ITO, Ward 11(1), Kolkata, Kolkata V. M/s Padmalaya Vinimay Pvt Ltd., Kolkata

ITA 1513/KOL/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4729 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2019
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 20-07-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ROBIN CHOWDHURY
• Keywords: Opportunity of being heard
• Section: 143(3); 142(1); 147; 131; 263; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C, BENC H KOLKATA BEFORE SHRI S.S.GODARA, JM &DR. A.L.SAINI, AM ./ITA NO.1513/KOL/2016 ( / ASSESSMENT YEAR: 2009-10) ITO, WARD-11(1), KOLKATA VS. M/S PADMALAYA VINIMAY PVT. LTD. 62B, BRAUNFIELD ROW, FIRST FLOOR, KOLKATA-700027. ./ ./PAN/GIR NO.: AAECP 9019 M (ASSESSEE) .. (REVENUE) ASSESSEE BY : SHRI ROBIN CHOWDHURY, ADDL. CIT DR RESPONDENT BY : SHRI SOMNATH GHOSH, ADVOCATE / DATE OF HEARING : 06/02/2019 /DATE OF PRONOUNCEMENT : 08/02/2019 / O R D E R PER DR. A. L. SAINI: THE CAPTIONED APPEAL FILED BY THE REVENUE, PERT AINING TO ASSESSMENT YEAR 2009-10 IS DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEAL)-4, KOLKATA, WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 144/ 263 / 147 / 143(3) OF TH E INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE ASSAILED THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE COULD NOT REP RESENT HIS CASE PROPERLY BEFORE THE ASSESSING OFFICER. THE ASSESSEE COULD NOT MAKE COMPLIANCE OF NOTICE U/S 142(1) OF THE ACT AND DIRECTORS OF THE ASSESSEE COM PANY WERE NOT EXAMINED BY THE M/S PADMALAYA VINIMAY PVT. LTD. ITA NO.1513/KOL/2016 ASSESSMENT YEAR:2009-10 P PP PA AA AG GG GE EE E | || | 2 22 2 ASSESSING OFFICER. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT IN THE INTEREST OF JUSTICE, ANOTHER OPPORTUNITY TO CONTEST THE APPE AL BEFORE THE ASSESSING OFFICER MAY BE GRANTED TO THE ASSESSEE. THE LD. DR FOR THE REVENUE DID NOT OBJECT, IF THE MATTER IS REMITTED BACK TO THE FILE OF ASSESSING OF FICER. 3. WE NOTE THAT IN THE ASSESSEES CASE UNDER CONSID ERATION, THE ASSESSMENT WAS CARRIED OUT U/S 144 / 263 /147 / 143(3) OF THE ACT AND IMPUGNED ORDER IS AN EX PARTE ORDER, THEREFORE, WE DO NOT WISH TO MAKE ANY COMMENTS ON THE MERITS OF THE GROUNDS RAISED BY THE ASSESSEE. 4. WE NOTE THAT THE ASSESSING OFFICER PASSED AN OR DER U/S 144 OBSERVING THE FOLLOWING: 2. SUBSEQUENTLY, NOTICE UNDER SECTION 142(1) OF TH E IT ACT, 1961 DATED 15.05.2014 WAS SERVED ON THE ASSESSEE, REQUESTING F OR APPEARING WITH AR FOR HEARING. FURTHER AND FINAL OPPORTUNITY WAS GIVEN BY NOTICE U/S 142(1) ON 27.02.2015, BUT NO COMPLIANCE MADE BY THE ASSESSEE. 8. TAKING NOTE OF THE ABOVE FACTS ENQUIRY WAS START ED BY ISSUING SUMMONS U/S 131 OF THE INCOME TAX ACT TO ASCERTAIN THE GENUINENESS OF THE TRANSACTION, AND CREDITWORTHINESS OF THE SUBSCRIBING COMPANIES AND A LSO TO UNDERSTAND THE REASON FOR INVESTMENT WITH SUCH A HIGH PREMIUM TO THE PRIN CIPAL OFFICERS OF THE COMPANIES CALLING FOR VARIOUS DETAILS LIKE DOCUMENTS FOR PHOT O IDENTITY PROOF AND ADDRESS PROOF, NARRATION OF ALL DEBIT AND CREDIT ENTRIES IN ALL RELEVANT BANK STATEMENT, COPIES OF ALL ROC RETURNS, SOURCES OF FUNDS AND UTI LIZATION OF FUNDS, EVIDENCE OF CREDITWORTHINESS ALONG WITH INCOME TAX RETURNS FILE D AND COPIES OF BALANCE SHEET, PROFIT & LOSS ACCOUNT, TAX AUDIT REPORT FOR THE RELEVANT A.Y. WRITTEN SUBMISSION REGARDING PURPOSE OF RAISING FUND BY SHA RE APPLICATION. BUT IN MOST OF THE CASES THE DEPOSITION OF THE DIRECTORS COULD NOT BE TAKEN AS EITHER THE SUMMONS SENT BY POST RETURNED UNSERVED OR WHEN SERVED THE D IRECTORS APPEALED WITHOUT BRINGING THE SPECIFIED DETAILS AS REQUIRED IN THE N OTICES U/S 131. 5. CONSIDERING THE ABOVE FACTS, WE NOTE THAT ASSESS EE DID NOT MAKE COMPLIANCE OF NOTICE U/S 142(1). DEPOSITION OF THE DIRECTORS C OULD NOT BE TAKEN. WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO T HE ASSESSEE TO PLEAD HIS CASE BEFORE THE ASSESSING OFFICER. THEREFORE, WITHOUT DE LVING MUCH DEEPER INTO THE MERITS OF THE CASE, IN THE INTEREST OF JUSTICE, WE RESTORE THE MATTER BACK TO THE FILE OF M/S PADMALAYA VINIMAY PVT. LTD. ITA NO.1513/KOL/2016 ASSESSMENT YEAR:2009-10 P PP PA AA AG GG GE EE E | || | 3 33 3 ASSESSING OFFICER FOR DE NOVO ADJUDICATION AND PASS A SPEAKING ORDER AFTER AFFORDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WHO IN TURN, IS ALSO DIRECTED TO CONTEST HIS STAND FORTHWITH. THEREFORE, WE DEED IT FIT AND PROPER TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THE MA TTER BACK TO THE FILE OF THE ASSESSING OFFICER TO ADJUDICATE THE ISSUE AFRESH ON MERITS. FOR STATISTICAL PURPOSES, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 08. 02.2019 SD/- ( S.S.GODARA ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; / DATE: 08/02/2019 ( SB, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. ITO, WARD-11(1), KOLKATA 2. M/S PADMALAYA VINIMAY 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