Dr Suman Sarkar, Howrah V. I.T.O Wd - 22(1),kolkata, Kolkata

MA 22/KOL/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 5140 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-02-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 20-06-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: R.T. YADAVA
• Keywords: Opportunity of being heard
• Section: 13

Judgement Text

1 MA No. 22/Kol/2021 In ITA No..953/Kol/2019 Dr. Suman Sarkar AY: 2008-09 IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, KOLKATA [Before Shri A. T. Varkey, JM M.A. No. 22/Kol/2021 In I.T.A. No. 953/Kol/2019 Assessment Year: 2008-09 Dr. Suman Sarkar (PAN: APSPS 1122 A) Vs. ITO, Ward-22(1), Kolkata Applicant Respondent Date of Hearing (virtual) 11.02.2022 Date of Pronouncement 23.02.2022 For the Appellant Shri R.T. Yadava, CA For the Respondent Shri Biswanath Das, Addl. CIT ORDER This is the third (3 rd ) miscellaneous application filed by the assessee against the order of this Tribunal dated 15.11.2019 partly allowing the appeal in ITA No. 953/Kol/2019 dated 3.6.2016. 2. Brief facts of the case as discerned from the records is that the AO in the first round had made an addition on two counts: (i) Rs. 1,60,000/- & (ii) Rs. 1,55,000/-. In the first appellate proceedings, the Ld. CIT(A) confirmed both. 3. Aggrieved the assessee preferred an appeal before this Tribunal. And the Tribunal vide order dated 3.6.2016 confirmed the addition of Rs. 1,55,000/- and directed the AO to reassess the addition of Rs. 1,60,000/-. The operative portion of the order reads as under: “5.1.................. I therefore considered it fit and proper and in the interest of justice to restore this matter to the file of the AO for the limited purpose of verifying the claim of the assessee of having deposited the amount in question to the extent of Rs. 1,60,000/- from the withdrawal made in cash from another account on the same date. The AO is also directed to give opportunity of being heard to the assessee.” (emphasis supplied) 4. On the aforesaid direction of the Tribunal, the AO vide order dated 29.06.2017 without understanding the specific direction of this Tribunal made again the addition on two counts i.e. Rs. 1.60 Lacs and Rs. 1.55 Lacs (thus AO erred in again making the addition of 2 MA No. 22/Kol/2021 In ITA No..953/Kol/2019 Dr. Suman Sarkar AY: 2008-09 Rs. 1.55 Lacs which had been confirmed by the Tribunal vide order dated 3.6.2016 and when the order of the Tribunal to AO in the second round was limited to reassessment of Rs. 1.60 lacs only). 5. Aggrieved by the aforesaid action of the AO in the second round, the assessee preferred an appeal before the Ld. CIT(A) who was pleased to delete the addition of Rs. 1.60 Lakhs by order dated 21.02.2019 and confirmed the addition of Rs. 1.55 lacs since it was confirmed by the Tribunal vide order dated 3.6.2016. Aggrieved by the aforesaid order of the Ld. CIT(A) confirming Rs. 1.55 lacs (because it was confirmed by the Tribunal vide order dated 3.6.2016), the assessee preferred an appeal before this Tribunal by order dated 15.11.2019 wherein the Tribunal has confirmed Rs. 50,000/- by observing as under: ................... I therefore deem it appropriate in these factual facts and circumstances that a lumpsum of Rs. 50,000/- would meet the ends of justice with a rider that same shall not be treated as a precedent in any other case. The assessee gets relief of Rs. 1,10,000/-. 6. Aggrieved by the aforesaid order of the Tribunal in the second round as noted (supra), the assessee preferred two more MA’s before this Tribunal (MA No. 41/Kol/2020 and MA No. 91/Kol/2020) which were dismissed on 26.07.2020 and November 25,2020 respectively. (refer Page 10 to 13 of PB). However again now before me the assessee has preferred this MA (albeit 3 rd one) to correct an error which this Tribunal has supposed to have committed in the order passed by the Tribunal in ITA No. 953/Kol/2019 (dated 15.11.2019, second round order) placed at page 8 & 9 of PB. In this regard, first of all, it is noted that in the first round the Tribunal had confirmed the addition of Rs. 1,55,000/-; and in the second round the Tribunal on assessee’s appeal have given on the very same issue relief of Rs. 1,10,000/- and still the assessee is before this Tribunal by preferring the third MA, which is per-se abuse of the process of the Tribunal. In this case on the facts as discussed supra less said is better. It is noted that the Ld. A.R. of the Assessee Shri R.T. Yadav who is a CA professional has been pursuing this matter right from the proceedings before the AO to this Tribunal which pertains to AY 2008-09. In this background of the discussion (supra) the action of assessee/Ld. A.R. to file 3 rd MA cannot be countenanced. Therefore taking into consideration all the aforesaid factual matters, I find that the assessee has not come before this Tribunal with clean hands. Therefore a cost needs to be levied. So I 3 MA No. 22/Kol/2021 In ITA No..953/Kol/2019 Dr. Suman Sarkar AY: 2008-09 direct the assessee to remit/deposit Rs. 10,000/- in the Prime Minister’s Relief fund within three (3) months from the today and the AO should ensure that assessee has deposited it as directed. Or else, the AO should bring this fact to the notice of this Tribunal. 4. In the result, the Misc. Application filed by the assessee stands dismissed with cost as indicated above. Order is pronounced in the open court on 23 rd February, 2022. Sd/- (Aby. T. Varkey) Judicial Member Dated: 23.02.2022 SB, Sr. PS Copy of the order forwarded to: 1. Assessee – Dr. Suman Sarkar, Amta Natun Rasta, Bagnan More, Howrah-711401. 2. Revenue – ITO, Ward-22(1), Kolkata 3. CIT(A)-6, Kolkata (sent through e-mail). 4. CIT, Kolkata. 5. DR, ITAT, Kolkata, (sent through e-mail).. True Copy By Order Assistant Registrar ITAT, Kolkata Bench, Kolkata