D.C.I.T.,Circle-9(1), Kolkata V. M/s Massive Infrasol Ltd. , Kolkata

ITA 1171/KOL/2019

AI Insights

The case involves an appeal by the revenue against the order of the Commissioner of Income Tax (Appeals)-1, Kolkata, which was passed under section 250 of the Income Tax Act. The primary contention was the CIT(A)'s decision to delete additions made by the Assessing Officer (AO) regarding undisclosed TDS and unexplained expenditure without proper examination of the facts and without giving an opportunity to the AO to present his case. The CIT(A) had found the AO's order to be non-speaking and cryptic, leading to the deletion of the additions. The tribunal found that the CIT(A) had not adequately exercised his jurisdiction and thus restored the matter for a detailed examination.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 128242 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2023
• Appeal Filed By: Department
• Order Result: PartlyAllowed
• Bench Allotted: B
• Next Hearing Date: 02-07-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 03-07-2019
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: TDS; Set aside
• Section: 250

Judgement Text

आयकर अपीलȣय अͬधकरण, कोलकाता पीठ ‘बी’, कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH KOLKATA Įी संजय गग[, ÛयाǓयक सदèय एवं Įी मनीष बोरड, लेखा सदèय के सम¢ Before Shri Sanjay Garg, Judicial Member and Dr. Manish Borad, Accountant Member I.T.A No.1171/Kol/2019 Assessment year: 2012-13 DCIT, Circle-9(1), Kolkata..............................................................Appellant vs. M/s Massive Infrasol Ltd. ........................................................Respondent 3, Saklat Place, 2 nd Floor, Kolkata-700072. [PAN: AAGCM9216K] Appearances by: Shri P. P. Barman, Addl. CIT-DR, appeared on behalf of the appellant. None appeared on behalf of the Respondent. Date of concluding the hearing : July 03, 2023 Date of pronouncing the order : September 26, 2023 आदेश / ORDER संजय गग[, ÛयाǓयक सदèय ɮवारा / Per Sanjay Garg, Judicial Member: The present appeal has been preferred by the revenue against the order dated 13.02.2019 of the Commissioner of Income Tax (Appeals)-1, Kolkata (hereinafter referred to as the ‘CIT(A)’) passed u/s 250 of the Income Tax Act (hereinafter referred to as the ‘Act’). 2. No one has appeared on behalf of the assessee despite notice issued on several dates. We, therefore, proceed to decide this appeal on merits after hearing the ld. DR. 3. The revenue in this appeal has taken the following grounds of appeal: “1. Whether the CIT(A) İs justified in facts and in law to allow the appeal against the assessment order of the Assessing Officer dated 31.03.2015 and not verifying the facts and circumstances of the case? I.T.A No.1171/Kol/2019 Assessment year: 2012-13 M/s Massive Infrasol Ltd 2 2) Whether the CIT(A) is justified in facts and in law to allow the appeal without giving the proper opportunity to the proper jurisdictional Assessing Officer and hence the case may be restore back to the CIT(A) to provide opportunity to the A0 on the disputed issues. 3) Whether the CIT(A) is justified in facts and in law to declare the assessment order of the Assessing Officer dated 31.03.2015 as non-est and deleted the disallowance made by A0 on account of undisclosed TDS amounting to Rs.74,56,512/- and Rs.34,946/- without considering the facts of the case based on its merit and without giving opportunity to the proper jurisdictional A0? 4) Whether the CIT(A) is justified in facts and in law in not examining or without giving the opportunity to the AO in respect of total undisclosed TDS which is now found to be increased an amount of Rs.30,41,731/- corresponding to income of Rs.8,18,97,288/- without considering the facts of the case based on its merit? 5) Whether the CIT(A) is justified in facts and in law to declare the assessment order of the Assessing Officer dated 31.03.2015 as non-est and deleted the disallowance made by A0 on account of unexplained expenditure amounting to Rs.2,10,06,234/- without considering the facts of the case based on its merit and without giving opportunity to the proper jurisdictional A0? That the department craves to amend, alter or modify any grounds of appeal in the course of Appellate proceedings.” 4. The brief facts of the case are that the Assessing Officer during the assessment proceedings noted that there was claim of refund of high amount and there was huge deduction claimed of expenses of Rs.8,40,24,934/-, whereas, the income shown by the assessee were very low. He further noted that there was undisclosed Tax Deducted at Source (TDS) at Rs.1,49,829/-, therefore, the Assessing Officer called upon the assessee to justify huge expenses of Rs.8,40,24,934/- as against huge refund claim and undisclosed TDS. Though the assessee submitted certain documents but no one appeared on behalf of the assessee. The Assessing Officer was not satisfied with the documents furnished by the assessee. He, therefore, held that there was a corresponding receipt of Rs.74,56,512/- in respect of which there was undisclosed TDS of Rs.1,49,829/-. He, therefore, added back the said I.T.A No.1171/Kol/2019 Assessment year: 2012-13 M/s Massive Infrasol Ltd 3 amount of Rs.74,56,512/-. Further, he disallowed a sum of Rs.2,10,06,234/- being 25% out of the claim of expenditure of Rs.8,40,24,934/-. 5. Before the CIT(A), the assessee furnished certain documents and pleaded that the assessee company has incurred total expenditure of Rs.8,40,24,934/- which included purchase of Rs.8,21,74,000/- and that the disallowance of 25% of the expenses was not justified. In respect of unclaimed TDS, the assessee submitted that the corresponding receipts were duly booked. The ld. CIT(A) called upon the remand report from the Assessing Officer on the above submissions of the assessee. However, since no remand report was received from the Assessing Officer, the ld. CIT(A) held that the order of the Assessing Officer was non-speaking and cryptic and further that the Assessing Officer had not made any enquiry to ascertain whether the transaction entered by the assessee was genuine or not. Since the Assessing Officer had not availed the opportunity given to him in the remand report, the ld. CIT(A) deleted the additions made by the Assessing Officer. 6. We have heard the ld. DR and have also gone through the record. It is to be noted that the powers of the CIT(A) are co-terminus with that of the Assessing Officer. The ld. CIT(A) was supposed to apply his own mind to the documents/details furnished by the assessee and then was supposed to decide the admissibility of the claim of the assessee. The ld. CIT(A) has powers not only to delete the additions made by the Assessing Officer but has also power of enhancement of income also. The order of the ld. CIT(A) is also non-speaking and cryptic. The ld. CIT(A) has failed to exercise jurisdiction vested with him and to decide the appeal of the assessee on merits after appreciation of the details available on record. In view of this, the impugned order of the CIT(A) is set aside and the matter is restored to the file of the CIT(A) with a direction to decide the I.T.A No.1171/Kol/2019 Assessment year: 2012-13 M/s Massive Infrasol Ltd 4 appeal of the assessee on merits by way of a speaking order after appreciating the details/evidences as may be available on file or furnished by the assessee. 7. In the result, the appeal of the revenue is treated as allowed for statistical purposes. Kolkata, the 26 th September, 2023. Sd/- Sd/- [डॉÈटर मनीष बोरड /Dr. Manish Borad] [संजय गग[ /Sanjay Garg] लेखा सदèय /Accountant Member ÛयाǓयक सदèय /Judicial Member Dated: 26.09.2023. RS Copy of the order forwarded to: 1 DCIT, Circle-9(1), Kolkata 2. M/s Massive Infrasol Ltd 3. CIT(A)- 4. CIT- , 5. CIT(DR), //True copy// By order Assistant Registrar, Kolkata Benches