Sri Vijoy Kumar Samanta, Hooghly V. CIT-XX, KOLKATA, Kolkata

ITA 946/KOL/2014

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7862 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2014
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 20-08-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 13-05-2014
• Court: TRIBUNAL
• Department Lawyers: S M SARFARAZUL TAUHEED
• Assessee Lawyers: S M SURANA
• Keywords: Opportunity of being heard
• Section: 263

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOLKATA ( ) BEFORE , /AND , ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI SHAMIM YAHYA , AM ] / I.T.A NO. 9 4 6 /KOL/20 1 4 / ASSESSMENT YEAR : 200 9 - 1 0 SHRI VIJOY KUMAR SAMANTA VS. COMMISSIONER OF INCOME - TAX - XX, KOL. (PAN:AKKPS9498L) ( /APPELLANT ) ( / RESPONDENT ) DATE OF HEARING: 1 7 . 12 .201 4 DATE OF PRONOUNCEMENT: 18 . 1 2 .201 4 FOR THE APPELLANT : SHRI S. M. SURANA , ADVOCATE FOR THE RESPONDENT : SHRI S. M. SARFARAZUL TAUHEED, JCIT, SR. DR / ORDER PER SHRI MAHAVIR SINGH, JM : THIS APPEAL BY ASSESSEE IS ARISING OUT OF REVISION ORDER OF CIT - XX , KOLKATA IN M. NO. CIT - XX/KOL/REV. U/S. 263/2013 - 14/5111 - 5114 DATED 20 . 0 2 .20 1 4 . ASSESSMENT W AS FRAMED BY ITO WARD - 1(4), KOLKATA U/S. 1 4 3 (3) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) FOR ASSESSMENT YEAR 200 9 - 1 0 VIDE HIS ORDER DATED 0 6 . 0 6 .20 1 1 . 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGAINST THE RE VISION ORDER PASSED BY CIT - XX, KOLKATA U/S. 263 OF THE ACT I.E. PARTLY SET ASIDE AND PARTLY ENHANCED UNDER THE PROVISIONS OF THE ACT. FOR THIS, ASSESSEE HAS RAISE D FOLLOWING T HREE REVISED GROUNDS: 1 . FOR THAT THE ORDER OF LD. CIT PASSED U/S. 263 IS BAD IN LAW AS BECAUSE THE ASSESSMENT CANNOT BE SET ASIDE PARTLY AND ENHANCED PARTLY UNDER THE PROVISIONS OF THE INCOME TAX ACT 1961. 2. FOR THAT THE LD. CIT ERRED IN E NHANCING THE ASSESSMENT BY RS.6,20,000/ - WHEN THE AMOUNT WAS CASH WITHDRAWAL FROM THE BANK ACCOUNT, BANK STATEMENT AND CASH BOOK WAS EXAMINED BY THE AO AS ALSO PRODUCED BEFORE THE LD. CIT, THE CASH WAS CREDITED IN THE CASH BOOK, THERE WERE NO SUCH EXPENDIT URE CLAIMED IN THE PROFIT AND LOSS ACCOUNT. 3. FOR THAT THE LD. CIT ERRED IN ENHANCING THE ASSESSMENT BY RS.3,94,900/ - WHEN THE AMOUNT PAID WAS SIMPLY REIMBURSEMENT OF THE FREIGHT CHARGES TO THE SELLER OF THE GOODS TO THE ASSESSEE. 3. WE HAVE HEARD RIV AL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE RELEVANT AY 2009 - 10 ON 29.09.2009. THE ASSESSEE IS IN THE TRADING OF GROUNDNUTS, POTATOES ETC. ORIGINAL ASSESSMENT WAS COMPLETED U/S. 14 3(3) OF THE ACT VIDE ORDER DATED 06.06.2011. SUBSEQUENTLY, CIT - XX, KOLKATA ISSUED SHOW 2 ITA NO. 946 /K/201 4 SHRI VIJAY KUMAR SAMANTA AY 200 9 - 1 0 CAUSE NOTICE NO. CIT - XX/KOL/U/S. 263/28/12 - 13/2270 DATED 8/9 AUGUST, 2012 FOR REVISING THE ASSESSMENT FRAMED BY AO FOR THE REASONS AS UNDER: I) THAT THE PAYMENTS MADE BY ASSESSEE IN CASH OR BY SELF CHEQUES ARE APPARENTLY HIT BY THE PROVISIONS OF SECTION 40 A(3) OF THE ACT AND THIS HAS NOT BEEN VERIFIED BY THE AO. II) THE PAYMENT TO TRANSPORTERS WITHOUT DEDUCTION OF TDS. THEREFORE, ACCORDING TO CIT, THIS EXPENDITURE OF FREIGHT CHARGES AMOUNTING TO RS.3,94,900/ - IS TO BE DISALLOWED BY INVOKING THE PROVISIONS OF SECTION 40 A(3) OF THE ACT. THE ABOVE TWO ISSUES RAISED BY ASSESSEE IN HIS APPEAL AND NOW ARGUED BY LD. COUNSEL THAT ON THESE TWO COUNTS THE CIT - XX, KOLKATA HAS DIRECTED THE AO FOR ENHANCEMENT WITHOUT EXAMINATION OF FACTS. HOWEVER, HE CONCEDED THAT LET T HE ISSUE BE EXAMINED BY THE A O AND FOR THIS HE SHOULD ALLOW OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ON QUERY FROM THE BENCH, LD. SR. DR FAIRLY STATED THAT NO HARM DONE IN CASE THE MATTER IN RELATION TO THESE TWO ISSUES IS ALLOWED TO BE EXAMINED BY THE AO AFRESH. IN VIEW OF THE A BOVE, WE ARE OF THE VIEW THAT LET THE AO EXAMINE FIRST THE CASH WITHDRAWAL FROM THE BANK, THE BANK STATEMENT AND CASH BOOK AND IN CASE CASH WAS CREDITED IN THE CASH BOOK, WHETHER THERE IS CLAIM OF EXPENDITURE OR NOT . S ECOND, WHETHER THE FREIGHT CHARGES PA ID ARE ACTUALLY REIMBURS EMENTS OR NOT. THESE TWO ISSUES , THE AO WILL EXAMINE AND DECIDE AFRESH. IN TERM OF THE ABOVE, THE ORDER OF CIT REVISING THE ASSESSMENT IS UPHELD BUT SUBJECT TO ABOVE DIRECTION. APPEAL OF ASSESSEE IS DISMISSED SUBJECT TO ABOVE DIRE CTION. 4. IN THE RESULT, THE APPEAL OF ASSESSEE IS DISMISSED AS DIRECTED ABOVE . 5 . ORDER PRONOUNCED IN OPEN COURT ON 1 8 . 1 2 . 2 0 1 4 S D / - S D / - , , ( SHAMIM YAHYA ) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 1 8 T H DECEMBER , 201 4 JD.(SR.P.S.) - COPY OF THE ORDER FORWARDED TO: 1 . / A PPELLANT SHRI VIJAY KUMAR SAMANTA, VILL, KURKURI, P.O. TANTISAL, PS KHANAKUL, DIST. HOOGHLY - 712406 2 / RESPONDENT CIT - XX, KOLKATA. 3 . ( )/ THE CIT(A), KOLKATA 4. 5. / CIT KOLKATA / DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, / BY ORDER, /ASSTT. REGISTRAR .