ITO, Ward - 12(1), Kolkata, Kolkata V. M/s. Neotech Builders Pvt. Ltd., Kolkata

ITA 943/KOL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9292 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2011
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 07-05-2010
• Result in Favour of: Set Aside
• Court: TRIBUNAL
• Department Lawyers: A K PRAMANICK
• Assessee Lawyers: A K CHAKRABORTY; D SAHA
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BE NCH B, KOLKATA () BEFORE . .. . . .. . , , , , , SHRI B.R.MITTAL, JUDICIAL MEMBER. /AND . . . . ! !! ! . . . . ' ' ' ') ) ) ) !# B.K.HALDAR, ACCOUNTANT MEMBER . $ $ $ $ / ITA NO . 943 /KOL/2010 %& '(/ ASSESSMENT YEAR : 2003-04 INCOME-TAX OFFICER VS. M/S. NEOTECH BUILDERS PV T.LTD WARD 12(1), KOLKATA PAN: AABCN 0667L *+ /APPELLANT ,-*+ /RESPONDENT *+ . / !/ FOR THE APPELLANT: SHRI A.K.PRAMANIK, LD.DR ,-*+ . / !/ FOR THE RESPONDENT: S/SHRI A.K CHAKRABORTY & D.SAHA, LD.AR !0 / ORDER . . . . ! !! ! . . . . ' ' ' ') )) ) , , , , !# SHRI B.K.HALDAR, AM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-XXIV, KOLKATA DATED 26-02-2010 FOR THE ASSESSMENT YEAR 2003-04. 2. THE REVENUE HAS TAKEN FOLLOWING GROUND OF APPEAL :- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD.CIT(A) IS CORRECT IN ALLOWING THE CLAIM OF T HE ASSESSEE CONSIDERING FRESH EVIDENCES IGNORING PROVISIONS OF RULE-46A OF THE I.T RULES 1962. 3. DURING THE ASSESSMENT PROCEEDINGS THE AO NOTICE D THAT TWO ADVANCES TOTALING TO RS.5,78,000/- WERE ADVANCED BY THE ASSE SSEE TO TWO PARTIES DURING THE RELEVANT PREVIOUS YEAR. THOUGH THE SOURCE AND NATUR E OF SUCH ADVANCES WERE REQUIRED TO BE ESTABLISHED BY THE ASSESSEE AS PER T HE SHOW-CAUSED ISSUED [U/S. 143(2)/142(1) OF THE ACT ] BY THE AO, THE ASSESSEE FAILED TO DO THE SAME. FROM THE BANK STATEMENT PRODUCED BY THE ASSESSEE, IT COULD NOT BE ESTABLISHED THAT THE ADVANCES WERE, IN FACT, MADE TO THE SAID TWO PARTI ES[ ALO ROY & S.BANERJEE ]. THE AO, THEREFORE, ADDED THE IMPUGNED AMOUNT OF RS.5,78 ,000/- AS THE SOURCE OF SUCH ADVANCES COULD NOT BE ESTABLISHED. 4. BEFORE THE LD.CIT(A), IT WAS CONTENDED BY THE AS SESSEE THAT ADVANCES WERE MADE THROUGH CROSSED ACCOUNT PAYEE CHEQUES AND OUT OF EXPLAINED SOURCES. IN SUPPORT OF THE CLAIM THE ASSESSEE FILED COPY OF BAN K ACCOUNT, PROFIT & LOSS ACCOUNT, BALANCE SHEET ETC AND SUBMITTED THE DETAILS OF CHE QUES BY WHICH THE ADVANCES WERE MADE TO THE TWO PARTIES. IT WAS ALSO STATED T HAT BOTH THE ADVANCES WERE GIVEN FOR SUPPLY OF MATERIAL FOR CONSTRUCTION PURPOSES A ND THESE MATERIALS WERE SUBSEQUENTLY SUPPLIED DURING THE NEXT FINANCIAL YEA R. IN SUPPORT OF THE SAME THE BILL AND COPIES OF LEDGER ACCOUNT OF THE TWO PERSON S FOR THE SUBSEQUENT YEAR WERE ALSO FURNISHED. CONSIDERING THE ABOVE THE LD.CIT(A) DELETED THE IMPUGNED AMOUNT OF ADDITION OF RS.5,78,000/-. 5. AGGRIEVED THE REVENUE HAS FILED APPEAL BEFORE TH E TRIBUNAL. 6. BEFORE US THE LD.DR REFERRED TO PARA 1 OF PAGE 2 OF THE ASSESSMENT ORDER AND PARA 3.2 OF THE LD.CIT(A)S ORDER AND SUBMITTED THAT ADDITIONAL EVIDENCE AS MENTIONED IN PARA 3.2 OF THE LD.CIT(A)S ORDER, WAS CONSIDERED BY HIM FOR GIVING IMPUGNED RELIEF. IT WAS SUBMITTED BY HIM THAT THE LD.CIT(A) WAS DUTY BOUND TO GIVE OPPORTUNITY TO THE AO IN TERMS OF RULE 46A OF THE I.T RULES 1962, WHICH HE HAS FAILED TO GIVE. HE FURTHER RELIED ON ORDER-SHEE T ENTRIES, COPY OF WHICH HAS BEEN FURNISHED BY HIM FROM WHICH IT COULD BE SEEN THAT THOUGH OPPORTUNITIES WERE ALLOWED, THE ASSESSEE DID NOT FURNISH ANY EVIDENCE IN REPLY TO SHOW-CAUSE NOTICE ISSUED BY THE AO TO THE ASSESSEE. 7. THE LD.AR FOR THE ASSESSEE, ON THE OTHER HAND, C ONTENDED THAT RELEVANT BOOKS OF ACCOUNT AND OTHER EVIDENCE WERE PRODUCED B EFORE THE AO. RELYING ON PENALTY PROCEEDING THAT WAS INITIATED BY THE AO ON THE DATE OF COMPLETION OF THE ASSESSMENT I.E. 20-01-2006 U/S. 271(1)(B) OF THE AC T, IT WAS CONTENDED BY HIM THAT PENALTY PROCEEDINGS WERE DROPPED BY THE AO. THIS WO ULD SHOW THAT THE ASSESSEE FULLY COMPLIED WITH THE NOTICES ISSUED U/S.142(1) /143(2) OF THE ACT. THIS WOULD SHOW THAT NO ADDITIONAL EVIDENCE WAS TAKEN BY THE L D.CIT(A) FOR DECIDING THE IMPUGNED ISSUE. RELIANCE WAS PLACED BY HIM ON THE F OLLOWING CASE LAWS:- A. CIT VS.VALIMOHMED AHMEDBHAI 134 ITR 214(GUJ) B. CIT VS. PODDAR SWADESH UDYOG P.LTD 295 ITR 252 (GAU) C. CIT VS. K RAVINDRANATHAN NAIR 265 ITR 217(KER ) D. ITO (EXEMTION) VS. BAJORIA FOUNDATION 254 ITR 65 (AT)(CAL) E. JWALADUTT JIWANKUMAR VS. CWT 123 ITR 183(CAL) F. ACIT VS. JUSTICE MOTILAL B.NAIK 270 ITR 141(A T)(HYD) 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORD. WE FIND THAT THE EVIDENCE NAMELY DETAILS OF CHEQUE BY WHICH THE ADVA NCES WERE MADE TO THE PARTIES, THE BILLS BY WHICH CONSTRUCTION MATERIAL W ERE SUPPLIED BY THE PARTIES TO WHOM SUCH ADVANCES WERE MADE DURING THE NEXT FY AND THE LEDGER ACCOUNT OF SUCH PARTIES WERE NOT FURNISHED BEFORE THE AO. THE ISSUE INVOLVED HERE IS NOT ADMISSION OF ADDITIONAL EVIDENCE BY THE LD.CIT(A) B UT FAILURE TO GIVE OPPORTUNITY TO THE AO IN TERMS OF RULE 46A OF THE I.T RULES 196 2. IN THIS VIEW OF THE MATTER, THE CASE LAWS CITED BY THE LD.AR FOR THE ASSESSEE D O NOT HAVE ANY APPLICATION IN THE PRESENT CASE. AS WE HAVE NARRATED ABOVE THERE IS C LEAR FAILURE BY THE LD.CIT(A) TO GIVE OPPORTUNITY TO THE AO WITH REFERENCE TO ADDIT IONAL EVIDENCE ADMITTED BY HIM DURING THE APPELLATE PROCEEDINGS. IN VIEW OF THE AB OVE, WE SET ASIDE THE IMPUGNED ORDER OF THE LD.CIT(A) AND REMIT THE MATTER BACK TO HIS FILE WITH THE DIRECTION THAT A FRESH ORDER BE PASSED AS PER LAW AFTER GIVING ADEQ UATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND OPPORTUNITY TO THE REVENUE IN T ERMS OF RULE 46A OF THE I.T RULES 1962. 9. IN THE RESULT THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 11-03-2011 SD/- SD/- . .. . . .. . , , , , B.R.MITTAL, JUDICIAL MEMBER . . . . ! !! ! . . . . ' ' ' ' , ! !! !# # # # , B.K.HALDAR, ACCOUNTANT MEMBER. ( (( (1# 1# 1# 1#) )) ) DATE:11-03-2011. !0 . ,2 3!2'4- COPY OF THE ORDER FORWARDED TO: 1. INCOME-TAX OFFICER, WARD 12(1) AAYKAR BHAWAN, 7 TH FL., P7 CHOWRINGHEE SQ. KOL-69. 2 M/S. NEOTECH BUILDERS PVT.LTD 4/29 FERN ROAD, KOL-1 9. 3. THE CIT, 4. THE CIT(A)- 5. DR, KOLKATA BENCHES, KOLKATA -2 ,/ TRUE COPY, !0%:/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES *PP SR.PS