Saigen Parenterals (P)Ltd, Kolkata V. ITO, Ward-5(2), Kolkata

ITA 1007/KOL/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 4072 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 21-01-2024
• Assessment Year: 2009-2010
• Appeal Filed On: 20-09-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Revision of order
• Section: 148; 263; 144; 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH KOLKATA BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND SHRI GIRISH AGRAWAL, ACCOUNTANT MEMBER ITA No.1007/Kol/2023 Assessment Year: 2009-10 Saigen Parenterals Pvt. Ltd. 9/12, Lal Bazar Street, Mercantile Building, Room No. 10, 3 rd Floor, Kolkata-700001. (PAN: AADCK4782D) Vs. Income Tax Officer, Ward- 5(2), Kolkata (Appellant) (Respondent) Present for: Appellant by : N o n e Respondent by : Shri Rakesh Kumar Das, CIT, DR Date of Hearing : 22.01.2024 Date of Pronouncement : 31.01.2024 O R D E R PER GIRISH AGRAWAL, ACCOUNTANT MEMBER: This appeal filed by the assessee is against the order of Ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi vide order No. ITBA/NFAC/S/250/2022-23/1049531904(1) dated 08.02.2023 passed against the assessment order u/s.144/263/143(3)/147 of the Income-tax Act, 1961 (hereinafter referred to as the “Act”) by Ld. ITO, Ward-5(2), Kolkata , dated 19.03.2015 for AY 2009-10. 2. Grounds taken by the assessee are as under: “1. That, on the facts and in the circumstances of the case, the Ld.Commissioner of Income Tax (Appeals) - 2, now C.I.T. (A), Unit - 2, Kolkata [hereinafter referred to as CIT(A)] erred in confirming the addition made by the Ld. Assessing Officer [hereinafter referred to as AO]. 2. That, on the facts and in the circumstances of the case, the Ld. CIT(A) failed to provide valid opportunity of hearing since none of the notices for hearing/ 2 ITA No.1007/Kol/2023 Saigen Parenterals Pvt. Ltd., AY 2009-10 appeal order was received by the appellant for the reason address mentioned in the order is incomplete. 3. That, on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was wrong in ignoring the fact that the notice u/s 144 is not jurisdictional since the necessary conditions required as per law were not fulfilled before issuance of the same. 4. That, on the facts and in the circumstances of the case, the Ld. CIT(A) was wrong in ignoring the fact that the Ld. AO was wrong in opening the case for assessment proceedings u/s 148 of the Act on the basis of vague reason recorded. 5. For that presuming above ground does not sustain in that case also the order should be held erroneous causing prejudice to the revenue administration since he erred on fact by not following in absolute the guidance in the order passed u/s 263 of the Act. 6. For that it was erred on law arbitrarily by continuing the assessment proceedings in progress even though it was made known by the appellant that order passed u/s 263 of the Act has not been communicated so it's consequence is not binding. 7. That, on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was wrong in ignoring the fact that the Ld. AO failed to pass speaking order dealing with the objections raised by the assessee before AO. 8. That, on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was wrong in ignoring the fact that the Ld. AO was wrong in arriving at conclusion that the sum received by the assessee company is accommodation entry given to the appellant company is not justifiable. 9. For that the order passed is infructuous since the principles of natural justice were not complied by not providing the opportunity of being heard to the appellant.” 3. We note that there is a delay of 170 days in filing the present appeal. An undated request for condonation of delay is placed on record by the assessee on its letter head. The reasons given for the cause of delay is that the Ld. Counsel for the assessee could not reach to the Tribunal office on the date 09.04.2023 due to big procession and consequent traffic blockage on the way. The order of Ld. CIT(A) is dated 08.02.2023 and the present appeal was due for filing on or before 09.04.2023. In the said application, it is stated that the Ld. Counsel for the assessee missed to file the appeal on 09.04.2023 which was filed on 21.09.2023. We fail to understand what prevented 3 ITA No.1007/Kol/2023 Saigen Parenterals Pvt. Ltd., AY 2009-10 the assessee to file the appeal on the subsequent dates after the date on which counsel could not reach the Tribunal office due to traffic blockage and as such causing a delay of 170 days in filing the appeal. The reasons given by the assessee in its application for condonation of delay are general and vague in nature and in no way justified the delay caused in filing the appeal of 170 days. We also take note of the fact that impugned assessment order has been passed u/s. 144 r.w.s. 263/147/143(3) of the Act since assessee did not comply with the notices and the show cause letter issued by the Ld. AO seeking details and explanation on the transaction of share capital including share premium raised during the year totalling to Rs.5,28,40,000/- and disallowance of Rs.5,155/- made u/s. 14A for the investments made by the assessee in equity shares. 4. Aggrieved, assessee went in appeal before the Ld. CIT(A) which also has been dismissed by noting that as none appeared and no submissions were made before him. Even before us, the appeal filed is delayed by 70 days. Also this case has been listed earlier for hearing on which nobody appeared to represent the assessee. From the perusal of the impugned assessment order and the statement of facts placed on record, we note that assessee had raised its share capital comprising of Rs.5,28,40,000/- towards share capital and premium. The face value of each equity share is Rs.10/- at a premium of Rs.390/-. In the impugned assessment order, assessee has claimed that it has furnished all the relevant documentary evidences in support of the share capital so raised which the Ld. AO has affirmed. However, from the records available there is nothing before us to verify and examine the same. Considering the facts on record and the orders of the authorities below, we are inclined to adjudicate upon the matter ex parte qua the assessee. Thus, with the assistance of Ld. Sr. DR, on perusal of the material on record, we do not find any reason to 4 ITA No.1007/Kol/2023 Saigen Parenterals Pvt. Ltd., AY 2009-10 interfere with the observations and findings given by the Ld. AO to sustain the addition so made. Accordingly, grounds taken by the assessee are dismissed. 5. In the result, appeal of the assessee is dismissed. Order is pronounced in the open court on 31 st January, 2024 Sd/- Sd/- (Sanjay Garg) (Girish Agrawal) Judicial Member Accountant Member Dated: 31 st January, 2024 JD, Sr. P.S. Copy to: 1. The Appellant: 2. The Respondent. 3. CIT(A), NFAC, Delhi 4. CIT 5. DR, ITAT, Kolkata Bench, Kolkata 6. //True Copy// Bys Order Assistant Registrar ITAT, Kolkata Benches, Kolkata