Sri Krishan Chand Lala, Kolkata V. D.C.I.T Cir - 55,kolkata., Kolkata

MA 177/KOL/2012

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1641 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-03-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 27-12-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard

Judgement Text

M.A. NO. 177/KOL./2012 (IN ITA NO. 54/KOL./2008) BLOCK PERIOD : 01.04.1987 TO 05.12.1997 PAGE 1 TO 3 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA CORAM : SHRI ABRAHAM P. GEORGE (ACCOUNTANT MEMBER) AND SHRI GEORGE MATHAN (JUDICIAL MEMB ER) M.A. NO. 177/KOL./2012 (ARISING OUT OF I.T.A. NO. 54/KOL./ 2008) BLOCK PERIOD : 01.04.1987 TO 05.12.2997 SRI KRISHAN CHAND LALA,............................ .......APPLICANT C/O. S.L. KOCHAR, ADVOCATE, 86, CANNING STREET, KOLKATA-700 001 [PAN : ABVPL 9079 J] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,.......,......... .........RESPONDENT CIRCLE-55, KOLKATA APPEARANCES BY: S/SHRI S.L. KOCHAR, ADVOCATE AND ANIL KOCHAR, ADVOC ATE, FOR THE APPLICANT SHRI VIVEK VERMA, JCIT (SR. D.R.), FOR THE RESPONDE NT DATE OF CONCLUDING THE HEARING : FEBRUARY 21, 2014 DATE OF PRONOUNCING THE ORDER : MARCH 04, 2014 O R D E R PER ABRAHAM P. GEORGE: 1. THROUGH THIS MISCELLANEOUS PETITION, ASSESSEE ST ATES THAT TRIBUNAL HAD NOT DECIDED HIS GROUND NO. 1, WHICH ASSAILS THE DETERMINATION ON UNDISCLOSED INCOME UNDER CHAPTER XIV-B. 2. LD. A.R. SUBMITTED THAT ASSESSEE HAD IN HIS GROU ND NO. 1 SPECIFICALLY STATED THAT THE DETERMINATION OF UNDISCLOSED INCOME WITHOUT REFERENCE TO SEIZED MATERIALS AND EVIDENCE WAS IN VIOLATION OF L AW. AS PER LD. AR, THIS ISSUE WAS NOT DECIDED BY THE TRIBUNAL. 3. PER CONTRA, LD. DR SUBMITTED THAT THERE IS NOTHI NG IN THE ORDER OF TRIBUNAL WHICH CALLED FOR A RECTIFICATION UNDER SEC TION 254(2) OF THE ACT. M.A. NO. 177/KOL./2012 (IN ITA NO. 54/KOL./2008) BLOCK PERIOD : 01.04.1987 TO 05.12.1997 PAGE 1 TO 3 2 4. WE HAVE HEARD THE RIVAL CONTENTIONS. PARAS 5 TO 7 OF THE ORDER OF TRIBUNAL DATED 17.08.2009 RELEVANT TO THIS MISCELLA NEOUS PETITION, IS REPRODUCED HEREUNDER : 5. AT THE TIME OF HEARING BEFORE US, THE LD. COUNS EL APPEARING ON BEHALF OF THE ASSESSEE HAS CONTENDED T HAT THE REVENUE IS NOT JUSTIFIED IN NOT TAKING INTO ACCOUNT THE COPIES OF THE STATEMENT OF EVIDENCES, ETC. REGARDING THE SUBM ISSION OF INCOME TAX RETURN FOR VARIOUS YEARS WHICH WERE PLAC ED AT PAGE NOS. 34 TO 78 OF THE PAPER BOOK. THEREFORE, SINCE A LL THESE PAPERS ARE AVAILABLE ON RECORD BEFORE THE REVENUE A UTHORITIES, IT IS NOT JUSTIFIED ON THE PART OF THE AO TO REPEAT THE SAME ORDER WHICH WAS PASSED BY HIM EARLIER, EVEN, WHEN THE ITA T HAS SET ASIDE THE MATTER FOR FRESH ADJUDICATION, THE AO REP EATED THE EARLIER ORDER IGNORING THE MATERIALS AVAILABLE ON R ECORD. HE FURTHER CONTENDED THAT THE LD. CIT(A) ALSO IS NOT J USTIFIED IN CONFIRMING THE ACTION OF THE AO. THEREFORE, HE REQU ESTED TO SET ASIDE THE ORDERS OF THE REVENUE AUTHORITIES AND REM IT BACK THE SAME WITH THE DIRECTION THAT THE MATERIALS FILED BY THE ASSESSEE IN THE PAPER BOOK AT PAGE NOS. 34 TO 78, WHICH ARE ON RECORD OF THE REVENUE AUTHORITIES, SHOULD BE TAKEN INTO CONSI DERATION BEFORE ESTIMATING THE UNDISCLOSED INCOME OF THE ASS ESSEE. 6. ON THE OTHER HAND, THE LD. DR HEAVILY RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES AND FURTHER CONTENDED TH AT THE ASSESSEE HAS NOT AT ALL COOPERATED EVEN IN THE REAS SESSMENT PROCEEDINGS AND IN THE REMAND PROCEEDINGS ALSO. THE REFORE, IT IS NOT JUSTIFIED ON THE PART OF THE ASSESSEE TO AGAIN REQUEST FOR SETTING ASIDE THE MATTER TO THE FILE OF THE AO. HOW EVER, HE COULD NOT CONTRADICT THAT THE MATERIALS AVAILABLE AT PAGE NOS. 34 TO 78 ARE NOT AVAILABLE IN THE RECORDS OF THE REVENUE AUTHORITIES. 7. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF THE MATERIALS AVAILABLE ON RECORD, WE FI ND FORCE IN THE ARGUMENTS OF THE LD. COUNSEL FOR THE ASSESSEE T HAT THE AO HAS NOT CONSIDERED THE MATERIALS AVAILABLE WITH HIM WHICH WERE PLACED BY THE ASSESSEE AT PAGE NOS. 34 TO 78 OF THE PAPER BOOK CONTAINING (I) COPIES OF THE ACKNOWLEDGEMENT IN PRO OF OF FILING THE RETURNS FOR THE ASSESSMENT YEARS 1989-90 TO 199 5-96 AND 1997-98 ALONG WITH THE COPIES OF PROFIT & LOSS A/C. AND THE BALANCE-SHEET AND COPIES OF THE TAX AUDIT REPORT, A S REQUIRED BY THE I.T. ACT WHICH WAS FILED PRIOR TO THE DATE OF S EARCH I.E. BEFORE 05.12.1997 AND (II) COPIES OF THE 143(1) ORD ERS IN RESPECT OF ASSESSMENT YEARS 1990-91 TO 1992-93. SINCE, THES E MATERIALS ARE QUITE VITAL IN DECIDING THE UNDISCLOSED INCOME OF THE ASSESSEE, WE ONCE AGAIN SET ASIDE THE MATTER TO THE FILE OF THE AO TO DECIDE THE CASE AFRESH, AS PER LAW, AFTER TAK ING INTO CONSIDERATION OF THE ABOVE DOCUMENTS WHICH WERE AVA ILABLE IN M.A. NO. 177/KOL./2012 (IN ITA NO. 54/KOL./2008) BLOCK PERIOD : 01.04.1987 TO 05.12.1997 PAGE 1 TO 3 3 THE RECORDS OF THE REVENUE AUTHORITIES, AFTER GIVIN G A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT IS CLEAR FROM THE ABOVE, THE TRIBUNAL HAD DIREC TED THE ASSESSING OFFICER TO CONSIDER THE EVIDENCE PRODUCED BY THE AS SESSEE AT PAGES 34 TO 78 OF THE PAPER BOOK AND HAD SET ASIDE THE ISSUES T O THE FILE OF AO TO DECIDE THE CASE AFRESH, AS PER LAW AFTER TAKING INT O CONSIDERATION OF DOCUMENTS, WHICH WERE AVAILABLE IN THE RECORDS OF T HE REVENUE AUTHORITIES. IN OTHER WORDS, TRIBUNAL HAD SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND REMITTED THE MATTER TO THE FI LE OF ASSESSING OFFICER FOR DECIDING IT AFRESH. IT IS SPECIFICALLY MENTIONE D BY THE TRIBUNAL THAT THE ISSUES ARE TO BE DECIDED AFRESH AS PER LAW. WE FIND THEREFORE NO MISTAKE IN THE ORDER OF TRIBUNAL. 5. IN THE RESULT, MISCELLANEOUS APPLICATION STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04 TH DAY OF MARCH, 2014. SD/- SD/- GEORGE MATHAN ABRAHAM P. GEORGE (JUDICIAL MEMBER) (ACC OUNTANT MEMBER) KOLKATA, THE 04 TH DAY OF MARCH, 2014 COPIES TO : (1) SRI KRISHAN CHAND LALA, C/O. S.L. KOCHAR, ADVOCATE, 86, CANNING STREET, KOLKATA-700 001 (2)DCIT, CIRCLE-55, KOLKATA (3) CIT (4) CIT(A) (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.