Smt. Aparna Biswas , North 24 Parganas V. ITO, Ward - 49(1), Kolkata , Kolkata

ITA 989/KOL/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 7046 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 21-01-2021
• Assessment Year: 2011-2012
• Appeal Filed On: 14-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DHRUBAJYOTI ROY
• Keywords: Opportunity of being heard; Set aside
• Section: 133(6)

Judgement Text

ITA NO.989/KOL/2018 SMT. APARNA BISWAS A.Y. 2011-12 1 | P A GE , A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA [BEFORE SHRI J. SUDHAKAR REDDY, AM AND SHRI A. T. VARKEY, JM] I.T.A. NO. 989/KOL/2018 ASSESSMENT YEAR: 2011-12 SMT. APARNA BISWAS (PAN: AFRPB 4221 Q) VS. ITO,WARD-49(1), KOLKATA APPELLANT RESPONDENT DATE OF HEARING (VIRTUAL) 21.01.2021 DATE OF PRONOUNCEMENT 27.01.2021 FOR THE APPELLANT SHRI SUNIL SURANA, FCA FOR THE RESPONDENT SHRI DHRUBAJYOTI ROY, JCIT ORDER PER SHRI A. T. VARKEY, JM: THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAINST THE ORDER OF LD. CIT(A)-15, KOLKATA DATED 03.01.2018 FOR ASSESSMENT YEAR 2011-12. 2. AT THE OUTSET IT HAS BEEN BROUGHT TO OUR NOT ICE BY THE LD. A.R OF THE ASSESSEE SHRI SUNIL SURANA, FCA THAT THE IMPUGNED ORDER OF THE LD . CIT(A) IS AN EX-PARTE ORDER. FURTHER, ACCORDING TO LD. A.R, DURING THE ASSESSMENT PROCEED ING, THOUGH THE AO HAS ACKNOWLEDGED THAT THE ASSESSEE HAD PRODUCED THE BOOKS OF ACCOUNT , CASH BOOKS, LEDGERS ETC WHICH HE SUMMONED FOR, STILL HE HAS MADE SIX (6) PETTY ADDIT IONS MERELY BECAUSE THE ASSESSEES A.R COULD NOT SUBMIT EXPLANATION/RECONCILE CERTAIN MISM ATCHES POINTED OUT BY THE AO. ACCORDING TO LD. A.R, THE ASSESSEE DID NOT GET PROP ER OPPORTUNITY BEFORE THE AO TO RECONCILE THE POINTS / ISSUES BROUGHT TO HER NOTICE . THEREFORE THE LD AR RELYING UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE O F TIN BOX CO. VS. CIT IN (2001) 116 TAXMAN 491 (SC) PLEADED THAT MATTER MAY BE RESTORED BACK TO THE FILE OF AO. PER CONTRA THE LD. D.R SHRI DHRUBAJYOTI ROY WAS OF THE OPINION THAT ENOUGH OPPORTUNITY WAS GIVEN TO THE ASSESSEE AND SINCE SHE FAILED TO RECONCILE THE MIS-MATCHES POINTED OUT BY THE AO HE ADDED THE SAME, SO THEREFORE SECOND OPPORTUNITY SHO ULD NOT BE GIVEN TO THE ASSESSEE. ITA NO.989/KOL/2018 SMT. APARNA BISWAS A.Y. 2011-12 2 | P A GE 3. HAVING HEARD BOTH THE PARTIES AND AFTER PERUSAL OF THE RECORDS, WE NOTE THAT THE ASSESSEE DURING ASSESSMENT PROCEEDING HAS PRODUCED THE BOOKS OF ACCOUNT, CASH BOOK, LEDGER ETC. WHICH FACT HAS BEEN ACKNOWLEDGED BY THE AO. FURTHER, IT IS NOTED THAT THE BOOKS OF ASSESSEE HAS NOT BEEN REJECTED BY THE AO. HOWEVE R, CERTAIN ADDITIONS (SIX ADDITIONS) WERE MADE TO THE TUNE OF RS. 8,10,857/- FOR WANT OF EXPLANATION/RECONCILIATION. ACCORDING TO ASSESSEE, FOR FILING THE RECONCILIATION SHE DID NOT GET PROPER OPPORTUNITY; AND IN ORDER TO VERIFY THIS FACT WE HAVE PERUSED THE ASSESSMENT ORD ER AND COULD NOT GET ANY ASSISTANCE SINCE AO HAS STATED ABOUT ONLY SENDING TWO NOTICES ON 31. 07.2012 & 15.07.2013. THEREAFTER THE AO SAYS ONLY ABOUT COLLECTING CERTAIN INFORMATION U /S 133(6) OF THE ACT DATED 25.11.2013. THEREAFTER WE NOTE THAT AO ONLY SAYS ABOUT THE INAB ILITY OF THE LD. A.R OF ASSESSEE TO SATISFY HIM ABOUT CERTAIN DISCREPANCIES. SO HE MADE THE ADDITION. IN SUCH A SCENARIO, WE ARE OF THE VIEW THAT SINCE THE ADDITIONS WERE MADE BECA USE ASSESSEE/LD. A.R COULD NOT GIVE PROPER EXPLANATION/RECONCILIATION ABOUT CERTAIN TRA NSACTIONS, FOR THE INTEREST OF JUSTICE AN OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE. IN ANY CA SE ASSESSEES GRIEVANCE IS THAT SHE DID NOT GET PROPER OPPORTUNITY TO EXPLAIN/RECONCILE IN SUCH A SITUATION WE REMAND THE ISSUES BACK TO AO FOR FRESH ASSESSMENT IN ACCORDANCE TO LA W FOR THAT WE RELY ON DECISION OF HONBLE SUPREME COURT IN THE CASE OF TIN BOX CO. VS . CIT (SUPRA) WHICH READS AS UNDER: 1. IT IS UNNECESSARY TO GO INTO GREAT DETAIL IN THESE MATTERS FOR THERE IS A STATEMENT IN THE ORDER OF THE TRIBUNAL, THE FACT-FINDING AUTHORITY, THAT R EADS THUS : 'WE WILL STRAIGHTWAY AGREE WITH THE ASSESSEES SUBM ISSION THAT THE ITO HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD.' THAT THE ASSESSEE COULD HAVE PLACED EVIDENCE BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL IS REALLY OF NO CONSEQUENCE FOR IT IS THE ASSESSMENT ORDER THAT COUNTS. THAT ORDER MUST BE MADE AFTER THE ASSESSEE HAS BEEN GIVEN A REASONA BLE OPPORTUNITY OF SETTING OUT HIS CASE. WE, THEREFORE, DO NOT AGREE WITH THE TRIBUNAL AND THE H IGH COURT THAT IT WAS NOT NECESSARY TO SET ASIDE THE ORDER OF ASSESSMENT AND REMAND THE MATTER TO THE ASSESSING AUTHORITY FOR FRESH ASSESSMENT AFTER GIVING TO THE ASSESSEE A PROPER OP PORTUNITY OF BEING HEARD. 2. TWO QUESTIONS WERE PLACED BEFORE THE HIGH COURT, O F WHICH THE SECOND QUESTION IS NOT PRESSED. THE FIRST QUESTION READS THUS : '1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN NOT SETTING ASIDE THE ASSESSMENT ORDER IN SPITE OF A FINDING ARRIVED AT BY IT THAT THE INCOME- TAX OFFICER HAD NOT GIVEN A PROPER OPPORTUNITY OF H EARING TO THE ASSESSEE ?' IN OUR OPINION, THERE CAN ONLY BE ONE ANSWER TO THI S QUESTION WHICH IS INHERENT IN THE QUESTION ITSELF : IN THE NEGATIVE AND IN FAVOUR OF THE ASSES SEE. 3. THE APPEALS ARE ALLOWED. THE ORDER UNDER CHALLENGE IS SET ASIDE. THE ASSESSMENT ORDERS, THAT OF THE COMMISSIONER (APPEALS) AND OF THE TRIBUNAL A RE ALSO SET ASIDE. THE MATTER SHALL NOW BE ITA NO.989/KOL/2018 SMT. APARNA BISWAS A.Y. 2011-12 3 | P A GE REMANDED TO THE ASSESSING AUTHORITY FOR FRESH CONSI DERATION, AS AFORESTATED. NO ORDER AS TO COSTS. 4. IN THE LIGHT OF THE DISCUSSION (SUPRA) AND RELY ING ON THE DECISION OF HONBLE SUPREME COURT IN TIN BOX (SUPRA) WE SET ASIDE THE I MPUGNED ORDER AND REMAND THE MATTER BACK TO AO FOR DE-NOVO ASSESSMENT AND ASSESSEE IS D IRECTED TO BE DILIGENT AND FILE EXPLANATION/RECONCILIATION AS CALLED FOR BY THE AO AND IF ADVISED TO DO SO, FILE DOCUMENTS, WRITTEN SUBMISSIONS ETC IN SUPPORT OF ITS CLAIM BEF ORE THE AO AND THE AO TO PASS FRESH ASSESSMENT IN ACCORDANCE TO LAW. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 27 TH JANUARY, 2021. SD/- SD/- (J.S. REDDY) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27.01.2021 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. APPELLANT- SMT. APARNA BISWAS, SAINPALA (JORA PUKUR DHAR), BASIRHAT, 24 PARGANAS (NORTH)-743411 2. RESPONDENT ITO, WARD-49(1), KOLKATA 3. THE CIT(A)- 15, KOLKATA (SENT THROUGH E-MAIL) 4. CIT- , KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES, KOLKATA