Shri Bishwanath Garodia, Kolkata V. D.C.I.T., Cental Circle 3(3) Kolkata, Kolkata

MA 20/KOL/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5613 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-05-2017
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 24-01-2017
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN
• Assessee Lawyers: D S DAMLE
• Keywords: Rectification of order

Judgement Text

M.A. NO. 20/KOL/2017 (IN I.T.A. NO 856/KOL./2016) ASSESSMENT YEAR: 2007-2008 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER M.A. NO. 20/KOL/2017 (ARISING OUT OF I.T.A. NO. 856/KOL/ 2016) ASSESSMENT YEAR: 2007-2008 SHRI BISHWANATH GARODIA,........................... .........................APPLICANT 9, DOVER PARK, 2 ND FLOOR, KOLKATA-700 019 [PAN: ADGPG 4384 E] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,................. ............RESPONDENT CENTRAL CIRCLE-3(3), KOLKATA, AAYAKAR BHAWAN POORVA, 110, SHANTIPALLY, KOLKATA-700 017 APPEARANCES BY: SHRI D.S. DAMLE, FCA, FOR THE ASSESSEE MD. GHAYAS UDDIN, JCIT, D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : MAY 12, 2017 DATE OF PRONOUNCING THE ORDER : MAY 24, 2017 O R D E R PER SHRI P.M. JAGTAP, A.M. :- BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE IS SEEKING RECTIFICATION OF MISTAKES ALLEGED TO HAVE CREPT IN THE ORDER OF THE TRIBUNAL DATED SEPTEMBER 21, 2016 WHILE DISPOSING OF THE APPEAL OF THE ASSESSEE FOR A .Y. 2007-08 BEING ITA NO. 856/KOL/2016. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS STATED BY THE ASSE SSEE IN THE PRESENT MISCELLANEOUS APPLICATION AND FURTHER REITERATED BY HIS LD. COUNS EL AT THE TIME OF HEARING BEFORE US, THE ISSUE RAISED IN GROUND NO. 10 OF THE ASSESSEES APP EAL BEING ITA NO. 856/KOL/2016 RELATING TO ADDITION OF RS.7,077/- MADE ON ACCOUNT OF ALLEGED DIFFERENCE IN COST OF GOLD WAS ARGUED BY THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE AND THERE APPEARS TO BE M.A. NO. 20/KOL/2017 (IN I.T.A. NO 856/KOL./2016) ASSESSMENT YEAR: 2007-2008 PAGE 2 OF 3 A MISTAKE IN PARAGRAPH NO. 15 OF THE ORDER OF THE T RIBUNAL IN DISMISSING THE SAID GROUND TREATING THE SAME AS NOT PRESSED ON THE GROUND THAT NO MATERIAL OR SPECIFIC CONTENTION WAS RAISED ON BEHALF OF THE ASSESSEE IN SUPPORT OF THE SAID ISSUE. ON THE PERUSAL OF THE RELEVANT PORTION OF THE LOG BOOK, WE FIND MERIT IN THIS STAND OF THE ASSESSEE. IT IS NOTED THAT THE ADDITION OF RS.7,077/- MADE ON ACCOUNT OF ALLEGED DIFFERENCE IN COST OF GOLD WAS SPECIFICALLY ARGUED ON BEHALF OF THE ASSESSEE BY CO NTENDING INTER ALIA THAT THE SAID ADDITION WAS MADE BY THE ASSESSING OFFICER ON THE B ASIS OF MATERIAL ALREADY AVAILABLE ON RECORD AND THE SAME WAS NOT BASED ON ANY INCRIMINAT ING MATERIAL FOUND DURING THE COURSE OF SEARCH. THIS PROPOSITION WAS ARGUED ON BE HALF OF THE ASSESSEE IN DETAIL IN SUPPORT OF THE MAIN ISSUE INVOLVED IN THE APPEAL OF THE ASSESSEE RELATING TO THE ADDITION MADE ON THE BASIS OF TRANSACTIONS REFLECTED IN THE BANK ACCOUNT OF THE ASSESSEE WITH HSBC, GENEVA AND AFTER DISCUSSING THE SAME ELABORAT ELY, IT WAS HELD BY THE TRIBUNAL THAT THE ADDITIONS MADE TO THE TOTAL INCOME OF THE ASSES SEE ON ACCOUNT OF THE INCOME ARISING FROM THE RELEVANT TRANSACTIONS REFLECTED IN HSBC AC COUNT WERE NOT SUSTAINABLE IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH TO SUPPORT AND SUBSTANTIATE THE SAME. SINCE THE SAME PROPOSITION W AS SOUGHT TO BE APPLIED BY THE LD. COUNSEL FOR THE ASSESSEE IN THE CONTEXT OF ISSUE IN VOLVED IN GROUND NO. 10 RELATING TO THE ADDITION OF RS.7,077/- MADE ON ACCOUNT OF ALLEGED D IFFERENCE IN COST OF GOLD BY POINTING OUT THAT THERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH TO SUPPORT AND SUBSTANTIATE THE SAID ADDITION AND NOTH ING WAS ARGUED BY THE LD. D.R. IN THIS CONTEXT AT THE TIME OF HEARING OF THE APPEAL OF THE ASSESSEE TO SHOW THAT THERE WAS SUCH INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH, WE FIND THAT THERE IS A MISTAKE IN THE ORDER OF THE TRIBUNAL IN DECIDING THE SAID I SSUE AGAINST THE ASSESSEE VIDE PARAGRAPH NO. 15 BY TREATING THE SAME AS NOT PRESSE D ON WRONG PRESUMPTION THAT NO SPECIFIC CONTENTION WAS RAISED ON BEHALF OF THE ASS ESSEE IN SUPPORT OF THE SAID ISSUE. AS THE SAID MISTAKE IS CLEARLY APPARENT FROM RECORD, W E RECTIFY THE SAME BY DELETING THE EXISTING PARAGRAPH NO. 15 OF THE ORDER OF THE TRIBU NAL AND SUBSTITUTING THE SAME WITH THE FOLLOWING:- AS REGARDS THE OTHER ISSUE RAISED BY THE ASSESSEE IN GROUND NO. 10 OF ITS APPEAL FOR A.Y. 2007-08 BEING ITA NO. 856/KOL/20 16 RELATING TO THE ADDITION OF RS.7,077/- MADE ON ACCOUNT OF ALLEG ED DIFFERENCE IN COST OF GOLD, THE LD. COUNSEL FOR THE ASSESEE HAS C ONTENDED THAT THIS M.A. NO. 20/KOL/2017 (IN I.T.A. NO 856/KOL./2016) ASSESSMENT YEAR: 2007-2008 PAGE 3 OF 3 ADDITION IS ALSO NOT MADE ON THE BASIS OF ANY INCRI MINATING MATERIAL FOUND DURING THE COURSE OF SEARCH AND SINCE THE LD. D.R. HAS NOT BEEN ABLE TO DISPUTE OR CONTROVERT THIS POSITION, WE DEL ETE THE ADDITION OF RS.7,077/- MADE BY THE ASSESSING OFFICER ON THIS IS SUE AND ALLOW GROUND NO. 10 OF THE ASSESSEES APPEAL. 3. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON MAY 24, 2017. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 24 TH DAY OF MAY, 2017 COPIES TO : (1) SHRI BISHWANATH GARODIA, 9, DOVER PARK, 2 ND FLOOR, KOLKATA-700 019 (2) DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3(3), KOLKATA, AAYAKAR BHAWAN POORVA, 110, SHANTIPALLY, KOLKATA-700 017 (3) COMMISSIONER OF INCOME TAX (APPEALS)-21, KOLK ATA, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/DDO, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.