Khalishpur Cold Storage Pvt Ltd, Burdwan V. A.C.I.T Cir - 1,Burdwan, Burdwan

ITA 1038/KOL/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70477 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2013
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 02-05-2013
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA PRASAD SRDR
• Assessee Lawyers: A K GUPTA
• Keywords: Opportunity of being heard; Principle of natural justice; Opportunity of cross examination

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI ABRAHAM.P.GEORGE, ACCOUNTANT MEMBER ITA NO. 1037 - 1040 / KOL / 2013 ASSESSMENT YEARS :2005-06 TO 2008-09 KHALISHPUR COLD STORAGE (P) LTD. VILL & P.O.KHALISHPUR, DIST.BURDWAN -713422 [ PAN NO.AACCK 1738 J ] V/S . ASST. COMM. OF INCOME TA,CIRCLE-1, BURDWAN, / APPELLANT .. / RESPONDENT) /BY ASSESSEE SHRI A.K.GUPTA, AR /BY REVENUE SHRI RAJENDRA PRASAD, SR-DR /DATE OF HEARING 27-11-2013 ! /DATE OF PRONOUNCEMENT 19 -12-2013 ' ' ' ' / // / O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- THESE FOUR APPEALS BY ASSESSEE ARE ARISING OUT OF COMMON ORDER OF COMMISSIONER OF INCOME-TAX(APPEALS)-DURGAPUR IN APP EALS NO.320- 323CIT(A)/ASL/ACIT/CIR-1BWN/2001-12 DATED 14-02-201 3. ASSESSMENTS WERE FRAMED BY ACIT, CIRCLE-1, BURDWAN U/S 147/251/143( 3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASS ESSMENT YEARS 2005-06 TO 2008- 09 VIDE HIS DIFFERENT ORDERS DATED 30-12-2011. 2. ONLY COMMON ISSUE IN THESE FOUR APPEALS OF ASSES SEE IS AS REGARDS TO CONFIRMING THE ADDITION OF DIVIDEND DISTRIBUTION BY HOLDING THAT NEITHER DIVIDEND WAS DECLARED NOR DISTRIBUTED BY THE LOWER AUTHORITI ES I.E. ASSESSING OFFICER AS ITA NO.1037-40/KOL/2013 A.YS. 05-06 TO 08-09 KHALISHPUR COLD STORAGE(P) LTD. V. ACIT, CIR-1, BW N PAGE 2 WELL AS CIT(A). FOR THIS, ASSESSEE HAS RAISED FOLLO WING GROUND NO.1, THE ABOVE GROUND IS COMMON IN ALL FOUR YEARS:- 1(I) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THIS CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-DURGAPUR ERRED IN HOLDING THAT THE DIVIDEND STATED TO HAVE BEEN DISTRIBUTED WHILE THE FACT IS THAT NEITHER THE DIVIDEND WAS DECLARED NOR DISTRIBUTED. (II) THAT THE LEARNED COMMISSIONER OF INCOME TAX ER RED IN CONCLUDING THE OUTCOME OF THE CROSS EXAMINATION WITHOUT AFFORDING ANY OPPORTUNITY OF CROSS EXAMINATION AND THEREBY HIS ORDER IS AGAINST THE RULES OF NATURAL JUSTICE. 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE STAT ED THAT BEFORE THE ASSESSING OFFICER, THE ASSESSEE HAS SUBMITTED THE C ONFIRMATION FOR 47 SHAREHOLDERS OUT OF WHICH 41 WERE NEVER EXAMINED AN D EVEN THOUGH THE BALANCE SIX EXAMINED BUT NO OPPORTUNITY OF CROSS-EXAMINATIO N WAS ALLOWED TO THE ASSESSEE. LD. COUNSEL REFERRED TO GROUND NO.1.3 PAR TICULARLY AND STATED THAT THE PRINCIPLE OF NATURAL JUSTICE WERE VIOLATED FIRST BY THE AO AND THEN THE CIT(A). ACCORDING TO LD. COUNSEL, THE ISSUE NEEDS RE-EXAMIN ATION FOR THE REASON THAT FIRST OF ALL THE ALLEGED TAX EVASION PETITION (TEP FOR SH ORT) SHOULD BE CONFRONTED TO THE ASSESSEE AND THE COPY OF THE SAME BE PROVIDED TO IT . FURTHER, ACCORDING TO LD. COUNSEL FOR THE ASSESSEE, THESE SHAREHOLDERS WERE N EVER ALLOWED TO BE EXAMINED AND DENIED THE OPPORTUNITY OF CROSS-EXAMIN ATION TO THE ASSESSEE. SIMILAR IS THE ORDER OF CIT(A), WHO HAS JUST DISMIS SED SUMMARILY THE APPEALS OF ASSESSEE THAT ASSESSEE IS UNABLE TO PROVE OR BRING FORWARD ANY EVIDENCE TO DISLODGE THE FINDINGS OF THE AO. IN SUCH CIRCUMSTAN CES, WHEN A QUERY WAS PUT TO LD. SR-DR, HE FAIRLY CONCEDED THAT ISSUE CAN BE REM ITTED BACK TO THE FILE OF AO FOR FRESH ADJUDICATION DE NOVO ON THE ABOVE ISSUE. 4. WE HAVE HEARD RIVAL CONTENTION AND GONE THROUGH THE MATERIALS PRODUCED BEFORE US. WE HAVE ALSO CONSIDERED THE ARGUMENTS OF LD. COUNSEL FOR THE ASSESSEE AND FIND FROM THE ORDERS OF LOWER AUTHORIT IES THAT OPPORTUNITY OF BEING CROSS-EXAMINED TO SIX SHAREHOLDERS WAS NOT ALLOWED, WHO HAD DENIED THE RECEIPT OF DIVIDENDS THE ASSESSEE HAS CONFIRMED AND THOSE P ERSONS WERE NEVER DENIED ITA NO.1037-40/KOL/2013 A.YS. 05-06 TO 08-09 KHALISHPUR COLD STORAGE(P) LTD. V. ACIT, CIR-1, BW N PAGE 3 RECEIPT OF DIVIDEND. SECONDLY, EVEN THE ALLEGED TEP WAS NOT CONFRONTED TO THE ASSESSEE AND IN SUCH SITUATION, WE HAVE NO ALTERNAT IVE EXCEPT TO SET ASIDE THE ISSUE BACK TO THE FILE OF AO AND REFRAMED THE ASSES SMENT DE NOVO AFTER ALLOWING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE IN THE INTEREST OF NATURAL JUSTICE. THE AO SHOULD SUPPLY THE COPIES OF TEP AS WELL AS ALLOW CROSS- EXAMINATION OF THE DIVIDEND RECIPIENTS WHO HAVE DEN IED THE RECEIPT OF DIVIDEND. IN SUCH CIRCUMSTANCES, WE REMIT THIS ISSUE BACK TO THE FILE OF AO WHO DECIDE DE NOVO . 5. IN THE RESULT, APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN THE OPEN COURT ON 19/12/2013 SD/- SD/- (ABRAHAM.P. GEORGE) (MAHAVIR S INGH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP #$%- 19 /1 2 /2013 + ' ' ' ' ,,- ,,- ,,- ,,- .- .- .- .- / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. $0$,1 2 / CONCERNED CIT 4. 2- / CIT (A) 5. - 56 ,,,1, ,1!, / DR, ITAT, KOLKATA 6. 69: ;< / GUARD FILE. BY ORDER/ ' , =/> $ ,1!,