M/s OM EXPORT, Kolkata V. A.C.I.T Cir - 29,kolkata, Kolkata

ITA 1115/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99660 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 07-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R AJINDRA PRASAD
• Assessee Lawyers: M SATNALIWALA
• Keywords: Opportunity of being heard

Judgement Text

I.T.A. NO . 1115 / KOL ./20 1 3 ASSESSMENT YEAR: 200 7 - 20 0 8 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA SMC BENCH, KOLKATA BEFORE SHRI MAHAVIR SINGH , JUDICIAL MEMBER I.T.A. NO. 1115 / KOL / 20 1 3 ASSESSMENT YEAR : 200 7 - 20 0 8 M/S. OM EXPORT,............ ... . ................ ........ . APPELLANT 17, HARISH MUKHE RJEE ROAD, KOLKATA - 700 025 [PAN : A ABFO 0210 B ] - VS. - ASSISTANT COMMISSIONER OF INCOME TAX, ..... ..... . RESPONDENT CIRCLE - 29 , KOLKATA, 2, GARIAHAT ROAD (SOUTH), KOLKATA - 700 068 APPEARANCES BY: SHRI M. SATNALIWALA, FCA , FOR THE ASSESSEE S H RI RAJINDR A PRASAD , JCIT, FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : JU LY 1 4 , 2 01 5 DATE OF PRONOUNCING THE ORDER : 03.08. 2 01 5 O R D E R THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) - X V I , KOLKA TA IN APPEAL NO. A - 40/XVI/09 - 10/CIR - 29/KOL DATED 23 . 0 1 .20 1 3 FOR THE ASSESSMENT YEAR 200 7 - 0 8 ON THE FOLLOWING EFFECTIVE GROUNDS OF APPEAL: - ( 1 ) T HAT THE LD. CIT(A) - XVI, KOLKATA WAS NOT JUSTIFIED IN DISMISSING THE APPEAL WITHOUT GIVING PROPER OPPORTUNITY. ( 2 ) THAT THE LD. CIT(A) - XVI, KOLKATA WAS NOT JUSTIFIED IN DISMISSING THE APPEAL WITHOUT SERVING THE NOTICE OF THE APPELLANT. ( 3 ) THAT THE LD. CIT(A) - XVI, KOLKATA WAS NOT JUSTIFIED LIN SUSTAINING THE DISALLOWANCE OF RS.1,54,584/ - OUT OF FREIGHT, FORWARDING & CLEARING EXPENSES. ( 4 ) THAT THE LD. CIT(A) - XVI, KOLKATA WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.3,82,000/ - U/S. 68. I.T.A. NO . 1115 / KOL ./20 1 3 ASSESSMENT YEAR: 200 7 - 20 0 8 PAGE 2 OF 3 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE DREW MY ATTENTION TO THE ORDER OF LD. CIT(APPEALS) AND STATED THAT THE LD. CIT(APPEALS) HAS N OT GIVEN ANY FINDING ON MERITS AND HE HAS ARBITRARILY DISMISS ED THE APPEAL OF THE ASSESSEE WITHOUT ANY BASIS. 3. ON THE OTHER HAND, LD. SR. D.R. COULD NOT CONTROVERT THE SUBMISSIONS OF THE LD. COUNSEL OF THE ASSESSEE. 4 . I HAVE GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE AND I FIND THAT THE ORDER PASSED BY LD. CIT(APPEALS) IS CRYPTIC IN NATURE AND NON - SPEAKING. THERE IS NO MERIT IN THE ORDER OF LD. CIT(APPEALS) . IN ANY CASE, THE LD. CIT(APPEALS) OTHER THAN SAYING THAT THE ASSESSMENT ORDER IS NOT ARBITRARY, BIASED, IRRATIONAL, VINDICTIVE OR CAPRICIOUS AND WITH REASONS . IT IS VERY DIFFICULT TO ASCERTAIN AS TO WHETHER THE ASSESSING OFFICER REALLY PROBED THE GENUINENESS IN SUSTAINING THE DISALLOWANCE OUT OF FREIGHT, FORWARDING AND CLEARING EXPENSES CA NNOT MAKE THE ASSESSMENT ORDER ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. IN FACT, THE LD. CIT (APPEALS) HAS NOT GIVEN ANY FINDING ON MERITS. IN THESE CIRCUMSTANCES, I AM OF THE VIEW THAT THE ORDER PASSED BY THE LD. CIT (APPEALS) IS UNSUSTAINABLE AND CONSEQUENTLY QUASH THE SAME. I ALSO DIRECT THE LD. CIT(APPEALS) TO PASS A SPEAKING ORDER AFTER CONTRAVENING ALL THE FACTS GIVEN BY THE ASSESSEE AND TO DECIDE THE ISSUE ON MERITS. I ALSO DIRECT TO REMIT THE APPEAL BACK TO THE FILE OF LD. CIT(APPEALS) FO R FRESH ADJUDICATION AFTER GIVING PROPER AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03.08. 201 5 . SD/ - MAHAVIR SINGH ( JUDICIAL MEMBER) KOLKATA, THE 3 RD D AY OF AUGUST , 201 5 I.T.A. NO . 1115 / KOL ./20 1 3 ASSESSMENT YEAR: 200 7 - 20 0 8 PAGE 3 OF 3 COPIES TO : (1) M/S. OM EXPORT, C/O. SMT. KALPANA SATNALIWALA, EX - PARTNER, 10, RAJA SANTOSH ROAD, KOLKATA - 700 027 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE - 29, KOLKATA, 2, GARIAHAT ROAD (SOUTH), KOLKATA - 700 068 (3) COMMISSIONER OF INCOME - TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA B ENCHES, KOLKATA LAHA/SR. P.S .