Shri Amit Agarwal, Guwahati V. DCIT, Central Circle - 2(2), Kolkata , Kolkata

MA 218/KOL/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6098 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 04-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHARJEE
• Assessee Lawyers: M D SHAH
• Keywords: Salary income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA [BEFORE HONBLE SHRI M.BALAGANESH, AM & HONBLE S HRI S.S.VISWANETHRA RAVI, JM ] M.A. NO. 218 OF 2017 (A/O I.T.A NO. 1471/KO L/2015) SHRI AMIT AGARWAL -VS.- DCIT, CC-2(2), K OLKATA [PAN : ABWPA 7376 C] (APPELLANT) (RESPONDENT) M.A. NO. 219 OF 2017 (A/O I.T.A NO. 1475/KO L/2015) SHRI MADAN LAL BESWAL -VS.- DCIT, CC-2(2) , KOLKATA [PAN : ADBPB 8910 G] (APPELLANT) (RESPONDENT) M.A. NO. 220 OF 2017 (A/O I.T.A NO. 1476/KO L/2015) SHRI MANOJ BESWAL -VS.- DCIT, CC-2(2), K OLKATA [PAN : ADBPB 8909 P] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI M.D. SHAH FOR THE RESPONDENT : SHRI ARINDAM BHATTACHARJ EE, ADDL. CIT DATE OF HEARING : 15.12.2017 DATE OF PRONOUNCEMENT : 12.01.2018 ORDER PER M.BALAGANESH, AM BY VIRTUE OF THESE MISCELLANEOUS APPLICATIONS, THE ASSESSEE SEEKS TO RECALL THE ORDER PASSED BY THIS TRIBUNAL IN I.T.A. NOS. 1471, 1475&1476/KOL/2015 IN THE HANDS OF AMIT AGARWAL, MADAN LAL BESWAL AND MANOJ BESWAL RES PECTIVELY FOR THE ASSESSMENT 2 MA NOS 218 TO 220/KOL/2017 (A/O I.T.A NOS. 1471,1475&1476/KOL/2015) AMIT AGARWAL, MADAN LAL BESWAL & MANOJ BESWAL A.YR.2013-14 2 YEAR 2013-14 ON THE GROUND THAT NOTICE WAS NOT SERV ED ON THE ASSESSEE FOR THE HEARING AND ON CERTAIN FACTUAL ERROR THAT HAD CREPT IN THE ORDER OF THE TRIBUNAL. THE FIRST PRELIMINARY OBJECTION RAISED BY THE LD. AR WAS THAT THE NOTICE OF HEARING WAS NOT SERVED ON THE ASSESSEE FOR THE HEARING SCHEDULED ON 06.11.2017 AND HENCE, THE ASSESSEE COULD NOT BE PRESENT ON THE SAID DATE BY WAY OF PER SONAL APPEARANCE. THE SECOND OBJECTION RAISED BY THE LD. AR WAS THAT THE TRIBUNA L HAD STATED IN PARA 9 OF ITS ORDER THAT THE ASSESSEE HIMSELF HAD ACCEPTED THAT HE IS E NGAGED IN COMMODITIES TRADING BUSINESS AND THEREFORE MANDATED TO MAINTAIN BOOKS O F ACCOUNTS IN TERMS OF SECTION 44AA OF THE ACT AND THEREBY INFERRING THAT THE ASSE SSEE HAD REPORTED THE PROFIT FROM COMMODITIES TRADING BUSINESS UNDER THE HEAD INCOM E FROM BUSINESS OR PROFESSION. BASED ON THIS CRUCIAL FINDING, THE TRIBUNAL HAD CON CLUDED THAT SINCE THE TRANSACTION OF COMMODITIES TRADING HAD NOT BEEN ENTERED BY THE AS SESSEE IN HIS BOOKS OF ACCOUNTS AS ON THE DATE OF SEARCH ON 01.08.2012 AND THEREBY IT TAKES THE CHARACTER OF UNDISCLOSED INCOME FOR WHICH PENALTY U/S 271AAB OF THE ACT IS E XIGIBLE. IN THIS REGARD, WE FIND THAT THE LD. AR DREW OUR ATTENTION TO THE COMPUTATION OF THE TOTAL INCOME WHEREIN THE ASSESSEE HAD OFFERED INCOME FROM COMMODITY TRADING ONLY UNDER THE HEAD INCOME FROM OTHER SOURCES. WE ALSO FIND THAT THE LD. AO HAD ALS O SPECIFICALLY STATED IN THE BODY OF THE ASSESSMENT ORDER VIDE COLUMN NO. 10 THAT THE AS SESSEE IS HAVING ONLY SALARY INCOME AND INCOME FROM OTHER SOURCES. WE FIND THAT DUE TO THE ABSENCE OF THE ASSESSEE AT THE TIME OF HEARING THIS PARTICULAR FACT HAD ESCAPED TH E ATTENTION OF THE TRIBUNAL. ON PERUSAL OF THE FACT AVAILABLE ON RECORD, WE FIND THAT THE F INDING RECORDED BY THIS TRIBUNAL IN PARA 9 OF ITS ORDER DATED 10.11.2017 THAT THE ASSESSEE I S MANDATED TO MAINTAIN BOOKS OF ACCOUNTS U/S 44AA OF THE ACT IS FACTUALLY INCORRECT AND DESERVES TO BE RECTIFIED. THIS MISTAKE OF PRIMARY FACT HAD LEAD TO A CONCLUSION OF UPHOLDING THE LEVY OF PENALTY U/S 271AAB OF THE ACT. HENCE, IN THESE FACTS AND CIRCUM STANCES AND IN VIEW OF THE AFORESAID MISTAKE OF PRIMARY FACT RIGHTLY POINTED O UT BY THE LD. AR , WE DEEM IT FIT TO 3 MA NOS 218 TO 220/KOL/2017 (A/O I.T.A NOS. 1471,1475&1476/KOL/2015) AMIT AGARWAL, MADAN LAL BESWAL & MANOJ BESWAL A.YR.2013-14 3 RECALL THE ORDERS OF THIS TRIBUNAL DATED 10.11.2017 IN THE CASE OF AFORESAID ASSESSEES. 2. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS OF THE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 12.01.2018 SD/- SD/- [S.S.VISWANETHRA RAVI] [M.BALAG ANESH] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 12.01.2018 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. I) AMIT AGARWAL, DD TOWER, GS ROAD, CHRISTIAN BAST I, GUWAHATI-781001. (II) MADAN LAL BESWAL & MANOJ BESWAL, FLAT NO. 6N , LAKE TOWER, 87, SOUTHERN AVENUE, KOLKATA-700029. 2. DCIT, CIRCLE-2(2), KOLKATA, AAYAKAR BHAWAN POORVA, 110, SHANTI PALLY, 4 TH FLOOR, KOLKATA- 700107. 3.CIT(A)- 4. CIT- 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVA TE SECRETARY HEAD OF OFFICE/ D.D.O., ITAT KOLKATA BENCHE S