Vikramaditya Singh, Siliguri V. I.T.O Wd - 2(2),kolkata, Siliguri

ITA 748/KOL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83102 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-09-2014
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 08-04-2013
• Court: TRIBUNAL
• Department Lawyers: DAVID Z CHAWNGTHU ADD L
• Assessee Lawyers: N O N E
• Keywords: Gift; Opportunity of being heard; Reason to believe
• Section: 148

Judgement Text

, SMC(C) , IN THE INCOME TAX APPELLATE TRIBUNAL SMC(C) BENCH : KOLKATA () BEFORE , ) [BEFORE SHRI MAHAVIR SINGH, JM] / I.T.A NOS.747 & 748/KOL/2013 !'/ ASSESSMENT YEARS: 2003-04 & 2004-05 VIKRAMADITYA SINGH VS. INCOME-TAX OFFICER, WD-2 (2), SILIGURI (PAN: AJSPS6048C) ($% /APPELLANT ) (&'$%/ RESPONDENT ) DATE OF HEARING: 19.08.2014 DATE OF PRONOUNCEMENT: 02.09.2014 FOR THE APPELLANT: N O N E FOR THE RESPONDENT: SHRI DAVID Z. CHAWNGTHU, ADD L. CIT, SR. DR () / ORDER BOTH THESE APPEALS BY ASSESSEE ARE ARISING OUT OF S EPARATE ORDERS OF CIT(A), SILIGURI IN APPEAL NO. 17-18/CIT(A)/SLG/11-12 DATED 21.01.2013. ASSESSMENTS WERE FRAMED BY ITO, WARD-2(2), SILIGURI U/S. 147/143(3) OF THE INCOME-T AX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEARS 2003-04 & 2004-05 VIDE H IS SEPARATE ORDERS DATED 07.12.2007 AND 28.09.2006. 2. AT THE OUTSET, IT IS SEEN THAT THE ASSESSEE HAS RAISED A VITAL ISSUE BEFORE US THAT REASONS RECORDED WAS NOT SUPPLIED BY THE AO AND FOR THIS, T HE ASSESSEE HAS RAISED FOLLOWING GROUND NO. 2 IN AY 2003-04: 2. FOR THAT IN THE CIRCUMSTANCES AND ON THE FACTS OF THE CASE, THE LD. CIT(A) HAS FURTHER ERRED IN HOLDING THE REOPENING OF THE ASSESSMENT VA LID INSPITE OF THE FACT THAT EXACT COPY OF THE REASONS FOR THE REOPENING OF THE CASE, WAS N OT GIVEN TO THE APPELLANT INSPITE OF HIS DEMAND SPECIFICALLY MADE BEFORE THE LD. A.O., WHO I NSTEAD OF SUPPLYING THE EXACT COPY OF THE REASONS PASSED THE ASSESSMENT ORDER EX PARTE DE PRIVING THE APPELLANT OF BEING HEARD BY THE LD. A.O. 3. I HAVE HEARD LD. SR. DR AND HAVE GONE THROUGH TH E ORDER OF CIT(A) AND AT PAGE 7 OF HIS ORDER THE REASONS RECORDED BY THE AO FOR ISSUANCE O F NOTICE U/S. 148 OF THE ACT ARE NARRATED. THE CIT(A) ALSO NOTED THAT THE AO HAS PROVIDED REAS ONS RECORDED AS UNDER: THE LD. AO HAD PROVIDED REASONS RECORDED FOR REOPE NING OF THE ASSESSMENT VIDE LETTER NO. ITO/W-2(2)/SLG/07-08/294 DATED 05.11.2007 WHICH WAS ACKNOWLEDGED TO HAVE BEEN RECEIVED ON 05.11.2007. THE RELEVANT PORTION OF LE TTER NO. ITO/W-2(2)/SLG/07-08/294 DATED 05.11.2007 ADDRESSED TO THE ASSESSEE IS REPRO DUCED HEREUNDER: WITH REFERENCE TO YOUR LETTER DATED 05.10.2007 R ECEIVED BY THIS OFFICE ON 05.10.2007, IT IS TO INFORM YOU THAT DURING THE COU RSE OF SCRUTINY ASSESSMENT OF YOUR CASE FOR THE A. Y 2004-05 YOU HAVE CLAIMED TO HAVE RECEIVED GIFT FROM RAJU SINGH AMOUNTING TO RS.70,000/- BUT YOU HA VE FAILED TO PROVE THE GENUINENESS OF TRANSACTION. IN A RESULT, SAID GIFT WAS TREATED AS BOGUS AND ADDED BACK WITH YOUR RETURNED TOTAL INCOME FOR THE A.YEAR 2004-05. IN THE 2 ITA NOS.747&748/K/2013 VIKRAMADITYA SINGH AYS. 2003-04 & 04-05 RETURNED OF INCOME FOR THE A. YEAR 2003-04 ALSO, YO U HAVE SHOWN GIFT RECEIVED FROM SHRI RAJU SINGH OF RS.80,000/-. IN T HE LIGHT OF FINDINGS DURING THE SCRUTINY ASSESSMENT FOR THE A. YEAR 2004-05, GI FT SHOWN BY YOU FOR THE A. YEAR 2003-04 APPEARS NOT GENUINE. THEREFORE THERE IS REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMEN T FOR THE A. YEAR 2003- 04 WITHIN THE MEANING OF SECTION 147. HENCE NOTICE U/S. 148 OF THE I. T. ACT, 1961 WAS ISSUED. 4. I FIND THAT THE AO HAS PROVIDED REASONS BY SUBST ITUTING OTHER REASONS IN THE LETTER AND NOT THE ORIGINAL REASONS. THIS IS VERY MUCH EVIDEN T FROM THE ABOVE REPRODUCTION FROM THE ORDER OF CIT(A). HONBLE SUPREME COURT IN THE CASE OF GK N DRIVE SHAFT INDIA LTD. VS. ITO (2003) 259 ITR 19 (SC) HAS LAID DOWN THE PROPER COURSE O F ACTION TO BE ADOPTED BY THE ASSESSEE TO WHOM REASSESSMENT NOTICE IS ISSUED AND SERVED AND P ROPER COURSE OF ACTION FOR THE AO ALSO. HONBLE SUPREME COURT HAS LAID DOWN THAT WHEN A NOT ICE U/S. 148 OF THE ACT IS ISSUED, THE PROPER COURSE OF ACTION FOR THE ASSESSEE IS TO FILE A RETURN OF INCOME AND IF HE SO DESIRES, TO SEEK REASONS FOR ISSUING THE NOTICE U/S. 148 OF THE ACT. THE AO IS BOUND TO FURNISH REASONS WITHIN A REASONABLE TIME. ON RECEIPT OF REASONS, THE ASSESS EE IS ENTITLED TO FILE OBJECTION TO ISSUANCE OF NOTICE AND THE AO IS BOUND TO DISPOSE OF THE SAME B Y PASSING A SPEAKING ORDER. HERE, IN THE PRESENT CASE BEFORE US, THE EXACT REASONS WERE NOT SUPPLIED RATHER THE AO SUPPLIED THE AMENDED REASONS WHICH IS BEYOND THE JURISDICTION OF THE AO. IN TERM OF THE ABOVE, I NOW DIRECT THE AO TO SUPPLY COPY OF EXACT REASONS AND IF ASSESSEE FEE LS SO, HE CAN RAISE OBJECTIONS AS MANDATED BY HONBLE SUPREME COURT IN THE CASE OF GKN DRIVE SHAF T INDIA LTD. SUPRA. IN TERM OF THE ABOVE, I SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND REMIT THE MATTER BACK TO THE FILE OF AO FOR FRESH ADJUDICATION OF ALL THE ISSUES AFTER ALLOWING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. NOW, WE TAKE UP ITA NO.748/KOL/2013, AY 2004-05 . AS THE FACTS AND CIRCUMSTANCES ARE EXACTLY IDENTICAL IN THIS ASSESSMENT YEAR ALSO I.E. AY 2004-05 WHAT WAS IN AY 2003-04, HENCE FOR THE SAKE OF CONSISTENCY, I SET ASIDE THIS APPEAL OF ASSESSEE ALSO TO THE FILE OF AO FOR FRESH ADJUDICATION IN TERM OF THE DECISION OF EARLY ER YEAR I.E. AY 2003-04. THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND THE MATTER IS R EMANDED TO THE FILE OF AO. BOTH THE APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEALS OF ASSESSEE ARE ALLOWED F OR STATISTICAL PURPOSES. 7. ORDER PRONOUNCED IN OPEN COURT ON 02.09.2014. SD/- DATED : 2ND SEPTEMBER, 2014 , (MAHAVIR SINGH) JUDICIAL MEMBER *+ ,- . JD.(SR.P.S.) 3 ITA NOS.747&748/K/2013 VIKRAMADITYA SINGH AYS. 2003-04 & 04-05 () / &0 1(0!2- COPY OF THE ORDER FORWARDED TO: 1 . $% / APPELLANT SHRI VIKRAMADITYA SINGH, S/O LATE, BALD EO SINGH, HYDERPARA, SILIGURI-734 001. 2 &'$% / RESPONDENT ITO, WARD-2(2), SILIGURI 3 . ) ( )/ THE CIT(A), SILIGURI 4. 5. ) / CIT SILIGURI 089 & / DR, KOLKATA BENCHES, KOLKATA '0 &/ TRUE COPY, ():/ BY ORDER, - /ASSTT. REGISTRAR .