Prabhat Kumar Agarwala, Malda V. ITO-Ward-2, Malda, Malda

ITA 792/KOL/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70388 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2013
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 17-05-2012
• Court: TRIBUNAL
• Department Lawyers: R P NAG
• Assessee Lawyers: MIFTAHUL ISRAR
• Keywords: Opportunity of being heard

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA () BEFORE , /AND ! ' ! ! ' ! ! ' ! ! ' ! , ) [BEFORE SHRI PRAMOD KUMAR, AM & SHRI MAHAVIR SINGH, JM] # # # # /I.T.A NO. 792/KOL/2012 '$% &' '$% &' '$% &' '$% &'/ // / ASSESSMENT YEAR: 2006-07 PRABHAT KUMAR AGARWALA VS. INCOME-TAX OFFICER, WD-2, MALDA (PAN : ACNPA7843G) ()* /APPELLANT ) (+)*/ RESPONDENT ) DATE OF HEARING: 07.08.2013 DATE OF PRONOUNCEMENT: 16.08.2013 FOR THE APPELLANT: SHRI MIFTAHUL ISRAR, ADVOCATE FOR THE RESPONDENT: SHRI R. P. NAG, JCIT, SR. DR , / ORDER PER MAHAVIR SINGH, JM/ ! ' ! ! ' ! ! ' ! ! ' ! , : THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A), JALPAIGURI IN APPEAL NO.299/MLD/CIT(A)/JAL/08-09 DATED 21.03.2012. ASSES SMENT WAS FRAMED BY ITO, WARD-2, MALDA U/S. 145(3)/143(3) OF THE INCOME TAX ACT, 196 1 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2006-07 VIDE HIS ORDER DATED 26.12. 2008. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE ORDER OF CIT(A) CONFIRMING THE ADDITION MADE BY AO OF RS.5,95,000/- ON ACCOUNT OF LOANS RECEIVED. THE ASSESSEES GROUND MAINLY IS THAT THE CIT(A) HAS NOT CONSIDDERED THE S UBMISSIONS OF THE ASSESSEE. WE HAVE GONE THROUGH THE FINDINGS OF CIT(A) RECORDED IN HIS APPE LLATE ORDER ON FACTUAL ASPECT AS UNDER: I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE ASSESSEE AND ALSO PERUSED THE ASSESSMENT ORDER. THE ASSESSEE WAS ASKED TO PRODUCE THE CREDITORS IN PERSON FOR CROSS EXAMINATION OF THE CONTENTS OF THE LOAN CONFIRMATIO NS FILED BEFORE THE AO. BUT THE ASSESSEE FAILED TO DO SO GIVING VARIOUS REASONS. T HEREFORE, IN COURSE OF APPELLATE PROCEEDINGS ON 18.08.2011, THE ASSESSEE WAS REQUEST ED TO PRODUCE THE CREDITORS FOR EXAMINATION. ASSIGNING SIMILAR REASON, AGAIN THE A SSESSEE FAILED TO PRODUCE THEM. THEREFORE, ONE LETTER WAS WRITTEN TO THE ASSESSEE O N 17.10.2011 PROVIDING ANOTHER OPPORTUNITY TO PRODUCE THE CREDITORS ALONG WITH THE IR I T RECORDS AND BANK PASS BOOK. ON 08.09.2011, THE ASSESSEE MET ME AND STATED THAT TWO OF THE LADY CREDITORS ARE PRESENT. WHEN I TOLD HIM THAT I WOULD EXAMINE THEM WITH REFE RENCE TO THEIR LOAN CONFIRMATIONS, WITHOUT INFORMING ME, FIIING ONE LETTER IN THE DAK COUNTER OF MY OFFICE, THE ASSESSEE LEFT HURREDLY. AGAIN ANOTHER LETTER WAS WRITTEN TO THE ASSESSEE ON 08.11.2011 MAKING SIMILAR REQUEST. BUT THE ASSESSEE DD NOT BOTHER TO PRODUCE THEM IN PERSON GIVING VARIOUS REASONS BUT THE SAME COULD NOT BE SUBSTANTIATED. AS SUCH, A LL ALONG, THE ASSESSEE AVOIDED TO PRODUCE THE CREDITORS FOR PERSONAL EXAMINATION. THE REFORE, THE CONTENTS OF THE AFFIDAVIT COOLD NOT BE VERIFIED IN SPITE OF THE FACT THAT THE ASSESSEE WAS ASKED TO PROVE THE SAME ALONG WTH I T RECORDS AND BANK PASS BOOK OF THE CR EDITORS. AS THE ASESSEE FAILED TO TAKE THE CHANEE OF CROSS-VERIFICATION OF HIS SUBMISSION IN THE FORRN OF AFFIDAVITS, THE SAME HAS NO EVIDENTIAL VALUE. 2 ITA NO. 792/K/2012 PRABHAT KUMAR AGARWALA A. Y 2006-07 THUS, IN THIS CASE, THOUGH THE IDENTITY OF THE CRED ITORS WAS FOOUND ESTABLISHED BUT THEIR CREDITWORTHINESS AND CAPACITY TO MAKE THE LOAN WAS NOT PROVED. THE ASSESSEE FAILED TO PRODUCE ANY EVIDENCE SHOWING THE AVAILABILITY OF TH E FUND WITH THEM. . .. THUS, I AM OF THE OPINION THAT AO HAS RIGHTLY CONCL UDED THAT THE ASSESSEE FAILED TO ESTABLISH THE GENUINENESS OF THE LOAN INSPITE OF OP PORTUNITIES PROVIDED BY THE AO AS WELL AS DURING THE APPELLATE STAGE. HE ALWAYS TRIED TO AVOID RESPONSIBILITY BY WRITING LETTERS. AS THE ASSESSEE FAILED TO FURNISH ANY FURTHER EXPLA NATION CONTRARY TO THE OBSERVATION OF THE AO, I HAVE NO REASON TO INTERFERE WITH THE ORDER OF THE AO. HIS ACTION IS CONFIRMED. 3. WHEN THIS WAS POINTED OUT TO LD. SR. DR HE FAIRL Y CONCEDED THAT LET THE DOCUMENTS IN ENTIRETY BE CONSIDERED IN RESPECT TO INDIVIDUAL CRE DITORS AND FINDING ON THAT BASIS SHOULD BE GIVEN. THE CIT(A) SHOULD DEAL WITH INDIVIDUAL CRED ITORS IN RESPECT TO THEIR FINANCIAL POSITION, CAPACITY AND CREDITWORTHINESS. IN SUCH CIRCUMSTANC ES, WE HAVE NO ALTERNATIVE EXCEPT TO SET ASIDE THE ISSUE TO THE FILE OF CIT(A). CIT(A) WILL ALLOW REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. ORDER IS PRONOUNCED IN THE OPEN COURT ON 16.08.2 013. SD/- SD/- , ! ' ! ! ' ! ! ' ! ! ' ! , (PRAMOD KUMAR) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( - - - -) )) ) DATED : 16TH AUGUST, 2013 ./ '$01 '2 JD.(SR.P.S.) , 3 ''4 54&6- COPY OF THE ORDER FORWARDED TO: 1 . )* / APPELLANT SHRI PRABHAT KUMAR AGARWALA, P.O. & VIL L. RATUA, NEAR UBI, P.S. RATUA, DIST. MALDA, PIN-732205. 2 +)* / RESPONDENT ITO, WARD-2, MALDA. 3 . ',$ ( )/ THE CIT(A) , JALPAIGURI 4. ',$ CIT, JALPAIGURI 5 . ='> '$ / DR, KOLKATA BENCHES, KOLKATA +4 '/ TRUE COPY, ,$/ BY ORDER, ! 1 /ASSTT. REGISTRAR .