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

MA 32/KOL/2022

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 8730 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-11-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Next Hearing Date: 03-11-2022
• Assessment Year: 2008-2009
• Appeal Filed On: 10-08-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Set aside

Judgement Text

आयकर अपीलȣय अͬधकरण, कोलकाता पीठ ‘एसएमसी’, कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH KOLKATA Įी संजय गग[, ÛयाǓयक सदèय के सम¢ Before Shri Sanjay Garg, Judicial Member M.A No.32/Kol/2022 (A/o M.A No.22/Kol/2021 in ITA No.953/Kol/2019) Assessment year: 2008-09 Dr. Suman Sarkar........................................................................................Appellant Amta Natun Rasta, Bagnan More, Howrah-711401. [PAN: APSPS1122A] vs. ITO, Ward-22(1), Kolkata..................................................................Respondent Appearances by: Shri R.T. Yadava, FCA, appeared on behalf of the appellant. Shri Vijay Kumar, Addl. CIT- Sr. DR, appeared on behalf of the Respondent. Date of concluding the hearing : November 04, 2022 Date of pronouncing the order : November 10, 2022 आदेश / ORDER संजय गग[, ÛयाǓयक सदèय ɮवारा / Per Sanjay Garg, Judicial Member: This is the 4 th Miscellaneous Application filed by the assessee- appellant alleging that a mistake apparent on record has occurred in the order dated 15.11.2019 of this Tribunal and further followed by in the order dated 26.06.2020 passed in MA No.41/Kol/2020 and then in the order dated 25.11.2020 passed in MA No.91/Kol/2020 and then in order dated 23.02.2022 passed in MA No.22/Kol/2021. Even the last MA of the assessee-applicant i.e. MA No.22/Kol/2021 has been dismissed by the Tribunal with cost of Rs.10000/- to be deposited Prime Minister’s Relief Fund. 2. After hearing the ld. AR of the assessee-applicant and after going minutely through the case records, it revealed that this is a case where M.A No.32/Kol/2022 Assessment year: 2008-09 Dr. Suman Sarkar 2 the assessee has lost an already granted relief to him by the CIT(A) because of unnecessary filing the appeal by the assessee himself against the order of the CIT(A) even after getting the relief. Interestingly, even this is the second round of litigation before us. In the first round of litigation, the assessee contested the addition made by the Assessing Officer of Rs.1,55,000/- alleged to have been received by the assessee from his father and further the addition of amount of Rs.1,60,000/- claimed to have been deposited out of past withdrawals from his bank account, totalling Rs.3,15,000/- which was found credited in the bank account of the assessee. The Assessing Officer made the impugned additions as unexplained cash credits as the assessee had failed to prove the source of the aforesaid deposits. 3. In the first round, the ld. CIT(A) confirmed the addition. However, the Tribunal vide order dated 03.06.2016 passed in ITA No.1886/Kol/2013 partly allowed the appeal of the assessee and thereby confirmed the addition made by the lower authorities pertaining to the amount of Rs.1,55,000/- holding that the assessee had failed to satisfactorily explain the source of the aforesaid cash credits alleged to have been received by the assessee from his father. However, as regards the balance amount of Rs.1,60,000/-, the Tribunal restored the matter to the file of the Assessing Officer for limited purpose of verifying the claim of the assessee of having deposited the amount in question from the withdrawals made in cash from another account of the assessee. 4. In the second round i.e. in the set aside proceedings, the Assessing Officer again confirmed the impugned addition of Rs.1,60,000/-. Being aggrieved, the assessee preferred appeal before the CIT(A). Before the ld. CIT(A), the assessee contested both the additions i.e. the addition of Rs.1,55,000/- (which was already stood confirmed by the ITAT vide order dated 03.06.2016) and the addition of Rs.1,60,000/- (the issue relating M.A No.32/Kol/2022 Assessment year: 2008-09 Dr. Suman Sarkar 3 to which was restored by the ITAT for adjudication afresh). The ld. CIT(A) vide its order dated 21.02.2019 held that since the issue relating to the addition of Rs.1,55,000/- already stood decided and confirmed by the ITAT, therefore, there was no question of adjudication of the same in the second round of litigation. However, in respect of the issue relating to the addition of Rs.1,60,000/- the ld. CIT(A) allowed the appeal of the assessee and deleted the addition of Rs.1,60,000/-. However, the assessee did not stop here. Thus, both the issues had attained finality as the first issue of Rs.1,55,000/- already stood decided vide order dated 03.06.2016 of the ITAT and the assessee having preferred no appeal against the said order, the said order had attained finality; and the second issue relating to the addition of Rs.1,60,000/-, already stood decided in favour of the assessee by the CIT(A) vide impugned order dated 21.02.2019 and therefore, no further appeal of the assessee was maintainable before this Tribunal. 5. However, since the assessee again preferred appeal before the Tribunal and the grounds of appeal taken by the assessee were general which did not depict even as to what addition has been challenged by the assessee, therefore, the Tribunal mistook that the assessee has come in appeal against the addition of Rs.1,60,000/-. The Tribunal under the misimpression partly allowed the appeal of the assessee and restricted the addition to the extent of Rs.50,000/- out of Rs.1,60,000/-. By this order of the Tribunal dated 15.11.2019, the assessee lost his relief to the extent of Rs.50,000/- out of already granted relief of Rs.1,60,000/- vide impugned order of the CIT(A) dated 21.02.2019. In fact, the appeal of the assessee was not maintainable as the assessee was not left with any grievance as the sole issue relating to the addition of Rs.1,60,000/- was decided by the CIT(A) in favour of the assessee and the appeal of the assessee stood allowed vide order dated 21.02.2019. So far as the first M.A No.32/Kol/2022 Assessment year: 2008-09 Dr. Suman Sarkar 4 issue relating to the addition of Rs.1,55,000/-, as observed above, that issue has already attained finality in the first round of litigation vide order dated 03.06.2016 of this Tribunal. All this confusion has occurred because of the unnecessary and frivolous litigation/appeal filed by the assessee against the order dated 21.02.2019 of the CIT(A). Thereafter the assessee preferred one by another miscellaneous applications stating that an error has occurred in the order of the Tribunal dated 15.11.2019 whereby, the relief already granted to the assessee by the CIT(A) has been curtailed by the Tribunal in an appeal of the assessee which in fact was not maintainable at all. Unfortunately, the earlier three miscellaneous applications filed by the assessee have been dismissed by the Tribunal and even the last application with cost of Rs.10,000/- by finding that the assessee is filing miscellaneous applications time and again on the same issue on account of failure of the ld. AR to demonstrate before the Tribunal as to what error has occurred in the order dated 15.11.2019 of the Tribunal. 6. After having gone minutely through the record, I could gather that because of the unwanted and unnecessary appeal filed by the assessee before the Tribunal in the second round of litigation, all these misunderstanding has occurred relating to the issue in dispute resulting into the impugned order of the Tribunal dated 15.11.2019, whereby, the appeal already stood allowed by the CIT(A) vide order dated 21.02.2019 was wrongly appealed against, whereas the appeal against the said order was not maintainable. In view of this, the order dated 15.11.2019 passed in ITA No.953/Kol/2019 is hereby recalled and it is held that the appeal against the impugned order of the CIT(A) dated 21.02.2019 was not maintainable and the same stands dismissed. In the result, the final decision of the CIT(A) dated 21.02.2019 would stand as such it will be implemented by the lower authorities. In view of the above discussion, the orders passed in consequent miscellaneous applications i.e the order M.A No.32/Kol/2022 Assessment year: 2008-09 Dr. Suman Sarkar 5 dated 26.06.2020 passed in MA No.41/Kol/2020 and then the order dated 25.11.2020 passed in MA No.91/Kol/2020 and then the order dated 23.02.2022 passed in MA No.22/Kol/2021, also stand recalled. And in view of this, the assessee will not be liable to pay any cost imposed vide order dated 23.02.2022 passed in MA No.22/Kol/2021. 7. With the above observations, the present miscellaneous application of the assessee-applicant is allowed with the conclusion that the addition of Rs.1,55,000/- stood confirmed vide order dated 03.06.2016 of the Tribunal and the addition of Rs.1,60,000/- stood deleted vide order dated 21.02.2019 of the CIT(A). The ITA No.953/Kol/2019 is hereby dismissed being not maintainable. Copy of this order be also placed in the main file and also in the respective files of corresponding miscellaneous applications. Kolkata, the 10 th November, 2022. Sd/- [संजय गग[ /Sanjay Garg] ÛयाǓयक सदèय /Judicial Member Dated: 10.11.2022. RS Copy of the order forwarded to: 1. Dr. Suman Sarkar 2. ITO, Ward-22(1), Kolkata 3. CIT(A)- 4. CIT- , 5. CIT(DR), //True copy// By order Assistant Registrar, Kolkata Benches