ACCURATE ELECTRO-MECH FABRICATORS PVT. LTD.,KOLKATA V. ITO, WD.4(3), KOLKATA

ITA 405/KOL/2020

AI Insights

The case involves Accurate Electro-Mech Fabricators Pvt. Ltd., which appealed against the orders of the AO and CIT(A) concerning the assessment year 2010-11. The AO had added a sum of Rs. 7,17,63,119 to the assessee's income, treating it as income from a bogus sale of plant and machinery to M/s. Binani Cement Ltd. The CIT(A) upheld the AO's decision, citing the assessee's failure to establish the genuineness of the transaction. The Tribunal found that the assessee had not been given a fair opportunity to present its case and directed a re-assessment.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 46781 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-11-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 21-08-2024
• Assessment Year: 2010-2011
• Appeal Filed On: 30-06-2020
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside; Bogus
• Section: 148; 142(1); 250; 133A

Judgement Text

"आयकर अपीलीय अधिकरण कोलकाता 'सी' पीठ, कोलकाता में IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘C’ BENCH, KOLKATA श्री प्रदीप क ुमार चौबे, न्याधयक सदस्य एवं श्री राक ेश धमश्रा, लेखा सदस्य क े समक्ष Before SRI PRADIP KUMAR CHOUBEY, JUDICIAL MEMBER & SRI RAKESH MISHRA, ACCOUNTANT MEMBER I.T.A. No.: 405/KOL/2020 Assessment Year: 2010-11 Accurate Electro-Mech Fabricators Pvt. Ltd…………………………Appellant [PAN: AAGCA 7277 C] Vs. ITO, Ward-4(2), Kolkata........................................................Respondent Appearances: Assessee represented by: S.P. Datta, AR. Department represented by: Amuldeep Kaur, JCIT. Date of concluding the hearing : August 21st, 2024 Date of pronouncing the order : November 5th, 2024 ORDER Per Pradip Kumar Choubey, Judicial Member: This appeal filed by the assessee pertaining to the Assessment Year (in short ‘AY’) 2010-11 is directed against the order passed u/s 250 of the Income Tax Act, 1961 (in short the ‘Act’) by ld. Commissioner of Income-tax (Appeals)- 2, Kolkata [in short ld. ‘CIT(A)’] dated 15.11.2019 arising out of the assessment order framed u/s 147/143(3) of the Act dated 11.12.2017. 1.1. The brief facts of the case of the appellant are that the assessee being a company has sold plant and machinery to M/s. Binani Cement Ltd. The company filed its return of income for the AY 2010-11 declaring total income I.T.A. No.: 405/KOL/2020 Assessment Year: 2010-11 Accurate Electro-Mech Fabricators Pvt. Ltd. Page 2 of 5 of Rs. 7,92,039/-. Information has been received from DCIT, CC-2(2) wherein it was stated that the directorate of I.T.(Inv.) had conducted survey u/s 133A of the Act in the case of Braj Binani Group and consequent to survey and on perusal of impounded documents and various statements of the certain entry operators, it was found that the assessee company had provided accommodation entry on account of bogus sale of plant and machinery amounting to Rs. 7,17,63,119/- to M/s. Binani Cement Ltd. during the FY 2009-10. A notice u/s 148 of the Act was issued to the assessee company. Return was filed by the assessee company in response to the notice u/s 148 of the Act. Thereafter, notice u/s 142(1) of the Act was issued by fixing the date of hearing and assessee had been asked to file details and explain to a show cause letter as to why sale of plant and machinery amounting to Rs. 7,17,63,119/- to M/s. Binani Cement Ltd. shall not be treated as bogus. Since there was no compliance from the side of the assessee, the Assessing Officer (hereinafter referred to as ld. 'AO') added the amount of Rs. 7,17,63,119/- to the total income of the assessee and brought it to tax accordingly. The said order was challenged by the assessee before the ld. CIT(A) wherein also the appeal of the assessee has been dismissed by saying that assessee had not been able to establish the genuineness of the transaction. Being aggrieved and dissatisfied with the impugned order, the present appeal has been preferred. 1.2. The ld. Counsel for the assessee challenges the impugned order submitting that the ld. appellate authority was wrong in confirming the assessment made and adding a sum of Rs. 7,17,63,119/- ignoring the fact that there was no evidence established that the appellant had made bogus purchase including all challans and all banking transactions. The ld. Counsel for the assessee submits that the order passed by the ld. AO and ld. CIT(A) behind the back of the assessee as assessee could not appear before the ld. AO nor before the ld. CIT(A). His submission is that assessee should be given an opportunity to place his case before the ld. AO as the assessee has sufficient paper in their possession in support of his case. The ld. Counsel for the assessee filed following papers before us which are as follows: I.T.A. No.: 405/KOL/2020 Assessment Year: 2010-11 Accurate Electro-Mech Fabricators Pvt. Ltd. Page 3 of 5 1. BID Document for supply of equipment and components 2. Invoice Copies 3. Purchase Order- with terms and conditions 4. Central Excise- Copy for 5. Transport documents for send machinery 6. Bank Statements 7. Binani Cements Ltd. - Ledger Copy 1.3. Contrary to that ld. D/R supports the impugned order. 2. We have perused the record and find that assessment order was passed as there was no compliance from the side of the assessee. The order of the ld. AO reveals thus— “There has been no compliance to the notice till date. It is fact that sufficient time and opportunity had been given to the assessee company to produce documents, accounts and any other evidences against which the assessee company had failed to avail of the opportunities of being heard.” 2.1. We have also perused the order of the ld. CIT(A) and from the chart tabulated below it appears that assessee did not appear before the ld. CIT(A) nor filed any documents: Date of Notice Date of Hearing Remarks 13.02.2018 04.04.2018 • The case was fixed for hearing today, the appellate filed an adjournment letter dated 04.04.2018 in ITBA system. 25.09.2018 30.10.2018 • The case was fixed for hearing today, but none appeared nor was an adjournment petition filed on behalf of the assessee. 22.11.2018 07.01.2019 • The case was fixed for hearing today, the appellate filed an adjournment letter dated 07.01.2019 in ITBA system. 11.01.2019 22.01.2019 • The case was fixed for hearing today, but none appeared nor was an adjournment petition filed on behalf of the assessee. 24.01.2019 06.02.2019 • The case was fixed for hearing today, but none appeared nor was an adjournment petition filed on behalf of the assessee. 16.10.2019 14.11.2019 • The case was fixed for hearing today, but none appeared nor was an adjournment petition filed on behalf of the assessee, • As per speed post tracking system, the notice was delivered to the appellate on 21.10.2019. 2.2. Since the assessee did not appear before the ld. CIT(A) hence, ld. CIT(A) after going over the grounds of appeal and the statement of facts passed an order thereby upholding the order of the ld. AO that the assessee could not able to establish the genuineness of the transaction. The operative portion of the order of ld. CIT(A) is thus— “The appellate company neither filed any I.T.A. No.: 405/KOL/2020 Assessment Year: 2010-11 Accurate Electro-Mech Fabricators Pvt. Ltd. Page 4 of 5 details before the AO during the assessment proceeding nor before the CIT(A) during the appellate proceeding.” 2.3. Before us the appellant/assessee has filed the BID Document for supply of equipment and components that includes notice of invitation to BID, instructions to bidders, general terms & conditions of contract and scope of supply & technical specifications. The ld. Counsel for the assessee has also filed the invoice copies that goes to show regarding the supplier and byer orders of the machineries to M/s. Binani Cement Ltd. by the assessee. We also find that there is a purchase order, copy of central excise, transport documents for send machinery, bank statements and ledger copy of Binani Cements Ltd. 3. Considering the above facts that order passed by the ld. AO on the ground that there was no compliance on behalf of the assessee nor any documents have been filed, we are in this view that the assessee has been given an opportunity to place all those documents before the ld. AO with regard to his genuineness of the transaction. Accordingly, order of the ld. AO confirmed by the ld. CIT(A) is hereby set aside, the case is restored to the file of the ld. AO. Assessee is hereby directed to place all those papers in support of his case and the ld. AO shall decide the case after going over the documents filed by the assessee. 4. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open Court on 5th November, 2024. Sd/- Sd/- [Rakesh Mishra] [Pradip Kumar Choubey] Accountant Member Judicial Member Dated: 05.11.2024 Bidhan (P.S.) I.T.A. No.: 405/KOL/2020 Assessment Year: 2010-11 Accurate Electro-Mech Fabricators Pvt. Ltd. Page 5 of 5 Copy of the order forwarded to: 1. Accurate Electro-Mech Fabricators Pvt. Ltd., Surendra Mohan Ghosh Sarani, BBD Bag, Kolkata-700001. 2. ITO, Ward-4(2), Kolkata. 3. CIT(A)-2, Kolkata. 4. CIT- 5. CIT(DR), Kolkata Benches, Kolkata. 6. Guard File. //True copy // By order Assistant Registrar ITAT, Kolkata Benches Kolkata "