Shri Tapan Debnath, Kolkata V. ITO, WD-26(2), KOLKATA, Kolkata

ITA 742/KOL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4056 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 19-04-2016
• Court: TRIBUNAL
• Department Lawyers: G MALLIKARJUNA
• Assessee Lawyers: PRONABES SARKAR
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3); 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI A.T.VARKEY, JM & DR. A.L.SAINI, AM ./ ITA NO.742/KOL/2016 ( / ASSESSMENT YEAR:2012-2013) SHRI TAPAN DEBNATH, A.P. NAGAR, SONARPUR, SOUTH 24-PGS., KOLKATA-700150 VS. ITO, WARD-26(2), 2, GARIAHAT ROAD (SOUTH), KOLKATA-700068 ./ ./PAN/GIR NO. : AODPD 6838 E ( /APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : SHRI PRONABES SARKAR, ADVOCATE REVENUE BY : SHRI G.MALLIKARJUNA, CIT / DATE OF HEARING : 26/12/2016 /DATE OF PRONOUNCEMENT 28/12/2016 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAIN ING TO ASSESSMENT YEAR 2012-2013, IS DIRECTED AGAINST THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-7, KOLKATA , IN APPEAL NO.708/CIT(A)-7/WD-26(2)/14-15, DATED 19.01.2016, W HICH IN TURN ARISES OUT OF ASSESSMENT ORDER PASSED U/S.143(3) OF THE IN COME TAX ACT, 1961 (IN SHORT THE ACT) DATED 29.01.2015. 2. BRIEF FACTS OF THE CASE QUA THE ASSESSEE ARE THA T THE ASSESSEE FILED RETURN OF INCOME ON 13.11.2012, DECLARING A TOTAL I NCOME OF RS.2,30,510/-. THE RETURN WAS PROCESSED U/S 143(1) OF THE I.T. ACT , 1961. LATER ON, THE CASE WAS SELECTED FOR SCRUTINY U/S 143(3) OF THE AC T AND THE AO HAS COMPLETED THE ASSESSMENT BY MAKING THE ADDITION OF RS.33,81,598/- ON ACCOUNT OF SUPPRESSION OF SALES. ITA NO.742/16 SHRI TAPAN DEBNATH 2 3. AGGRIEVED FROM THE ORDER OF AO, THE ASSESSEE FIL ED AN APPEAL BEFORE THE LD. CIT(A), WHO HAS CONFIRMED THE ADDITI ON MADE BY THE AO OBSERVING THE FOLLOWINGS :- THE CASE WAS FIXED BY ME ON 17.09.2015 AND IT IS O N RECORD THAT THE APPELLANT HAS RECEIVED THE SAID NOTICE ON 18/09 /2015. ON 15/10/2015 THE APPELLANT HAS FILED A LETTER ASKING FOR ADJOURNMENT DUE TO DURGAPUJA. THEREFORE, THE CASE WAS FIXED FOR HEARING ON 27/11/2015 BUT NONE ATTENDED. ON 26/11/2015 SAME LE TTER AS IS ON 15/10/2015 HAS BEEN FILED BY THE APPELLANT AS 'PLEA SE ADJOURN THE DATE OF HEARING AND RE-FIX THE SAME ON ANY OF YOUR CONVENIENT DATE'. THE CASE WAS AGAIN FINALLY FIXED ON 05.01.2016 BUT NONE ATTENDED. UNDER THE CIRCUMSTANCES, IT APPEARS THAT THE APPELL ANT DOES NOT WANT TO PURSUE THIS APPEAL. THEREFORE, I HAVE NO OP TION BUT TO DECIDE THE APPEAL ON MERITS ON THE BASIS OF MATERIA L AVAILABLE ON RECORD. ALL THE GROUNDS OF APPEAL ARE RELATED TO THE ADDITI ONS MADE BY THE AO AMOUNTING TO RS.33,81,598/- REPRESENTING THE DIF FERENCE IN PURCHASES BETWEEN THE APPELLANT AND THE SUPPLIER. T HE APPELLANT DISCLOSED PURCHASES OF RS.1,24,32,210/ - FROM KHADI M AND WHEREAS KHADIM HAS INFORMED THE AO THAT THE SALES WAS OF RS .90,50,612/-. THERE WAS A DIFFERENCE OF RS.33,81,598/-. THE AO RE QUESTED THE APPELLANT TO RECONCILE THE DIFFERENCE. THE APPELLAN T FAILED TO RECONCILE OF THE DIFFERENCES BEFORE THE AO AND THE AO HAS MADE THE ADDITION. IN THE GROUNDS OF APPEAL THE APPELLAN T STATED THAT THE AO HAS MADE THE ADDITION WITHOUT CONSIDERING THE VA T. THE CASE WAS POSTED FOR SEVERAL TIMES. THE APPELLANT DID NOT RESPOND TO THE NOTICES ISSUED BY THIS OFFICE. IT IS THE OBLIGATION ON THE PART OF THE APPELLANT TO RECONCILE THE DIFFERENCE OF RS.33,81,5 98/- AND ALSO TO EXPLAIN THE SOURCE FOR THE DIFFERENCE AMOUNT. THE A PPELLANT ALSO REQUIRED TO EXPLAIN AND SHOW THE EVIDENCE REGARDING VAT PAYMENTS AND SOURCE BUT IN THIS CASE THOUGH SEVERAL OPPORTUN ITIES WERE GIVEN TO THE APPELLANT, THE APPELLANT HAS FAILED TO FURNI SH ANY EVIDENCE FOR THE SOURCE. THEREFORE, I HOLD THAT THE AO HAS RIGHT LY MADE THE ADDITION AND THE SAME IS CONFIRMED. 4. NOT BEING SATISFIED WITH THE ORDER OF LD. CIT(A) , THE ASSESSEE IS IN FURTHER APPEAL BEFORE US AND HAS TAKEN THE FOLLOWIN G GROUNDS OF APPEAL :- 1. FOR THAT ON THE FACTS OF THE CASE, THE ORDER PAS SED BY THE LD. C.I.T.(A) IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 2. FOR THAT ON THE FACTS OF THE CASE, THE ORDER PAS SED BY THE LD. C.I.T.(A) WITHOUT GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE WHICH IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. ITA NO.742/16 SHRI TAPAN DEBNATH 3 3. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I.T .(A) WAS WRONG IN NOT CONSIDERING THE MERIT OF THE CASE, THEREFORE, T HE ORDER PASSED BY THE LD. C.I.T.(A) IS COMPLETELY ARBITRARY, UNJUSTIF IED AND ILLEGAL. 4. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I.T .(A) WAS WRONG IN DELETING THE ORDER OF THE A.O. AND CONFIRMING THE A DDITION AMOUNTING TO RS.33,81,598/ - AS OVERSTATEMENT OF PURCHASE WHI CH IS COMPLETELY ARBITRARY, UNJUSTIFIED AND ILLEGAL. 5. FOR THAT ON THE FACTS OF THE CASE, THE LD. C.I.T .(A) WAS WRONG IN NOT CONSIDERING THE FACT THAT THE A. O. HAS ADDED T HE DIFFERENCE OF PURCHASE WITHOUT CONSIDERING THE VAT RETURN AS WELL AS THE VAT AUDIT REPORT UNDER THE W.B. VAT ACT, WHICH WAS CONF IRMED BY THE CIT(A), THUS HIS ACTION IS COMPLETELY ARBITRARY, UN JUSTIFIED AND ILLEGAL. 6. FOR THAT THE INTEREST U/S. 234A & 234B CHARGED M ECHANICALLY IS WRONG & ILLEGAL. 7. FOR THAT THE APPELLANT RESERVES THE RIGHT TO ADD UCE ANY FURTHER GROUND OR GROUNDS, IF NECESSARY, AT OR BEFORE THE H EARING OF THE APPEAL. 5. ALTHOUGH IN THIS APPEAL, THE ASSESSEE HAS RAISED MU LTIPLE GROUNDS OF APPEAL, BUT AT THE TIME OF HEARING THE M AIN GRIEVANCE OF THE ASSESSEE HAS BEEN CONFINED TO GROUND NO.2 ONLY AND OTHER GROUNDS WERE NOT PRESSED. THE SOLITARY GRIEVANCE O F THE ASSESSEE IS THAT THE LD. CIT(A) HAD PASSED THE ORDER WITHOUT GI VING REASONABLE OPPORTUNITY OF HEARING TO HIM. 5.1 THE LD. AR FOR THE ASSESSEE HAS VEHEMENTLY SUBM ITTED THAT LD. CIT(A) HAS PASSED THE ORDER WITHOUT GIVING REASONABLE OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE WHICH IS COMPLETELY ARBITRARY , UNJUSTIFIED AND ILLEGAL. AS PER THE ORDER OF THE LD. CIT(A), THE CASE WAS FI XED FOR HEARING ON 17-9- 2015 AND IT WAS ON THE RECORD THAT THE ASSESSEE HAS RECEIVED THE SAID NOTICE ON 18-9-2015. ON 15 TH OCTOBER, 2015 THE ASSESSEE HAS FILED A LETTER ASKING FOR ADJOURNMENT DUE TO DURGAPUJA. THE REFORE, THE CASE WAS ITA NO.742/16 SHRI TAPAN DEBNATH 4 FIXED FOR HEARING ON 27-11-2015 BUT NONE ATTENDED F ROM ASSESSEES SIDE. ON 26-11-2015 THE ASSESSEE HAS FILED THE SAME LETTE R AS IS ON 15-10- 2015, HAD BEEN FILED BY THE ASSESSEE STATING AS PL EASE ADJOURN THE DATE OF HEARING AND RE-FIX THE SAME ON ANY OF YOUR CONVE NIENT DATE. IT APPEARS TO US THAT THE ASSESSEE HAD ATTENDED THE OFFICE OF LD. CIT(A) AND REQUESTED FOR ADJOURNMENT. THE LD. CIT(A) PASSE D THE ORDER EX-PARTE WITHOUT PRESENCE OF THE ASSESSEE, WHICH IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. THE LD. CIT(A) OUGHT TO HAVE GIVEN FURTHER OPPORTUNITY TO THE ASSESSEE. THEREFORE, THE ASSESSEE HAS REQUESTED BEF ORE US TO REMIT THE CASE BACK TO LD. CIT(A) TO ADJUDICATE THE ISSUE AFR ESH. 6. ON THE OTHER HAND, LD. DR HAS PRIMARILY REITERAT ED THE STAND TAKEN BY THE LD. CIT(A), WHICH WE HAVE ALREADY NOTED IN O UR ABOVE PARA, AND IS NOT BEING REPEATED FOR THE SAKE BREVITY. 7. HAVING HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD, WE ARE OF THE VIEW THAT THERE IS MERIT I N THE SUBMISSIONS OF THE LD. AR FOR THE ASSESSEE, AS THE PROPOSITION CANVASS ED BY LD. AR FOR THE ASSESSEE ARE SUPPORTED BY THE FACTS NARRATED BY HIM ABOVE. AS LD. AR HAS POINTED OUT THAT THE ASSESSEE HAD ATTENDED THE HEARING FIXED ON 17-9- 2015. THE ASSESSEE FILED ADJOURNMENT APPLICATION ON 15-10-2015. THE ASSESSEE ALSO FILED ADJOURNMENT PETITION BEFORE THE LD. CIT(A) ON 26-11- 2015 TO REFIX THE DATE OF HEARING. THEREFORE, CONSI DERING THE FACTUAL POSITION, WE ARE OF THE VIEW THAT THIS ISSUE REQUIR ES FRESH ADJUDICATION ON THE PART OF LD. CIT(A). HENCE, WE ARE OF THE VIEW T O REMIT THE CASE BACK TO THE FILE OF LD. CIT(A) TO READJUDICATE THE ISSUE AF TER GIVING PROPER ITA NO.742/16 SHRI TAPAN DEBNATH 5 OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDI NGLY, WE REMIT THE CASE BACK TO THE FILE OF LD. CIT(A). 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28/12 /2016. S D/ - (A.T.VARKEY) SD/ - (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; ! DATED 28/12/2016 ' $%& /PRAKASH MISHRA , 0 . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) % & , / ITAT, 1. / THE APPELLANT- SHRI TAPAN DEBNATH 2. / THE RESPONDENT.- ITO WARD-26(2), KOLKATA 3. 1 ( ) / THE CIT(A), 4. 1 / CIT 5. 23 4 0056 , 56 , / DR, ITAT, KOLKATA 6. 4 78 / GUARD FILE. 2 0 //TRUE COPY//