Amit Agarwal Vs DCIT (ITAT Kolkata)
The assessee filed miscellaneous applications before ITAT Kolkata seeking to recall its earlier orders in ITA Nos. 1471, 1475 & 1476/Kol/2015 for Assessment Year 2013-14. The applications were based on two grounds: (i) the assessee was not served notice for the hearing scheduled on 6 November 2017, preventing personal appearance, and (ii) factual errors had crept into the Tribunal’s prior order.
The Tribunal had previously stated that the assessee was engaged in commodities trading, which required maintaining books of accounts under Section 44AA of the Income Tax Act. Based on this, it concluded that income from commodities trading, not recorded in books as of the search on 1 August 2012, constituted “undisclosed income” and attracted penalty under Section 271AAB.
The assessee, through the authorized representative, highlighted that the income from commodities trading was offered only under “Income from Other Sources” in the computation of total income. The assessment order itself explicitly noted that the assessee had only salary income and income from other sources. This factual error, overlooked due to the assessee’s absence at the hearing, led to an incorrect conclusion upholding the Section 271AAB penalty.
Upon reviewing the facts, the Tribunal acknowledged that the finding regarding mandatory book-keeping under Section 44AA was factually incorrect. This primary factual mistake influenced the prior decision on the levy of the penalty. Considering the error and the procedural issue of non-service of notice, the Tribunal deemed it appropriate to recall its previous orders dated 10 November 2017.
