DCIT, Circle - 11, Kolkata, Kolkata V. M/s. Poddar Projects Ltd., Kolkata

ITA 866/KOL/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70404 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 08-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K K DAS SRDR
• Assessee Lawyers: RATAN KUMAR GOEL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI, R.S. SYAL, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER ITA NO. 866 / KOL / 2011 ASSESSMENT YEAR :2003-04 DY. COMMISSIONER OF INCOME-TAX, CIRCLE-11, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069 V/S . M/S PODDAR PROJECTS LTD., 9 TH FLOOR, 18, RABINDRA SARANI, KILKATA 700 001 [ PAN NO.AACCP 5704B ] /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI K.K.DAS, SR-DR /BY RESPONDENT SHRI RATAN KUMAR GOEL, AR /DATE OF HEARING 22-11-2013 /DATE OF PRONOUNCEMENT 22-11-2013 / // / O R D E R PER R.S. SYAL, ACCOUNTANT MEMBER:- THIS APPEAL BY THE REVENUE ARISES OUT OF THE ORDER PASSED BY THE LD. CIT(A)-XII, KOLKATA ON 23-03-2011 IN RELATION TO TH E ASSESSMENT YEAR 2003- 04. ITA NO.866/KOL2011 A.Y. 2003 -04 DCIT CIR-11,KOL V. M/S. PODDAR PROJECTS LTD. PAGE 2 2. THE ONLY GROUND RAISED IN THIS APPEAL IS AGAINST THE DELETION OF ADDITION TOWARDS MUNICIPAL TAX AND SURCHAGE THEREON AFTER TA KING INTO ACCOUNT FRESH EVIDENCE IN VIOLATION OF RULE-46A OF THE INCOME-TAX RULES, 1962. 3. BRIEFLY STATED THE FACTS OF THIS CASE ARE THAT O N EXAMINATION OF THE DETAILS, IT WAS OBSERVED BY THE ASSESSING OFFICER THAT MUNICIPAL TAX LIABILITY FOR THE FINANCIAL YEAR 2002-03 AMOUNTING TO RS.93,02,71 8/- WAS NOT PAID BEFORE DUE DATE OF FURNISHING THE RETURN. SIMILAR OBSERVAT IONS WERE MADE BY THE AUDITOR IN THE TAX AUDIT REPORT. SINCE NO EVIDENCE OF PAYMENT OF THE SAID AMOUNT WAS FILED BEFORE ASSESSING OFFICER, HE DISA LLOWED THE SAID AMOUNT. THE LD. CIT(A) DELETED THE DISALLOWANCE BY OBSERVIN G THAT THE DETAILS OF PAYMENTS WERE MADE AVAILABLE TO THE AO ALSO. 4. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD WE FIND THAT THE A.O. HAS RECORDED A CATE GORICAL FINDING THAT THE SUM OF RS.93.02 LAKH WAS NOT PAID BEFORE DUE DATE. THIS FINDING BY THE A.O IS SUBSTANTIATED BY THE QUALIFICATION MADE BY THE TAX AUDITOR IN THE REPORT. WE FAIL TO APPRECIATE AS TO HOW THE LD. CIT(A) COULD RECORD A NEGATIVE FINDING ON THAT ISSUE, IF HE WAS PROPOSING TO DELETE THE ADDITION O N THE BASIS OF THE MATERIAL FILED BEFORE HIM. IF HE WAS TO RELY ON SUCH MATERI AL NOT FILED BEFORE THE AO, IT WAS INCUMBENT UPON HIM TO GIVE OPPORTUNITY TO THE A O WITHIN THE MEANING OF RULE 46. UNDER SUCH CIRCUMSTANCES, WE OVERTURN TH E IMPUGNED ORDER PASSED BY THE LD. CIT(A) ON THIS ISSUE AND SEND THE MATTER BACK TO THE FILE OF A.O. FOR ITA NO.866/KOL2011 A.Y. 2003 -04 DCIT CIR-11,KOL V. M/S. PODDAR PROJECTS LTD. PAGE 3 DECIDING THIS POINT AFRESH AS PER LAW AFTER ALLOWIN G A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. NEEDLESS TO SAY, THE A SSESSEE WILL BE AT LIBERTY TO LEAD ANY FRESH EVIDENCE WHICH IT CONSIDERS EXPED IENT TO SATISFY THE A.O. ON THIS SCORE. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICA L PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD- SD/- (GEORGE MATHAN) (R.S. SYAL) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 22/11/2013 + + + + ,+ ,+ ,+ ,+ / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. 0 / CONCERNED CIT 4. 0- / CIT (A) 5. + , , / DR, ITAT, KOLKATA 6. 8 / GUARD FILE. BY ORDER/ , /TRUE COPY / , STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 22/11 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 22/11 4) DATE OF CORRECTION 22/11 5) DATE OF FURTHER CORRECTION - - 6) DATE OF INITIAL SIGN BY MEMBERS 22/11 7) ORDER UPLOADED ON 25/11 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 22/11 10) FILE GOES TO HEAD CLERK ON