Mastery Marketing Pvt. Ltd., Kolkata V. I.T.O.,Ward-14(2), Kolkata

ITA 1132/KOL/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 1393 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-02-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 13-05-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA
• Keywords: Principle of natural justice; Opportunity of cross examination; Additional evidence; Third party statement; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C - SMC KOLKATA BEFORE SHRI S ANJAY GARG , JUDICIAL MEMBER . / ITA NO. 1132/KOL/2019 ASSESSMENT YEAR: 20 14 - 15 M/S. MASTERY MARKETING PVT. LTD 117 COTTON STREET, GROUND FL., KOLKATA - 700 007. . [ PAN NO. A A GCM5438B / V/S . I.T.O, WARD 1 4 ( 2 ) , KOLKATA, AAYKAR BHAWAN POORVA , 10 TH FL., ROOM NO. 3, 110 SHANTIPALLY, KOLKATA - 700 107. / APPELLANT .. / RESPONDENT HEARING THROUGH VIDEO CONFERENCING / BY APPELLANT NONE APPEARED / BY RESPONDENT MR. JAYANTA KHANRA, JCIT, SR.DR / DATE OF HEARING 0 9 - 02 - 2021 / DATE OF PRONOUNCEMENT 0 9 - 02 - 2021 / O R D E R TH E PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 01/02/2019 OF THE COMMISSIONER OF INCOME - TAX (APPEALS), KOLKATA [HEREINAFTER REFERRED TO AS CIT(A)] . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE APPELLATE ORDER PASSED WAS IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE HENCE IS BAD IN LAW AND BE QUASHED. 2. FOR THAT IN THE FACT S AND CIRCUMSTANCE THE LEARNED COMMISSIONER OF INCOME TAX APPEALS ERRED IN UPHOLDING THE ADDITION OF RS. 19,59,736/ - ON ACCOUNT OF TRADING LOSS ON PENNY SHARES. THE ADDITION IS NOT CALLED FOR AND HENCE THE SAME BE DELETED. 3. FOR THAT IN THE FACTS AND CIRCUMSTANCE OF THIS CASE THE MATERIAL BASED ON WHICH THE LD. ASSESSMENT OFFICER PASSED THE ASSESSMENT ORDER ARE ITA NO. 1132/KOL/2019 A.Y. 20 14 - 15 M/S. MASTERY MARKETING P.LTD PAGE 2 COLLECTED BEHIND THE BACK OF THE ASSESSEE AND WHICH WERE NOT PROVIDED DURING THE COURSE OF ASSESSMENT PROCEEDING, THUS MATERIAL SHOULD BE EXCLUDED/IGNORE FOR THE PURPOSE OF THIS CASE. 4. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE STATEMENT OF THIRD PARTIES ON WHICH THE LD. ASSESSMENT OFFICER RELIED DURING THE COURSE OF ASSESSMENT PROCEEDING WERE NOT SUBJECTED TO CROSS EXAMINATION FOR THE ASSESSEE, THUS THE THIRD PARTY STATEMENT RELIED UPON SHOULD BE EXCLUDED/IGNORED FOR THE PURPOSE OF THIS CASE. 5. FOR THAT STATEMENT GIVEN IN SURVEY PROCEEDINGS IS NOT EVIDENCE UNDER THE PROVISION OF THE IN COME TAX ACT 1961 AND HENCE THE SAME BE IGNORED. 6. FOR THAT THE LEARNED CIT(APPEALS) ERRED IN CONFIRMING THE INTEREST U/S. 234A/B/C THE SAME WAS UNJUSTIFIED AND HENCE THE SAME BE RECALCULATED AS PER THE APPLICABLE LAW. 7. THE APPELLANT CRAVES LEAVE TO PRODUCE ADDITIONAL EVIDENCES IN TERMS OF RULE 29 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES 1963. 8. THE APPELLANT CRAVES LEAVE TO PRESS NEW, ADDITIONAL GROUNDS OF APPEAL OR MODIFY, WITHDRAW ANY OF THE ABOVE GROUNDS AT THE TIME OF HEARING OF THE APPEA L. 3. NO ONE HAS PUT IN APPEARANCE DESPITE NOTICE. THEREFORE, I PROCEED TO DECIDE THE APPEAL ON MERITS AFTER CONSIDERING THE RELEVANT RECORD AND AFTER HEARING THE LD. DR. 4 . A FTER HEARING THE LD. DR AND GOING THROUGH T HE RECORD, I FIND THAT THE IMPUGNED ORDER OF THE LD. CIT(A) IS AN EX PARTE ORDER . I FIND THAT THE ASSESSEE IN THE FIRST GROUND OF APPEAL PLEADED THAT THE APPELLATE ORDER OF THE LD. CIT(A) IS IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. IN THE REMAINING GROUNDS OF APPEAL , THE ASSESSEES PLEADINGS ARE THAT THE IMPUGNED ADDITIONS HAVE BEEN MADE BY THE LD. ASSESSING OFFICER ( IN SHORT, THE LD. AO) ON THE BASIS OF CERTAIN EVIDENCES, WHICH W ERE NEITHER CONFRONTED TO THE ASSESSEE NOR THE ASSESSEE WAS GIVEN AN OPPORTUNITY TO PR ODUCE EVIDENCES TO REBUT THE ALLEGED EVIDENCES. T HAT THE ALLEGED EVIDENCES WERE COLLECTED AT THE BACK OF THE ASSESSEE AND THE SAME W ERE NOT PROVIDED TO THE ASS E SSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE LD. AO HAS RELIED UPON THE STATEMENT OF THE THIRD PARTY WHEREAS THE ASSESSEE HAS NOT BEEN GIVEN ANY OPPORTUNITY FOR CROSS EXAMIN ATION OF THIRD PARTY , ON THE STATEMENT OF WHOM THE AO HAS RELIED UPON . THE LD. DR HAS RELIED UPON THE FINDINGS OF THE LOWER AUTHORITIES, BUT COULD NOT REBUT THE ABOV E CONTENTIONS OF THE ASSESSEE. NONE OF THE ISSUES INVOLVED IN THIS APPEAL HAVE BEEN DECIDED ON MERITS BY THE LD. CIT(A). CONSIDERING THE PRINCIPLES OF NATURAL JUSTICE , THE IMPUGNED ORDER OF THE LD. CIT(A) IS SET ASIDE AND THE MATTER ITA NO. 1132/KOL/2019 A.Y. 20 14 - 15 M/S. MASTERY MARKETING P.LTD PAGE 3 INVOLVED IN THE PRES ENT APPEAL IS RESTORED TO THE FILE OF THE LD. AO FOR MAKING THE ASSESSMENT AFRESH NEEDLESS TO SAY THAT THE LD. AO WILL PROVIDE PROPER AND A DEQUATE OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE AND WILL ALSO CONSIDER THE SUBMISSIONS INCLUDING THE REQUES T OF ASSESSEE FOR CROSS EXAMINATION OF THE THIRD PARTY ON WHOSE STATEMENT THE LD. AO HAS PLACE D HIS RELIANCE AND THEREAFTER, WILL DECIDE THE ISSUE(S) AFRESH IN ACCORDANCE WITH LAW. T HE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT AT THE CLOSE OF THE HEARING ON T UESDAY , 9 TH FEBRUARY , 2021 . SD/ - (S ANJAY GAR G ) JUDICIAL MEM BER KOLKATA, * *PP /SR.PS - 0 9 / 0 2 /20 2 1 / COPY OF ORDER FORWARDED TO: - 1. /APPELLANT - M/S. MASTERY MARKETING PVT. LTD 117 COTTON ST., GR. FL., KOLKATA - 700 007. 2. /RESPONDENT - I.T.O., 10(2), AAYKAR BHAWAN, P - 7 CHOWRINGHEE SQ., KOLKATA - 700 069. 3. / CONCERNED CIT 4. - / CIT (A) 5. , / DR, ITAT, KOLKATA 6. / GUARD FILE. /TRUE COPY/ BY ORDER/ , / ,