Horizon Vinimay Pvt. Ltd., Kolkata V. I.T.O.,Ward-7(1), Kolkata

ITA 1556/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8538 (ITAT-KOLKATA)
• Duration Of Justice: 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 26-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Set aside
• Section: 143(3); 133(6); 68; 6

Judgement Text

ITA NO. 1556/KOL/2019 ASSESSMENT YEAR: 2012-2013 HORIZON VINIMAY PVT. LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI A.T. VARKEY, JUDICIAL MEMBER I.T.A. NO. 1556/KOL/2019 ASSESSMENT YEAR: 2012-2013 HORIZON VINIMAY PVT. LIMITED,...................... ..........................APPELLANT 8B, LOUDON STREET, KOLKATA-700 017 [PAN: AABCH 7959 P] -VS.- INCOME TAX OFFICER,................................ .................................RESPONDENT WARD-7(1), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 APPEARANCES BY: SHRI MIRAJ D. SHAH, A.R., FOR THE APPELLANT SHRI ROBIN CHOUDHURY, ADDITIONAL CIT, D.R , FOR THE RESPONDEN T DATE OF CONCLUDING THE HEARING : JULY 12, 2019 DATE OF PRONOUNCING THE ORDER : JULY 12, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ):- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-3, KOLKATA DAT ED 23.04.2019 PASSED EX-PARTE, WHEREBY HE CONFIRMED THE ADDITION OF RS.18,01,348/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLA INED CASH CREDIT UNDER SECTION 68 OF THE INCOME TAX ACT, 1961. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O N 31.03.2013 DECLARING TOTAL INCOME AT NIL. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, A NOTICE UNDER SECTION 133(6) OF THE A CT WAS ISSUED BY THE ITA NO. 1556/KOL/2019 ASSESSMENT YEAR: 2012-2013 HORIZON VINIMAY PVT. LIMITED 2 ASSESSING OFFICER TO M/S. LAMBODAR CONS & TR. CO. P VT. LIMITED IN ORDER TO VERIFY THE CLAIM OF THE ASSESSEE OF HAVING RECEIVED A LOAN OF RS.18,01,348/- FROM THE SAID PARTY. THE SAID NOTICE , HOWEVER, WAS RETURNED UNSERVED BY THE POSTAL AUTHORITY WITH A RE MARK GONE AWAY. THE ASSESSEE, THEREFORE, WAS CALLED UPON BY THE ASS ESSING OFFICER TO FURNISH THE EVIDENCE IN ORDER TO ESTABLISH THE IDEN TITY AND CAPACITY OF THE SAID LOAN CREDITOR AS WELL AS THE GENUINENESS OF TH E RELEVANT TRANSACTION. IN THIS REGARD, EVEN THOUGH A CONFIRMATION OF THE L OAN CREDITOR WAS FURNISHED BY THE ASSESSEE, THE SAME WAS FOUND TO BE UNSIGNED BY THE ASSESSING OFFICER. HE, THEREFORE, HELD THAT THE PRI MARY ONUS TO ESTABLISH THE IDENTITY AND CAPACITY OF THE CONCERNED LOAN CRE DITOR AS WELL AS THE GENUINENESS OF THE RELEVANT LOAN TRANSACTION WAS NO T ESTABLISHED BY THE ASSESSEE AND ACCORDINGLY AN ADDITION OF RS.18,01,34 8/- WAS MADE BY HIM TO THE TOTAL INCOME OF THE ASSESSEE UNDER SECTION 6 8 IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 18.03.2015. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEF ORE THE LD. CIT(APPEALS) AND SINCE THERE WAS NO SATISFACTORY CO MPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(APPEALS) DIS MISSED THE APPEAL OF THE ASSESSEE VIDE HIS APPELLATE ORDER DATED 23.04.2 019 PASSED EX-PARTE THEREBY CONFIRMING THE ADDITION MADE BY THE ASSESSI NG OFFICER UNDER SECTION 68. AGGRIEVED BY THE ORDER OF THE LD. CIT(A PPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. BESIDES EXPL AINING THE NON- COMPLIANCE BEFORE THE LD. CIT(APPEALS) ON THE GROUN D THAT THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESESE LEFT THE MATTER IN BETWEEN DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE T HE LD. CIT(APPEALS), THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THA T THE CONCERNED LOAN ITA NO. 1556/KOL/2019 ASSESSMENT YEAR: 2012-2013 HORIZON VINIMAY PVT. LIMITED 3 CREDITOR M/S. LAMBODAR CONS & TR. CO. PVT. LIMITED COULD NOT BE PRODUCED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PRO CEEDINGS BEFORE THE ASSESSING OFFICER FOR VERIFICATION DUE TO LACK OF P ROPER AND SUFFICIENT OPPORTUNITY AFFORDED BY THE ASSESSING OFFICER. HE H AS CONTENDED THAT THE ASSESSEE IS IN A POSITION TO PRODUCE THE SAID LOAN CREDITOR ALONG WITH THE RELEVANT DOCUMENTARY EVIDENCE FOR VERIFICATION BEFO RE THE ASSESSING OFFICER AND URGED THAT AN OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE BY SENDING THE MATTER BACK TO THE ASSESSING OFFICER. K EEPING IN VIEW ALL THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS THE CAUSE OF SUBSTANTIAL JUSTICE, WE INCLINE TO ACCEPT THIS PLEA OF THE LD. COUNSEL FOR THE ASSESSEE. EVEN THE LD. D.R. HAS NOT RAISED ANY OBJECTION FOR SENDING THE MATTER BACK TO THE ASSESSING OFFICER FOR VERIFICATION. WE ACCOR DINGLY SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PA RTE AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR DEC IDING THE SAME AFRESH AFTER GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE T O PRODUCE THE CONCERNED LOAN CREDITOR ALONGWITH THE RELEVANT SUPP ORTING DOCUMENTS FOR VERIFICATION. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JULY 12, 201 9. SD/- SD/- (A.T. VARKEY) (P.M. J AGTAP) JUDICIAL MEMBER V ICE-PRESIDENT (KZ) KOLKATA, THE 12 TH DAY OF JULY, 2019 COPIES TO : (1) M/S. HORIZON VINIMAY PVT. LIMITED, 8B, LOUDON STREET, KOLKATA-700 017 (2) INCOME TAX OFFICER, WARD-7(1), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 ITA NO. 1556/KOL/2019 ASSESSMENT YEAR: 2012-2013 HORIZON VINIMAY PVT. LIMITED 4 (3) COMMISSIONER OF INCOME TAX (APPEALS)-3, KOLKAT A, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.