Md Faizul Islam, Kolkata V. ITO, WD-26(2), KOLKATA, Kolkata

ITA 928/KOL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4236 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 23-11-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 03-05-2016
• Court: TRIBUNAL
• Assessee Lawyers: S L KOCHAR; ANIL KOCHAR S
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI S.S.VISWANETHRA RAVI, JM & DR. A.L.SAI NI, AM ./ ITA NO.928/KOL/2016 ( / ASSESSMENT YEAR:2010-2011) MD. FAIZUL ISLAM, 86, CANNING STREET, KOLKATA-700001 VS. ITO WARD-26(2), KOLKATA-700071 ./ ./PAN/GIR NO. : AARPI 9461 L ( /APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI S.L.KOCHAR & ANIL KOCHAR, ADVOCATES /REVENUE BY : SHRI SALLONG YADEN, ADDL.CIT / DATE OF HEARING : 23/11/2016 /DATE OF PRONOUNCEMENT 30/11/2016 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAIN ING TO ASSESSMENT YEAR 2010-2011, IS DIRECTED AGAINST AN ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-19, KOLKATA, I N APPEAL NO.92/CIT(A)-19/KOL/2014-15, DATED 11.03.2016, WHIC H IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFI CER (AO) UNDER SECTION143(3) OF THE INCOME TAX ACT 1961, (IN SHORT THE ACT), DATED 28.03.2013. 2. THE BRIEF FACTS OF THE CASE QUA THE ASSESSEE ARE THAT THE ASSESSEE HAS ELECTRONICALLY FILED ITS RETURN OF INCOME FOR T HE A.Y.2010-11 ON 27.06.2010 DECLARING TOTAL INCOME OF RS.4,27,090/-. THE RETURN WAS PROCESSED U/S 143(1). LATER ON, THE CASE WAS SELECT ED FOR SCRUTINY THROUGH CASS AND THE AO HAS COMPLETED THE ASSESSMEN T BY MAKING THE ADDITION OF RS.15 LAKHS TREATING THE SAME AS UNEXPL AINED CASH CREDIT ITA NO.928/16 MD. FAIZUL ISLAM 2 U/S.68 OF THE I.T.ACT. SINCE THE ASSESSEE DID NOT P ROVE THE CREDITWORTHINESS OF THE CASH DEPOSIT, THEREFORE, TH E AO HAS ADDED RS.15 LAKHS TO THE TOTAL INCOME OF THE ASSESSEE. 3. AGGRIEVED FROM THE ORDER OF AO, THE ASSESSEE FIL ED APPEAL BEFORE THE LD. CIT(A), WHO HAS CONFIRMED THE ADDITION MADE BY THE AO OBSERVING THE FOLLOWINGS :- 5. IN THE APPELLATE PROCEEDINGS THE APPELLANT HAS CHOSEN NOT TO AVAIL THE SEVERAL OPPORTUNITIES PROVIDED. IN THE AB SENCE OF ANY COGENT ARGUMENT OR MATERIAL TO OVERTURN THE FINDING OF THE ASSESSING OFFICER, I AM UNABLE TO PROVIDE THE RELIEF PRAYED F OR. THE ACTION OF THE ASSESSING OFFICER IN MAKING THE DISALLOWANCES IS CO NFIRMED. 4. NOT BEING SATISFIED WITH THE ORDER OF CIT(A), TH E ASSESSEE IS IN FURTHER APPEAL BEFORE US AND HAS TAKEN THE FOLLOWIN G GROUNDS OF APPEAL :- 1. FOR THAT THE LD. CIT(A) ERRED IN DISMISSING THE APPEAL OF THE APPELLANT ON THE ALLEGED GROUNDS. 2. FOR THAT THE LD. CIT(A) HAS ERRED IN OBSERVING T HAT THE APPELLANT HAS CHOSEN NOT TO AVAIL THE OPPORTUNITIES PROVIDED TO THE APPELLANT. 3. FOR THAT THE APPELLANT HAD SUBMITTED ALL RELEVAN T DETAILS WITH WRITTEN SUBMISSIONS BEFORE THE LD. CIT(A) AND THAT THERE WAS NO SUCH DEFAULT ON THE PART OF THE APPELLANT THAT WOUL D TANTAMOUNT TO NON-AVAILING OF OPPORTUNITY OF HEARING. 4. FOR THAT THE LD. CIT(A) WHO HAS NOTED THE FACTS ABOUT THE CASE OF THE APPELLANT OUGHT TO HAVE CONCLUDED THAT THE APPE LLANT HAD EXPLAINED THE SOURCE OF THE AMOUNT OF RS.15,00,000/ - ALONG WITH RELEVANT EVIDENCES AND ACCORDINGLY THE LD. CIT(A) O UGHT TO HAVE PROPERLY APPRECIATED THE FACTS OF THE CASE OF THE A PPELLANT AND OUGHT NOT TO HAVE CONFIRMED THE ORDER OF THE A.O. 5. FOR THAT THE LD. CIT(A) OUGHT TO HAVE ACCEPTED T HE CONTENTIONS RAISED BY THE APPELLANT WHICH WERE ON RECORD AND OU GHT TO HAVE ACCEPTED THE SOURCE OF THE AMOUNT OF RS.15,00,000/- . 6. FOR THAT FURTHER GROUNDS OF APPEAL MAY KINDLY BE ALLOWED TO BE TAKEN AT THE TIME OF HEARING OF THE APPEAL. 5. ALTHOUGH, IN THIS APPEAL, THE ASSESSEE HAS RAISE D MULTIPLE GROUNDS OF APPEAL BUT AT THE TIME OF HEARING THE MAIN GRIEV ANCE OF THE ASSESSEE ITA NO.928/16 MD. FAIZUL ISLAM 3 HAS BEEN CONFINED TO GROUND NO.4 ONLY AND OTHER GRO UNDS WERE NOT PRESSED BY THE ASSESSEE. 6. GROUND NO.4 RELATES TO ADDITION OF RS.15 LAKHS ( ON ACCOUNT OF CASH DEPOSITED BY THE ASSESSEE IN BANK) U/S.68 OF I.T.AC T. 6.1. LD. AR FOR THE ASSESSEE HAS VEHEMENTLY SUBMITT ED BEFORE US THAT THE ASSESSEE HAS EXPLAINED THE SOURCE OF RS.15 LAKH S BEFORE THE AO. THE ASSESSEE HAS PRODUCED THE RELEVANT DOCUMENT BEFORE THE AO THROUGH MD. NURUL ISLAM, S/O MD. NIAZ HUSSAIN, WHERE MD. NU RUL ISLAM (VIDE PARA 4.1 OF THE ASSESSMENT ORDER) STATED THAT: I MD. NURUL ISLAM SON OF MD. NIAZ HUSSAIN OF KAJI PARA SEKEDDA, SURI BIRBHUM DO HEREBY STATE AND DECLARE THAT I USE D TO SUPPLY BUILDING MATERIALS TO M/S GEMS CONSTRUCTION, SALDAH MORE BIRBHUM & THAT AGAINST MY DUES, I WAS GIVEN AN AMOUNT RS.20 LACS BY BEARER CHEQUE NO.3149 WHICH I ENCASHED AND GOT THE AMOUNT OF RS.20 LACS FROM UNION BANK OF INDIA 09.01.2010. I H ANDED OVER THE SAID AMOUNT TO MY BROTHER MR. FAIJUL ISLAM FOR SAFE CUSTODY. I AM TO STATE THAT IT IS NEITHER A LOAN NOR AN ADVANCE TO M Y BROTHER. IT IS KEPT WITH HIM ON MY BEHALF FOR SAFETY. I ENCLOSE A COPY OF IDENTITY CARD, RATION CARD, AND A COPY OF BANK ACCOUNT MAINTAINED BY SAID GEMS CONSTRUCTIONS WITH UNION BANK OF INDIA IN SUPPORT O F MY WITHDRAWALS OF RS. 20 LACS ON 09-01-2010. THEREFORE, LD AR FOR THE ASSESSSEE STATED THAT MD.N URUL ISLAM SUBMITTED BEFORE THE AO, IDENTITY CARD, RATION CARD, AND COPY OF BANK ACCOUNT AND BY SUBMITTING THESE DOCUMENTS THE ASSESSEE HAS PROVED THE IDENTITY, CAPACITY AND CREDITWORTHINESS OF THE LENDER. 6.2. ON THE OTHER HAND, THE LD DR FOR THE REVENUE H AS SUBMITTED THAT THE ASSESSEE HAS NEITHER PRODUCED ANY EVIDENCE BEFORE T HE AO NOR BEFORE THE CIT(A) TO PROVE THE CREDITWORTHINESS AND GENUIN ENESS OF THE TRANSACTION OF RS.15 LAKHS CASH DEPOSITED IN THE BA NK ACCOUNT OF THE ASSESSEE. THE ASSESSEE DID NOT APPEAR BEFORE THE LD . CIT(A) VIDE PARA 2 OF ORDER OF THE LD. CIT(A) WHERE LD. CIT(A) HAD FIX ED THE HEARING ON SEVERAL ITA NO.928/16 MD. FAIZUL ISLAM 4 OCCASIONS I.E. ON 01.06. 2015, 17.12.2015 AND 26.02 .2016 BUT THERE HAD BEEN NON-APPEARANCE ON ALL OCCASIONS. THE ASSESSEE NEVER APPEARED BEFORE THE LD. CIT(A) TO EXPLAIN THE GENUINENESS AN D CREDITWORTHINESS OF THE CASH DEPOSIT IN THE BANK. 6.3. HAVING HEARD THE RIVAL SUBMISSIONS, PERUSED TH E MATERIAL AVAILABLE ON RECORD, WE ARE OF THE VIEW THAT THERE IS MERIT I N THE SUBMISSIONS OF THE LD. DR FOR THE REVENUE, AS THE PROPOSITIONS CANVASS ED BY THE LD. DR FOR THE REVENUE ARE SUPPORTED BY FACTS NARRATED ABOVE B Y HIM. THE ASSESSEE HAS GIVEN OPPORTUNITY BY THE CIT(A) TO APPEAR BEFOR E HIM ON THREE OCCASIONS BUT THE ASSESSEE NEVER APPEARED BEFORE TH E CIT(A), THEREFORE, THE CIT(A) PASSED THE EX-PARTE ORDER. THE LD AR RE QUESTED THE BENCH TO SEND THE CASE BACK TO CIT(A) IN THE INTEREST OF JUS TICE.CONSIDERING THE ABOVE FACTUAL POSITION, WE ARE OF THE VIEW THAT AN OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE IN THE INTEREST OF JUSTICE. E VEN LD DR HAS AGREED ON THIS. HENCE, WE ARE OF THE VIEW TO REMIT THE CASE B ACK TO THE LD. CIT(A) TO ADJUDICATE THE CASE AFRESH BY GIVING PROPER OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, WE REMIT THE CASE BACK T O THE LD. CIT(A). 6.4. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30/ 11/2016. SD/ - (S.S.VISWANETHRA RAVI) SD/ - (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; $% DATED 30/11/2016 & ()* /PRAKASH MISHRA , . / PS ITA NO.928/16 MD. FAIZUL ISLAM 5 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) & ' , / ITAT, KOLKATA 1. / THE APPELLANT-ITO WARD-26(2), KOLKATA 2. / THE RESPONDENT.-MD. FAIZUL ISLAM 3. 4 ( ) / THE CIT(A), KOLKATA. 4. 4 / CIT 5. 56 7 8 , 8 , / DR, ITAT, KOLKATA 6. 7 9 / GUARD FILE. 5 //TRUE COPY//