Pradip Goswami, Durgapur V. DCIT, CIR-1, DURGAPUR, Durgapur

ITA 749/KOL/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9502 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 02-12-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 27-05-2015
• Court: TRIBUNAL
• Department Lawyers: MD GHYAS UDDIN JCIT LD

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL,D BENCH,KOLK ATA BEFORE : SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL ME MBER AND SHRI DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA NO. 749/KOL/2015 A.Y 2008-09 PRADIP GOSWAMI VS. DEPUTY COMMISSIONER PAN: ADGPG1741F OF INCOME-TAX, CIR-1, DURG APUR [APPELLANT] [RESPONDENT] APPELLANT BY : S.N. GANGULI, ADVOCATE, LD .AR/ADJ. PETITION FILED/REJECTED RESPONDENT BY : MD. GHYAS UDDIN, JCIT , LD.DR DATE OF HEARING : 10-02-2017 DATE OF PRONOUNCEMENT : 10-02-2017 ORDER PER SHRI PARTHA SARATHI CHAUDHURY, JM: THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) IN SHORT [ LD. CIT(A), DURGAPUR DATED 27-03-2015 ON THE FOLLOW ING GROUNDS:- 1. FOR THAT PASSING OF BEST JUDGEMENT APPELLATE OR DER BY LD. CITA IS UNJUST AND BAD IN LAW SINCE THE APPELLANT DID NOT GET ANY REASONABLE OPPORTUNITY OF HEARING. HENCE SUCH ORDER IS LIABLE TO BE SET ASIDE . 2. FOR THAT ESTIMATION AND ENHANCEMENT OF NET PROF IT FROM REASONABLE 4.51 % TO 8.1 IS UNJUST AND ARBITRA RY SINCE IT IS ON ESTIMATED BASIS WITHOUT ANY TANGIBLE EVIDENCES OF EARNING OF ACTUAL PROFIT BY THE APPELL ANT. HENCE SUCH ESTIMATION IS LIABLE TO BE DELETED. 3. FOR THAT APPELLANT HAD ALL THE BOOKS OF ACCOUNT S AND OTHER SUPPORTING DOCUMENTS BUT FAILED TO PRODUCE SO BEING BEYOND HIS CONTROL AND POSSESSION. SO APPELLANT IS NOW IN A POSITION TO SUBSTANTIATE THE DECLARED NET PROFIT IN RETURN BY PRODUCING RELEVANT DOCUMENTS. 4. FOR THAT ADDITION OF RS. 906842/- IS UNJUST AND ILLEGAL SINCE SUCH AMOUNT WAS ON CAPITAL INTRODUCTION ACCOUNT AND A.O. CAN NOT CALL FOR THE SOURCE OF SAI D ITA NO. 749/KOL/2015 PRAD IP GOSWAMI 2 CAPITAL INTRODUCTION. HENCE SUCH ADDITION IS LIABLE TO BE DELETED. 5. FOR THAT APPELLANT FURNISHED COGENT EXPLANATION ABOUT THE SOURCE OF SAID AMOUNT BUT WAS DISBELIEVED IN QUITE ARBITRARY MANNER. 6. FOR THAT APPELLANT MAY MODIFY THE GROUNDS. 2. WE HAVE PERUSED THE CASE RECORDS. WE FIND THAT AT THE FIRST APPELLATE STAGE THERE WAS NO APPEARANCE BY THE ASSE SSEE AND THE ORDER PASSED EX PARTE. THEREFORE, THE RIGHTS AND LI ABILITIES WERE NOT DETERMINED BY THE CIT(A) SINCE ORDER PASSED EXP ARTE. THEREFORE, THERE WAS NO ADJUDICATION SINCE NO ONE A PPEARED FOR THE ASSESSEE AND ALSO FOR THE DEPARTMENT. UNDER THE SE CIRCUMSTANCES, WE ARRIVE AT OUR CONSIDERED VIEW FOR PROPER DETERMINATION OF RIGHTS AND LIABILITIES THIS CASE S HOULD BE SET ASIDE BACK TO THE FILE OF THE LD. CIT(A) FOR HIS FR ESH ADJUDICATION AFTER HEARING THE PARTIES AND DIRECT THE ASSESSEE T HAT THIS THE FINAL OPPORTUNITY GRANTED TO HIM FOR PLEADING HIS C ASE AND TO APPEAR BEFORE THE CIT(A). AFTER HEARING THE PARTIES , THE CIT(A) MAY ADJUDICATE THE CASE AS PER LAW. WE ORDER ACCORD INGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STAT ISTICAL PURPOSE. 3. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 10-02-2017 SD/- SD/- DR. ARJUN LAL SAINI PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 10-02-2017 ITA NO. 749/KOL/2015 PRAD IP GOSWAMI 3 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT/ASSESSEE: SHRI PRADIP GOSWAMI 4/3 MILLENI UM CO- OP HOUSING COMPLEX, PREMENDRA MITRA BITHI, CITY CENTRE,DURGAPUR-713216. 2 RESPONDENT/DEPARTMENT : THE DY. COMMISSIONER INCOM E TAX , CIR-1 DURGAPUR, AAYKAR BHAVAN, AAYKAR BITHI, CITY CENTRE, DURGAPUR-713216. 3. CIT, 4. CIT(A), 5. DR, KOLKATA BENCHES, KOLKATA **PP/SPS [ TRUE COPY ] BY ORDER, ASSTT REGISTRAR