Bihar Rubber Company Ltd., Kolkata V. DCIT, Circle-7(1), Kolkata, Kolkata

ITA 1115/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6080 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 18-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SAILEN SAMADDAR
• Assessee Lawyers: I BAN ERJEE
• Keywords: Reasonable cause; Condonation of delay; Reason to believe
• Section: 147; 148; 144

Judgement Text

1 ITA NOS.1114 6O 1116/KOL/2017 BIHAR RUBBER CO.LTD A .Y.2009-10 TO 2011-12 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH SMC K OLKATA [BEFORE HONBLE SHRI N.S.SAINI, AM ] ITA NOS.1114 TO 1116/KOL/2017 ASSESSMENT YEARS : 2009-10, 2010-11 & 2011-12 BIHAR RUBBER COMPANY LTD. -VERSUS- D.C.I.T. CIR.7 (1), KOLKATA KOLKATA (PAN:AABCB 0776 C) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI I.BANERJEE, FCA FOR THE RESPONDENT: SHRI SAILEN SAMADDAR, ADDL. CIT DATE OF HEARING : 09.07.2018. DATE OF PRONOUNCEMENT : 11.07.2018. ORDER PER N.S.SAINI, AM THESE ARE APPEALS FILED BY THE ASSESSEE AGAINST T HE ORDER ALL DATED 09.01.2017 OF C.I.T-(A)-16, KOLKATA FOR A.Y. 2009-10, 2010-11 AND 2011-12. 2. ALL THESE APPEALS ARE BARRED BY LIMITATION OF 68 DAYS. AT THE TIME OF HEARING THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE FILED COP Y OF THE ORDER OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF BENGAL WATERPROOF LIMITED & ORS VS BIHAR RUBBER COMPANY LIMITED & ORS AND G.A.NO.3225 OF 2017, APO NO.463 OF 2017 IN CS NO.161 OF 2017 BIHAR RUBBER COMPANY LIMITED & ANR V S BENGAL WATERPROOF LIMITED & ORS. ORDER DATED 27.11.2017 AND SUBMITTED THAT THERE WAS NON COOPERATION BETWEEN TWO GROUPS OF THE DIRECTOR OF THE COMPANY A ND THEREFORE THE RELEVANT DOCUMENT AND PAPERS REQUIRED TO FILE THE APPEALS WE RE NOT AVAILABLE. AFTER THE APPOINTMENT OF A SPECIAL OFFICER BY THE HONBLE CAL CUTTA HIGH COURT THE MATTER COULD PROCEED AND AFTER GETTING THE DETAILS THE APPEALS W ERE FILED. HE FURTHER SUBMITTED THAT THERE IS NO MALAFIDE INTENTION ON THE PART OF THE A SSESSEE IN FILING THE APPEALS BELATED. 2 ITA NOS.1114 6O 1116/KOL/2017 BIHAR RUBBER CO.LTD A .Y.2009-10 TO 2011-12 HENCE HE PRAYED THAT THE DELAY IN FILING THESE APPE ALS BE CONDONED AND THE APPEALS BE ADMITTED FOR HEARING. 3. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPR ESENTATIVE OPPOSED THE CONDONATION OF DELAY AS ARGUED BY THE AUTHORISED R EPRESENTATIVE OF THE ASSESSEE. 4. AFTER HEARING BOTH THE PARTIES, I AM OF THE CONS IDERED VIEW THAT THE ASSESSEE HAS A REASONABLE CAUSE IN NOT FILING THE APPEALS BEFORE THE TRIBUNAL WITHIN THE PRESCRIBED TIME. THEREFORE I CONDONE THE DELAY AND ADMIT THE A PPEALS ACCORDINGLY. 5. THE ASSESSEE HAS RAISED THE FOLLOWING COMMON ADD ITIONAL GROUNDS ON THE JURISDICTION OF THE AO FOR RE-OPENING THE ASSESSMEN T U/S 148 OF THE ACT :- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT THE LD. RESPONDENT F OR HAVING APPLIED NO INDEPENDENT MIND, BEFORE ASSUMING JURISDICTION TO R EOPEN U/S 147, TO THE INPUT RECEIVED FROM THE INVESTIGATION WING/ MAHARASHTRA S ALES TAX AUTHORITY AS TO CERTAIN SUPPLIERS, THERE HAD EXISTED NO VALID REA SON TO BELIEVE . 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE ND IN LAW, THE LD. CIT(A) OUGHT TO HAVE APPRECIATE THAT THE ASSUMPTION OF JUR ISDICTION UNDER SEC. 147, NOT BEING PRECEDED BY AND FOUNDED ON, ON ANY LEGITIMATE AND ADMISSIBLE, REASON TO BELIEVE, THE REASSESSMENT PROCEEDING HAD BEEN WITHO UT JURISDICTION AND THEREFORE, WAS LIABLE TO BE QUASHED AND NULLIFIED. THAT THE APPELLANT CRAVES LEAVE TO MODIFY, REALIGN, ANYONE OR MORE OF THE FOREGOING GROUNDS, AND/OR GO FOR NEWER GROUND(S), E ITHER BEFORE OR DURING THE APPEAL HEARING. 6. AT THE TIME OF HEARING THE AUTHORISED REPRESENTA TIVE OF THE ASSESSEE SUBMITTED THAT HE IS NOT PRESSING THESE GROUNDS OF APPEAL AND HENCE THEY ARE DISMISSED FOR WANT OF PROSECUTION AND ALSO MADE AN ENDORSEMENT TO THE EFFECT IN THE GROUNDS OF APPEAL APPENDED WITH FORM NO.36 THEREFORE THESE GROUNDS OF APPEAL ARE DISMISSED FOR WANT OF PROSECUTION. 3 ITA NOS.1114 6O 1116/KOL/2017 BIHAR RUBBER CO.LTD A .Y.2009-10 TO 2011-12 7. THE ASSESSEE HAS ALSO RAISED THE FOLLOWING GROUN DS OF APPEAL ON THE MERITS OF THE ADDITON EXCEPT FOR CHANGE IN FIGURE IN ALL THE YEARS UNDER APPEAL :- 1. WITHOUT PREJUDICE TO ADDL. GROUND NO. 1 AND 2, THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A ) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL AND THEREFORE, UPHOLDING THE ASSESSMENT ORDER, PASSED UNDER SEC. 147 / 144, BY MEANS OF A NON-SPEAKING OR DER, AFTER OMITTING TO TAKE, APPROPRIATE AND JUDICIOUS COGNIZANCE OF, THE EVIDEN CE PRODUCED, EXPLANATIONS PROVIDED AND FINALLY, APPLY THE LAW APPLICABLE THER ETO. 2. WITHOUT PREJUDICE TO ADDL. GROUND NO. 1 AND 2, T HAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT{A ) HAS ERRED IN ARBITRARILY UPHOLDING THE DISALLOWANCE OF THE ENTIRE PURCHASE A MOUNT OF RS. RS.19,20,539.00, BY TERMING IT BOGUS, MERELY ON THE GROUND OF INFORMATION AND ALLEGATION, OBTAINED FROM DGIT(INV) AND MAHARASHTRA VAT AUTHORITY, WITHOUT EVER EXAMINING AND ACCORDINGLY, FINDING ANY DEFECT /ANOMALY IN THE EVIDENCE AND RECORDS, PRODUCED AND EXPLAINED. 3. WITHOUT PREJUDICE TO ADDL. GROUND NO. 1 AND 2 , THAT THE LD. CIT{A) , FOR HAVING BEEN SOLELY GUIDED BY THE INFORMATION, RECEI VED BY THE INVESTIGATION WING OF MAHARASHTRA VAT DEPARTMENT AND THUS, NOT FOUNDIN G HIS ADJUDICATION, ON UNCONTROVERTED EVIDENCE AND LAW APPLICABLE IN THIS REGARD, BE DIRECTED TO ACCEPT THE PURCHASE OF RS. 19,20,539.00 AS GENUINE AND THU S, DELETE THE ADDITION ON ACCOUNT THEREOF. 8. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE IN THE COURSE OF HEARING SUBMITTED THAT THE ASSESSING OFFICER HAS PA SSED THE ORDER U/S 147 R.W.S. 144 OF THE ACT EX-PARTE AS THE ASSESSEE COULD NOT PUT INTO APPEARANCE BEFORE HIM DUE TO THE DISPUTE BETWEEN THE TWO GROUPS OF DIRECTORS OF THE COMPANY. HE FURTHER ARGUED THAT BEFORE THE CIT(A) THE ASSESSEE MADE WRITTEN SUBMISS IONS BUT THE CIT(A) HAS PASSED THE ORDER WITHOUT CONSIDERING THE SUBMISSIONS OF TH E ASSESSEE. THEREFORE HE SUBMITTED THAT IN THE INTEREST OF JUSTICE THE MATTER SHOULD B E RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER TO PASS FRESH ASSESSMENT ORDER AF TER CONSIDERING THE SUBMISSIONS OF THE ASSESSE. 9. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAD NO O BJECTION TO THE ABOVE SUBMISSION OF THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE. 4 ITA NOS.1114 6O 1116/KOL/2017 BIHAR RUBBER CO.LTD A .Y.2009-10 TO 2011-12 10. THEREFORE IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE I SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND RESTORE THE MATTER BAC K TO THE FILE OF THE ASSESSING OFFICER TO MAKE ASSESSMENT AFRESH AS PER LAW AFTER ALLOWING REASONABLE AND PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. 11. IN THE RESULT THE APPEALS OF THE ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON 11.07.2018. SD/- [ N.S.SAINI ] ACCOUNTA NT MEMBER DATED : 11.07.2018. [RG SR.PS] COPY OF THE ORDER FORWARDED TO: 1.BIHAR RUBBER COMPANY LTD., INDUSTRIAL AREA, KOKAR , RANCHI-834001. 2. D.C.I.T., CIRCLE-7(1), KOLKATA. 3. C.I.T.(A)-16, KOLKATA 4. C.I.T.- 3, KOLKATA.. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, SENIOR PRIVATE SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHES 5 ITA NOS.1114 6O 1116/KOL/2017 BIHAR RUBBER CO.LTD A .Y.2009-10 TO 2011-12