Sri Deo Kumar Saraf, Kolkata V. DCIT, CIR-49, KOLKATA, Kolkata

ITA 880/KOL/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99712 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 17-06-2015
• Court: TRIBUNAL
• Department Lawyers: K K TRIPATHI
• Assessee Lawyers: S M SURANA
• Keywords: Opportunity of being heard; Assessment record
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOLKATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI M. BALAGANESH, AM ] S.P. NO. 36 /KOL/201 5 IN I.T.A NO. 880 /KOL/201 5 ASSESSMENT YEAR : 20 1 0 - 1 1 & I.T.A NO. 880 /KOL/201 5 ASSESSMENT YEAR : 20 10 - 11 SRI DEO KUMAR SARAF VS. ASSISTANT COMMISSIONER OF INCOME - TAX, (PAN: ALCPS1036P) CIRCLE - 49, KOLKATA. ( APPLICANT/ APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 2 1 .0 8 .2015 DATE OF PRONOUNCEMENT: 21 . 0 8 . 2015 FOR THE APPELLANT: S HRI S. M. SURANA, ADVOCATE FOR THE RESPONDENT: S HRI K. K. TRIPATHI, JCIT, SR. DR ORDER PER SHRI MAHAVIR SINGH, JM: BY WAY OF THIS STAY PETITION ASSESSEE HAS REQUESTED FOR STAY OF OUTSTANDING DEMAND OF RS. 3,26,45,490 / - . ASSESSEE HAS ALSO FILED THIS APPEAL , WHICH IS ARISING OUT OF ORDER OF CIT(A) - 15, KOLKATA IN APPEAL NO. 12/CIT(A) - 15/14 - 15/CIR - 49/KOL DATED 06.05.2015 . ASSESSMENT WAS FRAMED BY DCIT, CIRCLE - 49, KOLKATA U/S. 143(3) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER R EFERRED TO AS THE ACT ) FOR AY 2010 - 11 VIDE ITS ORDER DATED 19.03.2013. FOR THE SAKE OF BREVITY, WE DISPOSE OF BOTH THE APPEAL AND THE STAY PETITION TOGETHER. 2. LD. COUNSEL FOR THE ASSESSEE SHRI S. M. SURANA, ADVOCATE STATED THAT THE ASSESSEE HAS PAID OR REALIZED BY THE DEPARTMENT BY WAY OF ATTACHMENT OF BANK ACCOUNT A TOTAL AMOUNT OF RS.1,34,56,645/ - . FIRST OF ALL, HE TOOK US TO THE FACTS TO PROVE THE PRIMA FACIE CASE. HE ALSO TOOK US TO THE ORDER OF CIT(A) IN RESPECT TO FIRST ADDITION OF RS.5,96,27,07 2/ - BEING LONG TERM CAPITAL GAIN ARISING OUT OF SALE OF SHARES. LD. REPRESENTATIVE OF THE ASSESSEE DREW OUR ATTENTION TO PAGE 9 PARA (D) OF THE ORDER OF CIT(A), WHICH READS AS UNDER: (D) A PERUSAL OF THE ASSESSMENT RECORDS REVEALS THAT THOUGH THE ASSESS EE IN HIS LETTERS CLAIMS TO HAVE FILED ALL THE RELEVANT DETAILS WITH THE AO, IN REALITY NO SUCH DETAILS AS CALLED BY THE AO FOR WERE ACTUALLY FILED BY THE ASSESSEE. THE ASSESSEE MERELY FILED COPIES OF HIS LEDGER ACCOUNT OF THE SHARE BROKERS IN HIS BOOKS OF ACCOUNT ONLY. THE AO, ON THE OTHER HAND, HAS COUNTERED THE CLAIMS OF THE ASSESSEE AT EVERY STEP THROUGH LETTERS SENT TO THE ASSESSEE IN WRITING AS NARRATED, IN PART, IN THE ORDERS OF ASSESSMENT ALSO. 2 S.P. NO. 36 /K/201 5 IN ITA NO. 880 /K/201 5 DEO KR. SARAF AY 20 1 0 - 1 1 IN VIEW OF THE ABOVE, HE STATED THAT THE ASSESSEE HA S FILED COMPLETE DETAILS INCLUDING LEDGER ACCOUNT OF SHARE BROKERS, ACCOUNT COPY OF ASSESSEE AND OTHER DETAILS AS REQUIRED BY THE AO. LD. COUNSEL FOR THE ASSESSEE FURTHER DREW OUR ATTENTION TO PAGE 12 OF THE CIT(A) S ORDER WHEREIN HE HAS FILED COMPLETE DE TAILS IN RESPECT TO TRANSACTIONS WITH BRICS SECURITY LTD. AND BMA WEALTH CREATOR LTD. HE ALSO ARGUED THAT THE CIT(A) NOTED THAT THIS INFORMATION WERE NOT FILED BEFORE THE AO BY THE ASSESSEE IN RESPECT TO SHARE TRADING. ACCORDINGLY, ACCORDING TO LD. COUNSE L , THE CIT(A ) TREATED THIS LONG TERM CAPITAL GAINS AS BOGUS AND CONFIRMED THE ADDITION. 3. THE ENTIRE PREMISE OF LD. COUNSEL FOR TH IS WAS, THAT ASSESS EE IN RESPECT TO THIS ADDITION HA S FILED ALL THE DETAILS BEFORE THE AO AS WELL AS BEFORE CIT(A) BUT NONE OF THE AUTHORITIES BELOW HAVE GONE INTO THE DETAILS FILED BY ASSESSEE AND WITHOUT GOING INTO THE DETAILS BOTH THE AUTHORITIES HAVE ADJUDICATED THE ISSUE JUST ON CONJECTURE AND SURMISES. HENCE, HE STATED THAT IN ANY EVENTUALITY, THE MATTER WILL GO BACK TO THE FILE OF AO FOR THE REASON THAT THE DETAILS, IF ANY, HAS TO BE FILED BEFORE CIT(A) THAT HAS TO BE EXAMINED BY THE AO AFRESH. 4. AFTER GOING THROUGH THE FACTS OF THE CASE ON THIS ISSU E, WE ASK LD. SR. DR, WHETHER WE CAN TAKE UP THIS APPEAL FOR HEARING AND ON THIS, LD. SR. DR HAS CONSENTED AND HE WAS READY FOR REMANDING THE ISSUE BACK TO THE FILE OF AO FOR THE REASON THAT NONE OF THE AUTHORITIES BELOW HAVE GONE INTO THE DETAILS. 5. W E HAVE TAKEN UP THE APPEAL INSTEAD OF STAY PETITION FOR HEARING ITSELF AND IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WITHOUT GOING INTO THE MERITS OF THE CASE BUT SEEING THE FACTS PRIMA FACIE, WE SET ASIDE TH IS ISSUE TO THE FILE OF AO FOR FRESH ADJUDICA TION. 6 . SIMILAR IS THE POSITION IN RESPECT TO DISALLOWANCE OF LOSS OF RS.24,03,955/ - AND CASH DEPOSITS AND WITHDRAWAL OF RS.1,50,02,351/ - , LD. COUNSEL FOR THE ASSESSEE STATED THAT THE DETAILS IN RESPECT TO THIS ADDITIONS WERE ALSO FILED BEFORE AO AS WEL L AS BEFORE CIT(A) BUT NONE OF THE AUTHORITIES BELOW HAVE EXAMINED THESE DETAILS. ON THESE ISSUES ALSO LD. SR. DR FAIRLY CONCEDED THE POSITION. IN TERMS OF THE ABOVE, WE ARE OF THE VIEW THAT LET THE ISSUES BE EXAMINED AFRESH BY AO AFTER ALLOWING REASONAB LE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS FREE TO FILE THE DETAILS. NEEDLESS TO SAY, WE 3 S.P. NO. 36 /K/201 5 IN ITA NO. 880 /K/201 5 DEO KR. SARAF AY 20 1 0 - 1 1 ARE NOT SPEAKING ANYTHING ON MERITS AND ISSUES ARE OPEN BEFORE THE AO AND HE WILL DECIDE ACCORDING TO THE PROVISIONS OF THE ACT. 7 . AS PER OTHE R ISSUES ARE CONCERNED I.E. ADDITIONS OF RS.3,99,035/ - , RS.3,59,617/ - AND RS.61,131/ - , WE DEEM IT FIT AND APPROPRIATE TO SET ASIDE THE SAME ALSO TO THE FILE OF AO TO EXAMINE AFRESH IN ACCORDANCE WITH LAW , AS OTHER ISSUES ARE GOING BACK TO THE FILE OF THE A O . NEEDLESS TO SAY THE ASSESSEE HAS TO PROVIDE REASONABLE OPPORTUNITY OF BEING HEARD. 8. ACCORDINGLY, THE ORDERS OF LOWER AUTHORITIES ARE SET ASIDE AND MATTER IS REMANDED BACK TO THE FILE OF THE AO FOR FRESH ADJUDICATION DE NOVO. 9 . IN THE RESULT, THE S TAY PETITION OF ASSESSEE IS DISMISSED AND THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 10 . ORDER IS PRONOUNCED IN THE OPEN COURT . S D / - S D / - ( M. BALAGANESH ) (MAHAVIR SINGH) ACCOUNTANT MEMBER J UDICIAL MEMBER DATED : 21ST AUGUST , 201 5 JD. SR. P.S COPY OF THE ORDER FORWARDED TO: 1 . A PPELLANT SHRI DEO KUMAR SARAF, AL - 222, SALT LAKE CITY, KOLKATA - 700091 2 RESPONDENT DCIT/ACIT, CIR - 49, KOLKATA 3 . THE CIT (A), KOLKATA 4. 5. CIT KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .