Gour Export Import Pvt. Ltd., Kolkata V. I.T.O,Ward-9(2), Kolkata

ITA 1147/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1315 (ITAT-KOLKATA)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 14-05-2019
• Court: TRIBUNAL

Judgement Text

ITA NO. 1147/KOL/2019 ASSESSMENT YEAR: 2012-2013 GOUR EXPORT IMPORT PVT. LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER I.T.A. NO. 1147/KOL/2019 ASSESSMENT YEAR: 2012-2013 M/S. GOUR EXPORT IMPORT PVT. LIMITED,.............. ......................APPELLANT KB-25, SALT LAKE CITY, SECTOR-III, KOLKATA-700098 [PAN: AACCG9094R] -VS.- INCOME TAX OFFICER,................................ ...................................RESPONDENT WARD-9(2), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 APPEARANCES BY: SHRI MANISH TIWARI, FCA, FOR THE APPELLANT SHRI SANKAR HALDER, JCIT, SR. D.R , FOR THE RESPONDEN T DATE OF CONCLUDING THE HEARING : SEPTEMBER 06, 201 9 DATE OF PRONOUNCING THE ORDER : SEPTEMBER 06, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KOLKATA ZONE) :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-15, KOLKATA DA TED 04.04.2019, WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O N 24.03.2014 DECLARING A LOSS OF RS.50/-. THE SAID RETURN WAS SE LECTED FOR SCRUTINY BY THE ASSESSING OFFICER AND A NOTICE UNDER SECTION 14 3(2) OF THE ACT WAS ISSUED BY HIM TO THE ASSESSEE. THE SAID NOTICE ISSU ED UNDER SECTION 143(2) AS WELL AS THE SUBSEQUENT NOTICES ISSUED UND ER SECTION 142(1) OF THE ACT, HOWEVER, REMAINED UN-COMPLIED WITH BY THE ASSESSEE. EVEN THE SUMMONS ISSUED BY THE ASSESSING OFFICER UNDER SECTI ON 131 OF THE ACT TO THE DIRECTORS OF THE ASSESSEE-COMPANY WERE RETURNED UN-SERVED. THE ITA NO. 1147/KOL/2019 ASSESSMENT YEAR: 2012-2013 GOUR EXPORT IMPORT PVT. LIMITED 2 ASSESSING OFFICER, THEREFORE, WAS LEFT WITH NO OPTI ON BUT TO COMPLETE THE ASSESSMENT TO THE BEST OF HIS JUDGMENT ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. IN THE ASSESSMENT SO COMPLETED UNDER SEC TION 144 OF THE ACT VIDE AN ORDER DATED 03.03.2015, ADDITION OF RS.67,0 0,000/- WAS MADE BY HIM TO THE TOTAL INCOME OF THE ASSESSEE UNDER SECTI ON 68 BY TREATING THE SHARE CAPITAL INCLUDING SHARE PREMIUM OF RS.67,00,0 00/- RECEIVED BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION AS UNE XPLAINED CASH CREDIT. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 144, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS). DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE T HE LD. CIT(APPEALS), A WRITTEN SUBMISSION WAS FILED BY THE ASSESSEE AND SI NCE THE LD. CIT(APPEALS) DID NOT FIND MERIT IN THE SAID SUBMISS ION, HE PROCEEDED TO CONFIRM THE ADDITION MADE BY THE ASSESSING OFFICER UNDER SECTION 68 THEREBY DISMISSING THE APPEAL OF THE ASSESSEE. AGGR IEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED TH IS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LD. COUN SEL FOR THE ASSESSEE HAS SUBMITTED THAT EVEN THOUGH THE APPEAL OF THE ASSESS EE WAS DISMISSED BY THE LD. CIT(APPEALS) VIDE HIS IMPUGNED ORDER AND TH E ADDITION MADE BY THE ASSESSING OFFICER UNDER SECTION 68 WAS CONFIRME D AFTER TAKING INTO CONSIDERATION THE WRITTEN SUBMISSION FILED BY THE A SSESSEE, THE OPPORTUNITY TO ESTABLISH THE IDENTITY AND CAPACITY OF THE CONCERNED SHARE SUBSCRIBERS AS WELL AS GENUINENESS OF THE RELEVANT TRANSACTIONS BY PRODUCING THE NECESSARY DOCUMENTARY EVIDENCE WAS NO T GIVEN BY THE LD. CIT(APPEALS). HE HAS SUBMITTED THAT SINCE THE SAID ADDITION UNDER SECTION 68 WAS MADE BY THE ASSESSING OFFICER IN THE EX-PART E ORDER COMPLETED UNDER SECTION 144, THE LD. CIT(APPEALS) OUGHT TO HA VE GIVEN SUCH OPPORTUNITY TO THE ASSESSEE. HE HAS URGED THAT THIS MATTER MAY, THEREFORE, BE SENT BACK TO THE ASSESSING OFFICER FOR GIVING SU CH OPPORTUNITY TO THE ITA NO. 1147/KOL/2019 ASSESSMENT YEAR: 2012-2013 GOUR EXPORT IMPORT PVT. LIMITED 3 ASSESSEE. ALTHOUGH WE FIND SOME MERIT IN THIS CONTE NTION OF THE LD. COUNSEL FOR THE ASSESSEE, WE FIND THAT THERE WAS NO COMPLIANCE ON THE PART OF THE ASESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS BEFORE THE ASSESSING OFFICER AND THE LD. COUNSEL FOR THE A SSESSEE HAS FAILED TO EXPLAIN THE SAME SATISFACTORILY. KEEPING IN VIEW AL L THE FACTS AND CIRCUMSTANCES OF THE CASE, WE CONSIDER IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO SEND THE MATTER BACK TO THE ASSESSING OFFICER SUBJECT TO A PAYMENT OF COST OF RS.5,000/- BY THE ASSESSEE TO THE DEPARTMENT. SUBJECT TO THE SAID PAYMENT, THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR MAKING THE ASSESSMENT AFRESH AFTER GIVING ONE MORE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS UNDERTAKEN BY THE LD. COU NSEL FOR THE ASSESSEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE A SSESSING OFFICER AND SHALL EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE ASSESSING OFFICER TO MAKE THE ASSESSMENT AFRESH EXPEDITIOUSLY . 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON SEPTEMBER 06 , 2019. SD/- SD/- (SATBEER SINGH GODARA) (P.M. JAGTAP) JUDICIAL MEMBER V ICE-PRESIDENT (KZ) KOLKATA, THE 6 TH DAY OF SEPTEMBER, 2019 COPIES TO : (1) M/S. GOUR EXPORT IMPORT PVT. LIMITED, KB-25, SALT LAKE CITY, SECTOR-III, KOLKATA-700098 (2) INCOME TAX OFFICER, WARD-9(2), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-15, KOLK ATA, (4) COMMISSIONER OF INCOME TAX, KOLKATA- , KOLKATA; (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.