Debasish Roy Chowdhury, Kolkata vs Assessee

IN THE INCOME TAX APPELLATE TRIBUNAL "C" BENCH: KOLKATA [Before Shri P. K. Bansal, AM & Shri Mahavir Singh, JM]

I.T.A No.1368/Kol/2012 Assessment Year: 2005-06 Shri Debasish Roy Chowdhury Vs. Deputy Commissioner of Income-tax, (PAN: ADIPR7212A) Cir-52, Kolkata. (Appellant) (Respondent)

Date of hearing: 10.06.2015 Date of pronouncement: 10.06.2015

For the Appellant: Shri Anikesh Banerjee, Advocate For the Respondent: Shri Sanjay, Addl. CIT

ORDER Per Shri Mahavir Singh, JM:

This appeal by assessee is arising out of order of CIT(A)-XXXIII, Kolkata vide Appeal No. 178/CIT(A)-XXXIII/DCIT/Circle-52,Kol/07-08 dated 05.07.2012. Assessment was framed by DCIT, Circle-52, Kolkata u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as "the Act") for Assessment Year 2005-06 vide his order dated 13.12.2007.

2. The only issue in this appeal of assessee is against the order of CIT(A) confirming the action of AO in making addition of gift of Rs.16,55,304/- in violation of provisions of section 68 of the Act. For this, assessee has raised following three grounds:

"1. For that the Donor of the assessee, Dr. Krishna Ranjan Dey is an NRI & staying in the United Kingdom. The donor is the uncle, i.e. the husband of the assessee's aunt (sister of the assessee's mother), so the violation of sec. 56(2)(v) is not applicable in this case.

2. For that the filing of affidavit by the Donor was duly ignored by the Assessing authority which is arbitrary in nature.

3. For that the Donor is a doctor in the United Kingdom. The payment of Rs.16,55,304/- is justifiable as for his status. Hence, the violation of Sec. 68 does not arise here."

3. At the outset, Ld. Counsel for the assessee stated that the AO as well as CIT(A) has only confirmed the addition that the identity of Dr. K. R. Dey was not established. Ld. Counsel for the assessee filed additional ground that no opportunity was provided by the AO or the CIT(A) to produce the relevant document to establish the identity of Dr. K. R. Dey. The following is the additional ground raised by the assessee:

2 ITA No.1368/K/2012 Debasish Roy Chowdhury AY 2005-06

"For that the addition was made u/s. 68 of the I. T. Act, 1961 in the Assessment Order. Though the Appellate Authority had overridden the Ld. A.O and in his appeal order he introduced a different section, i.e. S. 56(2)(v) of the Act, without giving any reasonable opportunity to the assessee the Ld. Appellate Authority changed the section which is bad in law."

When the same was referred to Ld. Sr. DR, he fairly conceded that this can be admitted and the matter can be restored back to the file of AO for providing reasonable opportunity of being heard in the matter and to produce the documents to prove the identity of Dr. K. R. Dey. On this, Ld. Counsel for the assessee stated that the matter can go back to the file of AO for fresh adjudication on this issue.

4. We have heard rival submissions and gone through facts and circumstances of the case. We find that the plea of both the parties is quite reasonable and going through the orders of the lower authorities, we find that no proper opportunity to produce the relevant document to establish the identity of Dr. K. R. Dey was allowed. In term of the above, we set aside the orders of the lower authorities and remand the issue back to the file of AO for fresh adjudication after allowing opportunity of hearing to the assessee and also to produce the document to establish the identity of Mr. K. R. Dey. Appeal of assessee is allowed for statistical purposes.

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

6. Order is pronounced in the open court.

Sd/- Sd/- (P. K. Bansal) (Mahavir Singh) Accountant Member Judicial Member Dated : 10th June, 2015 Jd.(Sr.P.S.) Copy of the order forwarded to:

1. APPELLANT - Shri Debasish Roy Chowdhury, 46E/1, New Ballygunge Road, Kolkata-39 2 Respondent - DCIT, Cir-52, Kolkata

3. The CIT(A), Kolkata

4. CIT, Kolkata.

5. DR, Kolkata Benches, Kolkata

/True Copy, By order,

Asstt. Registrar.