Star Consortium, Kolkata V. ITO, WD-43(2), KOLKATA, Kolkata

ITA 1523/KOL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1286 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 28-12-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM & SHRI M.B ALAGANESH, AM ] I.T.A NO. 1523/KOL/20 15 ASSESSMENT YEAR : 2009-1 0 STAR CONSORTIUM -VS- ITO, WARD-43(2 ), KOLKATA [PAN: ABFFS 1708 K] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI SOUMITRA CHOU DHURY, ADVOCATE FOR THE RESPONDENT : SHRI SAURABH KUMAR, ADDL . CIT DATE OF HEARING : 20.09.2017 DATE OF PRONOUNCEMENT : 17.10.2017 ORDER PER M.BALAGANESH, AM 1. THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE O RDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -13, KOLKATA [ IN SHORT THE LD CITA] IN APPEAL NO. 1044/CIT(A)-13/WD-42(2)/2014-15/KOL DATED 21.08.201 5 AGAINST THE ORDER PASSED BY THE ITO, WARD-42(2), KOLKATA [ IN SHORT THE LD AO] UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 14.12.201 1 FOR THE ASSESSMENT YEAR 2009-10. 2. WE FIND THAT THOUGH THE ASSESSEE HAS RAISED SEVE RAL GROUNDS OF APPEAL BEFORE US, THE PRELIMINARY GROUND TO BE ADJUDICATED IS AS TO WHET HER THE LD. CIT(A) WAS JUSTIFIED IN PASSING AN EX PARTE ORDER DISMISSING THE APPEAL OF THE ASSESSEE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSESS EE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF HANDLING, MAINTAINING, CLEANING OF AIRC RAFTS ETC. THE MAIN BUSINESS OF THE 2 ITA NO.1523KOL/2015 STAR CONSORTIUM A.YR.2009-10 2 FIRM WAS WITH KINGFISHER AIRLINES LIMITED AND THE O THER COMPANIES TO WHOM SUCH SERVICES WERE RENDERED BY THE ASSESSEE WERE STAR C ONSORTIUM AVIATION SERVICES PVT. LTD., SPICEJET ETC. THE LD. AO OBSERVED THAT THE AS SESSEE HAD REPORTED TOTAL INCOME OF RS. 3,31,50,625/- FROM AIRCRAFTS HANDLING AND CLEAN ING CHARGES AND OTHER INCOME OF RS. 8,36,938/- TOTALING TO RS. 3,39,87,563/-. BUT IN FO RM NO. 26AS OF THE ASSESSEE, THE GROSS RECEIPTS WERE REFLECTED AT RS. 5,54,23,156/-. THE ASSESSEE WAS ASKED TO EXPLAIN THE DIFFERENCE OF RS. 2,14,35,593/- (55423156 3398756 3) TOWARDS UNDERSTATED RECEIPTS. THE ASSESSEE EXPLAINED THAT THE SAID DIFFERENTIAL A MOUNT OF RS. 2,14,35,593/- WAS NOT THEIR INCOME AND THE DISCREPANCY HAD OCCURRED DUE T O WRONG DATA/INFORMATION FILED BY THE AIRLINES. IT FURTHER STATED THAT THE GROUND HAN DLING BUSINESS WAS TAKEN OVER BY STAR CONSORTIUM AVIATION SERVICES PVT. LTD. FROM 1 ST JUNE, 2008 AND THE SAID DIFFERENTIAL AMOUNT RELATES TO THE SAID COMPANY AND NOT TO ASSES SEE. THE ASSESSEE ALSO STATED THAT THEY HAD NOT CLAIMED ANY CREDIT FOR TDS ON THESE AM OUNTS WHICH ARE REFLECTED IN FORM NO. 26AS. THE ASSESSEE ALSO FURNISHED CERTAIN COPIE S OF COMMUNICATIONS HELD WITH THE AIRLINES SHOWING TRANSFER OF BUSINESS AND OTHER REL ATED MATTERS. THE LD. AO HOWEVER NOT CONVINCED WITH THE REPLIES GIVEN BY THE ASSESS EE PROCEEDED TO COMPLETE THE ASSESSMENT BY ADDING THE ALLEGED UNDERSTATEMENT OF RECEIPTS IN THE SUM OF RS. 2,14,35,593/- AND COMPLETED THE ASSESSMENT. THE ASS ESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A). THE OFFICE OF THE LD. CIT(A) HAD IS SUED SEVERAL NOTICES ON 11.08.2014, 30.10.2014, 26.02.2015 AND 23.07.2015 AND NONE APPE ARED BEFORE THE LD. CIT(A) IN RESPONSE TO THE SAID NOTICES. ACCORDINGLY, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFO RE US. 4. THE LD. AR ARGUED THAT THE ASSESSEE HAD CHANGED ITS ADDRESS FROM 26, R.B.C. ROAD, 2 ND FLOOR, DUM DUM, KOLKATA-700028 TO C/O SHRI PARTHA BHATTACHARJEE, 1/9B, EAST MALL ROAD, KOLKATA-700080. HE ALSO INFORMED THAT THE ASS ESSEE FIRM HAD BEEN CLOSED DUE TO CONSEQUENTIAL CLOSURE OF BUSINESS OF KINGFISHER AIR LINES LIMITED. HE PRAYED FOR ONE OPPORTUNITY TO BE GIVEN TO THE ASSESSEE FIRM BEFORE THE LD. CIT(A) AS THE NOTICES WERE 3 ITA NO.1523KOL/2015 STAR CONSORTIUM A.YR.2009-10 3 NOT SERVED IN THE PROPER ADDRESS OF THE ASSESSEE. I N RESPONSE TO THIS, THE LD. DR FAIRLY AGGRIEVED FOR SETTING ASIDE OF THIS APPEAL TO THE F ILE OF THE LD. CIT(A). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND THA T THE LD. CIT(A) HAS PASSED AN EX PARTE ORDER DISMISSING THE APPEAL OF THE ASSESSEE W ITHOUT ADJUDICATING THE ISSUE ON MERITS. WE FIND THAT THE ISSUE REQUIRES TO BE REMAN DED BACK TO THE FILE OF THE LD. CIT(A) FOR DE NOVO ADJUDICATION IN VIEW OF THE ARGUMENTS A DVANCED BY BOTH THE PARTIES. THE ASSESSEE IS DIRECTED TO MAKE APPEARANCE BEFORE THE LD CITA ON 6.11.2017 AND NOT TAKE ANY ADJOURNMENT EXCEPT IN BONA FIDE AND EXCEPTIONAL CIRCUMSTANCES AND ASSIST THE LD CITA IN EXPEDITIOUS DISPOSAL OF THIS APPEAL. ACCORD INGLY, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 17.10.2017 SD/- SD/- [N.V. VASUDEVAN] [ M.BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 17.10.2017 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. STAR CONSORTIUM, C/O, SHRI PARTHA BHATTACHARJEE, 1/9B, EAST MALL ROAD, KOLKATA- 700080. 2. ITO, WARD-43(2), KOLKATA, 3, GOVT. PLACE (WEST), KOLKATA-700001. 3..C.I.T.(A)-13, KOLKATA 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S 4 ITA NO.1523KOL/2015 STAR CONSORTIUM A.YR.2009-10 4