Abhiset Basu, Kolkata V. ITO, Ward-7(1), Kolkata

ITA 98/KOL/2021

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 5410 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 19-03-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA
• Keywords: Reopening of assessment; Unexplained investment; Opportunity of being heard; Accommodation entries; Set aside
• Section: 142(1); 143(1); 69; 148

Judgement Text

ITA NO. 98/KOL/2021 A.Y. 20 09-2010 ABHISET BASU 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A(SMC) BENCH, KOLKATA [VIRTUAL COURT HEARING] BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT I.T.A. NO. 98/KOL/2021 ASSESSMENT YEAR: 2009-2010 ABHISET BASU,...................................... ..................................APPELLANT NILACHAL APARTMENT, 2, INDRALOKE, WEST BENGAL-700110 [PAN:AFVPB3003Q] -VS.- INCOME TAX OFFICER,................................ ............................RESPONDENT WARD-7(1), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069 APPEARANCES BY: NONE, APPEARED ON BEHALF OF THE ASSESSEE SHRI JAYANTA KHANRA, JCIT , APPEARED ON BEHALF OF THE REVENUE DATE OF CONCLUDING THE HEARING : MAY 10, 2021 DATE OF PRONOUNCING THE ORDER : MAY 10, 2021 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-8, KOLKATA DATED 26.08.2020 PASSED EX-PARTE, WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. 2. AT THE OUTSET, IT IS NOTED THAT THERE IS A DELAY OF 137 DAYS ON THE PART OF THE ASSESSEE IN FILING THIS APPEAL BEFORE T HE TRIBUNAL. IN THIS REGARD, THE ASSESSEE HAS FILED AN APPLICATION SEEKI NG CONDONATION OF THE SAID DELAY AND KEEPING IN VIEW THE REASONS GIVEN TH EREIN, I AM SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE DELAY OF 137 DAYS ON THE PART OF THE ASSESSEE IN FILING THIS APPEAL BEFORE THE TRIBU NAL. EVEN THE LD. D.R. HAS NOT RAISED ANY OBJECTION IN THIS REGARD. THE DELAY OF 137 DAYS ON THE PART ITA NO. 98/KOL/2021 A.Y. 20 09-2010 ABHISET BASU 2 OF THE ASSESSEE IN FILING THIS APPEAL BEFORE THE TR IBUNAL IS ACCORDINGLY CONDONED AND THE APPEAL OF THE ASSESSEE IS BEING DI SPOSED OF ON MERIT. 3. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION D ECLARING TOTAL INCOME OF RS.1,48,424/-. THE SAID RETURN WAS INITIALLY PRO CESSED BY THE ASSESSING OFFICER UNDER SECTION 143(1) OF THE ACT. HE SUBSEQU ENTLY RECEIVED INFORMATION SHOWING THAT ONE SHRI RANJIT DAS, AN EN TRY OPERATOR HAD GIVEN ACCOMMODATION ENTRIES OF RS.16,00,000/- TO M/ S. ASHIYANA MARKETING PVT. LIMITED, THE COMPANY IN WHICH THE AS SESSEE WAS THE DIRECTOR. HE, THEREFORE, REOPENED THE ASSESSMENT AN D ISSUED A NOTICE UNDER SECTION 148 TO THE ASSESSEE ON 25.07.2013 AFT ER RECORDING THE REASONS. THE SAID NOTICE AS WELL AS THE SUBSEQUENT NOTICES ISSUED BY THE ASSESSING OFFICER UNDER SECTION 142(1) OF THE ACT, HOWEVER, REMAINED UN- COMPLIED WITH BY THE ASSESSEE. THE ASSESSING OFFICE R, THEREFORE, WAS LEFT WITH NO OPTION BUT TO COMPLETE THE ASSESSMENT EX-PA RTE WITH THE BEST OF HIS JUDGMENT ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD. IN THE ASSESSMENT SO COMPLETED UNDER SECTION 144/147 OF TH E ACT ON 23.01.2015, THE ASSESSING OFFICER MADE THE ADDITION OF RS.16,00,000/- TO THE TOTAL INCOME OF THE ASSESSEE UNDER SECTION 69 O F THE ACT ON ACCOUNT OF UNEXPLAINED INVESTMENT. 4. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 144/147 OF THE ACT, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) CHALLENGING THE VALIDITY OF THE AS SESSMENT MADE BY THE ASSESSING OFFICER UNDER SECTION 144/147 AS WELL AS DISPUTING THE ADDITION OF RS.16,00,000/- MADE IN THE SAID ASSESSMENT. THER E WAS, HOWEVER, NO COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTIC ES ISSUED BY THE LD. CIT(APPEALS) FIXING THE SAID APPEAL FOR HEARING FRO M TIME TO TIME. THE LD. CIT(APPEALS), THEREFORE, PROCEEDED TO DISMISS THE A PPEAL OF THE ASSESSEE FOR NON-PROSECUTION VIDE HIS APPELLATE ORDER DATED 26.08.2020 PASSED EX- ITA NO. 98/KOL/2021 A.Y. 20 09-2010 ABHISET BASU 3 PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEAL S), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 5. AT THE TIME OF HEARING FIXED IN THIS CASE TODAY, NONE HAS APPEARED ON BEHALF OF THE ASSESSEE. THIS APPEAL OF THE ASSES SEE IS, THEREFORE, BEING DISPOSED OF EX-PARTE AFTER HEARING THE ARGUMENTS OF THE LD. D.R. AND PERUSING THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT ONE OF THE MAIN CONTENTIONS RAISED BY THE ASSESSEE IN T HE GROUNDS TAKEN IN THIS APPEAL IS THAT THE AMOUNT OF RS.16,00,000/- IN QUESTION WAS DULY RECORDED IN THE BOOKS OF ACCOUNT OF THE CONCERNED C OMPANY NAMELY M/S. ASHIYANA MARKETING PVT. LIMITED AND, THEREFORE, THE ADDITION OF THE SAID AMOUNT MADE IN THE HANDS OF THE ASSESSEE BY TAKING IT AS HIS UNEXPLAINED INVESTMENT IS UNSUSTAINABLE. AS RIGHTLY SUBMITTED B Y THE LD. D.R., THIS CLAIM OF THE ASSESSEE, HOWEVER, REQUIRES VERIFICATI ON AND SINCE THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE EITHER DU RING THE COURSE OF ASSESSMENT PROCEEDINGS OR DURING THE COURSE OF APPE LLATE PROCEEDINGS, NECESSARY VERIFICATION COULD NOT BE DONE EITHER BY THE ASSESSING OFFICER OR BY THE LD. CIT(APPEALS). IT IS ALSO NOTED THAT S IMILAR IS THE POSITION AS REGARDS THE OTHER ISSUE RAISED BY THE ASSESSEE IN T HIS APPEAL CHALLENGING THE VALIDITY OF REOPENING OF ASSESSMENT AS MADE BY THE ASSESSING OFFICER ON THE BASIS OF REASONS RECORDED. MOREOVER, AS PER THE PROVISIONS OF SUB- SECTION (6) OF SECTION 250, THE LD. CIT(APPEALS) WA S REQUIRED TO DISPOSE OF THE APPEAL OF THE ASSESSEE VIDE AN ORDER IN WRITING STATING THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR THE DECISION. IT IS OBSERVED THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) DOES NOT COMPLY WITH THESE REQUIREMENTS. I, THEREFORE, CONSI DER IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO SET ASIDE THE IMP UGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PARTE DISMISSING THE APPEAL OF THE ASSESESE FOR NON-PROSECUTION AND REMIT THE MATTER BACK TO HIM FO R DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT IN ACCORDANC E WITH LAW BY PASSING A WELL DISCUSSED AND WELL REASONED ORDER AFTER GIVI NG PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. THE ASSESSEE IS ITA NO. 98/KOL/2021 A.Y. 20 09-2010 ABHISET BASU 4 DIRECTED TO MAKE DUE COMPLIANCE BEFORE THE LD. CIT( A) AND EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT (A) TO DISPOSE OF THE APPEAL AFRESH EXPEDITIOUSLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON MAY 10, 2021. SD/- (P.M. JAGTAP) VICE-PRESIDENT KOLKATA, THE 10 TH DAY OF MAY, 2021 COPIES TO : (1) ABHISET BASU, NILACHAL APARTMENT, 2, INDRALOKE, WEST BENGAL-70011 0 (2) INCOME TAX OFFICER, WARD-7(1), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-8, KOLKA TA, (4) COMMISSIONER OF INCOME TAX , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.