M/s Hotel East Place Pvt. Ltd., Kolkata V. D.C.I.T., Circle-8(1), Kolkata

ITA 1630/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8541 (ITAT-KOLKATA)
• Duration Of Justice: 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 08-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S M SURANA
• Keywords: Opportunity of being heard; Set aside
• Section: 143(3)

Judgement Text

ITA NO. 1630/KOL/2019 ASSESSMENT YEAR: 2014-2015 M/S. HOTEL EAST PLACE PVT. LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI A.T. VARKEY, JUDICIAL MEMBER I.T.A. NO. 1630/KOL/2019 ASSESSMENT YEAR: 2014-2015 M/S. HOTEL EAST PLACE PVT. LIMITED,................ ................................APPELLANT 84/4, SATYEN ROY ROAD, BEHALA, KOLKATA-700 034 [PAN: AABCH 9351 F] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,................. ..........................RESPONDENT CIRCLE-8(1), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 APPEARANCES BY: SHRI S.M. SURANA, ADVOCATE, 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)-15, KOLKATA DA TED 28.03.2019 PASSED EX-PARTE, WHEREBY HE CONFIRMED THE ADDITION OF RS.5,40,41,436/- MADE BY THE ASSESSING OFFICER UNDER SECTION 56(2)(V IIB) OF THE INCOME TAX ACT, 1961 READ WITH RULE 11UA(2)(B) OF THE INCO ME TAX RULES, 1962. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O N 20.11.2014 DECLARING TOTAL INCOME AT NIL. DURING THE YEAR UN DER CONSIDERATION, THE ASSESSEE-COMPANY HAD ISSUED 59517 EQUITY SHARES OF THE FACE VALUE OF ITA NO. 1630/KOL/2019 ASSESSMENT YEAR: 2014-2015 M/S. HOTEL EAST PLACE PVT. LIMITED 2 RS.10/- AT A PREMIUM OF RS.990/- PER SHARE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE VALUE OF THE SHARE OF T HE ASSESSEE-COMPANY WAS COMPUTED BY THE ASSESSING OFFICER AT RS.92/- PE R SHARE AS PER RULE 11UA OF THE INCOME TAX RULES, 1962. THE DIFFERENCE OF RS.908/- PER SHARE ACCORDINGLY WAS TREATED BY THE ASSESSING OFFICER AS EXCESS PREMIUM CHARGED BY THE AASSESSEE AND THE ADDITION OF RS.5,4 0,41,436/- WAS MADE BY HIM TO THE TOTAL INCOME OF THE ASSESSEE UNDER SE CTION 56(2)(VIIB) IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 29.12.2016. 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 28.03.2 019 PASSED EX-PARTE THEREBY CONFIRMING THE ADDITION MADE BY THE ASSESSI NG OFFICER UNDER SECTION 56(2)(VIIB). AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBU NAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN SUPPORT O F THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL CHALLENGING T HE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PARTE, THE LD. CO UNSEL FOR THE ASSESSEE HAS MADE THE FOLLOWING SUBMISSIONS IN WRITING EXPLA INING THE NON- COMPLIANCE BEFORE THE LD. CIT(APPEALS):- IT IS SUBMITTED THAT EARLIER OUR ADDRESS WAS 115, LENIN SARANI, NIGAM CENTRE, KOLKATA-700013 WHICH WAS RECO RDED IN OUR PAN. HOWEVER, OUR ADDRESS WAS CHANGED DURING THE YEAR 2014-15 AND ACCORDINGLY WE FILED OUR RETURN FO R THE AFORESAID YEAR MENTIONING OUR NEW ADDRESS WHICH WAS AS UNDER: M/ S. HOTEL EAST PLACE PVT LTD, 84/4, SATYEN ROY ROAD, BEHALA, KOLKATA-700034 ITA NO. 1630/KOL/2019 ASSESSMENT YEAR: 2014-2015 M/S. HOTEL EAST PLACE PVT. LIMITED 3 OUR ASSESSMENT FOR THE AFORESAID YEAR WAS ALSO COMPLETED AND IN THE ASSESSMENT ORDER ALSO OUR NEW ADDRESS IS MENTIONED. IN THE SAID ASSESSMENT THE AO MADE HEAVY ADDITIONS AND THE APPEAL WAS FILED ELECTRONICALLY. OUR CHARTE RED ACCOUNTANT WHO FILED THE APPEAL PUT THE PAN IN THE PRESCRIBED FORM AND THE OLD ADDRESS WHICH WAS THERE IN THE PAN WAS AUTOMATICALLY TAKEN ON LINE. AS A RESULT, T HE LD. CIT(A) ISSUED ALL THE NOTICES ON THE OLD ADDRESS. IT IS SUBMITTED THAT ALONG WITH THE MEMO OF APPEAL THE COPY OF THE ASSESSMENT ORDER AND STATEMENT OF F ACT WAS ALSO FILED WHEREIN ALSO OUR NEW ADDRESS WAS MENTION ED. THE OLD ADDRESS AUTOMATICALLY TAKEN IN THE FORM NO. 35 ON THE BASIS OF PAN WAS THEREFORE A GENUINE MIST AKE. IN FACT, THIS NEW ADDRESS WAS ALSO AVAILABLE WITH THE ROC. IN VIEW OF THE ABOVE THE NONCOMPLIANCE OF THE NOTIC ES ISSUED BY THE LD. CIT(A) WAS NOT INTENTION BUT WAS A GENUINE MISTAKE BECAUSE OF THE SYSTEM. 5. KEEPING IN VIEW THE SUBMISSIONS MADE BY THE ASSE SSEE AS ABOVE, WE ARE SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE NON-COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY T HE LD. CIT(APPEALS) DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE H IM. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPE ALS) EX-PARTE AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE A PPEAL OF THE ASSESSEE ON MERIT IN ACCORDANCE WITH LAW AFTER GIVING THE AS SESSEE ONE MORE OPPORTUNITY OF BEING HEARD. 6. 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. HOTEL EAST PLACE PVT. LIMITED, 84/4, SATYEN ROY ROAD, BEHALA, KOLKATA-700 034 ITA NO. 1630/KOL/2019 ASSESSMENT YEAR: 2014-2015 M/S. HOTEL EAST PLACE PVT. LIMITED 4 (2) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-8(1), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-15, KOLKA TA, (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.