Gold View Financial Services Ltd., Howrah V. ACIT, C. C.2(1), KOLKATA, Kolkata

ITA 1125/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1641 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 24-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NICOLAS MURMU CITSR
• Assessee Lawyers: S M SURANA
• Keywords: Search and seizure; Opportunity of being heard
• Section: 143(3); 153A; 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA [BEFORE HONBLE SRI N.V.VASUDEVAN, JM & SHRI M.BA LAGANESH, AM] I.T.A NO. 1125/KOL/20 16 ASSESSMENT YEAR : 2010-1 1 GOLD VIEW FINANCIAL SERVICES LTD. -VS.- A. C.I.T.., CENTRAL CIRCLE-2(1), KOLKATA KOLKATA [PAN : AABCG 9762 D] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI S.M.SURANA, ADVOCATE FOR THE RESPONDENT : SHRI NICOLAS MURMU, ADDL . CIT,SR.DR DATE OF HEARING : 30.01.2018. DATE OF PRONOUNCEMENT : 02.02.2018. ORDER PER N.V.VASUDEVAN, JM THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 18.01.2016 OF C.I.T.(A)-23, KOLKATA RELATING TO A.Y.2010-11. 2. THE ASSESSEE IS A COMPANY. IT CARRIES ON THE BU SINESS OF FINANCE AND INVESTMENT. FOR A.Y.2010-11 THE ASSESSEE FILED RETURN OF INCOME ON 04.10.2010 DECLARING TOTAL INCOME OF RS.2,62,26,270/-. AN ORDER OF ASSESSMENT DATED 20.06.2012 WAS PASSED BY THE AO U/S 143(3) OF THE INCOME TAX ACT, 1961 (ACT) . IN THE SAID ORDER THE AO DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS.2 ,73,92,410/- AFTER MAKING THE FOLLOWING ADDITIONS :- 2 ITA NO.1125/KOL/2016 GOLD VIEW FINANCE SERVICES LTD. A.YR.2010-11 2 3. AGGRIEVED BY THE AFORESAID ORDER OF THE AO THE A SSESSEE PREFERRED APPEAL BEFORE CIT(A). IN THE APPEAL BEFORE CIT(A) THE ASSESSEE PR IMARILY CHALLENGED THE DISALLOWANCE OF EXPENDITURE U/S 14A OF THE ACT. 4. PENDING DISPOSAL OF THE APPEAL BEFORE CIT(A) (A PPEAL BEFORE CIT(A) WAS FILED ON 06.08.2012) THERE WAS A SEARCH AND SEIZURE OPERA TION CONDUCTED IN THE CASE OF THE ASSESSEE US/ 132 OF THE ACT ON 11.10.2012. CONSEQUE NT TO THE SEARCH AN ORDER OF ASSESSMENT U/S 153A OF THE ACT WAS PASSED FOR A.YRS . BEGINNING FROM A.Y.2007-08 TO 2013-14. SUCH ORDERS OF ASSESSMENT WERE PASSED ON 3 0.03.2015. AGAINST THE AFORESAID ORDERS OF ASSESSMENT AND THE ADDITIONS MADE IN SUCH ORDERS THE ASSESSEE FILED APPEAL BEFORE CIT(A) ON 27.04.2015. THE APPEAL FOR A.Y.201 0-11 WAS ALSO FILED BY THE ASSESSEE. 5. THE APPEAL FILED BY THE ASSESSEE AGAINST THE ORD ER OF AO U/S 143(3) OF THE ACT DATED 20.06.2012 CAME UP FOR HEARING BEFORE CIT(A) ON 11.01.2016. ON THAT DAY THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE BROUGHT T O THE NOTICE OF CIT(A) THE SUBSEQUENT EVENTS VIZ. SEARCH AND SEIZURE OPERATION AND CONSEQ UENT FRAMING OF ASSESSMENT U/S 153 A OF THE ACT AND FILING OF THE APPEAL BY THE ASSESS EE AGAINST SUCH ORDERS INCLUDING THE ORDER OF ASSESSMENT FOR A.Y.2010-11 PASSED U/S 153A OF THE ACT. THE ASSESSEE MADE THE FOLLOWING PRAYER BEFORE CIT(A) :- IN VIEW OF ABOVE THE CURRENT STATUS OF THE ASSESSM ENT YEAR 2010-11 NOW IS THAT THE ORIGINAL ORDER U/S 143(3) DT. 20.06.2012. HAS N O VALIDITY AFTER FRESH ASSESSMENT ORDER PASSED U/S 153A DT. 30.03.2015 AND CONSEQUENT LY, ANY APPEAL EFFECT ARISING OUT OF 143(3) ORDER SHOULD NOT ALSO HAVE ANY BEARIN G ON THE FRESH ORDER U/S 153A AND /OR APPEAL FILES AGAINST THAT. IT IS THEREFORE, OUR REQUEST TO YOUR GOOD S ELF TO KINDLY DECIDE WHETHER THE APPEAL IN REFERENCE SHOULD FURTHER BE PURSUED OR IT IS SHOULD BE WITHDRAWN. IF THE ORDER OF APPEAL IN REFERENCE CANNOT BE GIVEN EFFECT IN THE FRESH ORDER U/S 153A AND /OR APPEAL U/S 246A(1)(BA) AT. 21.04.2 015 THEN WE WOULD LIKE TO WITHDRAW THE APPEAL PENDING BEFORE YOU. THIS IS WITHOUT PREJUDICE TO OUR RIGHT TO PROTECT OUR INTEREST IN THE MATTER. 3 ITA NO.1125/KOL/2016 GOLD VIEW FINANCE SERVICES LTD. A.YR.2010-11 3 6. THE CIT(A) WAS OF THE VIEW THAT ONCE THE APPEAL IS FILED BY AN ASSESSEE THE APPELLATE AUTHORITY HAS NO POWER TO ALLOW WITHDRAWA L OF THE APPEAL. THE AO ALSO FOUND THAT THE ISSUES THAT AROSE FOR CONSIDERATION IN THE APPEAL AGAINST THE ORDER DATED 20.06.2012 U/S 143(3) OF THE ACT AND THE ORDER DATE D 30.03.2015 PASSED U/S 153A OF THE ACT WERE DIFFERENT. THE CIT(A) WAS THEREFORE OF THE VIEW THAT THE APPEAL OF THE ASSESSEE HAS TO BE DISMISSED FOR NON PROSECUTION. THE CIT(A) ACCORDINGLY DISMISSED THE APPEAL OF THE ASSESSEE FOR NON PROSECUTION WITH THE FOLLOW ING OBSERVATIONS : 06. AS REGARDS THE POWER TO ALLOW WITHDRAWAL OF AP PEAL, HON'BLE COURTS HAVE HELD THAT AN ASSESSEE HAVING ONCE FILED AN APPEAL, CANNO T WITHDRAW IT. EVEN IF THE ASSESSEE REFUSES TO APPEAR AT THE HEARING, CIT(A) C AN PROCEED WITH THE ENQUIRY AND IF HE FINDS THAT THERE HAS BEEN UNDER-ASSESSMENT, H E CAN ENHANCE THE ASSESSMENT.THIS IS EMANATING FROM THE FOLLOWING JU DGMENTS: 1. CIT VS RAI BAHADUR HARDUTROY MOTILAL CHAMARIA(SC )66 ITR 443 2. CIT VS B.N. BHATTACHARGEE (SE) 118 ITR461 IN VIEW OF ABOVE JUDICIAL FINDINGS AND THE S UBMISSION OF THE APPELLANT/LD.A.R. I FIND THAT THE GROUNDS RAISED BY THE APPELLANT NO LONGER SUBSIST, DO NOT REQUIRE ADJUDICATION. THE APPEAL THEREFORE STANDS DISMISSED. 7. AGGRIEVED BY THE AFORESAID ORDER OF CIT(A) THE A SSESSEE HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 8. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT SINCE THE CIT(A) HAS NOT DECIDED THE APPEAL ON MERITS, THE SAID ORDER SHOULD BE SET ASIDE AND THE CIT(A) SHOULD BE DIRECTED TO DECIDE THE APPEAL OF THE ASSESSEE ON ME RITS. IN THIS REGARD THE LD. COUNSEL FOR THE ASSESSEE ALSO POINTED OUT THAT SINCE THE ORDER OF ASSESSMENT U/S 143(3) WAS PASSED PRIOR TO THE SEARCH ACTION U/S 132 OF THE ACT AGAIN ST THE ASSESSEE THE SAID ORDER OF ASSESSMENT U/S 143(3) OF THE ACT DOES NOT ABATE TH E LD. COUNSEL FOR THE ASSESSEE ALSO POINTED OUT THAT THE ISSUES ARISING FOR CONSIDERATI ON IN THE APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER U/S 143(3) OF THE ACT AD THE APPE AL FILED AGAINST THE ORDER U/S 153(A) OF THE ACT FOR THE RELEVANT ASSESSMENT YEAR 2010-11 ARE DIFFERENT. THE LD. DR RELIED ON THE ORDER OF CIT(A). 4 ITA NO.1125/KOL/2016 GOLD VIEW FINANCE SERVICES LTD. A.YR.2010-11 4 9. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT THE APPEAL AGAINST THE ORDER DATED 20.06.2012 AND PASSED U/S 1 43(3) OF THE ACT DOES NOT BECOME INFRUCTUOUS, CONSEQUENT TO THE SEARCH ACTION U/S 13 2 OF THE ACT IN THE CASE OF THE ASSESSEE ON 11.10.2012 AS PER THE SECOND PROVISO TO SECTION 153A OF THE ACT THE ASSESSMENT COMPLETED PRIOR TO THE SEARCH ACTION WIL L NOT ABATE. THEREFORE THE CIT(A) SHOULD BE DIRECTED TO DECIDE THE APPEAL OF THE ASSE SSEE FILED AGAINST THE ORDER DATED 20.06.2012 PASSED U/S 143(3) OF THE ACT ON MERITS. THE ORDER OF CIT(A) IS ACCORDINGLY SET ASIDE AND THE CIT(A) IS DIRECTED TO CONSIDER TH E APPEAL OF THE ASSESEE ON MERITS AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSE E. 10. IN THE RESULT THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 02.02.2018. SD/- SD/- [M.BALAGANESH] [ N.V.VAS UDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 02.02.2018. [RG SR.PS] COPY OF THE ORDER FORWARDED TO: 1. GOLD VIEW FINANCIAL SERVICES LTD., 5, SREE CHARA N SARANI, BALLY, HOWRAH-711 201. 2. A.C.I.T., CENTRAL CIRCLE-2(1), KOLKATA. 3. CIT(A)-23, KOLKATA 4. C.I.T.-I, KOLKA TA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECR ETARY HEAD OF OFFICE/ D.D.O., ITAT KOLKATA BENCHES 5 ITA NO.1125/KOL/2016 GOLD VIEW FINANCE SERVICES LTD. A.YR.2010-11 5