ITO, Ward - 29(3), Kolkata, Kolkata V. Shri Narendra Singh, Kolkata

ITA 990/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48175 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 27-05-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 13-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V A RAJU
• Assessee Lawyers: S DUTTA
• Keywords: Opportunity of being heard
• Section: 40A(3); 2

Judgement Text

, , , , , , ,, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA [ . . . . . . . . , ,, , , ,, , . . . . . .. . ! ! ! ! , ' ' ' ' ] [BEFORE HONBLE SHRI B. R. MITT AL, JM & HONBLE SHRI SHRI S.V. MEHROTRA, AM] #$ #$ #$ #$ / I.T.A NO. 990/KOL/2010 %& '() %& '() %& '() %& '()/ // / ASSESSMENT YEAR : 2004-05 INCOME TAX OFFICER/WARD-29(3) -VS.- SHRI NARENDRA SINGH KOLKATA. KOLKATA. [PAN : AJW PS 3208 T ] (,- /APPELLANT ) (/0,-/ RESPONDENT ) ,- / FOR THE APPELLANT : 1 /SHRI V. A. RAJU /0,- / FOR THE RESPONDENT : 1 / SHRI S. DUTTA 2 /O R D E R [ . . . . . .. . ! ! ! ! , ] PER S.V. MEHROTRA, JM THE DEPARTMENT HAS FILED THIS APPEAL FOR ASSESSMEN T YEAR 2004-05 AGAINST ORDER OF CIT(A)- XVI, KOLKATA DATED 01.01.2010. 2. BRIEF FACTS OF THE CASE ARE THAT IN THE RELEVANT ASSESSMENT YEAR, ASSESSEE CARRIED ON THE BUSINESS OF LABOUR CONTRACTOR. THE ASSESSEE FILED I TS RETURN OF INCOME DECLARING TOTAL INCOME OF RS.4,10,072/-. THE ASSESSMENT WAS COMPLETED AT A TO TAL INCOME OF RS.16,60,280/- AFTER MAKING FOLLOWING ADDITIONS :- I) UNDISCLOSED PURCHASE RS. 45,5595/- II) DIFFERENCE IN PURCHASE RS.8,96,993/- III) DIFFERENCE IN S. CREDITORS RS.3,14,116/- IV) DEEMED PROFIT ON SALE RS. 2,506/- THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A) , WHO PARTLY ALLOWED THE ASSESSEES APPEAL. BEING AGGRIEVED, THE DEPARTMENT IS IN APPEAL BEFORE US. ITA NO. 990/KOL/2010 2 3. THE DEPARTMENT HAS TAKEN FOLLOWING GROUND OF APP EAL :- THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS FACT I N DELETING THE ADDITION MADE BY THE A.O. IN RESPECT OF CASH PURCHASE FROM M /S. R. K. WOOD PRODUCTS OF RS.4,96,993/- & M/S. BHAGWATI ENTERPRIS E OF RS.4,00,000/- TOTALING RS.8,96,993/-. THE A.O. WAS CORRECT IN MAK ING THE ADDITION IN THE SCRUTINY ASSESSMENT ORDER. 4. THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED TH AT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESSING OFFICER NOTED THAT ASSESSEE HAD SHOWN PURCHASES OF RS.7,67,000/- FROM M/S. R.K. WOOD PRODUCTS, WHEREAS THE SAID PARTY CONFIRME D THE SAME TO THE ASSESSEE TO THE EXTENT OF RS.2,70,007/-. THUS, THERE WAS DIFFERENCE OF RS.4,9 6,993/-. SIMILARLY, IN THE CASE OF M/S. BHAGWATI ENTERPRISE, THE ASSESSEE HAD SHOWN PURCHASES OF RS. 11,38,800/-, WHILE AS PER THE BOOKS OF THE SAID PARTY, THE SAME SHOWN TO THE ASSESSEE AT RS.7,38,80 0/-. THUS, THERE WAS DIFFERENCE OF RS.4,00,000/-. IT IS SUBMITTED THAT ASSESSEE FAILED TO GIVE ANY RE ASONABLE REPLY FOR RECONCILIATION OF THESE DIFFERENCES. THE LD. CIT(A) HAS NOTED IN PARA 11 OF HIS ORDER THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS SUBMITTED BY THE ASSESSEE THAT THE PURCHASES MADE THROUGH CHEQUE ARE ONLY REPORTED BY THE SELLERS BUT THE CASH WERE NOT DULY REPORTED BY THEM. THE COPIES OF STATEMENT OF ACCOUNTS FOR BOTH THE PARTIES WERE PRODUCED DURING THE ASSESSMENT PROCEEDINGS. THE LD. CIT(A) INTER ALIA, HELD THAT DIFFERENTIAL AMOUNT WHICH HAS BEEN ADDED BY THE ASSESSING OFFICER WAS, IN FACT, PAYMENT MADE BY THE ASSESSEE IN CASH TO THESE PARTI ES WHICH WERE NOT RECORDED BY THEM IN THEIR BOOKS OF ACCOUNT. HOWEVER, SINCE THE PAYMENT HAD BE EN MADE IN CASH, LD. CIT(A) DIRECTED THE ASSESSING OFFICER TO DISALLOW 20% OF RS.3,14,783/- BEING PAYMENT MADE IN CASH U/S. 40A(3) OF THE ACT AMOUNTING TO RS.62,957/- AND SIMILARLY, RS.80, 000/- U/S. 40A(3) OF THE ACT IN THE CASE OF M/S. BHAGWATI ENTERPRISE. THE LD. DEPARTMENTAL REPRESENT ATIVE SUBMITTED THAT NOTHING WAS PRODUCED BEFORE THE LD. CIT(A) AND THEREFORE, THE LD. CIT(A) WRONGLY DELETED THE ADDITION. 5. AT THE TIME OF HEARING, LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE CONCEDED THAT NO DETAILS WERE FILED BEFORE THE LD. CIT(A). 6. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND HAVE PERUSED THE RECORDS OF THE CASE. WE FIND THAT LD. CIT(A) HAS REFERRED TO STATE MENT OF ACCOUNTS OF BOTH THE PARTIES. AS PER PAGE-1 OF LD. CIT(A)S APPELLATE ORDER, IT IS SEEN THAT LD. CIT(A) HAS OBSERVED THAT IN MAY, 2007, THE THEN LD. AUTHORISED REPRESENTATIVE FOR THE ASSE SSEE SHRI U.K. CHAUHAN HAD APPEARED AND FILED CERTAIN COPIES OF ACCOUNTS BUT, NEVERTHELESS, THE O RDER WAS PASSED EX PATRE AND THEREFORE, WE ITA NO. 990/KOL/2010 3 CONSIDER IT, IN THE INTEREST OF JUSTICE, TO RESTORE THE MATTER BACK TO THE FILE OF LD. CIT(A) TO PROVI DE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE FOR DECIDING THE APPEAL DE NOVO. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 2 2 2 2 '3 '3 '3 '3 4 44 4 3% 3% 3% 3% 5 5 5 5 6 6 6 6 7' 7' 7' 7' ORDER PRONOUNCED IN THE OPEN COURT ON 27. 0 5. 2011. SD/- SD/- [ . . , ] [ . . ! , ' ] [ B. R. MITTAL ] [ S.V. MEHROTRA ] JUDICIAL MEMBER ACCOUNTANT MEMBER 7' / DATED : 27TH MAY, 2011. 2 8 /9 :9(; - COPY OF THE ORDER FORWARDED TO: 1. ' /APPLICANT- INCOME TAX OFFICER/WARD-29(3), 2, GAR IAHAT ROAD(S), KOLKATA-700 068. 2 /0,- / RESPONDENT : SHRI NARENDRA SINGH, 38/2, MAHIM HAL DER STREET, KOLKATA-700 026. 3. 2% / CIT 4. 2% ( )/ CIT(A) 5. '5 /% / DR, KOLKATA BENCHES, KOLKATA [ 09 / / TRUE COPY] 2%3 / BY ORDER < / #= /DEPUTY/ASSTT. REGISTRAR . [KKC '>? %@= A' /SR.PS]