M/s. Anubhav Commodeal Pvt. Ltd. , Kolkata V. ITO, Ward-9(1), Kolkata, Kolkata

ITA 1294/KOL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4507 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 16-01-2020
• Assessment Year: 2014-2015
• Appeal Filed On: 28-05-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA
• Assessee Lawyers: S M SURANA; HARSH ANCHALIA
• Keywords: Opportunity of being heard; Sham transactions; Set aside
• Section: 143(3); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (SMC), KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT (KZ)] I.T.A. NO. 1294/KOL/2019 ASSESSMENT YEAR: 2014-15 M/S. ANUBHAV COMMODEAL PVT. LTD................................................APPELLANT R.C. JHAWAR & CO., CHARTERED ACCOUNTANT, R. NO. 202, 2 ND FLOOR, 7A, BENTINCK STREET, KOLKATA 700 001. [PAN: AAHCA 3819 M] VS ITO, WARD 9(1), KOLKATA...................................RESPONDENT KOLKATA. APPEARANCES BY: SHRI S.M. SURANA, ADVOCATE & SHRI HARSH ANCHALIA, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. SHRI JAYANTA KHANRA, JCIT, SR. DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JANUARY 16, 2020 DATE OF PRONOUNCING THE ORDER : FEBRUARY 26, 2020 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 15, KOLKATA DATED 18.03.2019 WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH IS ENGAGED IN THE BUSINESS OF TRADING OF COMMODITIES & SHARES. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 26.09.2014 DECLARING A TOTAL INCOME OF RS. 5,18,990/-. IN THE ASSESSMENT COMPLETED U/S 143(3) VIDE AN ORDER DATED 28.12.2016, THE CLAIM OF THE ASSESSEE FOR LOSS IN THE TRADING OF SHARES AMOUNTING TO RS. 19,32,746/- WAS DISALLOWED BY THE AO BY HOLDING THAT THE RELEVANT TRANSACTIONS IN THE SHARES OF SHREE SHALEEN TEXTILES LIMITED, LUNINAIRE TECHNOLOGIES LTD. AND NIKKI GLOBAL FINANCE LTD. WERE SHAM TRANSACTIONS. HE ALSO MADE A DISALLOWANCE OF RS. 1,10,500/- U/S 14A OF THE ACT AND DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS. 38,89,382/- 2 I.T.A. NO. 1294/KOL/2019 ASSESSMENT YEAR: 2014-15 M/S. ANUBHAV COMMODEAL PVT. LTD. 3. AGAINST THE ORDER PASSED BY THE AO U/S 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION VIDE HIS APPELLATE ORDER DATED 18.03.2019 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN SUPPORT OF THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL CHALLENGING THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE DISMISSING THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION, THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT NONE OF THE NOTICES OF HEARINGS STATED TO BE ISSUED BY THE LD. CIT(A) WAS EVER SERVED ON THE ASSESSEE AND SUCH NON-RECEIPT OF NOTICES RESULTED IN THE NON-APPEARANCE OF THE ASSESSEE WHEN ITS APPEAL WAS CALLED FOR HEARINGS BEFORE THE LD. CIT(A). KEEPING IN VIEW THIS SUBMISSION MADE BY THE LEARNED COUNSEL FOR THE ASSESSEE, I AM SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE NON-COMPLIANCE OF THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A). MOREOVER, AS PER THE PROVISIONS OF SUB-SECTION (6) OF SECTION 250, THE LD. CIT(A) WAS REQUIRED TO DISPOSE OF THE APPEAL OF THE ASSESSEE VIDE AN ORDER IN WRITING STATING THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR THE DECISION. IT IS OBSERVED THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) DOES NOT COMPLY WITH THESE REQUIREMENTS. I, THEREFORE, SET ASIDE THE IMPUGNED 3 I.T.A. NO. 1294/KOL/2019 ASSESSMENT YEAR: 2014-15 M/S. ANUBHAV COMMODEAL PVT. LTD. ORDER PASSED BY THE LD. CIT(A) EX-PARTE AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT IN ACCORDANCE WITH LAW AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS UNDERTAKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE LD. CIT(A) AND SHALL EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT(A) TO DISPOSE OF THE APPEAL EXPEDITIOUSLY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH FEBRUARY, 2020. SD/- (P.M. JAGTAP) VICE PRESIDENT DATED: 26/02/2020 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. M/S. ANUBHAV COMMODEAL PVT. LTD., R.C. JHAWAR & CO., CHARTERED ACCOUNTANT, ROOM NO. 202, 2 ND FLOOR, 7A, BENTINCK STREET, KOLKATA 700 001. 2. ITO, WARD 9(1), KOLKATA. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA