Viewmore Infrahomes Pvt. Ltd. , Kolkata V. ITO,Ward-2(4),Kolkata. , Kolkata

ITA 1064/KOL/2023

• Counselvise Citation: [2023] 101 COUNSELVISE.COM (IT) 9533 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 05-10-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S.B. CHAKRABORTHY
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause
• Section: 68; 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH ‘B’, KOLKATA [Before Shri Rajesh Kumar, Accountant Member & Shri Sonjoy Sarma, Judicial Member] I.T.A. No. 1064/Kol/2023 Assessment Year : 2012-13 Viewmore Infrahomes Pvt. Ltd. PAN: AADCV 9928 Q Vs. ITO, Ward-2(4), Kolkata Appellant Respondent Date of Hearing 07.12.2023 Date of Pronouncement 14.12.2023 For the Assessee Shri Anil Kochar, Advocate For the Revenue Shri S.B. Chakraborthy, JCIT, Sr. DR ORDER Per Sonjoy Sarma, JM: This appeal of the assessee for the assessment year 2012- 13 is directed against the order dated 20.09.2016 passed by the ld. Commissioner of Income-tax (Appeals) -1, Kolkata [hereinafter referred to as ‘the ‘ld. CIT(A)’]. The assessee has raised the following grounds of appeal: “1. For that the ex-parte order passed by the ld. CIT(A) is in gross violation of the principles of natural justice and as such is not sustainable in law. 2. For that on the facts and in the circumstances of the case, the ld. CIT(A) grossly erred in confirming the addition of Rs. 4,37,00,000/- made by the AO u/s 68 on account of alleged bogus share capital (including share premium) raised by the assessee in the relevant year by wrongly treating the same as undisclosed income. 3. For that on the facts and in the circumstances of the case, the ld. CIT(A) grossly erred in confirming the disallowance u/s 14A r.w.r. 8D to the tune of Rs. 4,898/-. 4. That the appellant craves leave to add, alter or delete all or any of the grounds of appeal” 2 ITA No. 1064/Kol/2023 AY: 2012-13 Viewmore Infrahomes Pvt. Ltd. 2. At the outset, we find that there is a delay in filing the appeal by the assessee. However, in this context assessee has filed a petition for condonation of such delay by stating that a communication order dated 30.03.2023 was received from NFAC whereby stating that an ex-parte order dated 20.09.2016 had been passed by ld. CIT(A)-1, Kolkata against the order challenged by the assessee before NFAC. The assessee also stated that about the disposal of its appeal by ld. CIT(A) was not aware by the assessee. The assessee immediately after getting the information about passing of an ex-parte order against it, has sought the copy of both impugned order dated 20.09.2016 as well as 30.03.2023 passed by the appellate authority and were available to the assessee only on 12.06.2023. The assessee also stated that even after getting the copy of the same remedial measure could not be taken up on account of medical exigencies of one of its director who was looking after the affairs of the company. The assessee also stated that it has happened due to non-compliance of their erstwhile consulted firm who was looking after the proceeding before the first appellate authority. We after going through the contents of the same are satisfied that assessee was prevented by sufficient cause from filing the appeal in time and hence the delay is condoned by admitting this appeal. 3. At the time of hearing ld. AR appeared on behalf of the assessee submitted that the instant order passed by the ld. CIT(A) is an ex-parte order and assessee did not get any opportunity to file relevant document/submission before the 3 ITA No. 1064/Kol/2023 AY: 2012-13 Viewmore Infrahomes Pvt. Ltd. authorities below and nothing has been dealt on merits except reiterating assessment order on the disallowances/additions made by the ld. AO. The assessee could not get any opportunity to file its submissions and other relevant details. Thus, the assessee referring to ground no. 1 of the appeal, it has prayed that grounds raised in the instant appeal may be restored to the ld. CIT(A) for adjudicating afresh after providing reasonable opportunity of being heard. 4. We have heard both the parties and perused the records placed before us. Through ground no. 1 of the assessee has stated that ld. CIT(A) failed to appreciate the materials on record and passed the order ex-parte. On perusal of the impugned order, we noticed that the instant ground raised by the assessee has merit as in the impugned order, ld. CIT(A) merely reproduced grounds of appeal raised by the assessee and the decision part, finding has been given only reiterating the assessment order passed by the ld. AO, as the assessee in the instant case could not able to file necessary details as well as submissions at the time of hearing before the ld. CIT(A) and it is an ex-parte order. Under these given facts and circumstances, we restore the matter in the instant appeal to the file of ld. CIT(A) for adjudicating afresh to pass a speaking order after considering the submission made by the assessee for which reasonable opportunity of being heard should be provided. The assessee also directed to remain vigilant and file necessary documents in support of its grounds of appeal and should not take any further adjournment, unless 4 ITA No. 1064/Kol/2023 AY: 2012-13 Viewmore Infrahomes Pvt. Ltd. otherwise required for reasonable cause. In case after providing sufficient opportunity to the assessee, there is no compliance before the ld. CIT(A), then the ld. CIT(A) can proceed to pass the order in accordance with law. 5. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 14.12.2023. Sd/- Sd/- (Rajesh Kumar) (Sonjoy Sarma) Accountant Member Judicial Member Dated: 14.12.2023 Biswajit, Sr. PS Copy of the order forwarded to: 1. Appellant- Viewmore Infrahomes Pvt. Ltd., C/o. Subash Agarwal & Associates, Advocates, Siddha Gibson, 1, Gibson Lane, Suite 213, 2 nd Floor, Kolkata-700 069. 2. Respondent – ITO, Ward-2(4), Kolkata. 3. Ld. CIT 4. Ld. CIT(A) 5. Ld. DR True Copy By Order Assistant Registrar ITAT, Kolkata Benches, Kolkata