ANITA DROLIA,KOLKATA vs. JCIT(OSD), CENTRAL CIRCLE-XX,KOLKATA, KOLKATA

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ITA 2738/KOL/2013Status: DisposedITAT Kolkata06 January 2017AY 2009-20104 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal found that both the AO and CIT(A) passed orders without properly considering the assessee's plea. Therefore, the matter was remanded back to the AO to examine the assessee's contentions and provide an opportunity to adduce evidence.

What were the facts?

The Assessing Officer (AO) added Rs. 88,23,444/- as undisclosed investment based on ITS data showing property purchase. The assessee claimed she was a nominee and did not actually purchase the property, but her reply was dated after the assessment order.

What were the issues?

Whether the addition of undisclosed investment was justified without properly considering the assessee's explanation and providing an adequate opportunity to present evidence. Whether the CIT(A) erred in deciding the appeal exparte.

Which sections of the Income-tax Act were involved?

Section 271(1)(c)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “C” BENCH : KOLKATA

Before: Hon’ble Sri Aby T.Varkey, JM & Dr.Arjun Lal Saini, AM ]

This is an appeal preferred by the Assessee against the order of CIT(A)-Central- III, Kolkata dated 24.10.2012 for AY 2009-10.

2.

None appeared on behalf of the assessee. However, after going through the records we are of the opinion that we can decide the appeal without the assistance from the ld.AR and after hearing the ld. DR. Therefore we proceed to adjudicate the appeal on merits.

3.

The main grievance of the assessee is that the ld. CIT(A) erred in confirming the addition of Rs.88,23,444/- as undisclosed investment without giving proper opportunity to the assessee of being heard.

4.

The brief facts of the case is that the AO got ITS details showing that the assessee had purchased immovable property for a sum of Rs.88,23,444/-. When asked by the AO

2 Anita Drolia A.Yr.2009-10 to explain about the investment and to produce documentary evidence regarding the same, the AO notes that the assessee failed to reply to his letter dated 14.11.2011 which prompted him to pass the assessment order wherein he added a sum of Rs.88,23,444/- as an undisclosed investment of the assessee. Aggrieved the assessee preferred an appeal before the ld. CIT(A), who initially listed the matter on 23.08.2012. Thereafter adjourned the matter to 20.09.2012 and thereafter to 05.10.2012 and the ld. CIT(A) observed that since the assessee had not complied with the notices he has no alternative but to decide the appeal exparte. Aggrieved the assessee is before us.

5.

We have heard the ld. DR and perused the records. We take note that the AO got ITS details which indicate that the assessee had purchased immovable property at a value of Rs.88,23,444/- during the year. The AO’s case is that when the assessee was asked vide letter dated 14.11.2011 no reply was received. So the AO went ahead and passed the assessment order on 26.12.2011 by making an addition of Rs.88,23,444 as undisclosed investment of the assessee. However, the case of the assessee is that she had replied vide dated 27.11.2011 and has clearly brought to the notice of the AO that the immovable property as appearing in ITS report about the purchase was not correct because the property does not belong to the assessee and she was only a nominee for the actual purchasee. So according to the assessee the addition is not legally tenable. However, we note that the AO has been silent in respect to the said reply of the assessee because the assessment order is dated 26.12.2011 and the assessee’s reply to AO was dated 27.11.2011, i.e. after the assessment order, so the AO is not fault. On appeal the ld. CIT(A) after fixing the matter twice simply said that since the assessee could not bring any evidence to support her claim he dismissed the appeal exparte. We take note that the AO passed the assessment order without considering the plea and case of the assessee regarding non-purchase of immovable property. The defence of the assessee is that she is only a nominee of the actual purchasee and so she has not purchased the property. Whatever may be veracity of the claim or the legal validity of the claim, we 2

3 Anita Drolia A.Yr.2009-10 find that AO and the ld. CIT(A) has passed virtually exparte orders, so we are of the considered opinion that the assessee may be given an opportunity to adduce the evidences to substantiate her case that the property reported by ITS has not been purchased by the assessee. In the interest of justice we set aside the order of the ld. CIT(A) and remand the matter back to the file of the AO with the direction that the AO de novo shall examine the veracity of the contentions made by the assessee and after giving adequate opportunity shall decide the issue afresh in accordance to law.

6.

In the result the appeal of the assessee is allowed for statistical purposes.

Order pronounced in the Court on 06. 01.2017.

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