M/s. Orient Enterprises, Kolkata V. ITO, Ward - 40(1), Kolkata , Kolkata

ITA 120/KOL/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6648 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 25-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Assessee Lawyers: MANOJ KATARUKA
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH : KOLKATA [BEFORE HONBLE SHRI J.SUDHAKAR REDDY, AM] I.T.A NO. 120/KOL/201 8 ASSESSMENT YEAR : 2012-1 3 M/S ORIENT ENTERPRISES -VS- IT O, WARD-40(1), KOLKATA [PAN: AAAFO 5187 A] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI MANOJ KATARUKA, ADV OCATE FOR THE REVENUE : SMT. RANU BISWAS, ADDL. C IT DATE OF HEARING : 05.06.2018 DATE OF PRONOUNCEMENT : 27.06.2018 ORDER THIS APPEAL BY THE ASSESSEE DIRECTED AGAINST THE OR DER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-12, KOLKATA [ IN SHORT THE LD CITA] DATED 18.10.2017 PASSED UNDER SECTION 250 OF THE IN COME TAX ACT, 1961 (IN SHORT THE ACT) FOR THE ASSESSMENT YEAR 2012-13. 2. THE ASSESSEE IS A PARTNERSHIP FIRM AND IS IN THE BUSINESS OF TRANSPORT CONTRACTOR. FOR VERIFYING THE CLAIM OF FREIGHT CHARGES PAID, TH E AO, DURING THE ASSESSMENT PROCEEDINGS ISSUED NOTICE U/S 133(6) OF THE ACT TO PARTIES TO WHOM FREIGHT CHARGES WERE PAID FOR CONFIRMATION. AS MOST OF THESE NOTIC ES WERE ALLEGEDLY RETURNED BACK BY THE POSTAL AUTHORITIES, FOR VARIOUS REASONS , AN AD HOC DISALLOWANCE OF 2% OF THE TOTAL CLAIM OF FREIGHT CHARGES WAS MADE BY T HE AO . THE ASSESSEE CARRIED THE MATTER AN APPEAL. THE LD. CIT(A) CALLED FOR A R EMAND REPORT. DURING THE 2 ITA NO.120/KOL/2018 M/S ORIENT ENTERPRISES A.YR .2012-13 2 COURSE OF REMAND PROCEEDINGS, THE AO ISSUED FRESH N OTICES U/S 133(6) TO FIVE PARTIES. ONE PARTY CONFIRMED THE TRANSACTION. THE N OTICE SENT TO ONE PARTY GOT RETURNED. AS FAR AS THE NOTICES GIVEN TO THE OTHER THREE PARTIES, NO REPLY WAS SENT TO THE ASSESSING OFFICER. THE LD. AO ACCORDINGLY SUBMI TTED A REMAND REPORT. 3. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT, IN THE CASE OF PARTY FROM WHOM THE NOTICE WAS RETURNED, THE ADDRESS TO WHICH THE N OTICE WAS SENT WAS ERRONEOUS. IN THE CASE OF THREE OTHER PARTIES, THE ASSESSING O FFICER ALLEGED THAT THEY HAVE NOT RESPONDED TO THE NOTICES, BUT THE FACT WAS THAT REP LIES WERE FILED BY THEM CONFIRMING THE TRANSACTION, DIRECTLY TO THE LD. CIT (A) BY SPEED POST. HE SUBMITTED PAPER BOOK RUNNING INTO 75 PAGES AND TOO K THIS PAGE THROUGH THE NECESSARY EVIDENCES IN SUPPORT HIS CONTENTIONS. 4. THE LD. DR SUBMITTED THAT, THE REPLIES WERE NOT FILED BY THESE THIRD PARTIES BEFORE THE AO AND HENCE THE SAME SHOULD NOT BE CONS IDERED. HE SUBMITTED THAT PROPER OPPORTUNITY WAS NOT GIVEN TO THE ASSESSEE. 5. AFTER HEARING RIVAL SUBMISSIONS, AND ON A CAREFU L CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, A PERUSAL OF PAPERS ON R ECORD AND ORDERS OF THE LOWER AUTHORITIES BELOW AS WELL AS CASE LAW CITED, I HOLD AS FOLLOWS. 6. I FIND THAT THE 4 OUT OF 5 PARTIES HAVE FILED C ONFIRMATIONS LETTER IN QUESTION, BEFORE THE LD. CIT(A) PASSED THIS IMPUGNED ORDER. I N THE CASE OF THE FOURTH PARTY, THE NOTICE WAS NOT SENT BY THE AO TO THE CORRECT AD DRESS. THREE PARTIES HAVE DIRECTLY SENT THEIR CONFIRMATIONS TO THE LD. CIT(A) . 3 ITA NO.120/KOL/2018 M/S ORIENT ENTERPRISES A.YR .2012-13 3 7. UNDER THESE CIRCUMSTANCES, IN MY VIEW, NO AD HOC DISALLOWANCE CAN BE MADE. HENCE, I DELETE THE AD HOC DISALLOWANCE AND ALLOW T HIS GROUND OF THE ASSESSEE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON 27.06.2018 SD/- [ J.SUDHAKAR REDDY] ACCOUNTANT MEMBER DATED : 27.06.2018 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. M/S ORIENT ENTERPRISES, 225D, A.J.C. BOSE ROAD, KOLKATA-700020. 2. ITO, WARD-40(1), KOLKATA, 3, GOVT. PLACE (WEST), 1 ST FLOOR, ROOM NO. 16, KOLKATA-700001. 3..C.I.T.(A)- , KOLKATA 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S