Dr. Milan Kumar Chakrabarti, Kolkata V. DCIT, Cir-55, Kolkata, Kolkata

ITA 751/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 4570 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 17-04-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ALOK NAG
• Keywords: Earning of tax free income; Non compliance
• Section: 143(3); 14A

Judgement Text

PAGE | 1 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC, KOLKATA BEFORE SH. P.M.JAGTAP, ACCOUNTANT MEMBER AND ITA NO.751/KOL/2017 [ASSESSMENT YEAR: 2011 - 12] APPELLANT BY SH. ANIL KOCHAR, ADVOCATE RESPONDENT BY SH. ALOK NAG, ADDL. CIT DATE OF HEARING 13 .0 6 .2018 DATE OF PRONOUNCEMENT 0 2 .08.2018 ORDER PER P.M.JAGTAP, ACCOUNTANT MEMBER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) - 6, KOLKATA DATED 30 . 0 1.201 7 . 2. THE ASSESSEE IS IN THE PRESENT CASE IS AN INDIVIDUAL WHO IS A DOCTOR BY PROFESSION. THE RETURN FOR THE YEAR UND ER CONSIDERATION WAS FILED BY HIM ON 07.07.2011 DECLARING A TOTAL INCOME OF RS.27,13,591/ - . IN THE ASSESSMENT COMPLETED U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT ACT) VIDE AN ORDER DATED 27.03.2014 , T HE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE AO AT RS.48,90,4 67/ - AFTER MAKING THE FOLLOWING ADDITIONS: - (I) UNDISCLOSED RECEIPT AS WELL AS TDS THEREON RS.1,04,000/ (II) UNDISCLOSED RECEIPT AS WELL AS TDS THEREON RS.44,420/ (III) DISALLOWANCE U/S 14A RS.1,11,450/ (IV) EXCESS CREDIT OF INTERESTS ON PPF RS.52,820/ (V) FOREIGN REMITTANCE RS.15,43,950/ (VI) DISALLOWANCE OF MOTOR CA R EXPENSES RS.3,20,236/ DR.MILAN KUMAR CHAKRABARTI, C/O - S.L.KOCHAR, ADVOCATE, 86, CANNING STREET, KOLKATA - 100001. PAN - ACSPC6685M VS DCIT, CIRCLE - 55, KOLKATA. (APPELLANT) (RESPONDENT) ITA NO. 751/ KOL/201 7 [ASSESSMENT YEAR: 20 11 - 12] PAGE | 2 3. AGAINST THE ORDER PASSED BY THE AO U/S 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE LD.CIT(A) AND AFTER CONSIDERING THE SUBMISSIONS MADE BY THE ASSESSEE IN WRITING AS WELL AS MATERIAL AVAILABLE ON RECORD, LD. CIT(A) REDUCE D THE ADDITION OF RS.3,20,236/ - MADE BY THE AO ON ACCOUNT OF DISALLOWANCE OF MOT O R CAR EXPENSES TO RS.1,60,118/ - WHILE THE REMAINING ADDIT IONS MADE BY THE AO WERE CONFIRMED BY HIM. AGGRIEVED BY THE ORDER OF LD.CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING GROUNDS: - 1. FOR THAT THE LD. CIT ( A) ERRED IN CONFIRMING THE ADDITION OF RS.1,48,420/ MADE BY THE A.O. OBSERVING UNDISCLOSED RECEIPT WITHOUT PROPERLY APPRECIATING THE FACT AS BROUGHT TO THE NOTICE OF THE LD. CIT ( A) IN THE WRITTEN SUBMISSION FILED BY THE APPELLANT. 2. FOR THAT THE LD. CIT ( A) OUGHT TO HAVE PROPERLY CONSIDERED THE SUBMISSIONS MA DE BY T HE APPELLANT IN RESPECT OF THE ADDITION OF RS.1,04,000/ AND RS.44,420/ TOTA L LING TO RS.1,48,420/ MADE BY THE A.O. AND OUGHT TO HAVE DELETED THE SAME. 3. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING DISALLOWANCE OF RS.1,L1,450/ MADE BY THE A.O. U/S 14A W ITHOUT PROPERLY APPRECIATING THE CONTENTIONS OF THE APPELLANT. 4. FOR THAT THE LD. CIT ( A) OUGHT TO HAVE ACCEPTED THE CONTENTION OF THE APPELLANT THAT THE AMOUNT OF RS.52,820/ THOUGH EARNED AS INTEREST ON PPF, IT BEING EXEMPT FROM TAX OUGHT TO HAVE BEEN ALLOWED AS EXEMPT INCOME. 5. FOR THAT THE LD. CIT ( A) ERRED IN CONFIRMING THE ADDITION OF RS.15,43,950/ WHICH WAS CREDITED IN THE CAPITAL ACCOUNT OF THE APPELLANT AND PROPER EXPLANATION WAS SUBMITTED WITH REFERENCE TO THE SOURCE OF THE SAME WHICH OUGHT T O HAVE BEEN PROPERLY CONSIDERED AND ACCEPTED BY THE LD. CIT ( A). 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS REGARDS THE ADDITION OF RS.1,04,000/ - DISPUTED IN GROUND NOS. 1 & 2, LD. COUNSEL FO R THE ASSESSEE HAS SUBMITTED THAT THE A SSESSEE IS FOLLOWING CASH SYSTEM OF ACCOUNTING AND SINCE THE SAID AMOUNT AFTER DEDUCTING TDS WAS ACTUALLY RECEIVED B Y TH E ASSESSEE ONLY IN THE PREVIOUS YEAR RELEVANT TO AY ITA NO. 751/ KOL/201 7 [ASSESSMENT YEAR: 20 11 - 12] PAGE | 3 2014 - 15, THE SAME HAS BEEN DULY OFFERED TO TA X IN AY 2014 - 15. HE HAS CONTENDED THAT THIS CLAIM OF THE ASSESSEE CAN BE VERIFIED BY THE AO BEFORE ALLOWING THE RELIEF TO THE ASSESSEE. SINCE LD. DR HAS NOT RAISED ANY OBJECTION IN THIS REGARD, I DIRECT THE AO TO VERIFY THE CLAIM OF THE ASSESSEE AND ALLO W PROPER RELIEF ON SUCH VERIFICATION. AS REGARDS THE BALANCE ADDITION OF RS.44,420/ - DISPUTED IN GROUND NOS.1 & 2, LD. COUNSEL FOR THE ASSESSEE HAS NOT RAISED ANY CONTENTION. THE SAID ADDITION ACCORDINGLY IS CONFIRMED AND GROUND NOS. 1 & 2 OF THE ASSESSEES APPEAL ARE TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 5. GROUND NO.3 RAISED BY THE ASSESSEE RELATING TO THE ISSUE OF DISALLOWANCE U/S 14A OF THE ACT IS NOT PRESSED BY THE LD. COUNSEL FOR THE ASSESSEE. THE SAME IS ACCORDINGLY DISMISSED AS NOT PRESSED. 6. AS REGARDS THE ISSUE INVOLVED IN GROUND NO.4, LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT AN AMOUNT OF RS.52,820/ - REPRESENTED INTEREST EARNED BY THE ASSESSEE ON PPF ACCOUNT IN THE EARLIER YEARS BUT CREDITED TO THE P&L ACCO UNT OF THE YEAR UNDER CONSIDERATION. HE HAS CONTENDED THAT THIS CLAIM OF THE ASSESSEE ALSO CAN BE VERIFIED BY THE AO BEFORE ALLOWING THE RELIEF TO THE ASSES S EE. LD. DR HAS NOT RAISED ANY OBJECTION IN THIS REGARD. ACCORDINGLY, T HIS ISSUE IS ALSO RESTORED TO THE FILE OF THE AO FOR DECIDING THE SAME AFRESH AFTER VERIFYING THE CLAIM OF THE ASSESSEE THAT THE AMOUNT IN QUESTION REPRESENTED INTEREST ON PPF ACCOUNT RECEIVED FOR THE EARLIER YEARS. GROUND NO.4 OF THE ASSESSEES APPEAL IS ACCORDINGLY TR E ATED AS A LLOWED FOR STATISTICAL PURPOSES. 7. AS REGARDS GROUND NO.5, LD. REPRESENTATIVES OF BOTH THE SIDES HAVE AGREED THAT A SIMILAR ISSUE WAS INVOLVED IN ASSESSEES OWN CASE FOR AY 2010 - 11 AND THE TRIBUNAL VIDE ITS ORDER DATED 24.05.2018 PASSED IN ITA NO.28 2 /KOL/ 2017 HAS RESTORED THE SAME TO THE FILE OF THE AO VIDE PARA NO.5 OF ITS ORDER WHICH RE A DS AS UNDER: - ITA NO. 751/ KOL/201 7 [ASSESSMENT YEAR: 20 11 - 12] PAGE | 4 5. AS REGARDS THE OTHER PRELIMINARY ISSUE RAISED IN GROUND NO.1 CHALLENGING THE ACTION OF THE LD.CIT(A IN DISMISSING THE APPEAL OF THE ASSESSEE VIDE HIS IMPUGNED ORDER PASSED EX PARTE, THE LEARNED COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT THE DOCUMENTARY EVIDENCE TO SUPPORT AND SUBSTANTIATE HIS EXPLANATION REGARDING FOREIGN REMITTANCE OF RS. 22,40,000/ WAS NOT AVAILABLE WITH THE ASSESSEE AT THE RELEVAN T TIME AND SINCE THE ASSESSEE WAS IN THE PROCESS OF COLLECTING THE SAME, HE COULD NOT COMPLY WITH THE NOTICES ISSUED BY THE LD. CIT(A) FIXING THE APPEAL FOR HEARING FROM TIME TO TIME. HE HAS CONTENDED THAT THE ASSESSEE NOW HAS GATHERED THE DOCUMENTARY EVID ENCE AND URGED THAT THE MATTER MAY BE SENT BACK TO THE A.O. FOR GIVING AN OPPORTUNITY TO THE ASSESSEE TO EXPLAIN HIS CASE BY FILING THE SAID DOCUMENTARY EVIDENCE. ALTHOUGH THE LEARNED DR HAS NOT RAISED ANY OBJECTION FOR SENDING THE MATTER BACK TO THE A .O . IN THE FACTS AND CIRCUMSTANCES OF THE C ASE, HE HAS CONTENDED THAT NON COMPLIANT ATTITUDE OF THE ASSESSEE, WHO IS A DOCTOR, TO THE NOTICES ISSUED BY THE LD. CITCA) FIXING HIS APPEAL FOR HEARING ON AS MANY AS SIX OCCASIONS SHOWS A VERY NEGLIGENT AND CASUAL A PPROACH. HE HAS CONTENDED THAT THE ASSESSEE DESERVES TO BE PUNISHED BY IMPOSING SOME COST FOR SUCH APPROACH. WE FIND OURSELVES IN AGREEMENT WITH THIS CONTENTION OF THE LEARNED DR. WE A CCORDINGLY IMPOSE A COST OF RS. 5,000/ ON THE ASSESSEE FOR THE NON COMPL IANT AND NON COOPERATIVE APPROACH SHOWN DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CITCA) RESULTING INTO EX PARTE ORDER AND DIRECT THE ASSESSEE TO PAY THE SAID COST TO PRIME MINISTER'S RELIEF FUND. SUBJECT TO THE SAID PAYMENT, THE IMPUGNED O RD ER OF THE LD. CIT ( A) PASSED EX PARTE IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE A .O. FOR DECIDING THE ISSUES RELATING TO THE TWO ADDITIONS MADE TO THE TOTAL INCOME OF THE ASSESSEE AFRESH AFTER GIVING THE ASSESSEE ONE MORE OPPORTUNITY OF B EING HEARD. 8. RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL ON THE SIMILAR ISSUE IN ASSESSEES OWN CASE FOR AY 2010 - 11, I SET ASIDE THE IMPUGNED ORDER OF LD.CIT(A) FOR THE YEAR UNDER CONSIDERATION ON THIS ISSUE AND RESTORE THE MATTER TO THE FILE OF THE AO FOR DECIDING THE SAME AFRESH AS PER THE SIMILAR DIRECTION S AS GIVEN FOR AY 2010 - 11. GROUND NO.5 OF THE ASSESSEE S APPEAL IS ACCORDINGLY TREATE D AS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 751/ KOL/201 7 [ASSESSMENT YEAR: 20 11 - 12] PAGE | 5 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 0 2 .08.2018. S D / - (P.M.JAGTAP) ACCOUNTANT MEMBER DATE: 0 2 .08.2018 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT - DR.MILAN KUMAR CHAKRABARTI, C/O - S.L.KOCHAR, ADVOCATE, 86, CANNING STREET, KOLKATA - 100001. 1. RESPONDENT - DC IT , CIRCLE - 55, KOLKATA. 2. CIT - KOLKATA 3. CIT(APPEALS) - KOLKATA BENCH 4. DR: ITAT - KOLKATA SR.P.S./H.O.O ITAT, KOLKATA