ACIT, Circle - 25, Kolkata, Kolkata V. Shri Joydeep Majumdar, Kolkata

ITA 998/KOL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7076 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2020
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 14-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Onus to prove; Set aside
• Section: 143(3); 22; 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B, BENC H KOLKATA BEFORE SHRI S.S.GODARA, JM &DR. A.L.SAINI, AM ./ITA NO.998/KOL/2018 ( / ASSESSMENT YEAR: 2013-14) ACIT, CIRCLE-25, KOLKATA VS. SHRI JOYDEEP MAJUMDAR 42/135, NEW BALLYGUNGE ROAD, KOLKATA-700039 ./ ./PAN/GIR NO.: AEWPM 7393 E (APPELLANT) .. (RESPONDENT) APPELLANT BY :SMT. RANU BISWAS, ADDL. CIT RESPONDENT BY :NONE / DATE OF HEARING : 11/11/2019 /DATE OF PRONOUNCEMENT : 05/02/2020 / O R D E R DR. A.L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE REVENUE, PERTA INING TO ASSESSMENT YEAR 2013-14, IS DIRECTED AGAINST THE ORDER PASSED BY TH E COMMISSIONER OF INCOME TAX (APPEAL)-7, KOLKATA IN APPEAL NO. 25/CIT(A)-7/KOL/C IR-25/16-17, WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASS ESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 28/03/2016. 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F ASSESSEE IN SPITE OF ISSUANCE OF NOTICE FOR HEARING MORE THAN ONE OCCASION AND LD . DEPARTMENTAL REPRESENTATIVE(DR), WAS PRESENT FOR THE APPELLANT R EVENUE. IN THE ABSENCE OF ANY APPEARANCE BY THE ASSESSEE, THE APPEAL IS BEING DIS POSED OF EX PARTE QUA THE SHRI JOYDEEP MAJUMDAR ITA NO.998/KOL/2018 ASSESSMENT YEAR:2013-14 P PP PA AA AG GG GE EE E | || | 2 22 2 ASSESSEE, AFTER HEARING LD. DR FOR THE REVENUE ON M ERITS IN TERMS OF RULE 24 OF THE INCOME TAX APPELLATE, TRIBUNAL, RULES, 1963. 3. AT THE OUTSET ITSELF, LD. D.R. FOR THE REVENUE P OINTED OUT THAT THE LD. CIT(A) ADMITTED THE ADDITIONAL EVIDENCES WITHOUT GRANTING AN OPPORTUNITY TO ASSESSING OFFICER TO EXAMINE THESE ADDITIONAL EVIDENCES THUS VIOLATED THE PROVISION OF RULE 46A OF THE I. T. RULES. THEREFORE, LD. D.R. PRAYED THE BENCH THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF LD. CIT(A) WITH A D IRECTION TO OBTAIN PROPER REMAND REPORT AND ADJUDICATE THE ISSUE IN ACCORDANCE TO LA W. 4. WE HAVE HEARD THE LD. D.R. AND PERUSED THE MATER IAL AVAILABLE ON RECORD. GROUND NO. 2 RAISED BY THE REVENUE STATES THAT LD. CIT(A) ADMITTED ADDITIONAL EVIDENCES WITHOUT GRANTING AN OPPORTUNITY TO THE AS SESSING OFFICER. THE RELEVANT FINDINGS OF THE ASSESSING OFFICER WHICH SHOW THAT A SSESSEE DID NOT FILE DOCUMENTS AND SUBMISSION BEFORE ASSESSING OFFICER.THESE FINDI NGS OF ASSESSING OFFICER AND CIT(A)ARE GIVEN BELOW TO THE EXTENT RELEVANT FOR OU R DISCUSSION: I)QUOTE FROM ASSESSMENT ORDER 6. HENCE, IN ABSENCE OF ANY DOCUMENTARY EVIDENCE RE GARDING THE TRANSACTION WITH VAIL AND FAILURE ON THE PART OF ASSESSEE TO DISCHAR GE HIS ONUS TO PROVE TRANSACTION AS GENUINE, ENTIRE CREDIT AMOUNT OF RS. 3,30,19,701/- IS ADDED BACK TO HIS TOTAL INCOME AS BOGUS LIABILITY. (ADD: RS. 3,30,19,701/-) SIMILARLY, IN THE CASE OF VHL (RELATED CONCERN OF V AIL), ASSESSEE HAS PRODUCED AN AGREEMENT SIGNED ON 16.11.2012 BETWEEN THE ASSESSEE AND VHL REGARDING SALE OF 18 UNITS OF FLATS BY THE ASSESSEE THROUGH HIS CONCE RN JOYDEEP MAJUMDER& CO. (JMC) TO VHL FOR CONSIDERATION OF RS. 3 CRORES. FOR REMAINING AMOUNT OF RS. 3,22,00,000/- (6,22,00,000 3,00,00,000), ASSESSEE HAS NOT PROVIDED ANY DOCUMENTS LIKE LEDGER, AGREEMENT BILLS ETC. INSPITE OF GETTING AN OPPORTUNITY VIDE FILE NOTING DATED 18.03.2016, ASSESSEE PREFERRED TO REMAIN SILENT AND MADE NO SUBMISSION. HENCE, IN ABSENCE OF ANY DOCUMENTARY EV IDENCE AND LACK OF VERIFICATION, SAME IS ADDED BACK TO HIS TOTAL INCOM E AS BOGUS LIABILITY. 7. ADDITION ON ACCOUNT OF DISALLOWANCE OF SUBSCRIPTION & DONATION: ASSESSEE HAS DEBITED RS. 1,76,416/- AGAINST SUBSCRI PTION AND DONATION IN THIS A.Y. HE FAILED TO PRODUCE ANY DOCUMENTARY EVIDENCE AS TO WHAT BUSINESS NEED IT SERVED AND HOW IT IS WHOLLY AND EXCLUSIVELY RELATED TO BUS INESS. ALSO NO RECEIPT WAS PRODUCED BY THE ASSESSEE FOR THE SAME. HENCE AGGREG ATE FIGURE OF RS. 1,50,000/- IS DISALLOWED AND ADDED BACK TO HIS TOTAL INCOME. SHRI JOYDEEP MAJUMDAR ITA NO.998/KOL/2018 ASSESSMENT YEAR:2013-14 P PP PA AA AG GG GE EE E | || | 3 33 3 II) QUOTE FROM LD. CIT(A)S ORDER: I HAVE CAREFULLY GONE THROUGH THE ORDER OF THE A.O. AS WELL AS THE DETAILS SUBMITTED BY THE A/R AND AFTER GOING THROUGH THE SA ME, I AM IN CONSIDERED OPINION THAT THESE ARE NOT BOGUS LIABILITIES AS HAS BEEN TREATED BY THE A.O. THE A.O. DURING THE ASSESSMENT STAGE, HAD ISSUED SUMMON S U/S 131 TO BOTH VIBGYOR HOUSING LTD. (VHL) AND VIBGYOR ALLIED INFRASTRUCTUR E LTD. HOWEVER THERE WAS NO COMPLIANCE AND THEREFORE, THE A.O. HAD PROCEEDED TO TREAT THE SAID CLAIM OF LIABILITY AS BOGUS. IT IS A WELL KNOWN FACT THAT BO TH THE ABOVE MENTIONED ENTITIES HAD BEEN RUNNING PONZI SCHEME IN WEST BENGAL AND AF TER COLLAPSE OF THE SARADA PONZI SCHEME, ALL OTHER SUCH COMPANIES HAD DOWNED T HEIR SHUTTER AND HAD GONE UNDERGROUND AND THEIR OFFICES HAVE BEEN SEALED BY VARIOUS GOVERNMENT AGENCIES. HOWEVER, AS CAN BE SEEN FROM THE BOOKS OF ACCOUNTS FURNISHED BEFORE ME, ALL THESE LIABILITIES HAVE BEEN PROPERLY ENTERE D IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE, SUPPORTED BY THE RELEVANT COPIES OF AGREE MENT ENTERED INTO BY THE ASSESSEE WITH BOTH VIBGYOR HOUSING LTD. (VHL) AND V IBGYOR ALLIED INFRASTRUCTURE LTD. ALL THESE ENTRIES WERE SUBSEQUE NTLY EITHER CONVERTED INTO SALES OR HAVE BEEN REFUNDED BACK BY THE ASSESSEE. THEREFO RE, THE ADDITION MADE BY THE A.O. OF RS. 6,52,19,701/- IS HEREBY DELETED. FROM THE ORDER OF LD CIT(A), WE NOTE THAT DURING TH E APPELLATE PROCEEDINGS THE ASSESSEE SUBMITTED BOOKS OF ACCOUNTS AND AGREEMENTS ETC, THESE WERE NOT SENT TO AO FOR HIS EXAMINATION. THE LD CIT(A) ADMITTED THEM STATING: HOWEVER, AS CAN BE SEEN FROM THE BOOKS OF ACCOUNTS FURNISHED BEFORE ME , ALL THESE LIABILITIES HAVE BEEN PROPERLY ENTERED IN THE BOOKS OF ACCOUNTS OF THE AS SESSEE, SUPPORTED BY THE RELEVANT COPIES OF AGREEMENT ENTERED INTO BY THE ASSESSEE WI TH BOTH VIBGYOR HOUSING LTD. (VHL) AND VIBGYOR ALLIED INFRASTRUCTURE LTD. DURING THE ASSESSMENT STAGE THE ASSESSEE DID NOT PR ODUCE LEDGER COPY, AGREEMENTS AND OTHER EVIDENCES, THEREFORE LD CIT(A) OUGHT TO HAVE CALLED A REMAND REPORT FROM AO, WHICH HE HAS FAILED TO DO SO. AS WE NOTICED FROM THE ABOVE FINDINGS OF LD. CIT(A) THAT WHILE ADJUDICATING THE ISSUE OF BOGUS LIABILITY OF RS. 3,30,19,701/- AND B OGUS LIABILITY RS. 3,22,00,000/-, BOTH AGGREGATING TO RS. 6,52,19,701/- (3,30,19,701 + 3,22,00,000), THE LD CIT(A), HAS NOT SENT THE RELEVANT DOCUMENTS TO ASSESSING OF FICER FOR EXAMINATION OF THESE BOGUS LIABILITIES. HENCE IT IS VIOLATION OF PRINCIP LES OF NATURAL JUSTICE. WE NOTE THAT IT IS SETTLED LAW THAT PRINCIPLES OF NATURAL JUSTIC E AND FAIR PLAY REQUIRE THAT THE AFFECTED PARTY IS GRANTED SUFFICIENT OPPORTUNITY OF BEING HEARD TO CONTEST HIS CASE. THEREFORE, WITHOUT DELVING MUCH DEEPER INTO THE MER ITS OF THE CASE, IN THE INTEREST SHRI JOYDEEP MAJUMDAR ITA NO.998/KOL/2018 ASSESSMENT YEAR:2013-14 P PP PA AA AG GG GE EE E | || | 4 44 4 OF JUSTICE, WE RESTORE THE MATTER BACK TO THE FILE OF LD.CIT(A) FOR DE NOVO ADJUDICATION AND PASS A SPEAKING ORDER AFTER AFFORD ING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSING OFFICER AND ASSESSEE. THEREFORE, WE DEEM IT FIT AND PROPER TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO ADJUDICATE THE ISSUE AFRESH ON MERITS. FOR STATISTICAL PURPOSES, THE APPEAL OF THE REVENUE IS ALLOWED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 05.02.2020 SD/- ( S.S.GODARA ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE: 05/02/2020 ( SB, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. ACIT, CIRCLE-25, KOLKATA 2. SHRI JOYDEEP MAJUMDAR 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATABENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES