SHRI JAGTESWAR SINGH,KOLKATA vs. ITO, WD-33(2), KOLKATA, KOLKATA

The facts of the unexplained investment u/s. 69 of the Act are that the AO added Rs.26,17,246/- treating the same as undisclosed income and passed an assessment order to that effect u/s. 143(3) of the Act for the AY 2011-12. As aggrieved by such assessment order, the assessee preferred an appeal before the CIT-A, wherein he dismissed the appeal of assessee for non compliance of hearing on 30-03-2016. Against which the assessee filed an appeal before the S.P No. 40/Kol/2016 2 [In Shri Jagteswar Singh-JM Tribunal in ITA No. 1271/Kol/2016 along with SA No. 40/Kol/2016 for the AY 2011-12.

At the time of hearing before us, the ld.AR submitted that the assessee has derived his income from two heads i.e. one from agricultural income and another income from partnership firm. During the course of hearing before us, he drew our attention to page 14 of the paper book to show that he earned agricultural income of Rs.18,74,900 and drawing from partnership firm of Rs.10,00,000/-. The AO allowed the agricultural income of Rs.5,52,754/- out of Rs.18,74,900/- and added an amount of Rs.23,22,146 (Rs.10,00,000 + Rs.13,22,146) i.e balance amount of cash deposited in the Andhra Bank, Ballygunge Branch, Kolkata treated the same as income from undisclosed sources. The CIT-A has confirmed the action of the AO and dismissed the appeal of assessee for non compliance of notice of hearing on the part of assessee. The ld.AR further argues that the assessee did not receive any notice from the CIT-A. He drew our attention to page 46 of the paper book.

In reply, the ld.DR drew our attention to Table-A at page 31 of the paper book and paras 3-5(b) of the assessment order. He further argued that with reference to CBDT Circular that if the assessee pays 15% of the demand raised by the AO, and then goes in appeal, in that case AO cannot ask the assessee to pay further demand.

Heard the rival submissions and perused the material available on record including the paper book. It is noticed that on receiving of notice from the CIT-A, the ld.AR of the assessee attended and filed written submission before him. Basing on which the CIT-A sought for a remand report from the AO. Again fresh notice was issued to the assessee and remand report was served on the assessee for filing rejoinder. Thereafter, the CIT-A issued another notice on 22-02-2016

With regard to submissions of the ld.DR that payment of 15% of the demand notice is to be made for seeking any stay of demand, we observe that out of demand of Rs.8,95,370/- the assessee has already paid Rs.1,00,000/- vide challan dtd. 23-12-2013 where the demand remains to Rs.7,95,370/- and it is about 12% payment of the demand raised/issued by the revenue. Hence, we are of the view that this issue requires to be set aside to the file of CIT(A), since the Assessing Officer has already been taken a view in this matter. Accordingly, we set aside the order of CIT(A) and restore the issue to his file with the direction to re-adjudicate this issue in the light of discussion made supra.