Amrit Kunj Capital Markets Ltd., Kolkata V. ITO, Ward-3(1), Kolkata, Kolkata

ITA 1262/KOL/2017

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8825 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 30-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: CHRISTOPHER JENOME SINGH
• Assessee Lawyers: D S DAMLE
• Keywords: Opportunity of being heard
• Section: 133(6); 68; 144

Judgement Text

1 ITA NO. 1262/KOL/2017 AMRIT KUNJ CAPITAL MARKET LTD., AY 2012-13 , A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA ( ) BEFORE . , /AND . . , ) [BEFORE SHRI J. SUDHAKAR REDDY, AM & SHRI A. T. VA RKEY, JM] I.T.A. NO. 1262/KOL/2017 ASSESSMENT YEAR: 2012-13 AMRIT KUNJ CAPITAL MARKETS LTD. (PAN: AACCA4048E) VS. INCOME-TAX OFFICER, WD-3(1), KOLKATA. APPELLANT RESPONDENT FOR THE APPELLANT SHRI D. S. DAMLE, FCA FOR THE RESPONDENT SHRI CHRISTOPHER JENOME SINGH, JCIT, SR. DR DATE OF HEARING 10.12.2018 DATE OF PRONOUNCEMENT 28.12.2018 ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAINST TH E ORDER OF LD. CIT(A)-9, KOLKATA DATED 30.03.2017. 2. AT THE OUTSET, IT HAS BEEN BROUGHT TO OUR NOTICE BY THE LD AR OF THE ASSESSEE THAT THE LD. CIT(A) HAS NOT APPLIED HIS MIND AND HAS PASSED A CRYPTIC ORDER WITHOUT CONSIDERING THE MATERIAL PLACED ON RECORD. IT WAS BROUGHT TO OUR N OTICE THAT THE IMPUGNED ORDER OF THE LD. CIT (A) IS AN EX PARTE AND NON-SPEAKING ORDER AND S INCE THE LD. CIT(A) HAS NOT DISCUSSED THE MATTER ON MERITS AND WITHOUT EVALUATING THE EVI DENCE PLACED ON RECORD MAKES THE ORDER BAD IN LAW AND AOS ORDER WAS PASSED UNDER SECTION 144 OF THE ACT, DESPITE THE SHAREHOLDERS FILING ALL DOCUMENTS TO PROVE IDENTITY, CREDITWORTH INESS AND GENUINENESS OF THE TRANSACTION. WE NOTE THAT THE LD. CIT(A) HAS PASSED THE ORDER AS UNDER: THE APPELLANT HAS FILED AN APPEAL AGAINST THE ORDE R PASSED ON 26/03/2015 BY THE ASSESSING OFFICER U/S 144 OF THE INCOME TAX ACT, 1961. NOTICE U/S 250 WAS SERVED ON THE APPELLANT AS WELL AS ON THE AO. 2 ITA NO. 1262/KOL/2017 AMRIT KUNJ CAPITAL MARKET LTD., AY 2012-13 IN THIS CASE, NOTICE U/S 250 WAS ISSUED ON 27/10/20 16 BY WHICH DATE OF HEARING WAS FIXED ON 16/11/2016, HOWEVER, NEITHER ANYBODY ATTENDED NOR A NY WRITTEN REPLY WAS RECEIVED ON THE PART OF THE APPELLANT. THEREFORE, A FRESH NOTICE DA TED 07/12/20L6 WAS ISSUED BUT THERE WAS NO COMPLIANCE ON THE PART OF THE APPELLANT. ON 15/12/2 016, THE AR OF THE APPELLANT ATTENDED AND FILED WRITTEN SUBMISSION IN DUPLICATE BY WHICH A REMAND REPORT WAS SENT TO THE AO FOR EXAMINATION AND COMMENTS ON 16/12/2016 AND THE CASE WAS ADJOURNED TO 17/01/2017. ON 17/01/2017, NEITHER ANYBODY ATTENDED NOR ANY WRITTE N REPLY WAS SUBMITTED ON THE PART OF THE APPELLANT. THEREFORE, A FRESH NOTICE DATED 17/03/20 17 WAS ISSUED AND ON THE SAID DATE THE AR OF THE APPELLANT ATTENDED AND THE CASE WAS ADJOURNE D TO 30.03.2017 AS THE REMAND REPORT WAS NOT YET RECEIVED. ON 30.03.2017 THERE WAS NO C OMPLIANCE ON THE PART OF THE APPELLANT. SINCE THERE IS NO COMPLIANCE DURING THE APPELLATE P ROCEEDINGS AND THERE IS NO NEW FACT/DETAILS AVAILABLE FOR CONSIDERATION, I DO NOT FIND ANY INFIRMITY IN THE AOS ORDER. THEREFORE, APPEAL IS DISMISSED. AGGRIEVED, THE ASSESSEE HAS PREFERRED THIS APPEAL B EFORE US. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT THE AO HAS MADE ADDITION U/ S. 144 OF THE ACT, WHICH IS THE BEST JUDGMENT ASSESSMENT SINCE, ACCORDING TO AO, THE ASSESSEE DID NOT PARTI CIPATE DURING THE ASSESSMENT PROCEEDINGS. ON APPEAL, THE LD. CIT(A) H AS TAKEN NOTE OF THE FACT THAT THE ASSESSEES AR ATTENDED BEFORE HIM AND HAD FILED WRI TTEN SUBMISSION ALONG WITH DOCUMENTS IN DUPLICATE WHICH PROMPTED THE CIT(A) TO CALL FOR A REMAND REPORT FROM THE AO FOR EXAMINATION AND COMMENTS ON 16/12/2016. HOWEVER, AF TER THE LD. CIT(A) ACKNOWLEDGES THAT NO REMAND REPORT WAS RECEIVED FROM THE AO, HE OBSERVES THAT SINCE THERE IS NO COMPLIANCE DURING THE APPELLATE PROCEEDINGS AND THE RE IS NO NEW FACT/DETAILS AVAILABLE FOR CONSIDERATION, HE FOUND NO INFIRMITY IN THE AOS OR DER. SO, HE DISMISSED THE APPEAL OF ASSESSEE. WE NOTE THAT THE LD. CIT (A)S ORDER IS PER-SE CONTRADICTORY. AFTER HAVING NOTED THAT THE ASSESSEE HAD ATTENDED AND HAD FILED WRITTE N SUBMISSION BEFORE HIM AND THE CIT(A) HAD SOUGHT A REMAND REPORT FROM THE AO FOR EXAMINAT ION AND COMMENTS, THE LD. CIT(A) AFTER TAKING NOTE THAT AO HAS NOT FORWARDED ANY REM AND REPORT, HAS DISMISSED THE APPEAL FOR NON-COMPLIANCE ON THE PART OF ASSESSEE CANNOT B E COUNTENANCED. WE NOTE THAT THE ASSESSMENT ORDER HAS BEEN PASSED BY THE AO U/S. 144 OF THE ACT, HOWEVER, WE NOTE THAT DURING THE ASSESSMENT PROCEEDING BEFORE THE AO THE SHARE-SUBSCRIBERS HAVE DULY RESPONDED TO NOTICE U/S. 133(6) OF THE ACT AND THEY (SHARE-SU BSCRIBERS 8 IN NUMBERS) HAVE FILED DOCUMENTS BEFORE AO (ANNEXED IN PAPER BOOK PAGES 16 -124) AND THE LD. CIT(A), TO DISCHARGE THE ONUS CASTED UPON THE ASSESSEE U/S. 68 OF THE ACT. HOWEVER, THE AO NEITHER MENTIONED ABOUT IT NOR HAS FOUND ANY FAULT IN RESPE CT TO THE DOCUMENTS REFERRED TO SUPRA. 3 ITA NO. 1262/KOL/2017 AMRIT KUNJ CAPITAL MARKET LTD., AY 2012-13 THE AO HAS MADE THE ADDITION OF SHARE CAPITAL PLUS PREMIUM ON THE GROUND THAT DIRECTORS OF ASSESSEE COMPANY DID NOT TURN UP ALONG WITH DIRECTO RS OF SHAREHOLDING COMPANIES. AND DURING APPEAL WHEN ASSESSEE HAS FURNISHED DOCUMENTS AND WRITTEN SUBMISSIONS TO DISCHARGE THE ONUS CASTED UPON IT AS REQUIRED U/S. 68 OF THE ACT, IN THE INTEREST OF JUSTICE AND FAIR PLAY, THE LD. CIT (A) OUGHT TO HAVE OBTAINED THE REMAND R EPORT FROM AO BEFORE PROCEEDING TO PASS THE APPELLATE ORDER. TAKING INTO CONSIDERATION THE FACT THAT THE ASSESSMENT ORDER WAS PASSED BY AO U/S. 144 OF THE ACT, DESPITE ALL THE D OCUMENTS FILED AND SINCE THE ASSESSEE HAS FILED DETAILED WRITTEN SUBMISSION ALONG WITH DOCUME NTS TO PROVE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION, THE LD. CIT (A) SHOULD HAVE INSISTED THAT AO TO GIVE HIS REMAND REPORT BEFORE DISPOSING OFF THE APPEAL O N MERIT. THE IMPUGNED ORDER OF THE LD. CIT(A) IS, THEREFORE, SET ASIDE AND SINCE THE AO HA S PASSED SECTION 144 BEST JUDGMENT ASSESSMENT WE ARE OF THE OPINION THAT ASSESSEE DID NOT GET PR OPER OPPORTUNITY BEFORE THE AO AND RELYING ON THE THREE JUDGES BENCHS DECISION IN TIN BOX COMPANY VS. CIT (2001) 249 ITR 216 (SC) WHEREIN THE HONBLE SUPREME COURT HAS HELD AS UNDER: IT IS UNNECESSARY TO GO INTO GREAT DETAIL IN THESE MATTERS FOR THERE IS A STATEMENT IN THE ORDER OF THE TRIBUNAL, THE FACT-FINDING AUTHORITY, THAT R EADS THUS : WE WILL STRAIGHTAWAY AGREE WITH THE ASSESSEES SUB MISSION THAT THE INCOME-TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORTUNITY OF BEI NG HEARD. THAT THE ASSESSEE COULD HAVE PLACED EVIDENCE BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL IS REALLY OF NO CONSEQUENCE FOR IT IS THE ASSESSMENT ORDER THAT COUNTS. THAT ORDER MUST BE MADE AFTER THE ASSESSEE HAS BEEN GIVEN A RE ASONABLE OPPORTUNITY OF SETTING OUT HIS CASE. WE, THEREFORE, DO NOT AGREE WITH THE TRIBUNAL AND THE HIGH COURT THAT IT WAS NOT NECESSARY TO SET ASIDE THE ORDER OF ASSESSMENT AND REMAND THE MATTER TO THE ASSESSING AUTHORITY FOR FRESH ASSESSMENT AFTER GIVING TO THE ASSESSEE A PROPER OPPORTUNITY OF BEING HEARD. TWO QUESTIONS WERE PLACED BEFORE THE HIGH COURT, OF WHICH THE SECOND QUESTION IS NOT PRESSED. THE FIRST QUESTION READS THUS : 1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN NOT SETTING ASIDE THE ASSESSMENT ORDER IN SPITE OF A FINDING ARRIVED AT BY IT THAT THE INCOME- TAX OFFICER HAD NOT GIVEN A PROPER OPPORTUNITY OF H EARING TO THE ASSESSEE ? IN OUR OPINION, THERE CAN ONLY BE ONE ANSWER TO THI S QUESTION WHICH IS INHERENT IN THE QUESTION ITSELF : IN THE NEGATIVE AND IN FAVOUR OF THE ASSESSEE. THE APPEALS ARE ALLOWED. THE ORDER UNDER CHALLENGE IS SET ASIDE. THE ASSESSMENT ORDER, THAT OF THE COMMISSIONER (APPEALS) AND OF THE TRIBUNAL A RE ALSO SET ASIDE. THE MATTER SHALL NOW BE REMANDED TO THE ASSESSING AUTHORITY FOR FRESH CO NSIDERATION, AS AFORESTATED. 4 ITA NO. 1262/KOL/2017 AMRIT KUNJ CAPITAL MARKET LTD., AY 2012-13 RELYING ON THE AFORESAID ORDER OF HONBLE SUPREME C OURT TIN BOX COMPANY (SUPRA) WE REMAND THE MATTER BACK TO AO TO DE-NOVO FRAME THE A SSESSMENT. NEEDLESS TO SAY, ASSESSEE TO BE PROVIDED ADEQUATE OPPORTUNITY OF BEING HEARD. AND AFTER HEARING THE ASSESSEE, THE AO TO PASS A SPEAKING ORDER. APPEAL OF ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 28/12/201 8 SD/- SD/- (J. SUDHAKAR REDDY) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 28TH DECEMBER, 2018 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 APPELLANT AMRIT KUNJ CAPITAL MARKETS LTD., 1, BRI TISH INDIAN STREET, 6 TH FLOOR, ROOM NO. 605, KOLKATA-700 069. 2 RESPONDENT ITO, WARD-3(1), KOLKATA 3 4 5 CIT(A)-9, KOLKATA. (SENT THROUGH E-MAIL) CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, SR. PVT. SECRETARY