DCIT, CIR-3(1), KOLKATA, Kolkata V. M/s R. P. Techvision India Ltd., Kolkata

ITA 1234/KOL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1414 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 24-09-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T VARKEY JUDIC IA L M EMBER
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Condonation of delay
• Section: 143(3); 28

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI ABY.T VARKEY, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 123 4 - 123 5 / KOL / 2015 ASSESSMENT YEARS :2010-11 & 2011-12 DCIT, CIRCLE-3(1),P-7 CHOWRINGHEE SQUARE, AAYKAR BHAWAN, 4 TH FLOOR, ROOM NO.19, KOLKATA-69 V/S . M/S R.P. TECHVISION INDIA LTD., 20/1C, LAL BAZAR STREET, KOLKATA-01 [ PAN NO.AADCR 0950 Q ] /APPELLANT .. / RESPONDENT /BY ASSESSEE NONE /BY RESPONDENT SHRI G. HANGSHING, CIT-DR !'# /DATE OF HEARING 11-09-2017 $% # /DATE OF PRONOUNCEMENT 22-09-2017 / O R D E R PER BENCH:- BOTH APPEALS BY THE REVENUE ARE DIRECTED AGAINST T HE DIFFERENT ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS)-2 OF EVEN D ATE I.E. ON 24.06.2015. ASSESSMENTS WERE FRAMED BY DCIT-CIRCLE-4/JCIT RANGE -4, KOLKATA U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED T O AS THE ACT) VIDE THEIR ORDERS DATED 31.01.202013 & 13.03.2014 FOR ASSESSME NT YEARS 2010-11 & 2011-12. 2. BOTH APPEALS WERE LATE BY JUST 2 DAYS FOR WHICH SEPARATE PETITION PRAYING CONDONATION OF DELAY HAS BEEN FILED BY THE DEPARTMENT. LD. DR REFERRING THE REASONS STATED IN AFFIDAVITS DATED 14 .07.2015 HAS REQUESTED FOR CONDONATION OF DELAY. WE THEREFORE CONDONE THE DELA Y AND PROCEED TO DISPOSE ITA NO.1234-1235/KOL/2015 A.YS. 10-11 & 11-12 DCIT CIR-3(1), KOL. VS. M/S R.P.TECHV ISION INDIA LTD. PAGE 2 OFF THE APPEALS ON MERIT. COMMON ISSUES ARE RAISED IN REVENUES APPEALS EXCEPT THE AMOUNT INVOLVED, THEREFORE WE ARE TAKING THE FACTS OF THE CASE IN A.Y. 2010-11 IN ITA NO.1234/KOL/2015 AS A LEAD CASE FOR THE SAKE OF CONVENIENCE AND ACCORDINGLY DEEM FIT TO PASS A CONS OLIDATE ORDER. 3. AT THE OUTSET, IT WAS OBSERVED THAT NEITHER ANYB ODY APPEARED FROM THE SIDE OF ASSESSEE NOR ITS AUTHORIZED REPRESENTATIVE AS WELL AS NO ADJOURNMENT PETITION WAS FILED. HOWEVER, ON PERUSAL OF THE GROU NDS OF APPEAL RAISED BY REVENUE, IT WAS FOUND THAT REVENUE HAS CHALLENGED T HE VALIDITY OF THE ORDER PASSED BY LD. CIT(A) ON THE GROUND THAT NO OPPORTUN ITY WAS GIVEN TO ASSESSING OFFICER IN PURSUANCE TO THE PROVISION OF SECTION 250(2) OF THE ACT. CONSIDERING THE GROUNDS OF APPEALS WE OPINED THAT T HE TECHNICAL ISSUE RAISED BY REVENUE CAN BE DISPOSED OF WITHOUT APPEARANCE OF ASSESSEE OR ITS AUTHORIZED REPRESENTATIVE. THEREFORE, WE DECIDED TO PROCEED TO HEAR THE APPEAL WITH LD. DR APPEARING ON BEHALF OF REVENUE B UT WITHOUT THE PRESENCE OF ASSESSEE OR ITS AUTHORIZED REPRESENTATIVE. FIRST WE TAKE UP REVENUES APPEAL IN ITA NO.1234/KO L/2015 FOR A.Y.10-11 . 4. GROUNDS RAISED BY REVENUE PER ITS APPEAL AS UNDE R:- 1. THE CIT(A) HAS NOT GIVEN THE NOTICE OF HEARING/ OPPORTUNITY OF BEING HEARD TO THE ASSESSING OFFICER AS REQUIRED IN PROVI SIONS OF SEC. 250(2), THEREFORE THE ORDER PASSED BY THE CIT(A) IS VOID. 2.THE CIT(A) PASSED THE ORDER AFTER OBTAINING FRESH AND ADDITIONAL EVIDENCES IN CONTRAVENTION TO THE PROVISION OF RULE -46A WHICH S AGAINST THE PRINCIPLE OF NATURAL JUSTICE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) HAS ERRED IN ALLOWING DEDUCTION OF RS.4,60,24,923/- AS REVENU E EXPENDITURE U/S. 28 OF INCOME TAX ACT, 1961 THOUGH THIS PAYMENT WAS MADE FOR PURCHASE OF COMPANY AS HELD BY SUPREME COURT VIDE O RDER DATED 4 TH MAY, 2010(COPY ENCLOSED). 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, A MEND OR MODIFY THE GROUNDS OF APPEAL DURING THE COURSE OF HEARING PROC EEDINGS OF THIS CASE. 5. FIRST ISSUE RAISED BY REVENUE IN THIS APPEAL IS THAT LD. CIT(A) ERRED IN NOT PROVIDING OPPORTUNITY OF BEING HEARD TO ASSESSI NG OFFICER AS PER THE PROVISION OF SECTION 250(2)OF THE ACT. ITA NO.1234-1235/KOL/2015 A.YS. 10-11 & 11-12 DCIT CIR-3(1), KOL. VS. M/S R.P.TECHV ISION INDIA LTD. PAGE 3 6. AT THE OUTSET, LD. DR HAS BROUGHT TO OUR NOTICE THAT LD. CIT(A) HAS PASSED ORDER WITHOUT AFFORDING REASONABLE OPPORTUNI TY OF BEING HEARD TO THE ASSESSING OFFICER IN TERMS OF PROVISION OF SECTION 250(2) OF THE ACT. THE LD. DR FURTHER DREW OUR ATTENTION ON PROVISIONS OF LAW WHICH READS AS UNDER : PROCEDURE IN APPEAL. 77 250. (1) THE 78 [* * *] 79 [COMMISSIONER (APPEALS)] SHALL FIX A DAY AND PLACE FOR THE HEARING OF THE APPEAL, AND SHALL GIVE NOTICE OF THE SAME TO THE APPELLANT AND TO THE 80 [ASSESSING] OFFICER AGAINST WHOSE ORDER THE APPEAL IS PREFERRED. (2) THE FOLLOWING SHALL HAVE THE RIGHT TO BE HEARD AT THE HEARING OF THE APPEAL (A) THE APPELLANT, EITHER IN PERSON OR BY AN AUTHORISED REPRESENTATIVE; (B) THE 80 [ASSESSING] OFFICER, EITHER IN PERSON OR BY A REPRE SENTATIVE. IN VIEW OF ABOVE, LD. DR SUBMITTED THAT THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSING OFFICER . 7. WE HAVE HEARD LD. DR AND PERUSED THE MATERIAL AV AILABLE ON RECORD. AS PER THE PROVISION OF SECTION 250(2) OF THE ACT, IT WAS MANDATORY ON THE PART OF LD. CIT(A) TO AFFORD AN OPPORTUNITY OF BEING HEA RD TO AO BEFORE PASSING THE APPELLATE ORDER. IN THE INSTANT CASE, WE OBSERVE TH AT LD. CIT(A) HAS VIOLATED THE PROVISION OF SECTION 250(2) OF THE ACT WHICH AM OUNTS TO THE BREACH OF PRINCIPLE OF NATURAL JUSTICE. HENCE, IN OUR CONSIDE RED VIEW LD. CIT(A) BEFORE PASSING THE IMPUGNED ORDER SHOULD HAVE AFFORDED AN OPPORTUNITY OF BEING HEARD TO THE AO. THEREFORE, IN THE INTEREST OF NATU RAL JUSTICE AND FAIR PLAY WE ARE INCLINED TO RESTORE THE MATTER BACK TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. NEEDLESS TO SA Y THAT AO SHOULD CO- OPERATE IN THE APPELLATE PROCEEDINGS AS AND WHEN CA LLED FOR BY LD. CIT(A). HENCE, THIS GROUND OF REVENUES APPEAL IS ALLOWED F OR STATISTICAL PURPOSE. NOW COMING TO THE ITA NO. 1235/KOL/2015 FOR A.Y.11- 12. 8. THE FACTS AND ISSUE ARE SAME AS IN ITA NO.1234/KOL/2015 OF REVENUES APPEAL, THEREFORE FOLLOWING OUR DECISION ON THIS ISSUE AS EMBODIED ITA NO.1234-1235/KOL/2015 A.YS. 10-11 & 11-12 DCIT CIR-3(1), KOL. VS. M/S R.P.TECHV ISION INDIA LTD. PAGE 4 IN PARA-6 & 7 OF THIS ORDER, THE APPEAL OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSE. 9. IN COMBINE RESULT, FOR STATISTICAL PURPOSE, THE APP EALS OF REVENUE ARE TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 22 /09/2017 SD/- SD/- (ABY. T. VARKEY) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP &!'(- 22 / 09 /201 7 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-M/S R.P.TECHVISION INDIA LTD., 20/1C, LAL BAZAR STEET,KOLKATA-001 2. /REVENUE-DCIT, CIRCLE-3(1), P-7, CHOWRINGHEE SQ. AA YAKAR BHAWAN, 4 TH FL, KOL-69 3.'0'1 2 / CONCERNED CIT KOLKATA 4. 2- / CIT (A) KOLKATA 5.56788!1 , 1 , / DR, ITAT, KOLKATA 6.7:;<= / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO 1 ,