M/s. S.S. Associates, Kolkata V. DCIT,Cir-30,Kolkata, Kolkata

ITA 1256/KOL/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3136 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2013
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 30-08-2012
• Court: TRIBUNAL
• Department Lawyers: D K SONOWAL
• Keywords: Opportunity of being heard
• Section: 147; 144

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B , KOLKATA [ () . .. . . .. . , ,, , , !' #! $'# #! $'# #! $'# #! $'#, ,, , ] ]] ] [BEFORE HONBLE SRI N.S.SAINI AM & HONBLE SRI M AHAVIR SINGH, JM] '& '& '& '& /ITA NO.1256/KOL/2012 $' !()/ ASSESSMENT YEAR : 2005-06 (+, / APPELLANT ) - ! - ( ./+, /RESPONDENT) M/S. S.S.ASSOCIATES D.C.I.T., CIRCLE-30, KOLKATA -VERSUS- KOLKATA (AAUFS 9009 B) +, 0 1 / FOR THE APPELLANT: NONE ./+, 0 1 / FOR THE RESPONDENT: SHRI D.K.SONOWAL, JCIT.SR.DR 2!3 0 4 /DATE OF HEARING : 10.06.2013 5( 0 4 /DATE OF PRONOUNCEMENT : 10.06.2013. 6 / ORDER PER SHRI N.S.SAINI, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A)-XIV, KOLKATA DATED 21.05.2012 BY RAISING THE FOLLOWING G ROUNDS : 1.THAT FOR THE YEAR CONCERNED, YOUR APPELLANT HAD ENGAGED IN THE BUSINESS OF EXECUTION OF CIVIL CONSTRUCTION JOBS AND MAINTAINED PROPER BO OKS OF ACCOUNT AS PRESCRIBED U/S. 44AA OF THE INCOME TAX ACT, 1961 AND ALSO SUBMITTED ITS L T. RETURN WITHIN THE DUE DATE. 2. THAT, AGAINST THE ASSESSMENT ORDER MADE BY LD. D .C.I.T., CIRCLE - 30,KOLKATA ON 30.12.2008 U/S. 147 OF THE I. T. ACT, 1961 FOR THE A/Y. 2005 - 06, YOUR APPELLANT HAD FILED AN APPEAL PETITION BEFORE THE LD. CIT (APPEAL)-XIV, KOLKATA ON 11.02.2009 AND THE SAID LD. CLT (APPEAL)-XIV, KOLKATA HAS PASSED AN ORDER D ATED 21.05.2012 WHICH IS RECEIVED BY YOUR APPELLANT ON 02.07.2012. THE LD. CIT (APPEAL)-XIV, KOLKATA, UPHOLDS THE ORDE R OF ADDITION OF TOTAL INCOME BY RS. 1769412/- PASSED BY THE ASSESSING OFFICER WITHOUT G IVING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELLANT. 3. THAT, ONLY REASON OF THE AFORESAID ADDITION WAS THAT TOTAL RECEIPTS AS PER TDS CERTIFICATES WERE MORE THAN THE AMOUNT CREDITED TO THE PROFIT & LOSS ACCOUNT FOR THE SAID YEAR AS CONTRACT PRICE BY THE ABOVE SUM OF RS. 1769 412/- AGAINST WHICH YOUR ASSESSEE'S SUBMISSION ARE THAT AS YOUR APPELLANT WAS A CIVIL C ONTRACTOR AND PERIODS OF EXECUTION OF VARIOUS JOBS WERE MORE THAN 1 YEAR, TOTAL RECEIPTS AS PER TDS CERTIFICATE DID NOT NECESSARILY TO BE TALLIED WITH THE TOTAL BILLS AMOU NT CREDITED TO THE PROFIT & LOSS ACCOUNT DUE TO THE SIMPLE FACT THAT, DURING THE YEAR, THE L ARGE AMOUNT OF ADVANCE WAS RECEIVED BY YOUR APPELLANT AND APPEARED IN THE AUDITED BALAN CE SHEET AS ON 31.03.2005 FOR WHICH BILLS WERE RAISED IN SUBSEQUENT YEAR(S) ALTHOUGH ON SUCH ADVANCES, TDS UNDER THE I. T. IT A NO.1256/KOL/2012 M/S.S.S.ASSOCIATES VS DCIT, CIRCLE-30, KO LKATA A.YR.2005-06 2 ACT HAD BEEN DEDUCTED BY THE CONTRACTEE. 4. THAT CONSIDERING THE ABOVE, YOUR APPELLANT DO H EREBY PRAY TO YOUR HONOUR KINDLY TO DELETE THE ABOVE ADDITION OFRS. 1769412/- MADE BY L 'D. D.C.LT. CIRCLE-30/KOLKATA AND CONFIRMED BY THE LD. C.I.T.(APPEAL)-XIV /KOLKATA. 5.THAT THE APPELLANT CRAVE LEAVE TO PLACE ADDITIONA L GROUND/GROUNDS ON OR BEFORE THE TIME OF HEARING, IF NECESSARY. 2. NOTICE OF HEARING WAS SENT TO THE ASSESSEE AT T HE ADDRESS GIVEN IN FORM NO.36 OF THE APPEAL MEMO BY REGISTERED POST WITH AD ON 15 .01.2013 AND THE SAME WAS SERVED ON THE ASSESSEE ON 24.01.2013 AS EVIDENT BY AD CARD OF THE POST OFFICE WHICH IS PLACED ON RECORD. WHEN THE CASE WAS CALLED FOR H EARING NONE APPEARED ON BEHALF OF THE ASSESSEE AND NEITHER ANY ADJOURNMENT PETITION H AS BEEN FILED. THEREFORE THE APPEAL WAS HEARD EXPARTE QUA THE ASSESSEE-APPELLANT AND DI SPOSED OFF AFTER CONSIDERING THE MATERIALS AVAILABLE ON RECORD AND THE SUBMISSIONS O F THE LD. DR. 3. THE BRIEF FACTS OF THE CASE ARE THAT FROM THE VE RIFICATION OF THE RECORDS THE AO FOUND THAT THE TOTAL RECEIPT OF TDS CERTIFICATE FIL ED ALONG WITH THE RETURN WAS RS.3,12,01,985/- WHEREAS IN THE PROFIT AND LOSS ACC OUNT THE AMOUNT OF RECEIPT SHOWN WAS RS.2,94,32,573/-. THE AO THUS FOUND THAT THERE WAS A SHORT FALL OF INCOME OF RS.17,69,412/-. NOTICE OF HEARING WAS ISSUED TO THE ASSESSEE BUT IN ABSENCE OF COMPLIANCE TO THE SAME BY THE ASSESSEE THE AO PASSE D EXPARTE ORDER U/S 144 OF THE ACT AND MADE ADDITION OF RS.17,69,412/- TO THE INCO ME OF THE ASSESSEE. 4. BEING AGGRIEVED AGAINST THIS ORDER OF THE AO THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A). 5. BEFORE THE LD. CIT(A) ALSO NOTICE SENT BY THE LD . CIT(A) FIXING THE APPEAL FOR HEARING ON 08.12.2011 AND 17.05.2012 WERE RETURNED BY THE POSTAL AUTHORITIES UNSERVED. IN ABSENCE OF ANY NEW ADDRESS PROVIDED BY THE ASSESSEE TO THE LD. CIT(A) THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE . 6. THE LD. DR SUPPORTED THE ORDERS OF THE LOWER AUT HORITIES. IT A NO.1256/KOL/2012 M/S.S.S.ASSOCIATES VS DCIT, CIRCLE-30, KO LKATA A.YR.2005-06 3 7. AFTER HEARING THE LD. DR AND CONSIDERING THE MAT ERIALS AVAILABLE ON RECORD, WE FIND THAT THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE LD. CIT(A) AS NOTICE OF HEARING ON 08.12.2011 AND 17.05.2012 COULD NOT BE S ERVED ON THE ASSESSEE BY THE POSTAL AUTHORITIES AND WERE RETURNED BACK UNSERVED. BEFORE THE AO ALSO THE ASSESSEE HAS NOT PUT AN APPEARANCE ON THE DATE OF HEARING. W E FIND THAT FROM FORM-36 OF THE APPEAL MEMO THAT THERE IS CHANGE OF ADDRESS OF THE ASSESSEE WHICH READS AS :- P-146, LAKE ROAD, 1 ST FLOOR, KOLKATA-700029. THUS THIS COULD BE THE REASON FOR NON SERVICE OF NO TICE ON THE ASSESSEE SENT BY THE LD. CIT(A).THEREFORE IN OUR CONSIDERED OPINION IT WILL BE JUST AND FAIR TO REMAND THE MATTER TO THE FILE OF THE AO FOR ADJUDICATION OF TH E ISSUE AFRESH AFTER ALLOWING REASONABLE AND PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO FILE ALL MATERIALS IN SUPPORT OF ITS CLAIM BEFOR E THE AO AS AND WHEN CALLED UPON TO DO SO. WITH THIS DIRECTION THE APPEAL OF THE ASSESS EE IS ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10.06.2013. SD/- SD/- [ .#! $'# , ] [ .., ,, , ] [MAHAVIR SINGH ] [N.S.SAINI] JUDICIAL MEMBER ACCOUNTANT MEMBER ( (( (4 4 4 4) )) ) DATE: 10.06.2013. R.G.(.P.S.) 6 0 .$$7 87(9- COPY OF THE ORDER FORWARDED TO: 1. M/S. S.S.ASSOCIATES, P-146, LAKE ROAD, (1 ST FLOOR), KOLKATA-700029. 2 D.C.I.T., CIRCLE-30, KOLKATA 3 . CIT KOLKATA 4. CIT (A)-XIV, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY 62/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES IT A NO.1256/KOL/2012 M/S.S.S.ASSOCIATES VS DCIT, CIRCLE-30, KO LKATA A.YR.2005-06 4