Bibhuti Bhushan Das , Kolkata V. ITO, Ward - 25(3), Kolkata , Kolkata

MA 1/KOL/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3992 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-06-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 02-01-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: TDS
• Section: 40(a)(ia)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH KOLKATA Before Shri Sanjay Garg, Judicial Member and Shri Girish Agrawal, Accountant Member M.A. No.1/Kol/2022 (Arising out of ITA No.237/Kol/2018) Assessment Year: 2013-14 Bibhuti Bhushan Das................................................................................. Appellant P-42, Block-A, Shatabdi Park, Mukundpur, Kolata-700099. [PAN:AIDPD4689B] vs. ITO, Ward-25(3), Kolkata....................................................................... Respondent Appearances by: Shri Rajeeva Kumar, appeared on behalf of the appellant. Smt. Ranu Biswas, Addl. CIT-DR, appeared on behalf of the Respondent. Date of concluding the hearing : June 10, 2022 Date of pronouncing the order : June 10, 2022 ORDER Per Sanjay Garg, Judicial Member: The present Miscellaneous Application has been filed by the assessee for restoration of his appeal bearing ITA No.237/Kol/2018. The said appeal of the assessee was fixed for hearing on 15.01.2020, however, the assessee did not appear despite service of notice through registered post. Though, it has been mentioned that the registered notice dated 29.11.2019 has been returned unserved, however, the case records suggest that the notice was not received back unserved, therefore, the presumption is that the notice was served upon the assessee. Therefore, the Tribunal proceeded to decide the appeal of the assessee on merits after hearing the ld. DR and after going through the records and the appeal of the assessee was partly allowed vide order dated 21.02.2020. Now, the assessee has moved the present miscellaneous application dated 31.12.2021 for recalling of the order dated 21.02.2020. 2. At the outset, the ld. counsel for the assessee has submitted that the case was earlier represented by another counsel namely Mr. Naresh Kumar Agarwal. That because of his old age and ill health, he could not appear on the date of hearing and ultimately M.A. No.1/Kol/2022 Bibhuti Bhushan Das Assessment Year: 2013-14 2 expired in the month of July 2020 and thereafter the assessee consulted him (Shri Rajeeva Kumar). Hence, non-appearance of the then counsel of the assessee on the date of hearing before the Tribunal was not intentional. 3. The ld. DR, on the other hand, has submitted that the Tribunal vide order dated 21.02.2020 has already given substantial relief to the assessee and even if the present miscellaneous application is allowed, it will not serve any useful purpose. 4. We have considered the rival contentions of the parties and gone through the records. We find that the contention raised by the ld. counsel for the assessee that earlier case was looked after some other counsel was patently wrong. Case file records show that the case was earlier represented by the present counsel namely Shri Rajeeva Kumar only. There is application for adjournment dated October 23, 2019, which has been moved and signed by present counsel, Shri Rajeeva Kumar, therefore, the plea raised by the ld. counsel for the assessee has no merits. Even otherwise, after going through the impugned order dated 21.02.2020, we find that substantial relief has already been given to the assessee. The assessee in this appeal has raised three grounds of appeal, the issue relating to Ground No.1 was relating to reconciliation of the figure of the amount received on behalf of M/s City Live Construction and deposited in the bank account of M/s Anila Construction. The Tribunal giving the assessee one more opportunity of reconciliation figures of the amount has restored the matter to the file of the CIT(A) with a direction that the assessee shall appear before the CIT(A) along with corresponding books of account and other relevant details to reconcile the figures in dispute. Ground No.2 was related to disallowance u/s 40(a)(ia) of the Income Tax Act on account of non-deduction of TDS, we find that Tribunal has given substantial relief to the assessee in this respect. In relation to the next ground relating to the donation and subscription disallowance of Rs.46,343/-, the Tribunal noted that CIT(A) has not adjudicated this issue, therefore, this issue has been restored to the file of the CIT(A). We have categorically asked the ld. counsel for the assessee on what account the assessee is aggrieved from the order dated 21.02.2020, whereupon, the ld. counsel has submitted that the Tribunal in relation to Ground No.1 has restored the M.A. No.1/Kol/2022 Bibhuti Bhushan Das Assessment Year: 2013-14 3 matter to the file of the CIT(A) for reconciliation of figures, whereas, the assessee wants that the matter may be restored to the file of the Assessing Officer. In our view, this is a very unreasonable and uncalled for contention of the ld. counsel. The CIT(A) is a higher officer than the Assessing Officer and if he deems fit, he may call remand report from the Assessing Officer relating to any issue/matter before him. Under the circumstances, we do not think that any useful purpose will be served in recalling the order as we do not think that the assessee is prejudiced in any manner in restoring the matter to the CIT(A) instead of Assessing Officer. This application of the assessee is misconceived and the same is accordingly dismissed. 5. In the result, the Miscellaneous Application of the assessee stands dismissed. Kolkata, the 10 th June, 2022. Sd/- Sd/- [Girish Agrawal] [SanjayGarg] Accountant Member Judicial Member Dated: 10.06.2022. RS Copy of the order forwarded to: 1. Bibhuti Bhushan Das 2. ITO, Ward-25(3), Kolkata 3. CIT(A)- 4. CIT- , 5. CIT(DR),