Principal Commissioner Of Income Tax –9, Kolkata v. Oinidri Chakraborty

OD-38 IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction (Income Tax)ORIGINAL SIDE ITAT/110/2024 IA NO: GA/2/2024 PRINCIPAL COMMISSIONER OF INCOME TAX –9, KOLKATAVsOINIDRI CHAKRABORTY BEFORE: THE HON’BLE THE CHIEF JUSTICE T.S. SIVAGNANAMAnd THE HON’BLE JUSTICE HIRANMAY BHATTACHARYYA Date : 3[rd] May, 2024. Appearance:Mr. Soumen Bhattacharjee, Adv.…for the appellant Mr. Pratyush Jhunjhunwala, Adv.Ms. Sretapa Sinha, Adv.…for the respondent The Court: This appeal filed by the Revenue under Section 260A of theIncome Tax Act, 1961 (the Act) is directed against an order dated 22[nd] June,2023 passed by the Income Tax Appellate Tribunal, “A” Bench, Kolkata in I.T.A.No.192/Kol/2023 for the Assessment Year 2017-18. The Revenue has raised the following substantial questions of law forconsideration:- A.Whether the Learned Tribunal has committed substantial error in lawby observing that the assessing officer was not right in making theAddition of Rs.4,19,56,697/- under Section 69A of the Income Tax Act,1961 when the assessee failed to explain the source of cash deposits inby observing that the assessing officer was not right in making theAddition of Rs.4,19,56,697/- under Section 69A of the Income Tax Act,1961 when the assessee failed to explain the source of cash deposits in the bank account in the assessment proceedings as also first appealstage. B.Whether the learned Tribunal has committed substantial error in law inadmitting new evidences at the appellate stage in violation of rule 29 ofIncome Act (Appellate Tribunal Rules), 1963 whereas the LearnedTribunal did not provide opportunity to the Assessing Officer to rebutthe fresh evidences produced by the Assessee.admitting new evidences at the appellate stage in violation of rule 29 ofIncome Act (Appellate Tribunal Rules), 1963 whereas the LearnedTribunal did not provide opportunity to the Assessing Officer to rebutthe fresh evidences produced by the Assessee. C.Whether Learned Tribunal has committed substantial question of lawthereby not following the mandatory provision regarding recording ofreasons before admitting new evidences at the appellate stage.thereby not following the mandatory provision regarding recording ofreasons before admitting new evidences at the appellate stage. We have heard Mr. Soumen Bhattacharjee, learned counsel for theappellant and Mr. Pratyush Jhunjhunwala, learned counsel appearing for therespondent/assessee. The Assessing Officer completed the assessment by an order dated 9[th] December, 2019 under Section 143(3) of the Act and held that there isunexplained money credited and accordingly applied Section 69A of the Act.Aggrieved by the same, the assessee filed an appeal before the NationalFaceless Appeal Centre (NFAC). The appeal was dismissed by an order dated27[th] January, 2023 and the assessee preferred an appeal before the learnedTribunal. As could be seen from the order passed by the CIT(A), despite serviceof notice on three occasions and fixing time for online submission, the assesseedid not utilise such opportunity and the CIT(A) proceeded with the matter and The Assessing Officer completed the assessment by an order dated 9[th] December, 2019 under Section 143(3) of the Act and held that there isunexplained money credited and accordingly applied Section 69A of the Act.Aggrieved by the same, the assessee filed an appeal before the NationalFaceless Appeal Centre (NFAC). The appeal was dismissed by an order dated27[th] January, 2023 and the assessee preferred an appeal before the learnedTribunal. As could be seen from the order passed by the CIT(A), despite serviceof notice on three occasions and fixing time for online submission, the assesseedid not utilise such opportunity and the CIT(A) proceeded with the matter and dismissed the appeal. Before the learned Tribunal, the assessee appears tohave realised the mistake and they have submitted documents and detailsbefore the Tribunal to justify the cash deposits and to state that the findingrecorded by the Assessing Officer is factually incorrect. The learned Tribunalappears to have made a fact-finding exercise but however the tribunal ought tohave noted that it is for the first time the documents in the stated form havebeen produced by the assessee before the learned Tribunal. The learnedTribunal ought to have noted the conduct of the assessee in not participatingin the appellate proceedings before the NFAC. It is true that the Tribunal beingthe last fact-finding authority in the hierarchy of authorities is entitled toappreciate and re-appreciate the documents. But, in the instance case, thecorrectness of the stand taken by the assessee and more particularly, theveracity of the confirmation issued by the Boral Union Co-operative Bank isrequired to be examined. It is no doubt true that the tribunal can, on the faceof the document, examine its correctness but the CIT(A) would be entitled todirect the Assessing Officer to conduct an enquiry and submit a remand report.On the other hand, if the matter was before the Assessing Officer, theAssessing Officer is entitled to summon even third parties to produce thedocuments and details. Therefore, we are of the view that considering the fact that thedocuments were placed before the Tribunal for the first time and the CIT(A) hadno occasion to examine the correctness of the documents because of the non-participation of the assessee in the appeal proceedings, therefore, we are of the considered view that the matter should be remanded to the Appellate Authorityfor fresh consideration so that all the documents which the assessee mayproduce can be examined by the Appellate Authority and a fresh decision betaken on merits and in accordance with law. In the light of the above, the appeal is allowed. The order passed by thelearned Tribunal is set aside and the matter is remanded to the AppellateAuthority for fresh consideration. The appellant is entitled to place all thedocuments and details before the Appellate Authority and the AppellateAuthority shall cause appropriate verification and if need be, call for a remandreport and thereafter proceed to take a fresh decision on merits and inaccordance with law. (T.S. SIVAGNANAM, CJ.) (HIRANMAY BHATTACHARYYA, J.) bp/R.Bhar