Active Dealmark Pvt. Ltd., , Kolkata V. ITO, Tech - 2, Kolkata , Kolkata

ITA 1431/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6422 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 03-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P K SRIHARI
• Keywords: Unexplained cash credit
• Section: 143(3); 68

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 1431 / KOL / 20 18 ASSESSMENT YEAR :2012-13 ACTIVE DEALMARK PVT. LTD., 5/1 CLIVE ROW, 4THFLOOR, ROOM NO. 125, KOLKTA-700 001 [ PAN NO.AAICA 9223 G ] V/S . INCOME TAX OFFICER- TECH-2, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATKA-69 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI SOUMITRA CHOUDHURY, ADVOCATE /BY RESPONDENT DR. P.K. SRIHARI, CIT-DR /DATE OF HEARING 23-04-2019 /DATE OF PRONOUNCEMENT 08-05-2019 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2012-13 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-1 3, KOLKATAS ORDER DATED 28.08.2017 PASSED IN CASE NO.147/CIT(A)-13/TE CH-2/KOL/2016-17, INVOLVING PROCEEDINGS U/S 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. ITA NO.1431/KOL/2018 A.Y. 2 012-13 ACTIVE DEALMARK PVT. LTD. VS. ITO,TECH-2, K OL PAGE 2 2. IT EMERGES AT THE OUTSET THAT THE ASSESSEES INS TANT APPEAL SUFFERS FROM 31 DAYS DELAY IN FILING. IT HAS PLACED ON RECO RD ITS CONDONATION PETITION ALONGWITH ITS DIRECTORS AFFIDAVIT STATING REASON THEREOF TO COMMUNICATION GAP WITH ITS TAX CONSULTANTS AND ARGU ING COUNSEL BEFORE THE TRIBUNAL. THE REVENUE IS FAIR ENOUGH IN NOT DIS PUTING THE SAID AVERMENTS. WE THEREFORE TREAT THE IMPUGNED 31 DAYS DELAY AS NEITHER INTENTIONAL NOR DELIBERATE BUT ON ACCOUNT OF THE C IRCUMSTANCES BEYOND THE ASSESSEES CONTROL. ITS MAIN APPEAL IS NOW TAKE N UP FOR ADJUDICATION ON MERITS. 3. COMING TO MERITS, WE FIND THAT THE ASSESSEES SO LE SUBSTANTIVE GROUND RAISED IN THE INSTANT APPEAL SEEKS TO REVERS E BOTH THE LOWER AUTHORITIES ACTION TREATING ITS SHARE APPLICATION MONEY AMOUNTING TO 7,71,50,000/- AS UNEXPLAINED CASH CREDITS U/S/. 68 OF THE ACT. WE FIND FROM THE ASSESSMENT ORDER DATED 23.03.2015 THAT THE ASSESSING OFFICER HAS NOWHERE CONSIDERED ASSESSEES DETAILED EVIDENCE IN SUPPORT OF ITS SHARE APPLICATION / PREMIUM RECEIVED DURING THE COU RSE OF RELEVANT PREVIOUS YEAR. SAME APPEARS TO BE THE FACTUAL POSIT ION WITH CIT(A)S ORDER PASSED EX PARTE MENTIONING ANYTHING ABOUT THE ACTUAL SERVICE OF THE LOWER APPEAL HEARING NOTICE. LEARNED DEPARTMEN TAL REPRESENTATIVE FAILS TO DISPUTE THAT THEN APPEARS TO BE CHANGE OF ASSESSEES ADDRESS FROM ASSESSMENT ONWARDS AND THE CIT(A);S JURISDICTI ON HAS ALSO CHANGED FROM THE CIT(A)-2 KOLKATA TO CIT(A)-13 KOLK ATA. ALL THESE FACTS AND CIRCUMSTANCES SUFFICIENTLY INDICATE THE ASSESSE ES HAS BEEN DEPRIVED OF ITS VALUABLE RIGHT OF HEARING IN THE AS SESSMENT FOR NON- CONSIDERATION OF DETAILED EVIDENCE AS WELL AS LOWER APPELLATE PROCEEDINGS. THERE IS NO FINDING ABOUT THE ACTUAL S ERVICE OF NOTICE FOLLOWED BY FRAMING POINTS OF DETERMINATION AND DET AILED ADJUDICATION U/S. 250(6) OF THE ACT. WE THEREFORE DEEM IT APPROPRIATE THAT LARGER INTEREST ITA NO.1431/KOL/2018 A.Y. 2 012-13 ACTIVE DEALMARK PVT. LTD. VS. ITO,TECH-2, K OL PAGE 3 WOULD BE MET IN THIS RESTORE BACK THE FILE TO ASSES SING OFFICER FOR AFRESH ADJUDICATION AS PER LAW. 4. THIS ASSESSEES APPEAL IS ALLOWED FOR STATISTICA L PURPOSES IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT 08/05/2019 SD/- SD/- ( %) (' %) (DR.A.L. SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP, SR.P.S (- 08 / 05 /201 9 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ACTIVE DEALAMARK PVT. LTD., 5/1, CLIVE R OW, 4 TH FLOOR, ROOM NO. 125, KOLKTA-7000 01 2. /RESPONDENT-ITO TECH-2 AAYAKAR BHAWAN, P-7 , CHOWRI NGHEE SQ. KOLKATA-69 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA 5. 7 ''3, 3, / DR, ITAT, KOLKATA 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ 3,