Abdul Salam, Kolkata V. The ITO, WD-33(2), KOLKATA, Kolkata

ITA 737/KOL/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3379 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 1998-1999
• Appeal Filed On: 26-05-2015
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN
• Assessee Lawyers: VARSHA JALAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH: KOLKATA [BEFORE SHRI MAHAVIR SINGH, JM] I.T.A NOS.737 & 738/KOL/2015 ASSESSMENT YEARS: 1998-99 & 2002-03 ABDUL SALAM VS. INCOME-TAX OFFICER, WD-33(2), KOLKATA (PAN: ALPPS5761G) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 28.12.2015 DATE OF PRONOUNCEMENT: 20.01.2016 FOR THE APPELLANT: MISS VARSHA JALAN, ADVOCATE FOR THE RESPONDENT: MD. GHAYAS UDDIN, JCIT, SR. DR ORDER BOTH THESE APPEALS BY ASSESSEE ARE ARISING OUT OF S EPARATE ORDERS OF CIT(A)-9, KOLKATA VIDE APPEAL NO. 143 & 142/CIT(A)-9/WD-33(2) /2014-15/KOL BOTH DATED 02.01.2015. ASSESSMENTS WERE FRAMED BY ITO, WARD-3 3(2), KOLKATA U/S. 150(1)/147/143(3) AND 254/143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEARS 1998-99 & 2002-0 3 VIDE HIS SEPARATE ORDERS BOTH DATED 27.12.2007. 2. BOTH THESE APPEALS ARE DELAYED BY 30 DAYS EACH A ND ASSESSEE HAS FILED CONDONATION PETITION SUPPORTED BY AFFIDAVIT STATING THE REASONS THEREIN THAT ASSESSEE WAS ILL FROM 25.02.2015 TO 10.05.2015. THE APPELLATE O RDERS WERE RECEIVED ON 25.02.2015 AND APPEALS WERE DUE TO BE FILED WITHIN 24.04.2015. DUE TO ILLNESS, THE APPEAL PAPERS WERE HANDED OVER TO THE ADVOCATE OF THE ASSESSEE ON 15.05.2015, WHO PREPARED THE APPEAL ON 26.05.2015 THEREBY DELAY OF 30 DAYS. LD. COUNSEL FOR THE ASSESSEE NOW BEFORE US FILED COMPLETE MEDICAL PAPERS WHEREIN HE HAS SHOWN THAT ASSESSEE WAS ILL. WHEN THESE WERE CONFRONTED TO LD. SR. DR, HE FAIRLY CONCEDED THAT THE DELAY CAN BE CONDONED AND ACCORDINGLY, THE DELAY IS CONDONED AND BOTH THE APPEALS ARE ADMITTED. 3. FIRST WE TAKE UP ITA NO. 737/KOL/2015. AT THE O UTSET, LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO GROUND NOS. 1 AND 2, WHICH READ AS UNDER: 1. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.2,80,000 /- MADE BY THE AO ON ACCOUNT OF ALLEGED UNDISCLOSED INVESTMENT IN FDRS. 2 ITA NOS.737 & 738/K/2015 ABDUL SALAM AY 1998-99 & 2002-03 2. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION ON ACCOUNT OF ALLEGED INTEREST ACCRUED OF RS.3,531/- ON THE SAID ALLEGED UNDISCLOSED INVESTMENT. 4. LD. COUNSEL FOR THE ASSESSEE STATED THAT THE CIT (A) HAS NOT ADJUDICATED THE ISSUE ON MERITS AND MERELY THAT THE CIT(A)-XX IN APPEAL N O. CIT(A)-33/CIT(A)-XX/2005- 06/WD.33(2) DATED 06.07.2006 FOR AY 2002-03 HAS DIR ECTED THE AO TO REOPEN THE ASSESSMENT U/S. 151 OF THE ACT FOR AY 1998-99 I.E. THE RELEVANT ASSESSMENT YEAR AND SIMPLY ON THAT BASIS HE HAS DISMISSED THE ASSESSEE S APPEAL. ACCORDING TO LD. COUNSEL, THE CIT(A) SHOULD HAVE ADJUDICATED THE ISSUES ON ME RITS. 5. I HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. I FIND THAT THE CIT(A) HAS NOT ADJUDICATED T HE ISSUE ON MERITS THE FACT THAT THESE AMOUNTS ARE REINVESTMENT OUT OF FIXED DEPOSITS, HE SHOULD HAVE EXAMINED THE DETAILS AND THEN DECIDE THE ISSUE. IN TERM OF THE ABOVE, I SET ASIDE THE ISSUE BACK TO THE FILE OF AO TO RE-DECIDE THE SAME AFTER ALLOWING REASONABLE OPPORT UNITY OF BEING HEARD TO THE ASSESSEE AND OF COURSE BY A SPEAKING ORDER. THIS APPEAL OF A SSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. NOW, ITA NO. 738/KOL/2015. THE FIRST ISSUE IN T HIS APPEAL OF ASSESSEE IS AGAINST THE ORDER OF CIT(A) CONFIRMING THE ACTION OF AO IN MAKING ADDITION OF RS.1,20,000/- BEING THE AMOUNT OF ADVANCE GIVEN IN EARLIER YEARS AND RECEIVED BACK IN THIS YEAR. FOR THIS, ASSESSEE HAS RAISED FOLLOWING GROUND NO.1: 1. FOR THAT THE LD. CIT(A)-9, KOL HAS ERRED IN LA W AS WELL AS ON FACTS OF THE CASE IN CONFIRMING THE ADDITION OF RS.1,20,000/- BEING THE AMOUNT OF ADVANCE GIVEN IN EARLIER YEAR AND RECEIVED BACK IN THE IMPUGNED ASSESSMENT Y EAR ON THE GROUNDS WHICH ARE NOT CORRECT. 7. I HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. I FIND THAT THE AO HAS NOTED THAT THESE AMOU NTS WERE RECEIVED FROM EARLIER YEARS AND HE RECORDED THIS FACT IN ASSESSMENT ORDER PARA 2.1, WHICH READS AS UNDER: 2.1. ASSESSEE CLAIMS TO HAVE RECEIVED BACK REFUND OF RS.120000/-, RESTORED THE MATTER TO THE FILE OF THE AO FOR DECIDING AFRESH AFTER GIVING ADEQUATE OPPORTUNITY TO THE ASSESSEE. FROM DATE AMOUNT PAYER BANK ALAUDDIN AHMED SK. HABIBUR RAHAMAN SK. HABIBUR RAHAMAN 18.03.2002 17.08.2001 13.06.2001 RS.30000/- RS.40000/- RS.50000/- PNB KHIDDERPORE SBI DOCK YARD KHIDDERPORE BR. NOT SUPPLIED 3 ITA NOS.737 & 738/K/2015 ABDUL SALAM AY 1998-99 & 2002-03 ADMITTEDLY, THESE ARE THE AMOUNTS RECEIVED BACK FRO M THE DEBTORS GIVEN IN IMMEDIATELY EARLIER FY 2000-01. I FIND THAT THESE ARE THE AMOU NTS RECEIVED BY ASSESSEE OUT OF EARLIER YEARS ADVANCES AND THIS IS ADMITTED POSITION THAT THE EARLIER YEARS ADVANCES ARE IN FY 2000-01 RELEVANT TO AY 2001-02. IN ANY CASE, THIS AMOUNT CANNOT BE ADDED IN THE AY 2002-03 BECAUSE THESE ARE ADMITTEDLY ADVANCES OF EA RLIER YEARS. IN TERM OF THE ABOVE, THIS ISSUE OF ASSESSEES APPEAL IS ALLOWED. 8. THE NEXT TWO INTER-CONNECTED ISSUES ARE INTEREST ON TWO FIXED DEPOSITS AND INTEREST ON MINOR SONS FD ADDED BY THE AO AND CONFIRMED BY CIT(A). FOR THIS, ASSESSEE HAS RAISED THE FOLLOWING GROUND NOS. 2 AND 3: 2. FOR THAT THE LD. CIT(A)-9/KOL HAS ERRED IN LAW AS WELL AS ON FACTS OF THE CASE IN CONFIRMING THE SUM OF RS.56,403.00 ON ACCOUNT OF IN TEREST ON TWO FIXED DEPOSIT STANDING IN THE NAME OF APPELLANTS WIFE AS FIRST NAME HOLDE R AND APPELLANT AS SECOND NAME HOLDER IN THE HANDS OF THE APPELLANT ON THE GROUNDS WHICH ARE NOT CORRECT. 3. FOR THAT THE LD. CIT(A)-9/KOL HAS ERRED IN LAW AS WELL AS ON FACTS OF THE IN CONFIRMING THE SUM OF RS.13,608.00 AS INCOME OF THE APPELLANT INSTEAD OF MINOR SONS INCOME BEING THE AMOUNT OF INTEREST ACCRUED ON FD I N THE NAME OF APPELLANT TAKEN OUT OUT OF THE MINOR SONS FUND ON THE GROUNDS WHICH AR E NOT CORRECT. 9. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE FAIR LY CONCEDED THAT THE RELEVANT DETAILS COULD NOT BE FILED BEFORE THE AO AS THESE W ERE NOT AVAILABLE AT THAT POINT OF TIME. SHE NOW UNDERTAKES TO FILE THOSE DETAILS IF ONE MOR E OPPORTUNITY IS GIVEN TO THE ASSESSEE. IN TERM OF THE ABOVE, THESE TWO INTERCONNECTED ISSU ES ARE SET ASIDE TO THE FILE OF THE AO TO ADJUDICATE AFRESH AFTER ALLOWING REASONABLE OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE. THESE ISSUES OF ASSESSEES APPEAL ARE ALLOWED FOR S TATISTICAL PURPOSES. 10. IN THE RESULT, ITA NO. 737/K/2015 FILED BY ASSE SSEE IS ALLOWED FOR STATISTICAL PURPOSES AND THAT OF ITA NO. 738/K/2015 IS PARTLY A LLOWED FOR STATISTICAL PURPOSES. 11. ORDER IS PRONOUNCED IN THE OPEN COURT ON 20.01. 2016 SD/- (MAHAVIR SINGH) JUDICIAL MEMBER DATED : 20TH JANUARY, 2016 JD.(SR.P.S.) 4 ITA NOS.737 & 738/K/2015 ABDUL SALAM AY 1998-99 & 2002-03 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SHRI ABDUL SALAM, 11A, BORNFIELD RO W, KOLKATA- 700027 2 RESPONDENT ITO, WARD-33(2), KOLKATA. 3. THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .