Link Goods Private Limited, Kolkata V. I.T.O.,Ward-7(4), Kolkata

ITA 1320/KOL/2019

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 9012 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 11-09-2022
• Assessment Year: 2009-2010
• Appeal Filed On: 28-05-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SEVERAL ORDERS PASSED BY THIS BENCH
• Keywords: Condonation of delay
• Section: 68; 148; 263; 144; 142(1); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH KOLKATA आयकर अपीलीय अधीकरण, ᭠यायपीठ – “C” कोलकाता, BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND SHRI GIRISH AGRAWAL, ACCOUNTANT MEMBER ITA No.1320/Kol/2019 Assessment Year: 2009-10 M/s. Link Goods Pvt. Ltd. 36, Karnani Estate, 109 AJC Bose Road, Kolkata- 700017 (PAN: AABCL5206B) Vs . Income Tax Officer, Ward- 7(4), Kolkata. (Appellant) (Respondent) Present for: Appellant by : N o n e Respondent by : Shri Amal Sudhir Kamat, CIT Date of Hearing : 12.09.2022 Date of Pronouncement : 03.11.2022 O R D E R PER GIRISH AGRAWAL, ACCOUNTANT MEMBER: This appeal filed by the assessee is against the order of Ld. CIT(A)-3, Kolkata vide Appeal No. 1214/CIT(A)-3/ITO,Wd-7(3)/Kol/15-15 dated 09.12.2016 passed against the assessment order by the ITO, Wd- 7(3), Kolkata u/s. 144/263 of the Income-tax Act, 1961 (hereinafter referred to as the “Act”) dated 25.03.2015. 2. Grounds of appeal taken by the assessee are reproduced as under: “1. That the learned Commissioner of Income Tax (Appeals) - 3/Kolkata has erred in confirming the addition of Rs 12,32.00,000/- u/s 68 of the Income Tax Act, 1961 on a misconceived notion and belief that the source and identity of the contributors to share capital has not been established during the assessment procedure when in reality the same has been done by the ITA No.1320/Kol/2019 Link Goods Pvt. Ltd. AY 2009-10 2 Appellant and the learned CIT(Appeals) had failed to take note of the fact that due to late transfer of the file to the jurisdictional Assessing Officer, adequate opportunity was not provided to the Appellant to present its case during the Appellate proceedings, 2. That, the facts stated in page no. 8 of the Appellate Order (paragraph no. 5) dated 9-12-2016 passed by the Learned Commissioner of Income Tax (Appeals) - 31 Kolkata clearly establish the fact that the plea of the Appellant had been rejected on the basis of conjecture, surmise and preponderance of probabilities without appreciation of the facts as well as evidences in hand all of which indicate the genuineness of share capital with premium of Rs 12,32,00,000/- raised by the Appellant during the relevant year under consideration. 3. That, despite a specific finding in the paragraph 5 of the Appellate Order (page no. 8) that no dividend income has been earned by the Appellant during the relevant year, addition of Rs 56,167/- u/s 14A of the Act has been confirmed which is illegal and against the decisions of the Hon'ble ITAT in the case of REI Agro Ltd. 4. That, the conclusion drawn by the Learned Commissioner of Income Tax (Appeals) - l/Kolkata in confirming the additions u/s 68 and u/s 14A of the Act is based on irrelevant considerations and therefore, the impugned order under appeal is perverse and bad in law.” 3. There is a delay of 638 days in filing the present appeal for which petition for condonation of delay dated 14.05.2019 is placed on record. However, this is no affidavit along with the petition filed by the assessee. From the perusal of the petition seeking condonation, it is noted that one of the directors of the assessee has given explanations relating to her old age, issues relating to part time Accountant and circumstances which prevailed owing to demonetization as the reasons for the delay in filing the instant appeal which are all general and vague in nature. 4. Before us, none represented the assessee and Shri Amal Sudhir Kamat, CIT represented the department. On the petition for condonation of delay of 638 days, Ld. CIT, DR pointed out the conduct of the assessee which has been casual and of non-appearance at all stages of proceedings before the authorities below. He took us through the records which are perused. From the perusal of the records of the proceedings before the ITA No.1320/Kol/2019 Link Goods Pvt. Ltd. AY 2009-10 3 authorities below, chronology of events in various proceedings under the Act for the year under consideration is listed below to reflect the conduct of assessee in those proceedings: i) Assessee filed its return of income on 17.09.2009 reporting a loss of Rs.5,170/-. Subsequently, a notice u/s. 148 of the Act was issued on 06.07.2011 against which the assessment was completed u/s. 147 of the Act vide order dated 17.11.2011 with assessed income at Rs.22,340/-. Subsequent to the assessment, a notice u/s. 263 of the Act dated 02.01.2014 was issued by the Ld. CIT, Kolkata-1. In the order passed u/s. 263 of the Act dated 21.02.2014, Ld. CIT in para 6 has noted that there has been no compliance to the notice issued u/s. 263 of the Act though the notice was delivered to the assessee on 06.01.2014. Ld. CIT completed the revisionary proceedings and passed the order giving direction to the Ld. AO for passing the assessment order in terms of the directions so given. ii) Assessee went in appeal before the Tribunal against the order passed u/s. 263 of the Act referred above. In Appeal No. ITA 1423/Kol/2014, from para 2 of the order of coordinate bench of ITAT, Kolkata, fact of non-appearance of the assessee and seeking adjournments on several occasions is noted. The appeal was disposed of on merits exparte, qua the assessee. The relevant extracts from para 2 of the said order dated 05.11.2015 is reproduced as under: “2. Before taking up the disposal of the instant appeals on merits, we consider it expedient to record that these appeals have earlier come up for hearing on several occasions and the assessees have sought adjournments on one pretext or the other. Today, when these appeals were called up for hearing, neither there was any adjournment application nor any body put in appearance at all. The Ld. DR stated that the issue raised in these appeals is covered against the assessee by numerous orders passed by the tribunal. We also find that the issues raised in these appeals are squarely covered ITA No.1320/Kol/2019 Link Goods Pvt. Ltd. AY 2009-10 4 against the assessee by several orders passed by this bench including Subhlakshmi Vanijya Pvt. Ltd. Vs. CIT (infra). Under these circumstances, we are taking up these appeals for disposal on merits as parte qua the assessee.” iii) Assessment proceedings were initiated in terms of order passed u/s. 263 of the Act for which a notice u/s. 142(1) of the Act was issued on 02.03.2015. Ld. AO noted that none appeared on the date fixed for hearing. Another notice was issued on 11.03.2015 since there was no compliance by the assessee in response to the previous notice. Ld. AO proceeded to complete the assessment on best judgment basis as per information available on record and passed the assessment order u/s. 144 read with section 263 of the Act dated 25.03.2015. The relevant extracts from the said order are reproduced as under: “As there was no compliance by the assessee in response to statutory notice like notice u/s. 142(1), subsequent re-fixation letter, and final show cause issued in this case, the undersigned is left with no alternative but to go for assessment on best judgment on the basis of information best available in this office as well as information available with AST data bank in this case.” iv) For the additions made in the assessment order passed u/s. 144 read with section 263 of the Act, assessee went in appeal before the Ld. CIT(A). In para 2 of the order of Ld. CIT(A) dated 09.12.2016, it is noted that no one represented in the matter nor any time was sought by way of adjournment application, Ld. CIT(A) proceeded to decide the appeal based on material available on record and dismissed the appeal. The relevant extracts of para 2 are reproduced as under: “2. The case was fixed for hearing on 23.11.2016. The case has gone unrepresented and neither any further time was sought by way of an adjournment application. The appellant does not appear to be serious about pursuing this appeal. Hence, I proceed to decide the appeal on the basis of material on record.” ITA No.1320/Kol/2019 Link Goods Pvt. Ltd. AY 2009-10 5 v) Assessee has come up in appeal before the Tribunal against the order of Ld. CIT(A) which is delayed by 638 days, the reasons given in the petition for condonation of delay points out that director Smt. Meera Thakur was constrained due to the reasons mentioned therein for filing the appeal within the permissible time limits. It is important to note that assessee is a company and there are more than one director available to take care of the business as well as compliance requirements on the part of the assessee. Nothing is discernible from the petition about the status and availability of other directors of the assessee through whom the appeal could have been filed within the prescribed limitation. vi) Presently before us, none appeared in the hearing though notice was duly served in this respect. From the above factual narration of the conduct and behavioral pattern of the assessee, it is leading us to understand that assessee is not serious about taking up the matters at the appropriate forums and has been casual in pursuing them. 5. Explanation submitted in the petition for condonation of delay of 638 days in filing the present appeal does not in any way persuade us to grant the condonation. Accordingly, filing of this appeal is barred by limitation. Even otherwise, having gone through the orders of Ld. CIT(A) and the Ld. AO with the assistance of Ld. CIT, DR, the above stated facts on the conduct of assessee before the authorities below in various proceedings under the Act, reflects that assessee is abusing the process of law time and again. We find that Ld. CIT(A) has meritoriously dealt with the issues raised by the assessee in respect of the addition made u/s. 68 of the Act towards share capital and share premium and the disallowance made u/s. 14A of the Act based on material available on record. ITA No.1320/Kol/2019 Link Goods Pvt. Ltd. AY 2009-10 6 Accordingly, we do not find any reason to interfere with the findings given by the Ld. CIT(A) and thus, grounds taken by the assessee are dismissed. 6. In the result, appeal of the assessee is dismissed. Order is pronounced in the open court on 3rd November, 2022 Sd/- Sd/- (SANJAY GARG) (GIRISH AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 03.11.2022 JD, Sr. P.S. Copy to: 1. The Appellant: 2. The Respondent. 3. CIT(A)-3, Kolkata. 4. CIT, Kolkata. 5. The DR, ITAT, Kolkata Bench, Kolkata //True Copy// By Order Assistant Registrar ITAT, Kolkata Benches, Kolkata