Sarita Rathi v. Assistant Commissioner Of Income Tax, Circle-37, Kolkata

OD–2 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITAT/149/2023IA No: GA/1/2024, GA/2/2024 SARITA RATHI VS. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-37, KOLKATA BEFORE : THE HON’BLE THE CHIEF JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 3[rd] May, 2024 Mr. Soumitra Chowdhury, Adv.Mr. Avra Mazumder, Adv.Mr. Kausheyo Roy, Adv.Mr. Pranabesh Sarkar, Adv.Mr. Suman Bhowmick, Adv.…for appellantMr. Om Narayan Rai, Adv.…for respondent The Court : There is a delay of 11 days in filing this appeal by theassessee. The delay having been properly explained, the same is condoned. Theapplication for condonation of delay is allowed. This appeal by the assessee under Section 260A of the Income Tax Act,1961 (the Act) is directed against the order dated November 1, 2023, passed by the Income Tax Appellate Tribunal, “C” Bench, Kolkata (Tribunal) in ITANo.415/Kol/2023, for the assessment year 2016-17. The assessee has raised the following substantial questions of law for consideration : i)Whether the Ld. CIT(A) erred in making the purported additions withoutreferring the submission on March 10, 2023 ?referring the submission on March 10, 2023 ? ii)Whether the purported addition could be made on account of infructuousinterest claim under Section 37 of the Act which is untoward, unlawfuland liable to be deleted ?interest claim under Section 37 of the Act which is untoward, unlawfuland liable to be deleted ? iii)Whether the addition made by the Ld. CIT(A) should not have been madeas the reply dated March 10, 2023 is not considered which was sought inthe Notice dated February 23, 2023 under Section 250 of the Act and thelast date of submissions may be furnished on or before March 10, 2023 ? iv)Whether the Ld. Tribunal had heard the matter extensively and an orderwas passed in favour of the appellant on June 13, 2023 and as such, aftersuch extensive hearing, the Ld. Tribunal ought not to have remanded thematter back to the Ld. CIT(A) to consider the evidences and explanationsfurnished by the appellant and thereafter to decide the issue afresh inaccordance with law ? We have heard Mr. Chowdhury, learned Counsel for the appellant and Mr.Rai, learned Counsel for the respondent. The assessee was in appeal before the learned Tribunal challenging thecorrectness of the order passed by the National Faceless Appeal Centre (NFAC),Delhi dated 10[th] May, 2023. In the said appeal the assessee was partlysuccessful and the Tribunal held that in respect of three transactions theassessee had established the genuineness of the same and accordingly, theaddition made under Section 68 was deleted. In respect of transaction with fourother parties, the Appellate authority came to the conclusion that thegenuineness of the transaction and creditworthiness was not established by theassessee as the assessee has not produced the bank statements as required bythe Assessing Officer. The assessee was in appeal before the learned Tribunalcontending that the Appellate authority failed to appreciate that voluminousdocuments including bank statements of those four persons along with theothers were not only placed before the Assessing Officer but also before theAppellate authority which was also placed before the learned Tribunal was notconsidered by the Appellate authority and the finding rendered by the Appellateauthority that bank statements were not produced is factually incorrect.Further, the grievance of the appellant is that when documents were availablebefore the Tribunal, the Tribunal was well within its jurisdiction to examine thesame and if necessary, call for a remand report and could have decided thematter on merits instead of remanding the matter to the Appellate authority. Learned Counsel for the appellant would submit that the appellant is anindividual assessee and for a meager transaction the appellant is now beingdriven once again to the Appellate authority which will cause immense hardshipto the assessee and the matter will be prolonged as it takes substantial time forthe appropriate authority namely, NFAC, to decide such appeals. Considering the peculiar facts and circumstances of the case and alsotaking note of the quantum involved, we are of the considered view that thelearned Tribunal can decide the matter and if necessary, call for a remand reportfrom the Assessing Officer in respect of those four persons from whom loantransactions are said to have been made by the assessee. For the above reasons, the appeal is allowed and the impugned order is setaside and the matter stands remanded to the Tribunal for fresh consideration inrespect of the four parties namely, Manoj Kumar Digga, Ritu Bagri, Shyamal Dasand Suprya Enterprises. Prima facie we are of the view that the appellant hasproduced necessary documents namely, bank statements as well as income taxreturns filed by those four persons. If the Tribunal is satisfied it can examinethose documents and take a decision or on the other hand, if the Tribunal is ofthe opinion that a remand report is required to be called for from the AssessingOfficer, the same can be done and the matter can be decided on merits and inaccordance with law. With the above observations, the matter stands remanded to the Tribunalfor fresh consideration. The appeal stands disposed of with the above terms and the substantialquestions of law are left open. The application for stay, IA No: GA/2/2024, is also disposed of. (T.S. SIVAGNANAM, C.J.) (HIRANMAY BHATTACHARYYA, J.) SN AR(CR)