ITO, WD-12(2), KOLKATA, Kolkata V. M/s Dulcet Vyapar Pvt. Ltd., Kolkata

ITA 1296/KOL/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4602 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 09-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADIP KR MAJUMDER
• Assessee Lawyers: S JHAJHARIA
• Keywords: Opportunity of being heard; Reasonable cause; Set aside
• Section: 143(3); 133(6); 131; 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A, BENC H KOLKATA BEFORE SHRI A. T. VARKEY, JM &DR. A.L.SAINI, AM ./ITA NO.1296/KOL/2016 ( / ASSESSMENT YEAR: 2012-13) ITO, WARD-12(2), KOLKATA VS. M/S DULCET VYAPAR PVT. LTD. 18, PARASAR ROAD, LAKE MARKET, KOLKATA-700029. ./ ./PAN/GIR NO.: AACCD 6238 L (ASSESSEE) .. (REVENUE) ASSESSEE BY : SHRI PRADIP KR. MAJUMDER, ADDL. CIT (DR) RESPONDENT BY : SHRI S. JHAJHARIA, AR / DATE OF HEARING : 30/07/2019 /DATE OF PRONOUNCEMENT : 28/08/2019 / O R D E R PER DR. A. L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE REVENUE, PERT AINING TO ASSESSMENT YEAR 2012-13, IS DIRECTED AGAINST THE ORDER PASSED BY T HE COMMISSIONER OF INCOME TAX (APPEAL)-4, KOLKATA, WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 144 / 143(3) OF THE INCOME T AX ACT, 1961 (IN SHORT THE ACT) DATED 13.03.2015. 2.AT THE OUTSET ITSELF, THE LD COUNSEL FOR THE ASSE SSEE SUBMITTED THAT THE ASSESSING OFFICER TOOK ADVERSE VIEW AGAINST THE ASSESSEE SINC E THE ASSESSEE COMPANY DURING THE ASSESSMENT PROCEEDINGS DID NOT RESPOND TO SUMMO N U/S 131 OF THE ACT. BESIDES, SHARE SUBSCRIBING COMPANIES ALSO DID NOT R ESPOND TO NOTICE U/S 133(6) OF THE ACT. THEREFORE, THE THREE INGREDIENTS OF SECTIO N 68 OF THE ACT, NAMELY: IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE SHARE CAPIT AL / PREMIUM RECEIVED FROM THE SHARE SUBSCRIBING COMPANIES HAVE NOT BEEN PROVED/SA TISFIED. M/S DULCET VYAPAR PVT. LTD. ITA NO.1296/KOL/2016 ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 2 22 2 3. LD COUNSEL FOR THE ASSESSEE EXPLAINED THE REASON S BEFORE THE BENCH ABOUT THE NON-COMPLIANCE OF NOTICES UNDER SECTION 133 AND 133 (6) OF THE ACT. HE STATED THAT DIRECTOR OF THE SHARE SUBSCRIBING COMPANIES AS WELL AS ASSESSEE COMPANY WERE OUT OF STATION THEREFORE, THEY COULD NOT APPEAR BEFORE THE AO ON THE DATE OF COMPLIANCE. EVEN AN OPPORTUNITY GIVEN, ASSESSEE IS READY TO COMPLY. WE NOTE THAT SINCE, IT IS A REASONABLE CAUSE, WHICH PREVENTED TH E ASSESSEE NOT TO MAKE COMPLIANCE OF NOTICES UNDER SECTION 131/ 133(6) OF THE ACT, THEREFORE, WE ARE OF THE VIEW THAT ASSESSEE DID NOT GET PROPER OPPORTUNI TY TO REPRESENT ITS CASE AT THE ASSESSMENT STAGE. HENCE, WE ARE OF THE VIEW THAT ON E MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO PLEAD HIS CASE BEFORE THE ASSESSING OFFICER. LD DR FOR THE REVENUE FAIRLY AGREED WITH THE SUBMISSION OF LD COU NSEL. THEREFORE, WE NOTE THAT THE MAIN GRIEVANCE OF THE A SSESSEE IS THAT NO PROPER OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO DISCHARGE THE ONUS CASTED UPON IT AS REQUIRED IN SECTION 68 MATTERS. SO, WE FIND FORCE IN THE SUBMISSION OF THE LD. COUNSEL ANDTHEREFORE, THE ISSUE MAY BE REMITTED BAC K TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ASSESSMENT. FOR THAT WE RELY ON T HE JUDGMENT OF THE HONBLE (THREE JUDGE BENCH) OF THE HONBLE SUPREME COURT IN TIN BOX COMPANY VS. CIT (2001) 249 ITR 216 (SC) WHEREIN IT WAS HELD AS FOL LOWS: IT IS UNNECESSARY TO GO INTO GREAT DETAIL IN THESE MATTERS FOR THERE IS A STATEMENT IN THE ORDER OF THE TRIBUNAL, THE FACT-FI NDING AUTHORITY, THAT READS THUS : WE WILL STRAIGHTAWAY AGREE WITH THE ASSESSEES SUB MISSION THAT THE INCOME-TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PR OPER OPPORTUNITY OF BEING HEARD. THAT THE ASSESSEE COULD HAVE PLACED EVIDENCE BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL IS REALLY OF NO CO NSEQUENCE FOR IT IS THE ASSESSMENT ORDER THAT COUNTS. THAT ORDER MUST BE MA DE AFTER THE ASSESSEE HAS BEEN GIVEN A REASONABLE OPPORTUNITY OF SETTING OUT HIS CASE. WE, THEREFORE, DO NOT AGREE WITH THE TRIBUNAL AND THE H IGH COURT THAT IT WAS NOT NECESSARY TO SET ASIDE THE ORDER OF ASSESSMENT AND REMAND THE MATTER TO THE ASSESSING AUTHORITY FOR FRESH ASSESSMENT AFT ER 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 T HUS : 1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN NOT SETTING ASIDE THE ASS ESSMENT ORDER IN SPITE OF M/S DULCET VYAPAR PVT. LTD. ITA NO.1296/KOL/2016 ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 3 33 3 A FINDING ARRIVED AT BY IT THAT THE INCOME-TAX OFFI CER HAD NOT GIVEN A PROPER OPPORTUNITY OF HEARING 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 A ND 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 ARE ALSO SET ASIDE. THE MATTER SHALL NOW BE REMANDE D TO THE ASSESSING AUTHORITY FOR FRESH CONSIDERATION, AS AFORESTATED. 4. IN VIEW OF THE ABOVE FACTS AND IN THE LIGHT OF T HE HONBLE SUPREME COURTS DECISION IN TIN BOX COMPANY (SUPRA), WE THINK IT FI T AND PROPER TO REMIT THIS ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER. THE LD. DR FOR THE REVENUE DID NOT HAVE OBJECTION IF THE MATTER IS REMITTED BACK TO THE FIL E OF ASSESSING OFFICER. THEREFORE, WE SET ASIDE THE ORDER OF LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF ASSESSING OFFICER FOR DE NOVO ADJUDICATION, AND TO DECIDE THE MATTER IN ACCORDANCE TO LAW AFTER GIVING OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS TREA TED TO BE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 28.08.2019 SD/- ( A.T. VARKEY ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE: 28/08/2019 ( SB, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. ITO, WARD-12(2), KOLKATA 2. M/S DULCET VYAPAR PVT. LTD. 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES M/S DULCET VYAPAR PVT. LTD. ITA NO.1296/KOL/2016 ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 4 44 4