M/S. Jsis Iron & Steel India Pvt. Ltd., Kolkata V. ACIT, CC-XXIII, KOLKATA, Kolkata

ITA 13/KOL/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4488 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 06-01-2015
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR
• Assessee Lawyers: S L KOCHAR
• Keywords: Reasonable cause
• Section: 143(3); 263; 144

Judgement Text

I.T.A. NOS. 13 & 14/KOL./2015 ASSESSMENT YEAR: 2005-2006 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NOS. 13 & 14 /KOL/ 2015 ASSESSMENT YEAR: 2005-2006 M/S. JSIS IRON & STEEL INDIA PVT. LIMITED,......... .....................APPELLANT 20, B.T. ROAD, CHUNIBABUR BAZAR, KOLKATA-700 002 [PAN : AAACJ 8302 P] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,.............. ....................RESPONDENT CENTRAL CIRCLE-XXIII, KOLKATA, AAYAKAR BHAWAN PURBA, 110, SHANTIPALLY, KOLKATA-700 107 APPEARANCES BY: SHRI S.L. KOCHAR, ADVOCATE, FOR THE ASSESSEE SHRI SAURABH KUMAR, JCIT, D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : JULY 13, 2016 DATE OF PRONOUNCING THE ORDER : JULY 20, 2016 O R D E R THESE TWO APPEALS FILED BY THE ASSESSEE ARE DIRECTE D AGAINST TWO SEPARATE ORDERS DATED 27.04.2012 AND 15.12.2014 OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), CENTRAL-III, KOLKATA AND L D. COMMISSIONER OF INCOME TAX (APPEALS)-21, KOLKATA RESPECTIVELY FOR T HE SAME ASSESSMENT YEAR, I.E. A.Y. 2005-06 AND SINCE THE ISSUES INVOLV ED THEREIN ARE INTERLINKED, THE SAME HAVE BEEN HEARD TOGETHER AND ARE BEING DISPOSED OF BY A SINGLE COMPOSITE ORDER. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF CI CASTING AND NON -ALLOY STEEL INGOT. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION W AS FILED BY IT ON 31.10.2005 DECLARING TOTAL INCOME OF RS.5,82,371/-. IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 28.12.2007, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE ASSESS ING OFFICER AT I.T.A. NOS. 13 & 14/KOL./2015 ASSESSMENT YEAR: 2005-2006 PAGE 2 OF 4 RS.6,44,091. THE RECORD OF THE SAID ASSESSMENT CAME TO BE EXAMINED BY THE LD. CIT AND ON SUCH EXAMINATION, HE FOUND THE O RDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) TO BE ERRONE OUS AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. HE, THE REFORE, SET ASIDE THE SAME VIDE AN ORDER DATED 16.12.2009 PASSED UNDER SE CTION 263 WITH A DIRECTION TO THE ASSESSING OFFICER TO FRAME THE SAM E AFRESH AS PER THE OBSERVATIONS RECORDED BY HIM IN THE ORDER PASSED UN DER SECTION 263. AS PER THE DIRECTION OF THE LD. CIT, A FRESH ASSESSMEN T WAS MADE BY THE ASSESSING OFFICER UNDER SECTION 144 READ WITH SECTI ON 263 VIDE AN ORDER DATED 19.10.2010 MAKING AN ADDITION OF RS.12,02,210 /- TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF UNDERVALUATION OF CLOSING STOCK TO THE EXTENT OF EXCISE DUTY, WHICH HAD NOT BEEN INCLU DED BY THE ASSESSEE IN THE VALUE OF STOCK OF FINISHED GOODS. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 144 READ WITH SECTION 263, AN APPEAL WAS FILED BY THE A SSESSEE BEFORE THE LD. CIT(APPEALS) AFTER MAKING A PAYMENT OF RS.250/- TOW ARDS APPEAL FEES. ACCORDING TO THE LD. CIT(APPEALS), THE APPEAL FEES PAYABLE BY THE ASSESSEE AS PER THE PROVISIONS OF SECTION 249(1)(I) WAS RS.1 ,000/- AND APPEAL FILED BY THE ASSESSEE WITHOUT MAKING PAYMENT OF APPROPRIA TE APPEAL FEES WAS NOT MAINTAINABLE. HE, THEREFORE, DISMISSED THE APPE AL OF THE ASSESSEE IN LIMINE WITHOUT GOING INTO THE MERIT VIDE HIS APPELL ATE ORDER DATED 27.04.2012, WHICH IS IMPUGNED BY THE ASSESSEE IN TH IS APPEAL BEING ITA NO. 13/KOL/2015. 4. AFTER THE DISMISSAL OF ITS APPEAL BY THE LD. CIT IN LIMINI VIDE HIS APPELLATE ORDER DATED 27.04.2012, ANOTHER APPEAL WA S FILED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) AGAINST THE OR DER PASSED BY THE ASSESSING OFFICER UNDER SECTION 144 READ WITH SECTI ON 263 AFTER PAYING THE APPEAL FEES OF RS.1,000/-. SINCE THERE WAS A DE LAY IN FILING THE SAID APPEAL, AN APPLICATION SEEKING CONDONATION OF THE S AID DELAY WAS ALSO MOVED BY THE ASSESSEE. THE LD. CIT(APPEALS), HOWEVE R, AGAIN TREATED THE SAID APPEAL AS NOT MAINTAINABLE ON THE GROUND THAT THE ASSESSEE WAS NOT I.T.A. NOS. 13 & 14/KOL./2015 ASSESSMENT YEAR: 2005-2006 PAGE 3 OF 4 ENTITLED TO FILE SECOND APPEAL AGAINST THE SAME ORD ER OF THE ASSESSING OFFICER PASSED UNDER SECTION 144 READ WITH SECTION 263. HE, ACCORDINGLY, DISMISSED THE SAME VIDE HIS APPELLATE ORDER DATED 1 5.12.2013, WHICH IS IMPUGNED BY THE ASSESSEE IN THE SECOND APPEAL FILED BEFORE THE TRIBUNAL BEING ITA NO. 14/KOL/2015. 5. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS RIGHTLY S UBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, WHEN THERE WAS A DEFECT I N THE APPEAL INITIALLY FILED BY THE ASSESSEE AGAINST THE ORDER OF THE ASSE SSING OFFICER PASSED UNDER SECTION 144 READ WITH SECTION 263 IN SHORT PA YMENT OF APPEAL FEES, THE LD. CIT(APPEALS) SHOULD HAVE POINTED OUT THE SA ME GIVING THE ASSESSEE AN OPPORTUNITY TO REMOVE THE SAID DEFECT. THE LD. C IT(APPEALS), HOWEVER, DID NOT GIVE SUCH OPPORTUNITY TO THE ASSESSEE AND S TRAIGHTWAY PROCEEDED TO DISMISS THE APPEAL OF THE ASSESSEE IN LIMINE VID E HIS APPELLATE ORDER DATED 27.04.2012, WHICH IN MY OPINION, IS NOT JUSTI FIED. IT IS ALSO OBSERVED THAT THERE IS A DELAY OF 870 DAYS ON THE PART OF TH E ASSESSEE IN FILING ITS APPEAL AGAINST THE SAID ORDER BEING ITA NO. 13/KOL/ 2015. IN THE APPLICATION FILED FOR CONDONATION OF DELAY, THE ASS ESSEE HAS SUBMITTED THAT ANOTHER APPEAL WAS FILED BY IT BEFORE THE LD. CIT(APPEALS) AGAINST THE SAME ORDER OF THE ASSESSING OFFICER PASSED UNDER SE CTION 144 READ WITH SECTION 263 AFTER MAKING PAYMENT OF THE REQUISITE A PPEAL FEE OF RS.1,000/- WITH A HOPE THAT THE LD. CIT(APPEALS) WO ULD DISPOSE OF THE SAME ON MERIT AND SINCE THE PRESENT APPEAL WAS FILE D AS A RESULT OF DISMISSAL BY THE LD. CIT(APPEALS) EVEN OF THE SECON D APPEAL HOLDING THE SAME TO BE NOT MAINTAINABLE, THERE WAS A DELAY OF 8 70 DAYS IN FILING THE SAID APPEAL. KEEPING IN VIEW ALL THE RELEVANT FACTS OF THE CASE, I AM OF THE VIEW THAT THE REASON GIVEN BY THE ASSESSEE FOR THE DELAY IN FILING THE PRESENT APPEAL CONSTITUTES A REASONABLE CAUSE. ACCO RDINGLY, THE SAID DELAY IS CONDONED. 6. THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS ) DATED 27.04.2012 IS, THEREFORE, SET ASIDE AND THE MATTER IS REMITTED BACK TO THE I.T.A. NOS. 13 & 14/KOL./2015 ASSESSMENT YEAR: 2005-2006 PAGE 4 OF 4 LD. CIT(APPEALS) WITH A DIRECTION TO DISPOSE OF THE APPEAL OF THE ASSESESE AFRESH ON MERIT AFTER GIVING THE ASSESSEE AN OPPORT UNITY TO RECTIFY THE DEFECT IN SHORT PAYMENT OF APPEAL FEES. IN THE RESU LT, THE APPEAL FILED BY THE ASSESESE BEING ITA NO. 13/KOL/2015 IS TREATED A S ALLOWED FOR STATISTICAL PURPOSES. 7. AS A RESULT OF DECISION RENDERED BY ME WHILE DIS POSING OF THE APPEAL OF THE ASSESSEE BEING ITA NO. 13/KOL/2015, THE OTHE R APPEAL FILED BY THE ASSESSEE BEING ITA NO. 14/KOL/2015 HAS BECOME INFRU CTUOUS AND THE SAME IS ACCORDINGLY DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE BEING ITA NO. 13/KOL/2015 IS TREATED AS ALLOWED FOR STATISTICAL P URPOSES, WHILE THE APPEAL OF THE ASSESSEE BEING ITA NO. 14/KOL/2015 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON JULY 20, 2016 . SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 20 TH DAY OF JULY, 2016 COPIES TO : (1) M/S. JSIS IRON & STEEL INDIA PVT. LIMITED, C/O. S.L. KOCHAR, ADVOCATE, 86, CANNING STREET, KOLLKATA-700 001 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-XXIII, KOLKATA, AAYAKAR BHAWAN PURBA, 110, SHANTIPALLY, KOLKATA-700 107 (3)COMMISSIONER OF INCOME TAX (APPEALS), CENTRAL-II I, KOLKATA, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.