A J Mill Store Agency Private Limited , Kolkata V. I.T.O.,Ward-2(2), Kolkata

ITA 12/KOL/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8845 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 03-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: N O N E
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Set aside
• Section: 250; 68; 148

Judgement Text

ITA NO. 12/KOL/2020 ASS ESSMENT YEAR: 2013-2014 A.J. MILL STORE AGENCY PVT. LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C(SMC) BENCH, KOLKATA [VIRTUAL COURT HEARING] BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT I.T.A. NO. 12/KOL/2020 ASSESSMENT YEAR: 2013-2014 A.J. MILL STORE AGENCY PVT. LIMITED,............... ................................APPELLANT C/O. ANKIT & ASSOCIATES, CHARTERED ACCOUNTANTS, DIAMOND HERITAGE, ROOM NO. 1207A, 16, STRAND ROAD, KOLKATA-700001 [PAN: AABCA9021B] -VS.- INCOME TAX OFFICER,................................ .......................................RESPONDENT WARD-2(2), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, 7 TH FLOOR, KOLKATA-700069 APPEARANCES BY: N O N E, FOR THE APPELLANT SHRI JAYANTA KHANRA, JCIT, SR. D.R., FOR THE RESPON DEN T DATE OF CONCLUDING THE HEARING : JULY 27, 2020 DATE OF PRONOUNCING THE ORDER : JULY 27, 2020 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-10, KOLKATA DA TED 06.11.2019 PASSED EX-PARTE, WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH IS ENGAGED IN THE BUSINESS OF TRADING IN WELDING ELECTRODES AND A CCESSORIES. ON THE BASIS OF INFORMATION RECEIVED BY HIM, A NOTICE UNDE R SECTION 148 WAS ISSUED BY THE ASSESSING OFFICER TO THE ASSESSEE ON 17.06.2016 FOR THE YEAR UNDER CONSIDERATION. IN RESPONSE TO THE SAID NOTICE , THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY THE A SSESSEE ON 13.07.2016 DECLARING TOTAL INCOME OF RS.3,65,370/-. IN THE ASS ESSMENT COMPLETED UNDER SECTION 143(3)/147 OF THE ACT VIDE AN ORDER D ATED 09.12.2016, THE ITA NO. 12/KOL/2020 ASS ESSMENT YEAR: 2013-2014 A.J. MILL STORE AGENCY PVT. LIMITED 2 TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE ASSESSING OFFICER AT RS.30,41,124/- AFTER MAKING THE FOLLOWING THREE ADD ITIONS:- (I) ADDITION UNDER SECTION 68 BY TREATING THE LOAN RECEIVED BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION AS UNEXPLAINED CASH CREDIT RS.25,00,000/ - (II) UNACCOUNTED CONTRACT RECEIPTS RS. 1,73,488/ - (III) UNDISCLOSED INCOME FROM COMMISSION/BROKERAGE RS. 2,266/ - 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3)/147 OF THE ACT, AN APPEAL WAS PREFERRED BY T HE ASSESSEE BEFORE THE LD. CIT(APPEALS) CHALLENGING THE VALIDITY OF TH E SAID ASSESSMENT AS WELL AS DISPUTING THE ADDITIONS OF RS.25,00,000/- A ND RS.1,73,488/- MADE BY THE ASSESSING OFFICER TO ITS TOTAL INCOME. AS ME NTIONED BY THE LD. CIT(APPEALS) IN HIS IMPUGNED ORDER, THE SAID APPEAL WAS FIXED FOR HEARING FROM TIME TO TIME AND SINCE THERE WAS NO SATISFACTO RY COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM, THE LD. CIT(APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE VIDE HIS APPEL LATE ORDER DATED 06.11.2019 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEA L BEFORE THE TRIBUNAL. 4. ALTHOUGH THE ASSESSEE HAS MOVED AN APPLICATION S EEKING ADJOURNMENT OF THE HEARING FIXED TODAY, IT IS OBSER VED THAT THE ASSESSEE HAS RAISED A PRELIMINARY ISSUE IN GROUND NO. 2 CHAL LENGING THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PARTE ON TH E GROUND THAT PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD WAS NOT P ROVIDED BY THE LD. CIT(APPEALS) BEFORE DISMISSING ITS APPEAL. IN THIS REGARD, THE LD. D.R. HAS INVITED MY ATTENTION TO PARA NO. 3 OF THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) TO POINT OUT THAT THE NOTICES ISSUED B Y THE LD. CIT(APPEALS) FIXING THE APPEAL OF THE ASSESSEE FOR HEARING ON 20 .02.2019, 05.03.2019 AND 05.04.2019 WERE NOT SERVED ON THE ASSESSEE AND THE SAME HAD BEEN RETURNED BACK BY THE POSTAL AUTHORITIES WITH THE CO MMENT INSUFFICIENT ITA NO. 12/KOL/2020 ASS ESSMENT YEAR: 2013-2014 A.J. MILL STORE AGENCY PVT. LIMITED 3 ADDRESS. HE HAS SUBMITTED THAT THE APPEAL OF THE A SSESSEE THEREAFTER WAS FIXED FOR HEARING BY THE LD. CIT(APPEALS) ON 20.03. 2019 AND THE NOTICE OF THE SAID HEARING WAS STATED TO BE SERVED UPON THE A UTHORIZED REPRESENTATIVE OF THE ASSESSEE-COMPANY ON 16.03.201 9. HE HAS SUBMITTED THAT SINCE THERE WAS NO COMPLIANCE ON THE PART OF T HE ASSESSEE TO THE SAID NOTICE, THE LD. CIT(APPEALS) PROCEEDED TO DISMISS T HE APPEAL OF THE ASSESSEE VIDE HIS IMPUGNED ORDER PASSED EX-PARTE WI THOUT GIVING ANY FURTHER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. KEEPING IN VIEW THIS FACTUAL POSITION POINTED OUT BY THE LD. D.R. FROM T HE IMPUGNED ORDER OF THE LD. CIT(APPEALS), I AM OF THE VIEW THAT PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD CANNOT BE SAID TO HAVE B EEN GIVEN BY THE LD. CIT(APPEALS) TO THE ASSESSEE BEFORE DISMISSING THE APPEAL OF THE ASSESSEE VIDE HIS IMPUGNED ORDER PASSED EX-PARTE AND THERE I S A CLEAR VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. MOREOVER, IT IS OBSER VED THAT THE ISSUE CHALLENGING THE VALIDITY OF THE ASSESSMENT MADE BY THE ASSESSING OFFICER UNDER SECTION 143(3)/147 WAS RAISED BY THE ASSESSEE BY RAISING GROUNDS NO. 1 TO 5 IN ITS APPEAL AND THE SAME WAS DECIDED B Y THE LD. CIT(APPEALS) VIDE PARA NO. 4 OF HIS IMPUGNED ORDER AS UNDER:- 04. IN GROUND NO. 1 TO 5, THE APPELLANT-COMPANY CHALLENGES THE REOPENING OF THE CASE AND CONTENDS T HAT FROM THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE ORDER PASSED BY THE LD. A.O. U/S 143(3)/147 OF THE INCOME TAX ACT 1961 IS BAD IN LAW AS WELL AS FACTS BY NOT PROVIDING A REASONABLE OPPORTUNITY OF BEING HEARD. THIS IS MERELY A GENERAL STATEMENT AND IN MY CONSIDERED VIEW IN THESE GROUNDS THE APPELLANT HAS NOT DEMONSTRATED ANY DEFICIENCY OF THE NOTICES LEADING TO REOPENING OF T HE CASE. THE GROUNDS ARE THEREFORE DISMISSED. 5. SIMILARLY THE ISSUES RAISED BY THE ASSESSEE IN G ROUNDS NO. 6 & 7 OF ITS APPEAL CHALLENGING THE ADDITIONS OF RS.25,00,00 0/- MADE UNDER SECTION 68 AND RS.1,73,488/- ON ACCOUNT OF THE ALLEGED UNAC COUNTED CONTRACT RECEIPTS RESPECTIVELY WERE DECIDED BY THE LD. CIT(A PPEALS) VIDE PARAGRAPH NO. 7 OF HIS IMPUGNED ORDER AS UNDER:- ITA NO. 12/KOL/2020 ASS ESSMENT YEAR: 2013-2014 A.J. MILL STORE AGENCY PVT. LIMITED 4 07. FINDINGS & DECISION: I FIND THAT THE LD. AO HA S PASSED AN ELABORATE ORDER WITH REASONING AND THE APPELLANT HAS NOT COUNTERED THE REASONING EITHER IN ASSESSMENT OR DURING THE APPEAL STAGE. AS SUCH I HA VE NO REASON TO INTERFERE IN THE FINDINGS OF THE LD. A.O WHICH STAND CONFIRMED. THESE GROUNDS ARE THEREFORE DISMISSED. 6. IT IS PERTINENT TO NOTE THAT THE LD. CIT(A), AS PER THE PROVISIONS OF SUB-SECTION (6) OF SECTION 250 WAS REQUIRED TO DISP OSE OF THE APPEAL OF THE ASSESSEE VIDE AN ORDER IN WRITING STATING THE P OINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR THE DECISI ON. IT IS OBSERVED THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) DOES NO T COMPLY WITH THESE REQUIREMENTS. I, THEREFORE, CONSIDER IT FAIR AND PR OPER AND IN THE INTEREST OF JUSTICE TO SET ASIDE THE IMPUGNED ORDER PASSED B Y THE LD. CIT(APPEALS) EX-PARTE AND REMIT THE MATTER BACK TO HIM FOR DISPO SING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT IN ACCORDANCE WITH LAW AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE AS SESSEE. THE ASSESSEE IS DIRECTED TO MAKE DUE COMPLIANCE BEFORE THE LD. CIT( A) AND EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT (A) TO DISPOSE OF THE APPEAL AFRESH EXPEDITIOUSLY. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JULY 27, 2020 . SD/- (P.M. JAGTAP) VICE-PRESIDENT) KOLKATA, THE 27 TH DAY OF JULY, 2020 COPIES TO : (1) A.J. MILL STORE AGENCY PVT. LIMITED, C/O. ANKIT & ASSOCIATES, CHARTERED ACCOUNTANTS, DIAMOND HERITAGE, ROOM NO. 1207A, 16, STRAND ROAD, KOLKATA-700001 ITA NO. 12/KOL/2020 ASS ESSMENT YEAR: 2013-2014 A.J. MILL STORE AGENCY PVT. LIMITED 5 (2) INCOME TAX OFFICER, WARD-2(2), KOLKATA, AAYAKAR BHAWAN, 7 TH FLOOR, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-10, KOLKATA; (4) COMMISSIONER OF INCOME TAX- , KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.