Jamuna Tradecom Pvt. Ltd., Kolkata V. ITO, WD-6(2), KOLKATA, Lucknow

ITA 1180/KOL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0685 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 26-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHARJEE CIT RE
• Assessee Lawyers: MANISH TIWARI
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D, KOLKATA [BEFORE SHRI P.M. JAGTAP, AM & SHRI S.S. VISWANETHRA RAVI, JM] I.T.A. NO. 1180/KOL/2016 ASSESSMENT YEAR: 2008-09 JAMUNA TRADECOM PVT. LTD................................APPELLANT C/O. M. SETHIA & CO., CHARTERED ACCOUNTANTS, 3, BENTINCK STREET, 2 ND FLOOR, KOLKATA 700 001 [PAN: AABCJ 9440 R] ITO, WARD 6(2)KOLKATA....................RESPONDENT P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. APPEARANCES BY: SHRI MANISH TIWARI APPEARING ON BEHALF OF THE ASSESSEE. SHRI ARINDAM BHATTACHARJEE, ADDL. CIT APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : DECEMBER 14, 2017 DATE OF PRONOUNCING THE ORDER : DECEMBER 20, 2017 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT (APPEALS) 6, KOLKATA DATED 10.03.2016 PASSED EX-PARTE DISMISSING THE APPEAL OF THE ASSESSEE. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH IS ENGAGED IN THE BUSINESS OF INVESTMENT AND TRADING IN SHARES. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 15.05.2008 DECLARING A TOTAL INCOME OF RS. 173/-. ALTHOUGH THE SAID RETURN WAS INITIALLY PROCESSED BY THE A.O. UNDER SECTION 143(1), THE ASSESSMENT WAS SUBSEQUENTLY REOPENED BY HIM AND IN THE ASSESSMENT COMPLETED UNDER SECTION 147/143(3), AN ADDITION OF RS. 4720/- WAS MADE BY THE A.O. ON ACCOUNT OF DISALLOWANCE OF PRELIMINARY EXPENSES. THE RECORD OF THE SAID ASSESSMENT SUBSEQUENTLY CAME TO BE EXAMINED BY THE LD. CIT AND ON SUCH EXAMINATION, HE FOUND CERTAIN ERRORS IN THE ORDER OF 2 I.T.A. NO. 1180/KOL/2016 ASSESSMENT YEAR: 2008-09 JAMUNA TRADECOM PVT. LTD. THE A.O. PASSED UNDER SECTION 147/143(3) WHICH WERE PREJUDICIAL TO THE INTEREST OF THE REVENUE. HE ACCORDINGLY SET ASIDE THE SAID ORDER WITH THE DIRECTION TO THE A.O. TO PASS A FRESH ASSESSMENT ORDER ON CERTAIN ISSUES VIDE HIS ORDER PASSED UNDER SECTION 263. IN COMPLIANCE WITH THE DIRECTION GIVEN BY THE LD. CIT, THE A.O. COMPLETED A FRESH ASSESSMENT VIDE AN ORDER DATED 29.03.2014 UNDER SECTION 143(3)/263 OF THE ACT WHEREIN HE MADE AN ADDITION OF RS. 2,82,15,000/- TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF THE SHARE APPLICATION MONEY BY TREATING THE SAME AS UNEXPLAINED CASH CREDIT UNDER SECTION 68. 3. AGAINST THE ORDER PASSED BY THE A.O. UNDER SECTION 143(3)/263, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE VIDE HIS APPELLANT ORDER DATED 16.03.2016 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN GROUND NO 1, THE ASSESSEE HAS RAISED PRELIMINARY ISSUE CHALLENGING THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) ON THE GROUND THAT NO PROPER OPPORTUNITY OF HEARING HAVING BEEN GIVEN TO THE ASSESSEE, THERE WAS A VIOLATION OF PRINCIPLES OF NATURAL JUSTICE BY THE LD. CIT(A) IN DISMISSING THE APPEAL OF THE ASSESSEE VIDE HIS IMPUGNED ORDER PASSED EX-PARTE. IN THIS 3 I.T.A. NO. 1180/KOL/2016 ASSESSMENT YEAR: 2008-09 JAMUNA TRADECOM PVT. LTD. REGARD, AFFIDAVIT OF CA, MANOJ SETHIA HAS BEEN FILED BY THE ASSESSEE EXPLAINING THE REASONS FOR THE NON-COMPLIANCE BEFORE THE LD. CIT(A) AS UNDER: I, MANOJ SETHIA SON OF LATE NEM CHAND SETHIA AGED ABOUT 47 YEARS BY FAITH HINDU BY PROFESSION CHARTERED ACCOUNTANT DO HEREBY SOLEMNLY AFFIRM ON OATH AND DECLARED AS FOLLOWS:- 1. THAT I DECIDED TO ATTEND AND REPRESENT THE CASE BEFORE THE LD. CIT(A)- 6, KOLKATA ON 25.02.2016 IN THE MATTER OF M/S. JANHIT DEALCOM PVT. LTD. AND M/S. JAMUNA TRADECOM PVT. LTD. BUT WHILE MY WAY TO ATTEND THE HEARING ON THE SAID DATE, I SUDDENLY FELL SICK DUE TO HIGH BLOOD PRESSURE AND WEAKNESS. 2. THAT CONSEQUENTLY I COULD NOT ATTEND THE HEARING ON THE SCHEDULED DATE BEFORE THE LD. CIT(A)-6, KOLKATA. 3. THAT I WAS ALSO UNABLE TO MOVE ANY ADJOURNMENT PETITION ON THE AFOREMENTIONED DATE I.E. 25.02.2016 DUE TO CIRCUMSTANCES BEYOND MY CONTROL. 4. THAT THE FACTS AND CIRCUMSTANCES EXPLAINED AT SL. 1 TO 3 ABOVE ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF. 5. KEEPING IN VIEW THE ASSERTION MADE BY THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE ON OATH IN THE AFFIDAVIT FILED BEFORE US, WE ARE SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE NON- COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY THE LD. CIT(A) FIXING ITS APPEAL FOR HEARING FROM TIME TO TIME AND IT CANNOT BE SAID THAT PROPER AND SUFFICIENT OPPORTUNITY WAS AFFORDED BY THE LD. CIT(A) TO THE ASSESSEE BEFORE DISMISSING THE APPEAL OF THE ASSESSEE VIDE HIS IMPUGNED ORDER PASSED EX-PARTE. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH 4 I.T.A. NO. 1180/KOL/2016 ASSESSMENT YEAR: 2008-09 JAMUNA TRADECOM PVT. LTD. ON MERIT IN ACCORDANCE WITH LAW AFTER GIVING ONE MORE OPPORTUNITY OF BEING HEARD TO THE ASSESSES. AS UNDERTAKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING BEFORE US, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE LD. CIT(A) AND SHALL EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT(A) TO DISPOSE OF HIS APPEAL EXPEDITIOUSLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH DECEMBER, 2017. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 20/12/2017 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. JAMUNA TRADECOM PVT. LTD., C/O. M. SETHIA & CO. CHARTERED ACCOUNTANT, 3, BENTINCK STREET, 2 ND FLOOR, KOLKATA 01. 2. ITO, WARD-6(2), P-7, CHOWRINGHEE SQUARE, KOLKATA 69. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, SR. P.S. / H.O.O. ITAT, KOLKATA