGH THE ORDER OF THE TAX AUTHORITIES BELOW, WE NOTED THAT TH E ASSESSMENT ORDER HAS BEEN PASSED UNDER SECTION 144 OF THE INCOME TAX ACT. THE ASSESSEE HAS CARRIED OUT THE BUSINESS OF MANUFACTURING AND SELLING OF SWEETS. THE ASSESSING OFFICER NOTED AFTER VERIFYING THE CASH BOOK THAT THE CASH SALES AS RECORDED I.T.A. NO . 706 / KOL ./20 1 0 & ITA NO. 789/KOL/2010 ASSESSMENT YEAR: 200 5 - 20 0 6 PAGE 2 OF 3 THEREIN WAS MUCH LESS THAN THE FIGURE OF CASH SALES RECORDED IN CASH SALES REGISTERS IMPOUNDED DURING THE COURSE OF THE SURVEY OPERATION. THE ASSESSING OFFICER THEREFORE APPOINTED SPECIAL AUDITOR AFTER GETTING THE APPROVAL FROM THE CIT, BUT THE SPECIAL AUDIT COULD NOT BE CARRIED OUT DUE TO THE NON - COOPERATION OF THE ASSESSEE. THE ASSESSEE CHALLENGED BEFORE THE HON BLE HIGH COURT BY WAY OF A WRIT DIRECTION ISSUED FOR THE APPOINTMENT OF THE SPECIAL AUDITOR. THE WRIT PETITION IS STILL PENDING BEFORE THE HON BLE HIGH C OURT AND HAS NOT BEEN DISPOSED OF SO FAR. DURING THE PENDENCY OF THE WRIT PETITION, THE ASSESSING OFFICER WAS COMPELLED TO PASS AN EX - PARTE ORDER. BEFORE US ALSO, LD. A.R. STATED THAT THE WRIT PETITION IS STILL PENDING BEFORE THE HON BLE HIGH COURT. THE OU TCOME OF THE SPECIAL AUDIT WILL HAVE A BEARING ON THE DETERMINATION OF THE INCOME IN THE CASE OF THE ASSESSEE. WE, THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY TO BOTH THE PARTIES, SET ASIDE THE ASSESSMENT AND DIRECT THE ASSESSING OFFICER TO FRAME A FRESH ASSESSMENT IN ACCORDANCE WITH LAW AND TAKING INTO CONSIDERATION THE OUTCOME OF THE WRIT PETITION FILED BY THE ASSESSEE UNDER SECTION 142(2A) OF THE INCOME TAX ACT, 1961. ACCORDINGLY, THE ORDER OF THE CIT(APPEALS) IS SET ASIDE. 3 . IN THE RESULT, BOT H THE APPEAL S FILED BY THE ASSESSEE AND REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JU LY 08 , 201 5 . SD/ - SD/ - MAHAVIR SINGH P.K. BANSAL ( JUDICIAL MEMBER) ( ACCOUNTANT M EMBER) KOLKATA, THE 8 TH D AY OF JU LY , 201 5 COPIES TO : (1) KAMDHENU S, B - 43, BAGHAJATIN, KOLKATA - 700 092 (2) INCOME TAX OFFICER, WARD - 53(4), KOLKATA I.T.A. NO . 706 / KOL ./20 1 0 & ITA NO. 789/KOL/2010 ASSESSMENT YEAR: 200 5 - 20 0 6 PAGE 3 OF 3 (3) COMMISSIONER OF INCOME - TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA B ENCHES, KOLKATA LAHA/SR. P.S .