M/s Phonix Udyog Pvt. Ltd., Kolkata V. D.C.I.T.Circle-2(2), Kolkata

ITA 1322/KOL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9957 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 29-05-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Keywords: Opportunity of being heard; Set aside
• Section: 143(3); 142(1); 14A; 40(a)(ia); 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRI KOLKATA BENCH (B), KOLKATA [ BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT (KZ) & SHRI S.S. GODARA, JM ] I.T.A. NO. 1322/KOL/2019 ASSESSMENT YEAR: 2013-14 M/S. PHONIX UDYOG PVT. LTD...............................................................APPELLANT C/O. S.M. SURANA, ADVOCATE, DIAMOND HERITAGE, 15 TH FLOOR, R. NO. 1501, KOLKATA 700 001. [PAN: AACCP 4046 N] DCIT, CIRCLE 2(2), KOLKATA.............................RESPONDENT P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. APPEARANCES BY: SHRI SUNIL SURANA, FCA APPEARING ON BEHALF OF THE ASSESSEE. SMT. RANU BISWAS, ADDL. CIT APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : DECEMBER 12, 2019 DATE OF PRONOUNCING THE ORDER : JANUARY 03, 2020 ORDER PER P.M. JAGTAP, VICE-PRESIDENT (KZ) THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 1, KOLKATA DATED 15.03.2019 PASSED EX-PARTE WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF AIR CONDITIONERS, SHEET METAL PRODUCTS & PLASTIC MOULDED PRODUCTS. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY THE ASSESSEE ON 30.09.2013 DECLARING A TOTAL INCOME OF RS. 31,87,570/-. THE SAID RETURN WAS SELECTED FOR SCRUTINY AND A NOTICE U/S 143(2) WAS ISSUED BY THE AO TO THE ASSESSEE ON 05.09.2014. THE SAID NOTICE ISSUED BY THE AO U/S 143(2) AS WELL AS THE SUBSEQUENT NOTICES ISSUED BY HIM U/S 142(1) HOWEVER MOSTLY REMAINED UNCOMPLIED WITH BY THE ASSESSEE. THE AO, THEREFORE, PROCEEDED TO COMPLETE THE ASSESSMENT ON THE BASIS OF 2 I.T.A. NO. 1322/KOL/2019 ASSESSMENT YEAR: 2013-14 M/S. PHONIX UDYOG PVT. LTD. MATERIAL AVAILABLE ON RECORD AND IN THE ASSESSMENT SO COMPLETED U/S 143(3) OF THE ACT VIDE AN ORDER DATED 07.12.2015, THE FOLLOWING ADDITIONS WERE MADE BY THE AO TO THE TOTAL INCOME OF THE ASSESSEE: 1. DISALLOWANCE U/S 14A R.W.R. 8D RS. 45,38,533/- 2. DISALLOWANCE U/S 40(A)(IA) RS. 47,06,965/- 3. DISALLOWANCE U/S 2(24)(X) RS. 45,680/- 4. DISALLOWANCE OF PENALTY RS. 1,546/- 5. DISALLOWANCE OF SERVICE TAX ON GTA RS. 45,467/- 6. TAX DEDUCTIBLE BUT NOT DEDUCTED RS. 48,986/- 3. AGAINST THE ORDER PASSED BY THE AO U/S 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) CHALLENGING THE VARIOUS ADDITIONS MADE BY THE AO TO ITS TOTAL INCOME. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A), NOBODY APPEARED ON BEHALF OF THE ASSESSEE. A WRITTEN SUBMISSION HOWEVER WAS FILED BY THE ASSESSEE AND KEEPING IN VIEW THAT THE SAME WAS NOT AUTHENTICATED, THE LD. CIT(A) DID NOT TAKE COGNIZANCE OF THE SAME AND PROCEEDED TO DISMISS THE APPEAL OF THE ASSESSEE VIDE HIS APPELLATE ORDER DATED 15.03.2019 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE WRITTEN SUBMISSION FILED BY THE ASSESSEE WAS NOT CONSIDERED BY THE LD. CIT(A) ON TECHNICAL GROUND AND THE APPEAL OF THE ASSESSEE WAS DISMISSED BY HIM VIDE HIS IMPUGNED ORDER PASSED EX-PARTE WITHOUT GIVING ANY FURTHER OPPORTUNITY TO THE ASSESSEE OF BEING HEARD AND WITHOUT GOING INTO THE MERIT OF THE ISSUES RAISED IN THE SAID APPEAL. HE HAS SUBMITTED THAT 3 I.T.A. NO. 1322/KOL/2019 ASSESSMENT YEAR: 2013-14 M/S. PHONIX UDYOG PVT. LTD. EVEN THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS DID NOT GIVEN PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND PROCEEDED TO MAKE A HIGH PITCHED ASSESSMENT WITHOUT CONSIDERING THAT THERE WAS A SUFFICIENT CAUSE FOR THE NON-COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM U/S 143(2) AND 142(1) OF THE ACT. HE HAS URGED THAT THIS MATTER MAY, THEREFORE, BE SENT BACK TO THE AO FOR MAKING THE ASSESSMENT AFRESH AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. DR, ON THE OTHER HAND, HAS SUBMITTED THAT THERE WAS NO SATISFACTORY COMPLIANCE ON THE PART OF THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS AS WELL AS DURING THE COURSE OF APPELLATE PROCEEDINGS. SHE HAS CONTENDED THAT IF AT ALL THE TRIBUNAL IS INCLINED TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE BY SENDING THE MATTER BACK TO THE AO, SOME COST MAY BE IMPOSED ON THE ASSESSEE. 5. KEEPING IN VIEW THE SUBMISSIONS MADE BY THE LEARNED REPRESENTATIVES OF BOTH THESE SIDES AND HAVING REGARD TO THE FACTS OF THE CASE, WE CONSIDER IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD BY SENDING THE MATTER BACK TO THE AO SUBJECT HOWEVER TO A PAYMENT OF COST OF RS. 5,000/- BY THE ASSESSEE. SUBJECT TO THE PAYMENT OF THE SAID COST BY THE ASSESSEE TO THE DEPARTMENT, THE IMPUGNED ORDER OF THE LD. CIT(A) IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE AO WITH THE DIRECTION TO MAKE THE ASSESSMENT AFRESH IN ACCORDANCE WITH LAW AFTER GIVING ONE MORE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS UNDERTAKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE AO AND SHALL EXTEND ALL THE 4 I.T.A. NO. 1322/KOL/2019 ASSESSMENT YEAR: 2013-14 M/S. PHONIX UDYOG PVT. LTD. COOPERATION IN ORDER TO ENABLE THE AO TO COMPLETE THE ASSESSMENT AFRESH EXPEDITIOUSLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD JANUARY, 2020. SD/- SD/- (S.S. GODARA) (P.M. JAGTAP) JUDICIAL MEMBER VICE PRESIDENT DATED: 03/01/2020 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. M/S. PHONIX UDYOG PVT. LTD., C/O. S.M. SURANA, ADVOCATE, DIAMOND HERITAGE, 15 TH FLOOR, ROOM NO. 1501, KOLKATA 700 001. 2. DCIT, CIRCLE 2(2), KOLKATA. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA