Radiance Edifice Infra Realty Ltd., Hooghly V. ITO, Ward-15(3), Kolkata, Kolkata

ITA 953/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6110 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 04-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A BHATTACHARJEE
• Assessee Lawyers: S DEY
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice
• Section: 143(3); 68; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA [BEFORE HONBLE SHRI M.BALAGANESH, AM & HONBLE SHR I S.S.VISWANETHRA RAVI, JM] I.T.A NO. 953/KOL/2017 ASSESSMENT YEAR : 2012-1 3 RADIANCE EDIFICE INFRA REALTY LTD. -VS- ITO, WARD-15(3), KOLKATA [PAN: AAECR 4756 K] (APPELLANT) (RESPONDEN T) FOR THE APPELLANT : SHRI S. DEY, ADVOC ATE FOR THE RESPONDENT : SHRI A. BHATTACHARJE E, ADDL. CIT DATE OF HEARING : 26.06.2018 DATE OF PRONOUNCEMENT : 06.07.2018 ORDER PER M.BALAGANESH, AM 1. THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE O RDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-5, KOLKATA [IN SHORT THE LD CIT (A)] IN APPEAL NO.237/CIT(A)- 5/WD-15(3)/15-16 DATED 22.11.2016 AGAINST THE ORDER PASSED BY THE ITO, WARD-15(3), KOLKATA [ IN SHORT THE LD AO] UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 30.03.2015 FOR THE ASSESSME NT YEAR 2012-13. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THE LEARNED CIT(A)-5 IS NOT JUSTIFIED IN PASSING AN EX PARTE ORDER BY DENYING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELL ANT. 2 ITA NO.953/KOL/2017 RADIANCE EDIFICE INFRA REALTY LTD.. A.YR. 2012-13 2 2. FOR THE ORDER OF THE LEARNED CIT(A)-5 IS NOT JUS TIFIED IN CONFIRMING THE ORDER OF THE LEARNED AO IN TREATING THE COLLECTION FROM D IFFERENT PARTIES AS NEGATIVE CASH BALANCE OF RS. 37,00,893/- AND RS. 32,11,235/- AND MAKING THE ADDITION OF THE SAME IN THE TOTAL INCOME OF THE APPELLANT U/S 6 8 OF INCOME TAX ACT, 1961. WITHOUT CONSIDERING THE NATURE OF RECORDING IN THE BOOKS OF ACCOUNTS. 3. FOR THAT THE CIT(A) IS NOT JUSTIFIED IN CONFIRMI NG THE ADDITION OF RS. 90,00,000/- WHICH IS ACTUALLY DEBIT OF RECEIPT THRO UGH NET BANKING FROM ANOTHER UNIT. 4. FOR THAT THE LEARNED CIT(A) HAS NOT PROPERLY CO NSIDERED THE FACTS OF CASE. 5. FOR THAT THE ORDERS OF THE LOWER AUTHORITIES ARE AGAINST THE ACCEPTED PRINCIPLES OF LAW AND NATURAL JUSTICE. THE APPELLANT CRAVES FOR LEAVE TO ADD, ALTER AND MO DIFY ANY GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING OF APPEAL. 3. THE BRIEF FACTS OF THIS APPEAL IS THAT THE ASSES SEE IS A COMPANY ENGAGED IN DEALING IN LAND, PLOTS WHICH WERE DEVELOPED OUT OF FUNDS PROVI DED BY THE PROSPECTIVE BUYERS AND THE SAID LANDS WERE HANDED OVER TO THOSE PARTIES AF TER DEVELOPMENT THEREON. THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2012-13 WAS FILED BY THE ASSESSEE ON 08.01.2013 DECLARING TOTAL INCOME OF RS. NIL AFTER CLAIMING TH E CURRENT YEAR LOSS OF RS. 3,18,02,669/-. IN THE COURSE OF ASSESSMENT PROCEEDI NGS, THE LD. AO OBSERVED THAT THERE WAS NEGATIVE CASH BALANCE ON 29.09.2011 TO THE TUNE OF RS. 37,00,893/- AND ON 31.01.2012 TO THE TUNE OF RS. 32,01,234.66/-. THE A SSESSEE WAS NOT ABLE TO EXPLAIN THE SOURCE OF CASH WITHDRAWAL TO EXPLAIN THE SAID NEGAT IVE CASH BALANCES. THE LD. AO OBSERVED THAT THE ASSESSEE WAS NOT ABLE TO EXPLAIN THE NATURE AND SOURCE OF CREDIT OF RS. 90,00,000/- APPEARING ON 31.01.2012 BY PROVING THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION THEREON. ACCORDINGLY , HE BROUGHT ALL THE THREE ITEMS TOTALING TO RS. 1,59,02,127/- TO TAX TREATING THE SAME AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. AGGRIEVED THE ASSESSEE PREFERRED AN APP EAL BEFORE THE LD. CIT(A) AND BEFORE THE LD. CIT(A), NONE APPEARED ON BEHALF OF THE ASSE SSEE AND THE LD. CIT(A) DECIDED THE 3 ITA NO.953/KOL/2017 RADIANCE EDIFICE INFRA REALTY LTD.. A.YR. 2012-13 3 APPEAL EX PARTE BY DISMISSING THE APPEAL OF THE ASS ESSEE. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND THA T THE LD. CIT(A) HAD PASSED AN EX PARTE ORDER AND HAD NOT ADJUDICATED THE ISSUE ON ME RITS TAKING INTO ACCOUNT THE VARIOUS SUBMISSIONS AND EVIDENCES IN SUPPORT OF THE ASSESSE ES SUBMISSION. IN THESE FACTS AND CIRCUMSTANCES, WE DEEM IT FIT AND APPROPRIATE, TO S ET ASIDE THIS APPEAL TO THE FILE OF LD. CIT(A) FOR DE NOVO ADJUDICATION AND DIRECT HIM TO T AKE A DECISION UNINFLUENCED BY THE EARLIER DECISION TAKEN BY HIM IN THIS REGARD. ACCOR DINGLY, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 06.07.2018 SD/- SD/- [S.S. VISWANETHRA RAVI] [ M.BAL AGANESH ] JUDICIAL MEMBER ACCOUNTANT MEM BER DATED : 06.07.2018 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. RADIANCE EDIFICE INFRA REALTY LTD., MR. SHANKAR DUTTA (DIRECTOR), SUBHAS NAGAR, NABAGRAM, HOOGHLY-711246. 2. ITO, WARD-15(3), KOLKATA, AAYAKAR BHAWAN POORVA, 110, SHANTIPALLY, KOLKATA- 700107. 3..C.I.T.- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S 4 ITA NO.953/KOL/2017 RADIANCE EDIFICE INFRA REALTY LTD.. A.YR. 2012-13 4