Mohan Jute Mills Ltd., Kolkata V. ITO, Ward- 2(1), Kolkata, Kolkata

ITA 1000/KOL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4591 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 14-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHANKAR HALDER SRDR
• Assessee Lawyers: ANKIT JALAN
• Keywords: Opportunity of being heard; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (A), KOLKATA [ BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT (KZ) & SHRI S.S. VISWANETHRA RAVI, JM ] I.T.A. NO. 1000/KOL/2018 ASSESSMENT YEAR: 2012-13 MOHAN JUTE MILLS LTD...........................................................................APPELLANT C/O. AGARWAL VISHWANATH & ASSOCIATES, 133/1/1A, S.N. BANERJEE ROAD, PUSHKAL BHAWAN, 3 RD FLOOR, KOLKATA 700 013. [PAN: AACCM 4482 B] ITO, WARD 2(1) KOLKATA....................................RESPONDENT P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. APPEARANCES BY: SHRI ANKIT JALAN, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. SHRI SHANKAR HALDER, SR. DR, JCIT APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : AUGUST 09, 2019 DATE OF PRONOUNCING THE ORDER : AUGUST 28, 2019 ORDER PER P.M. JAGTAP, VICE-PRESIDENT (KZ) THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 1, KOLKATA DATED 28.03.2018 PASSED EX-PARTE WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH IS ENGAGED IN JUTE BUSINESS. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 29.09.2012 DECLARING A LOSS OF RS. 5,81,49,812/-. THE SAID RETURN WAS SELECTED FOR SCRUTINY AND A NOTICE U/S 143(2) OF THE ACT WAS ISSUED BY HIM TO THE ASSESSEE ALONG WITH THE NOTICE U/S 142(1). ALTHOUGH THE ASSESSEE RESPONDED TO THE SAID NOTICES AND APPEARED BEFORE THE ASSESSING OFFICER INITIALLY, THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE TO THE FINAL NOTICE ISSUED BY THE AO ON 13.03.2015 REQUIRING THE ASSESSEE TO PRODUCE BOOKS OF 2 I.T.A. NO. 1000/KOL/2018 ASSESSMENT YEAR: 2012-13 MOHAN JUTE MILLS LTD. ACCOUNT, BILLS/VOUCHERS, BANK STATEMENTS IN ORIGINAL ETC. FOR VERIFICATION. THE AO, THEREFORE, PROCEEDED TO COMPLETE THE ASSESSMENT TO THE BEST OF HIS JUDGEMENT ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. IN THE ASSESSMENT SO COMPLETED U/S 144, VIDE AN ORDER DATED 28.03.2015, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE AO AT RS. 91,83,499/- AFTER MAKING THE FOLLOWING ADDITIONS: I. ADVANCES FROM CUSTOMERS RS. 27,48,913/- II. UNSECURED ADVANCES FROM CUSTOMERS RS. 1,17,256/- III. LIABILITY FOR EXPENSES RS. 53,47,155/- IV. DUTIES & TAXES RS. 24,36,261/- V. EMPLOYEE BENEFIT EXPENSES (AS PER NOTE RS. 4,91,33,402/- NO. 22 TO ANNUAL ACCOUNTS) VI. INTEREST EXPENSES (AS PER NOTE RS. 12,71,366/- NO. 23 TO ANNUAL ACCOUNTS) VII. OTHER EXPENSES RS. 62,78,956/- 3. AGAINST THE ORDER PASSED BY THE AO U/S 144, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING ON THREE DATES, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION VIDE HIS APPELLATE ORDER DATED 28.03.2018 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT NONE OF THE NOTICES ISSUED BY THE LD. CIT(A) FIXING THE APPEAL OF THE ASSESSEE FOR HEARING ON THREE DIFFERENT DATES WAS RECEIVED BY THE ASSESSEE. HE HAS SUBMITTED THAT ALL THE THREE HEARINGS WERE FIXED BY THE LD. CIT(A) IN A PERIOD OF 15 DAYS 3 I.T.A. NO. 1000/KOL/2018 ASSESSMENT YEAR: 2012-13 MOHAN JUTE MILLS LTD. AND WITHOUT GIVING ANY FURTHER OPPORTUNITY TO THE ASSESSEE, HE PROCEEDED TO DISMISS THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION VIDE HIS IMPUGNED ORDER PASSED EX-PARTE. HE HAS SUBMITTED THAT EVEN THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS DID NOT GIVE PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN AS MUCH AS THE NOTICE REQUIRING THE ASSESSEE TO PRODUCE BOOKS OF ACCOUNT ETC. WAS ISSUED BY THE AO ON 13.03.2015 AND THE ASSESSMENT WAS COMPLETED ON 28.03.2015 ITSELF. HE HAS CONTENDED THAT THE ASSESSEE IN THE PRESENT CASE THUS WAS NOT GIVEN PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD EITHER BY THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS OR BY THE LD. CIT(A) DURING THE COURSE OF APPELLATE PROCEEDINGS AND URGED THAT THE MATTER MAY BE SENT BACK TO THE AO FOR GIVING THE ASSESSEE SUCH OPPORTUNITY. KEEPING IN VIEW ALL THE FACTS AND CIRCUMSTANCES OF THE CASE AS POINTED OUT BY THE LEARNED COUNSEL FOR THE ASSESSEE, WE FIND THAT IT IS A FIT CASE WHERE PROPER AND SUFFICIENT OPPORTUNITY WAS NOT GIVEN EITHER BY THE AO OR BY THE LD. CIT(A) OF BEING HEARD TO THE ASSESSEE. EVEN THE LEARNED DR HAS NOT RAISED ANY MATERIAL CONTENTION IN THIS REGARD. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(A) PASSED EX-PARTE AND RESTORE THE MATTER TO THE FILE OF THE AO FOR MAKING THE ASSESSMENT AFRESH IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS UNDERTAKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE AO AND SHALL EXTEND ALL THE COOPERATION IN ORDER TO ENABLE THE AO TO COMPLETE THE ASSESSMENT AFRESH EXPEDITIOUSLY. 4 I.T.A. NO. 1000/KOL/2018 ASSESSMENT YEAR: 2012-13 MOHAN JUTE MILLS LTD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH AUGUST, 2019. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE PRESIDENT DATED: 28/08/2019 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. MOHAN JUTE MILLS LTD., C/O. AGARWAL VISHWANATH & ASSOCIATES, 133/1/1A, S.N. BANERJEE ROAD, PUSHKAL BHAWAN, 3 RD FLOOR, KOLKATA 700 013. 2. ITO, WARD 2(1), KOLKATA. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA