MUKESH KUMAR AGARWAL, HUF,KOLKATA vs. ITO, WARD-29(4), KOLKATA

ORDER

Per Shri A.T.Varkey, JM

2. At the outset, the Ld. AR Shri A. K. Tulsiyan drew our attention to the fact that though the Ld. CIT(A) has dismissed the appeal of the assessee by stating that none has appeared for the assessee, however he has done so without realizing the fact that the assessee/AR had appeared before the Ld. CIT(A) and the Ld. CIT(A) has called for remand report which can be seen placed at pages 20 and 21 of the paper book. According to the Ld. AR, a perusal of the same would reveal that the AO has accepted the fact that the Director of M/s. Nageshwar Consultant Pvt. Ltd, Shri Pritam Ghosh who purchased the painting from the assessee had appeared before him and the statement of the director has been recorded and the AO had gathered the copies of the identity and the other documents which has been placed in the assessment record/folder. The AO in the remand report also states that he directed the assessee to produce Shri Kunj Bihari Agarwal, the karta of M/s. K. B. Sons (HUF) from whom the painting was received as gift by the assessee. Pursuant thereto Shri Kunj Bihari Agarwal, Karta of M/s. K. B. Sons, HUF also had appeared before the AO personally and accepted the fact that the painting in question was gifted by him. And the AO after collecting the evidence of incorporation of M/s. Nageshwar

Mukesh Kumar Agarwal, HUF, AY 2013-14 Consultant Pvt. Ltd. and the return filed before the ROC as well as ITR, the AO has submitted the remand report to the Ld. CIT(A). So, in this case according to Ld. AR, the donor of the painting has appeared before the AO and accepted the fact that M/s. K B. Sons, HUF had indeed gifted the painting to the assessee and the buyer M/s. Nageshwar Consultant Pvt. Ltd. director Shri Pritam Ghosh had appeared and confirmed before the AO during the remand proceeding these facts and also submitted the documents to substantiate their respective identities, ITR’s etc. which has been verified by him/AO, therefore, nothing survives as such and the claim made by the AO before the AO has to succeed. However since no proper opportunity the assessee got before the AO in the original assessment proceeding the Ld. AR prayed that the matter may be restored to the file of AO for fresh adjudication on the issue raised therein. In this regard, we rely on the decision of Hon’ble Supreme Court in the case of Tin Box Company vs. CIT reported in (2001) 249 ITR 216 (SC) wherein it has been held as under:

“1. It is unnecessary to go into great detail in these matters for there is a statement in the order of the Tribunal, the fact-finding authority, that reads thus :

"We will straightaway agree with the assessee's submission that the Income-tax Officer had not given to the assessee proper opportunity of being heard."

3. Two questions were placed before the High Court, of which the second question is not pressed. The first question reads thus :

"1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in not setting aside the assessment order in spite of a finding arrived at by it that the Income-tax Officer had not given a proper opportunity of hearing to the assessee ?"