Bishnu Kumar Agarwal, Hooghly V. A.C.I.T CC - XXV,kolkata, Kolkata

ITA 788/KOL/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4896 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 11 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 11-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A K TIBREWAL
• Keywords: Search and seizure; Principle of natural justice
• Section: 153A

Judgement Text

I.T.A.NOS.788 TO 791/KOL./2013 ASSESSMENT YEARS: 2004-2005 & 2007-08 TO 2009-10 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER & SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NOS. 788 TO 791/KOL/2013 ASSESSMENT YEARS: 2004-2005 & TO 2007-2008 TO 2 009-10 BISHNU KUMAR AGARWAL VS- DCIT, CENT RAL CIRCLE-XXV KOLKATA [PAN:ACNPA 9346A] KOLKATA. (APPELLANT) (RESPONDENT) APPEARANCES : FOR THE ASSESSEE : SHRI A.K. TIBREWAL, FCA FOR THE DEPARTMENT : NONE DATE OF CONCLUDING THE HEARING : MARCH 14, 2016 DATE OF PRONOUNCING THE ORDER : MARCH 23, 2016 O R D E R PER SHRI S.S.VISWANETHRA RAVI :- THESE FOUR APPEALS FILED BY THE ASSESSEE ARE DIRECT ED AGAINST THE COMMON ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), CENTRAL-III, KOLKATA DATED 14.12.2012 PASSED UNDER SECTION 153A/143(3) OF THE ACT FOR ASSESSMENT YEARS 2004-20 05 AND 2007- 2008 TO 2009-2010 RESPECTIVELY. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL CONDUCTING BUSINESS UNDER THE NAME AND STYLE OF M/S . GARG GLOBAL AND DEALING IN PURCHASE AND SALE OF AGRO PRODUCTS. 2.1 A SEARCH AND SEIZURE WAS CONDUCTED ON 23.07.200 9 AT ASSESSEES RESIDENCE AND OTHER BUSINESS PREMISES WHERE THE ASS ESSEE AND HIS FAMILY MEMBERS ARE INVOLVED DIRECTLY AND INDIRECTLY . A NOTICE UNDER SECTION 153A OF THE ACT WAS ISSUED AND TO WHICH RES PONSE THE ASSESSEE I.T.A.NOS.788 TO 791/KOL./2013 ASSESSMENT YEARS: 2004-2005 & 2007-08 TO 2009-10 PAGE 2 OF 3 FILED HIS RETURN OF INCOME AND DECLARED RS.5,50,000 /- AS ADDITIONAL INCOME AS UNDISCLOSED AS COMPARED TO THE INCOME DEC LARED UNDER NORMAL PROCEDURE. 2.2 AGAIN, A NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED AND DURING SUCH VERIFICATION, THE AO FOUND THAT THE ASS ESSEE HAS BEEN MAINTAINING SIX BANK ACCOUNTS, WHEREIN, THE AO ACCO UNTED RS.41,19,32,278/- AS UNDISCLOSED TURNOVER OF THE AS SESSEE FOR ASSESSMENT YEARS 2004-05 TO 2010-11. FOR THE ASSESS MENT YEAR 2004- 05 IS UNDER CONSIDERATION NOW IN THIS APPEAL, THE A O COMPUTED RS.23,08,974/- AS INCOME OF THE ASSESSEE. 3. AGGRIEVED ABOVE, AN APPEAL WAS PREFERRED BEFORE THE CIT(A). THOUGH IT WAS FIXED FOR HEARING, THE ASSESSEE COULD NOT REPRESENT BEFORE THE CIT(A) EITHER IN PERSON OR THROUGH AN AU THORISED REPRESENTATIVE. HAVING NO ALTERNATIVE, CIT(A) DISMI SSED THE APPEAL OF THE ASSESSEE CONSIDERING THE MATERIAL AVAILABLE ON RECORD. 4. BEFORE US, THE LD. A/R SUBMITTED THAT THE ORDER PASSED BY THE LD. CIT(A) IS EX PARTE ORDER. THE ASSESSEE DID NOT GET A FAIR OPPORTUNITY TO DEFEND HIS CASE BEFORE THE FIRST APPELLATE AUTHO RITY WHICH IS NEITHER WILFUL NOR INTENTIONAL. THE LD. A/R UNDERTOOK THAT IN CASE OF REMANDING THE CASE TO THE FILE OF THE CIT(A) FOR FR ESH ADJUDICATION, HE WOULD LOOK INTO THE MATTER THAT THE ASSESSEE SHALL REPRESENT HIS CASE WITHOUT FAIL. THE LD. DR SUBMITTED THAT THE LD. CIT (A) HAS AFFORDED AS MANY AS FOUR ADJOURNMENTS, BUT, THE ASSESSEE FAILED TO AVAIL THE OPPORTUNITY TO PROSECUTE HIS CASE AND RELIED ON ORD ERS OF CIT(A) AND THE AO. 5. HEARD BOTH REPRESENTATIVES AND PERUSED THE MATER IAL ON RECORD. IT IS OBSERVED FROM THE ORDER OF THE CIT(A) THAT THE A SSESSEE REMAINED I.T.A.NOS.788 TO 791/KOL./2013 ASSESSMENT YEARS: 2004-2005 & 2007-08 TO 2009-10 PAGE 3 OF 3 ABSENT FOR FOUR OCCASIONS, BUT, HOWEVER, HE COULD M OVE APPLICATIONS FOR ADJOURNMENTS, BUT IN SPITE OF THAT THE ADJOURNM ENT APPLICATIONS CONSIDERED LIBERALLY BY THE CIT(A), THE ASSESSEE CO ULD NOT TAKE STEPS TO PROSECUTE HIS CASE. TAKING INTO CONSIDERATION TH E UNDERTAKING OFFERED BY THE LD. A/R AND IN ORDER TO MEET PRINCIP LES OF NATURAL JUSTICE THAT ONE SHOULD NOT BE CONDEMNED UNHEARD, W E ARE OF THE VIEW THAT THESE APPEALS SHOULD BE SENT BACK TO THE FILE OF CIT(A) FOR FRESH CONSIDERATION SUBJECT TO THE CONDITION THAT THE ASS ESSEE SHALL PAY COST OF RS.2,000/- IN FAVOUR OF PRIME MINISTERS RELIEF FUND AND ON SUCH PAYMENT, THE LD. CIT(A) SHALL PROCEED WITH THE CASE BY AFFORDING OPPORTUNITY TO THE ASSESSEE. 6. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON MARCH 23 RD , 2016. SD/- SD/- (P.M. JAGTAP) (S.S. VISWANETHRA RAVI) ACCOUNTANT MEMBER JUDICIAL MEMBER KOLKATA, THE 23 RD DAY OF MARCH, 2016 TALUKDAR/SR. P.S.(OS) COPIES TO :(1) BISHNU KUMAR AGARWAL, 30/A/101 DR. P.T.LAHA STREET, RISHRA, HOOGHLY- 712 248 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-XXV, KOLKATA, (3) COMMISSIONER OF INCOME-TAX (APPEALS), KOLKATA (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE, (6) GUARD FI LE BY ORDER ASSISTANT REGISTRAR, ITAT, KOLKATA BENCHES, KOLKATA