ANIL KUMAR PODDAR,KOLKATA vs. ITO, WARD-43(2), KOLKATA
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Income Tax Appellate Tribunal, “SMC” BENCH KOLKATA
Before: SHRI SONJOY SARMA & SHRI RAKESH MISHRA
IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH KOLKATA BEFORE SHRI SONJOY SARMA, JUDICIAL MEMBER AND SHRI RAKESH MISHRA, ACCOUNTANT MEMBER ITA No.260/KOL/2024 Assessment Year: 2015-16
Anil Kumar Poddar Income Tax Officer, Ward- Room No. 7(7A), Block ‘E’, 43(2), Kolkata Mercantile Building, 9/12, Vs. lal Bazar Street, Kolkata- 700001. (PAN: AJJPP9768L) (Appellant) (Respondent)
Present for: Appellant by : N o n e Respondent by : Shri Subhro Das, Addl. CIT Date of Hearing : 23.04.2024 Date of Pronouncement : 24.04.2024 O R D E R PER RAKESH MISHRA, ACCOUNTANT MEMBER: This appeal filed by the assessee is against the order of Ld. Commissioner of Income Tax (Appeal), Addl./JCIT(A)-3, Mumbai (hereinafter referred to as “the Ld. CIT(A)” vide order dated 12.12.2023 passed against the assessment order u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as “the Act”), dated 18.12.2017 by ITO, Ward-43(2), Kolkata for AY 2015-16.
At the outset, we note that none appeared on behalf of the assessee at the time of hearing. However, an adjournment application dated 22.04.2024 is placed on record which is as under:
“In this connection, it is submitted that the premises bearing No. 9/12 wherein my office is situated has got no electricity since the power supply
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was disconnected because of a fire in the year 2021. The Association of the Tenants of the said building have moved to the High Court for restoration of the power supply and the Hon’ble High Court at Calcutta has been pleased to pass necessary directions and instructions to the Calcutta Electric Supply Corporation and Ors. it is practically impossible to enter the building without electricity and to search the old records pertaining to FY 2014-15. Because of this fact also no compliance could be made by me before the CIT(A) resulting in an ex parte order. In view of the aforesaid, it is my prayer before the Hon’ble Bench to kindly grant me an adjournment for about two months and by which time I would be able to trace the old records required for adjudication of the appeal before your honour. We find that the issue taken by the assessee in this appeal is that the impugned order is an ex parte order, therefore, considering the same, we find that it is better to dispose of this appeal at this stage. Therefore, we decide the appeal ex parte qua the assessee after hearing the Ld. DR.
Grounds of appeal raised by the assessee are reproduced as under:
“1. For that the orders passed by the lower authorities are arbitrary, erroneous, without proper reasons, invalid and bad-in- law, to the extent to which they are prejudicial to the interests of the appellant. 2. For that the Ld. CIT (A) erred in dismissing the appeal of the appellant on alleged grounds. 3. For that the Ld. CIT (A) ought to have accepted the evidences adduced by the appellant in respect of receipt of Rs.16,32,728/- by the appellant and which was claimed exempt u/s 10(38) of the Act. 4. For that the Ld. CIT (A) ought to have accepted the explanation of appellant about the deposits in bank which amounted to Rs.12,81,740/- 5. For that the Ld. CIT (A) ought to have properly considered the explanation submitted with regard to the aforesaid additions and ought to have allowed the appeal of the appellant. 6. For that the Ld. CIT (A) miserably failed in passing an order without adhering to the provision of Sec.250(6) of the Act. 7. For that further grounds of appeal may kindly be allowed to be taken at the time of hearing of the appeal.”
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Brief facts of the case are that the return of income was filed showing total income at Rs. 4,10,530/- on 30.03.2016 and the case was selected for scrutiny through CASS to verify “Tax Credit claimed in ITR is less than tax credit available in 26AS” and “suspicious sale transaction in shares and exempt long term capital gains shown in return (Penny Stock tab in ITS)”. The assessee had sold shares in FY 2014-15 for a total sale consideration of Rs.16,32,728.53 and had claimed exemption of such income as exempt u/s 10(38) of the Act. On failure of the assessee to offer any satisfactory explanation with supporting evidence to establish that the money received was actually from the sale of stock, the amount of Rs.16,32,728.53 was added u/s 68 besides another amount of Rs.12,81,740/- being cash deposit in the bank account by the assessee and the total income was assessed at Rs.33,25,000/-. The assessee filed an appeal before the Ld. CIT(A) who, vide the impugned order before this Tribunal, mentioned non- compliance on the part of the assessee as the assessee had failed to file any written submission in support of the grounds of appeal. As per the order of Ld. CIT(A), as the AO had made detailed analysis of the details submitted, he confirmed the view of the AO and dismissed the appeal. 3. We have heard the Ld. DR and have carefully perused the material available on record. Ground nos. 1 to 5 relate to not considering the explanations submitted with regard to the aforesaid additions and the assessment that the Ld. CIT(A) ought to have allowed the appeal as the order has been passed without adhering to the provisions of section 250(6) of the Act while ground nos. 3 and 4 relate to the two additions and ground nos. 1 and 7 are general in nature. 4. The provisions of section 250(6) are reproduced as under: “250(6) – The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision.”
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In this respect, we note that Section 250(6) casts a duty on the Ld. CIT(A) to pass an order in appeal which should state the points for determination and a decision as well as the reason for arriving at such decision. In the present case before us, even though the assessee has made its submissions along with supporting documents before the Ld. AO which are on record, compliance has not been made by the Ld. CIT(A) by not mentioning the reasons after examining the assessment records while disposing of the appeal. We also note that while the Ld. CIT(A) has discussed non-compliance on the part of the assessee as the eleven notices sent by e-mail were complied only twice; once 20.05.2022 when copy of the order was submitted and adjournment was requested and the second time on 28.09.2023 when the request for adjournment was made, however, the Ld. CIT(A) upheld the view of the AO and has not passed a reasoned order for arriving at the decision, as is required u/s 250(6) of the Act. We further note that in Ajji Basha Vs. CIT (2019) 111 taxmann.com 348 it has been held that a speaking order on merits with reasons and findings is to be passed by Commissioner (Appeals) on basis of ground raised in assessee's appeal; he cannot dispose assessee's appeal merely by holding that Assessing Officer's order is a self speaking order which requires no interference.
Accordingly, we find it proper to remit the matter back to the file of Ld. CIT(A) for disposal of the grounds taken by the assessee on merits, by passing a speaking order. Needless to say that the assessee shall be given a reasonable opportunity of being heard to make any further submission it wants to make in support of its grounds of appeal. Accordingly, the grounds taken by the assessee in his appeal are allowed for statistical purposes.
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In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 24th April, 2024. Sd/- Sd/- (Sonjoy Sarma) (Rakesh Mishra) Judicial Member Accountant Member
Dated: 24th April, 2024 JD, Sr. P.S.
Copy to: 1. The Appellant: 2. The Respondent. 3. CIT(A),Addl./JCIT(A)-3, Mumbai. 4. The Pr. CIT, 5. DR, ITAT, Kolkata Bench, Kolkata //True Copy// By Order Assistant Registrar ITAT, Kolkata Benches, Kolkata
