Manoj Mishra, Kolkata V. ITO, Ward 31(3), Kolkata, Kolkata

ITA 799/KOL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6379 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 20-04-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: G HANSHING
• Assessee Lawyers: CHIRAG DESAI STAFF
• Keywords: Unexplained expenditure; Additional evidence
• Section: 69C; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI S.S. GODARA, JM & DR. A.L.SAINI, AM ITA NO.799/KOL/2017 (A.Y: 2011-12) MANOJ MISHRA C/O D.J.SHAH & CO., KALYAN BHAVAN, 2, ELGIN ROAD, KOLKATA-700020. VS. ITO, WARD-31(3), KOLKATA 10B, MIDDLETON ROW, 4 TH FLOOR KOLKATA-700071. ./ ./PAN/GIR NO. : AHAPM 6077 G ( /APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY : SHRI CHIRAG DESAI, STAFF REVENUE BY : SHRI G.HANSHING, CIT, DR / DATE OF HEARING : 06/06/2018 /DATE OF PRONOUNCEMENT: 08/06/2018 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAIN ING TO ASSESSMENT YEAR 2011-12, IS DIRECTED AGAINST THE ORDER PASSED BY LD . COMMISSIONER OF INCOME TAX (APPEALS)-9, KOLKATA IN APPEAL NO.445/CIT(A)-9/WD-3 1(3)/2014-15/KOL DATED 14.01.2016, WHICH IN TURN ARISES OUT OF AN ORDER PA SSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (I N SHORT, THE ACT), DATED 26.03.2014. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS FOLLOWS :- 1. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE APPELLATE ORDER PASSED WAS IN VIOLATION OF PRINCIPALS OF NATURAL JU STICE HENCE IS BAD IN LAW AND BE QUASHED. 2. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LD. COMMISSIONER OF INCOME TAX APPEALS PASSED THE APPELLATE ORDER WI THOUT GIVING PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. 3. FOR THAT IN THE FACTS AND CIRCUMSTANCE THE LD. C OMMISSIONER OF INCOME TAX APPEALS ERRED IN UPHOLDING THE ADDITION OF RS.3 9,73,500/- ON ACCOUNT OF MANOJ MISHRA ITA NO.799/KOL/2017 A.Y: 2011-12 2 UNEXPLAINED EXPENDITURE U/S 69C OF THE IT ACT 1961. THE ADDITION IS NOT CALLED FOR AND HENCE THE SAME BE DELETED. 4. FOR THAT IN THE FACTS AND CIRCUMSTANCE THE LD. C OMMISSIONER OF INCOME TAX APPEALS ERRED IN UPHOLDING THE ADDITION OF RS.8 , 13,211/- BEING 2% OF CASH PURCHASES OF RS.4,06,60,583 /- ON ESTIMATE BAS IS. THE ADDITION IS NOT CALLED FOR AND HENCE THE SAME BE DELETED. 5. THE APPELLANT CRAVES LEAVE TO PRODUCE ADDITIONAL EVIDENCES IN TERMS OF RULE 29 OF THE INCOME TAX (APPELLATE TRIBUNAL] RULE S 1963. 6. FOR THAT THE INTEREST COMPUTED U/S 234A/B/C/D OF THE IT ACT 1961 IS OVER CHARGED AND WRONGLY CALCULATED AND OR IS NOT APPLIC ABLE TO THE ASSESSEE CASE IT BE DIRECTED TO RE-COMPUTE THE INTEREST AS P ER LAW. 7. THE APPELLANT CRAVES LEAVE TO PRESS NEW, ADDITIO NAL GROUNDS OF APPEAL OR MODIFY, WITHDRAW ANY OF THE ABOVE GROUNDS AT THE TI ME OF HEARING OF THE APPEAL. 3. AT THE OUTSET THE LD. COUNSEL FOR THE ASSESSEE H AS POINTED OUT THAT THE IMPUGNED ORDER IS AN EXPARTE ORDER AND THE ASSESSEE COULD NOT GET OPPORTUNITY TO PLEAD HIS CASE BEFORE THE LD. CIT(A). THE LD. CIT(A ) ALSO HAS NOT PASSED THE ORDER ON MERITS CONSIDERING THE SUBMISSION SUBMITTED BEFO RE THE AO. APART FROM THIS, THE ASSESSEE HAS RAISED GROUND NO.5 TO PRODUCE ADDI TIONAL EVIDENCE IN TERMS OF RULE 29 OF THE INCOME TAX (APPELLATE TRIBUNAL), KOL KATA. THEREFORE THE LD. COUNSEL FOR THE ASSESSEE PRAYED BEFORE THE BENCH TH AT THE MATTER BE REMANDED BACK TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDI CATION. THE LD. DR HAD NO OBJECTION IF THE MATTER IS REMITTED BACK BEFORE THE LD. CIT(A). 4. WE NOTE THAT SINCE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) IS AN EXPARTE ORDER AND THE ASSESSEE COULD NOT PLEAD HIS CASE BEFORE HIM. WE ALSO NOTE THAT THE ASSESSMENT WAS CARRIED OUT U/S 143(3) OF T HE ACT AND THE IMPUGNED ORDER IS AN EXPARTE ORDER THEREFORE WE DO NOT WISH TO MAK E ANY COMMENTS ON THE MERITS OF THE GROUNDS RAISED BY THE ASSESEE. WE NOTE THAT ON PERUSAL OF THE BODY OF THE IMPUGNED ORDER IT IS APPARENT THAT IT IS AN EXPARTE ORDER WHICH HAS BEEN CHALLENGED BY THE ASSESEE FOR WANT OF PROPER OPPORT UNITY AND FOR THAT THE ASSESSEE HAS RAISED GROUND NO.1 AND 2 WHEREIN HE HAS STATED THAT THE CIT(A) HAD PASSED THE APPELLATE ORDER WITHOUT GIVING PROPER OPPORTUNI TY TO THE ASSESEE. THE GROUND MANOJ MISHRA ITA NO.799/KOL/2017 A.Y: 2011-12 3 NO.5 RAISED BY THE ASSESSEE RELATES TO ADDITIONAL E VIDENCE TO BE PRODUCED BEFORE THE BENCH. THEREFORE WE ARE INCLINED TO SET ASIDE T HE IMPUGNED ORDER OF THE LD. CIT(A) AND WE RESTORE THE MATTER TO HIS FILE TO PAS S A SPEAKING ORDER AFTER HEARING THE ASSESSEE AND GIVE ADEQUATE OPPORTUNITY TO THE A SSESEE. FOR STATISTICAL PURPOSES THE APPEAL OF THE ASSESSEE IS ALLOWED. 5. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 08.06.20 18. SD/- SD/- (S.S.GODARA) (DR. A. L. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; DATED: RG, SPS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT- MANOJ MISHRA 2. / THE RESPONDENT.- ITO, WARD-31(3), KOLKATA 3. ( ) / THE CIT(A)-9, KOLKATA. 4. / CIT-11, KOLKATA. 5. ! $$% , % , / DR, ITAT, KOLKATA 6. ( / GUARD FILE. //TRUE COPY// BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/D.D.O, I.T.A.T, KOLKATA BENCHES, KOLKATA . MANOJ MISHRA ITA NO.799/KOL/2017 A.Y: 2011-12 4