Heaven Tradecom Pvt. Ltd., Kolkata V. I.T.O.,Ward-9(1), Kolkata

ITA 1148/KOL/2019

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 9329 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: C
• Next Hearing Date: 14-09-2022
• Assessment Year: 2014-2015
• Appeal Filed On: 13-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 68; 143(3); 250

Judgement Text

आयकर अपील य अ धकरण, कोलकाता पीठ ‘‘सी’’, कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH: KOLKATA ी संजय गग या यक सद य एवं ी गर श अ वाल लेखा सद य के सम [Before Shri Sanjay Garg, Judicial Member & Shri Girish Agrawal, Accountant Member] I.T.A. No. 1148/Kol/2019 Assessment Year : 2014-15 Heaven Tradecom Pvt. Ltd. C-525, Bagree Market, 71, Canning Street, 5 th Floor, Kolkata-700001. (PAN: AACCM 5368 K) Vs. ITO, Ward-9(1), Kolkata Appellant / (अपीलाथ ) Respondent / ("#यथ ) Date of Hearing / स ु नवाई क' त थ 15.09.2022 Date of Pronouncement/ आदेश उ+घोषणा क' त थ 31.10.2022 For the Appellant/ नधा 1रती क' ओर से Shri Manish Tiwari, FCA For the Respondent/ राज व क' ओर से Smt. Ranu Biswas, Addl. CITDR ORDER / आदेश Per Girish Agrawal, ACCOUNTANT MEMBER: This appeal by the assessee is arising out of the order of Ld. CIT(A)-15, Kolkata in appeal No. 130/CIT(A)-15/Wd-9(1)/18-19/R & T/Kol dated 25.02.2019 against the assessment order passed by the 2 I.T.A. No.1148 /Kol/2019 AY: 2014-15 Heaven Tradecom Pvt. Ltd. ITO, Ward-9(1), Kolkata u/s 143(3) of the Income-tax Act, 1961 (hereinafter referred to as the Act) dated 29.12.2016 for AY 2014-15. 2. Grounds taken by the assessee are reproduced as under: 1.a) That on the facts and in the circumstances of the case, the Ld. CIT(A) has erred in passing order u/s 250 of the Income Tax Act, 1961 dated 25.02.2019 on ex-parte view for non-compliance. b) That the Ld. CIT(A) has erred in passing ex-parte order without appreciating that non-compliances was due to unavoidable circumstances i.e. non-receipt of notices due to fire in the office building on 16.09.2018. 2. That without prejudice to ground no. 1 and on the facts and in the circumstances of the case, Ld. CIT(A) is wrong and unjustified in confirming addition of Rs. 95,00,000/- u/s 68 of Income Tax Act, 1961 towards share capital with premium received for allotment of shares without a speaking order on its merit. 3. That the appellant craves leave to add, alter, adduce or amend any ground or grounds on or before the date of hearing of the appeal. 3. At the outset from ground no. 1, we note that Ld. CIT(A) has passed the impugned order ex-parte and dismissed the appeal for non-attendance of the assessee as noted by him in Para 3.7. 3.1. Before us the Ld. Counsel for the assessee Shri Manish Tiwari, FCA placed on record an Affidavit dated 02.08.2022 explaining the reasons for non-attendance of the appellate proceedings before the Ld. CIT(A). The director of the assessee Shri Kaluram Sharma has deposed through the Affidavit that fire took place in the office building at 71, Canning Street, Kolkata on 16.09.2018 due to which the whole office building was heavily damaged and was not accessible for a long time. The office of the assessee is also situated in the same building at C- 3 I.T.A. No.1148 /Kol/2019 AY: 2014-15 Heaven Tradecom Pvt. Ltd. 525, 71, Canning Street, 5 th Floor, Bagree Market, Kolkata. It is further stated that because of fire, office of the assessee was not physically functional which led to improper functioning of the activities of the company and therefore the assessee could not receive the notices issued by the office of the Ld. CIT(A)-15, Kolkata and assessee could not respond/ attend to the notices for the appellate proceedings. It is further stated that since notices were not received by the assessee, there was no occasion for it to file for adjournment in the appellate proceedings. 3.2. To corroborate and substantiate the occurrence of fire in the office building, ld. Counsel placed on record, publication of news in the news paper, Times of India, Kolkata Edition for 17.09.2018 and 19.09.2018 which had covered the news in respect of occurrence of fire at the said office building. 3.3. Further, Ld. Counsel submitted that the addition made by the Ld. AO and sustained by the Ld. CIT(A) is in respect of share capital and share premium amounting to Rs. 95 Lakhs made u/s 68 of the Act which is without passing a speaking order on the merit of the case. Ld. Counsel thus prayed for restoring the matter back to the file of Ld. CIT(A) for meritorious adjudication of the appeal. On confrontation of this submission of the Ld. Counsel of the assessee to the Ld. Sr. D.R Ms. Ranu Biswas, nothing was objected upon. 4. Considering these facts and circumstances of the case and existence of reasonable cause which prevented the assessee from attending the appellate proceedings before the Ld. CIT(A) owing to the occurrence of fire at the office building which has duly been corroborated by the affidavit of the Director of assessee and news release, we find it proper to remit the matter back to the file of the Ld. 4 I.T.A. No.1148 /Kol/2019 AY: 2014-15 Heaven Tradecom Pvt. Ltd. CIT(A), directing him to pass a speaking order after dealing with grounds raised in the appellate proceedings, meritoriously. Needless to say, the assessee be given reasonable opportunity of being heard to make its submission in support of its claim. 4.1. Before parting, we would like to refer to Section 250 of the Act which deals with “procedure in appeal” to be followed by the Ld. CIT(A), more particularly sub-Section(6) which states that “the order of Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision.” In the present case, we note that Ld. CIT(A) has dismissed the appeal of the assessee by merely stating that the assessee has not attended in appellate proceedings, without dealing with grounds raised by the assessee meritoriously. Thus, in terms of the said provision of law, Ld. CIT(A) is once again directed to follow the procedure in appeal as prescribed under Section 250 of the Act. Accordingly, the grounds raised by the assessee are allowed for statistical purposes. 5. In the result, appeal of the assessee is allowed for statistical purposes. Order is pronounced in the open court on 31 st October, 2022 Sd/- Sd/- (Sanjay Garg / संजय गग ) (Girish Agrawal / गर श अ वाल) Judicial Member/ या यक सद य Accountant Member/ लेखा सद य Dated: 31 st October, 2022 SB, Sr. PS 5 I.T.A. No.1148 /Kol/2019 AY: 2014-15 Heaven Tradecom Pvt. Ltd. Copy of the order forwarded to: 1. Appellant- Heaven Tradecom Pvt. Ltd. 2. Respondent – ITO, Ward-9(1), Kolkata 3. Ld. CIT(A)-15, Kolkata (Sent through e-mail) 4. Pr. CIT- , Kolkata 5. DR, Kolkata Benches, Kolkata (sent through e-mail) True Copy By Order Assistant Registrar ITAT, Kolkata Benches, Kolkata