NILKANTA DUTTA, Kolkata v. I.T.O. WD-30(3)/ KOL, Kolkata

ITA 2137/KOL/2009 | 2003-2004
Pronouncement Date: 27-09-2011

Appeal Details

RSA Number 213723514 RSA 2009
Assessee PAN ADVPD0418R
Bench Kolkata
Appeal Number ITA 2137/KOL/2009
Duration Of Justice 1 year(s) 9 month(s) 6 day(s)
Appellant NILKANTA DUTTA, Kolkata
Respondent I.T.O. WD-30(3)/ KOL, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 27-09-2011
Appeal Filed By Assessee
Bench Allotted C
Tribunal Order Date 27-09-2011
Date Of Final Hearing 25-02-2010
Next Hearing Date 25-02-2010
Assessment Year 2003-2004
Appeal Filed On 21-12-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BEN CH C KOLKATA () BEFORE SHRI MAHAVIR SINGH JUDICIAL MEMBER. /AND . .. . ! ! ! !. .. . '# SHRI C.D.RAO ACCOUNTANT MEMBER $ $ $ $ / ITA NOS . 2137 & 1807/KOL/2009 %& '(/ ASSESSMENT YEARS : 2003-04 & 2004-05 (*+ / APPELLANT ) NILKANT DUTTA KOLKATA (PAN:ADVPD 0418 R) - % - - VERSUS - . (-.*+/ RESPONDENT ) I.T.O. WARD-30(3) KOLKATA *+ / 0 '/ FOR THE APPELLANT: SHRI M.D.SHAH -.*+ / 0 '/ FOR THE RESPONDENT: SHRI A.S.MONDAL 1%2 / !# /DATE OF HEARING : 27.09.2011. 3' / !# /DATE OF PRONOUNCEMENT : 27.09.2011. '4 / ORDER ( (( ( . .. . ! ! ! !. .. . ) )) ) '# PER SHRI C.D.RAO AM THE ABOVE APPEALS ARE FILED BY ASSESSEE AGAINST SE PARATE ORDERS DATED 28.10.2009 & 28.08.2009 OF THE LD. CIT(A)-XXXVI KO LKATA PERTAINING TO A.YRS. 2003-04 AND 2004-05 RESPECTIVELY. 2. THE ASSSESSEE HAS RAISED THE FOLLOWING GROUNDS O F APPEALS :- ITA NO.2137/KOL./2009 (A.YR.2003-04): 1. FOR THAT THE ORDER PASSED BY MAKING THE ADDITION BY THE LD. ASSESSING OFFICER WARD-30(3) KOLKATA IS ARBITRARY AND UNWAR RANTED AND THE LD. COMMISSIONER OF INCOME TAX (APPEALS)XXXVI KOLKATA ERRED IN CONFIRMING THE SAID ORDER PASSED BY THE INCOME TAX OFFICER WARD 3 0(3) KOLKATA U/S 143(3) OF THE INCOME TAX ACT 1961. 2 2. FOR THAT THE ORDER PASSED BY THE LD. ASSESSING O FFICER IS BARRED BY LIMITATION HENCE BAD IN LAW AND BE QUASHED. 3. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LD. ASSESSING OFFICER WARD 30(3) KOLKATA AND THE LD. COMMISSIONER OF INC OME TAX (APPEALS)XXXVI KOLKATA ERRED BOTH IN LAW AS WELL A S FACTS BY ADDING BACK THE SUM OF RS.8 00 000/- AS UNEXPLAINED INVESTMENT U/S 69B OF THE INCOME TAX ACT 1961 FROM UNDISCLOSED SOURCES IS BAD IN LAW AND THE SAME SHOULD BE DELETED. 4. FOR THAT THE APPELLANT CRAVES LEAVE TO AMEND AL TER OR TO ADD AN FURTHER GROUND(S) BEFORE OR AT THE TIME OF HEARING OF THE A PPEAL. ITA NO.1807/KOL./2009 (A.YR.2004-05): 1. FOR THAT THE CIT(A) ERRED IN HOLDING THAT EVIDEN CES WERE NOT FILED BEFORE HIM DESPITE THE SAME BEING FILED BEFORE HIM ON 29/07/20 09 THIS FINDING OF THE CIT(A) BE REVERSED. 2. FOR THAT THE CIT(A) CONFIRMED THE ADDITION BASED ON THE ABOVE FINDING THUS THE ORDER OF THE CIT(A) BE REVERSED. 3. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE THE ADDITION OF RS.125 000/- AS INVESTMENT IN SHOP RENOVATION U/S 6 9B FROM UNDISCLOSED SOURCES IS BAD IN LAW AND THE SAME SHOULD BE DELETE D. 4. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE THE ADDITION OF RS.311560/- AS UNDISCLOSED INVESTMENT IN STOCK U/S 69B FROM UNDISCLOSED SOURCES IS BAD IN LAW AND THE SAME SHOULD BE DELETE D. 5. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE THE ADDITION OF RS.11692/- AS INCOME FROM SALE OF DIAMONDS THE SAME IS BASED O N CONJECTURES AND IS BAD IN LAW AND THE SAME SHOULD BE DELETED. 6. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LD. AO REJECTED THE EVIDENCES AND AFFIDAVIT FILED BY THE APPELLANT FAMI LY THE SAME IS BAD IN LAW THE LD AO WAS BOUND TO ACCEPT THE SAME IN ABSENCE OF AN Y ADVERSE EVIDENCE OR DEFECT IN THE AFFIDAVIT FILED BY THE APPELLANT FAMI LY. 7. WITHOUT PREJUDICE TO THE ABOVE SUBMISSION IT MAY BE SUBMITTED THAT THE ESTIMATE MADE BY THE LD AO IS BASED ON CONJECTURES AND SUMMARIES AND THUS THE QUANTUM OF ADDITION BE REDUCED BASED ON THE FAC TS OF THE C ASE. 4. FOR THAT THE APPELLANT CRAVES LEAVE TO AMEND AL TER OR TO ADD AN FURTHER GROUND(S) BEFORE OR AT THE TIME OF HEARING OF THE A PPEAL. 3. AT THE TIME OF HEARING THE LD. COUNSEL APPEARIN G ON BEHALF OF ASSESSEE HAS NOT PRESSED GROUND NO.1 AND 2 IN ITA NO.2137/KOL/2009 A ND GROUND NO.1 2 AND 5 IN I.T.A. NO.1807/KOL/2009 ARE NOT PRESSED. THEREFORE THE SAME ARE DISMISSED AS BEING NOT PRESSED. 3 4. GROUND NO.4 IN ITA NO.2137/KOL/2009 AND GROUND NO.8 IN ITA NO.1807/KOL/2009 ARE GENERAL IN NATURE. THE SAME AR E DISMISSED AS THEY DO NOT NEED ANY ADJUDICATION. 5. GROUND NOS.6 AND 7 RAISED BY ASSESSEE IN ITA NO .1807/KOL/2009 ARE IN SUPPORT OF GROUND NOS. 3 AND 4 RAISED IN THE SAME A PPEAL. IN THE RESULT WE HAVE YET TO DECIDE GROUND NO.3 IN ITA NO.2137/KOL/2009 AND GROU ND NOS.3 AND 4 IN ITA NO.1807/KOL./2009. 6. AT THE TIME OF HEARING THE LD. COUNSEL APPEARIN G ON BEHALF OF ASSESSEE BY REFERRING TO PAGES OF THE PAPER BOOK CONTENDED THAT THE MATTER MAY BE SET ASIDE TO THE FILE OF AO FOR FRESH CONSIDERATION AS THE DOCUMENTS FILED IN THE PAPER BOOK NEED FRESH VERIFICATION BY THE REVENUE AUTHORITIES. THE ASSESS EE IS IN A POSITION TO SUBSTANTIATE THE CLAIM BEFORE THE REVENUE AUTHORITIES. THEREFORE HE REQUESTED TO SET ASIDE THE ISSUES INVOLVED IN GROUND NO.3 OF APPEAL NO.2137/KOL/2009 AND GROUND NOS. 3 AND 4 OF APPEAL NO.1807/KOL/2009. 7. ON THE OTHER HAND THE LD. DR APPEARING ON BEHA LF OF THE REVENUE COULD NOT OBJECT TO THE SAID REQUEST OF THE LD. COUNSEL FOR A SSESSEE. 8. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CARE FUL PERUSAL OF MATERIALS AVAILABLE ON RECORD IN THE INTEREST OF JUSTICE WE SET ASIDE THE ISSUES RAISED BY ASSESSEE IN GROUND NO.3 OF APPEAL NO.2137/KOL/2009 FOR A.YR . 2003-04 AND GROUND NOS. 3 AND 4 OF APPEAL NO.1807/KOL/2009 FOR A.YR. 2004-05 FOR FRESH CONSIDERATION TO THE FILE OF AO TO DECIDE AS PER LAW AFTER GIVING A REAS ONABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE. THE ASSESSEE IS ALSO AT LIBERTY TO FILE F RESH EVIDENCES IF REQUIRED IN ORDER TO SUBSTANTIATE HIS CLAIM. 4 9. IN THE RESULT THE APPEALS OF THE ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27.09.2011. SD/- SD/- MAHAVIR SINGH JUDICIAL MEMBER . .. . ! ! ! !. .. . '# '# '# '# C.D.RAO ACCOUNTANT MEMBER. ( (( (!# !# !# !#) )) ) DATE: 27.09.2011. '4 / -5 6'5'7- COPY OF THE ORDER FORWARDED TO: 1. NILKANTA DUTTA C/O D.J.SHAH & CO. KALYAN BHAVAN 2 ELGIN ROAD KOLKATA- 700020. 2 THE ITO. WARD-30(3) KOLKATA. 3. THE CIT 4. THE CIT(A)-XXXVI KOLKATA. 5. DR KOLKATA BENCHES KOLKATA .5 -/ TRUE COPY '4%1/ BY ORDER DEPUTY /ASST. REGISTRAR ITAT KOLKATA BENCHES R.G.(.P.S.)