SATYAJIT DAS,HOWRAH vs. ITO, WARD-46(4), KOLKATA

आयकर अपील�य अ�धकरण, कोलकाता पीठ ‘बी’, कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH KOLKATA �ी संजय गग�, �या�यक सद�य एवं �ी मनीष बोरड, लेखा सद�य के सम� Before Shri Sanjay Garg, Judicial Member and Dr. Manish Borad, Accountant Member I.T.A No.301/Kol/2020 Assessment year: 2010-11 Satyajit Das……………………...................................................……Appellant Moubesia, Dhulasimla, Uluberia, Howrah-711315. [PAN: AGVPD4627P] vs. ITO, Ward-46(4), Kolkata..............................……........……...…..…..Respondent Appearances by: Shri Miraj D. Shah, AR, appeared on behalf of the appellant. Shri P. P. Barman, Addl. CIT-DR, appeared on behalf of the Respondent. Date of concluding the hearing : December 14, 2023 Date of pronouncing the order : December 14, 2023 आदेश / ORDER संजय गग�, �या�यक सद�य �वारा / Per Sanjay Garg, Judicial Member: The present appeal has been preferred by the assessee against the order dated 20.11.2019 of the Commissioner of Income Tax (Appeals)-14, Kolkata (hereinafter referred to as the ‘CIT(A)’) passed u/s 250 of the Income Tax Act (hereinafter referred to as the ‘Act’). 2. The assessee in this appeal has taken the following grounds of appeal: “ 1. FOR THAT both the impugned Order of assessment and the Appellate Order dated 28.12.2017 and 20.11.2019 respectively are bad in law and based on wrong appreciation of facts. 2. FOR THAT in the facts and circumstances of the case, the Ld. CIT(A) was not justified in law in sustaining the assessment, as the Assessing Officer erred in law in invoking

I.T.A No.301/Kol/2020 Assessment year: 2010-11 Satyajit Das provisions of Section 68 in your appellant's case although the petitioner did not maintained any Books of Accounts and accordingly, Section 68 has no application in this case. 3. FOR THAT in any event the Ld. CIT(A) was not justified in sustaining addition of an astronomical sum of Rs.78,00,000/- to your appellant's income without considering the actual status and real income of the appellant. 4. FOR THAT Ld. CIT(A) failed to appreciate that reopening of the instant case is bad in law and based on surmise and conjecture and liable to be struck down in the appellate forum. 5. FOR THAT Ld. CIT(A) failed to appreciate that the appellant already filed police complaint before the Bhawanipore Police Station that his account was falsified used by the some miscreant person and he has no knowledge of such transaction. 6. FOR THAT Ld. CIT(A) failed to appreciate that the Assessing Officer did not communicate the poor assessee the reason for reopening of the case and the copy of PCIT's approval in standard format before proceeding to assume jurisdiction to assess. 7. FOR THAT Ld. CIT(A) failed to appreciate that the Assessing Officer violated the principles of natural justice before invoking provisions of Sec. 68 in the instant case. 8. FOR THAT Ld. CIT(A) failed to appreciate that the Ld. Additional Commissioner of Income Tax, Range-46 framing the direction u/s 144A of the Act did not give a chance of hearing to the appellant and therefore, such ex-parte direction is liable to be quashed. 9. FOR THAT Ld. CIT(A) failed to appreciate that the Assessing Officer failed to consider the appellant's submission dated 28.12.2017 in proper perspective and wrongly added back a sum of Rs. 78,00,000/- as cash credit u/s 68 in the hands of the assessee. 10.FOR THAT Ld. CIT(A) failed to appreciate that the Learned Assessing Officer in exercise of jurisdiction acted illegally and with material irregularity in passing the order of assessment dated December 28, 2017. 11. FOR THAT Ld. CIT(A) failed to appreciate that the Learned Assessing Officer below being the quasi-judicial authority acted arbitrarily with predetermined mind and sitting biased in exercise of jurisdiction of conducting De-Novo Assessment. 12.FOR THAT Ld. CIT(A) failed to appreciate that the A.O was biased even while recording the reasons u/s 147 before issuance of the Notice u/s. 148 by putting the intention of not evaluating any papers and documents. 13.FOR THAT Ld. CIT(A) failed to appreciate that the Learned Assessing Officer below failed to follow the principles of natural justice and equity provided under Constitution of India.

I.T.A No.301/Kol/2020 Assessment year: 2010-11 Satyajit Das 14.FOR THAT Ld. CIT(A) failed to appreciate that the Learned Assessing Officer below completely failed to follow the Principles of Indian Evidence Act as provided under Section 61 read with Section 62 and 63 and read with Section 74 of Indian Evidence Act, 1872. 15.FOR THAT Ld. CIT(A) failed to appreciate that the Learned Assessing Officer below in exercise of his jurisdiction acted illegally and with material irregularity with a predetermined and biased mind without providing the materials to the Assessee for his necessary rebuttal and went on to pass illegal, arbitral order. 16.FOR THAT the Learned Assessing Officer below failed to act in terms of the Law settled by the Hon'ble Supreme Court in Anil vs. Gurbaksh (2006) 5 SCC 558 and also in IT Commissioner West Bengal vs. Anwar Ali reported in AIR 1907 SCC 1782 for the purposes of burden of proof and shifting of the onus in discarding the materials already on record. 17.FOR THAT Ld. CIT(A) failed to appreciate that in the reassessment stage the Ld. A.O. failed to make proper service of Notice under Section 142(1) and / or 143(3) before assuming jurisdiction to reassess in this case. 18.FOR THAT Ld. CIT(A) failed to appreciate that the Assessment completed without giving the appellant any chance of hearing is bad in law and liable to quashed in appeal. 19.FOR THAT Ld. CIT(A) failed to appreciate that the A.O., used materials collected behind the back of the Appellant and without giving the appellant any chance of rebuttal and cross examination of the persons allegedly made confessions and therefore the order of assessment is a nullity in the eyes of law. 20.FOR THAT the assessment proceedings are bad in law inasmuch as the A.O. had wrongly assumed jurisdiction to assess the case. 21.FOR THAT Ld. CIT(A) failed to appreciate that there has been no valid service of mandatory notice u/s 143(2) of the Act before assumption of jurisdiction by the A.O. in original assessment and therefore the entire proceedings is vitiated. 22.FOR THAT Ld. CIT(A) failed to appreciate that the Assessing Officer was not justified in charging interest under Section 234B & 234C of the Act. 23. FOR THAT Ld. CIT(A) failed to appreciate that the penalty proceedings initiated u/s 271(1)(c ) is void ab-initio in the eyes of law and liable to be struck down in appeal.

I.T.A No.301/Kol/2020 Assessment year: 2010-11 Satyajit Das 4. The brief facts of the case are that the Assessing Officer noticed that there were cash deposits in the bank account of the assessee on different dates which was further transferred two parties namely M/s Master Commerce Pvt. Ltd. and the other namely Suhagan Sarees. The Assessing Officer called upon the assessee to furnish the nature and details of transaction. However, the assessee responded that the assessee did not have any connection with the aforesaid companies. That no transaction was carried out by the assessee with the said two companies. That the bank account of the assessee was inoperative for sometimes. It was submitted that the bank account of the assessee has been misused by some other person to carry out the said transactions by forging the signature of the assessee. That the assessee neither deposited any alleged amount in the bank account nor the same was transferred by the assessee to any such person as alleged by the department. The assessee also filed complaint to the concerned bank that the accounts have been misused. The assessee also filed police complaint alleging the misuse of his account. When the police authority failed, the assessee filed complaint to Chief Judicial Magistrate impleading the bank authorities, the transferees companies and also the person namely Parikshit Manna to whom the assessee suspected to have done the aforesaid transaction in his bank account. The ld. AR has submitted that the said complaint before the Magistrate is still pending. The assessee brought all the facts to the knowledge of the Assessing Officer also, however, the Assessing Officer held that since the transactions were carried out in the bank account of the assessee, the reasonable presumption was that the amount belonged to the assessee. He accordingly made the impugned addition into the income of the assessee which has been further confirmed by the CIT(A).

I.T.A No.301/Kol/2020 Assessment year: 2010-11 Satyajit Das 5. We have heard the rival contentions and gone through the record. In this case, the assessee from the very beginning has been stating that some other person has fraudulently used the bank account for making the aforesaid deposits and transactions. The assessee not only filed compliant with the bank authorities but also police authorities and even before the Magistrate also in this respect. The Assessing Officer though issued notices to the beneficiary companies but no one appeared on behalf of the said companies. It has been pointed out in the assessment order that the Assessing Officer has also called for the requisite details and explanation from the bank authorities also but as to what was the reply of the bank authorities has not been found mentioned in the assessment order. The assessee in this case has taken all steps what he was supposed to do to show to the authorities that the aforesaid fraudulent transactions have been done by some other person which was suspected to be done by one Parikshit Manna. Under the circumstances, in our view, the heavy burden was cast upon the Assessing Officer to enquire about the transactions and arrive at the actual facts. The Assessing Officer, under the circumstances, was supposed to summon the concerned beneficiary companies and enquire from them about the transaction, however, the Assessing Officer did not exercise his powers in this respect. 6. The ld. DR, at this stage, has pointed out that even the assessment proceedings in this case of M/s Master Commerce Pvt. Ltd. was carried out by the Assessing Officer of that party, however, the said M/s Master Commerce Pvt. Ltd. did not appear in the assessment proceedings. The ld. DR, therefore, has submitted that even the said party was not available to his Assessing Officer.

I.T.A No.301/Kol/2020 Assessment year: 2010-11 Satyajit Das 7. The above submissions of the ld. DR is of no help to the revenue in this case. Even if the said M/s Master Commerce Pvt. Ltd. remained ex parte in his own case that does not mean that the said party could not have been traced by the Assessing Officer. The transaction has been done through bank account. The details of the key person, directors were available with the Registrar of Companies. There may be other details of the relevant persons who dealt with the said company. The Assessing Officer and the police authorities could have traced the person/beneficiary, who actually would have divulged the true facts and also about the person with whom such transaction was carried out and also the nature of the transaction. Under the circumstances, in this case, the preponderance of probabilities are in favour of the assessee and against the revenue. In view of this, the additions made by the Assessing Officer are not sustainable and the same are ordered to be deleted. 8. In the result, the appeal of the assessee stands allowed. Kolkata, the 14th December, 2023. Sd/- Sd/- [डॉ�टर मनीष बोरड /Dr. Manish Borad] [संजय गग� /Sanjay Garg] लेखा सद�य /Accountant Member �या�यक सद�य /Judicial Member

Dated: 14.12.2023. RS Copy of the order forwarded to: 1 Satyajit Das 2. ITO, Ward-46(4), Kolkata 3. CIT(A)- 4. CIT- , 5. CIT(DR),

I.T.A No.301/Kol/2020 Assessment year: 2010-11 Satyajit Das //True copy// By order Assistant Registrar, Kolkata Benches