M/s Deepraj Vinimay Pvt Ltd., Kolkata V. ITO, Ward-1(1), Kolkata, Kolkata

ITA 1656/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9434 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 09-01-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 17-08-2016
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN
• Assessee Lawyers: N O N E
• Keywords: Opportunity of being heard; Principle of natural justice; Corroborative evidences
• Section: 143(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA [BEFORE SHRI PARTHA SARATHI CHOUDHARY, JM & DR. A. L. SAINI, AM] I.T.A NO.1656/KOL/2016 ASSESSMENT YEAR: 2006-07 M/S. DEEPRAJ VINIMAY (P) LTD. VS. INCOME-TAX OFF ICER, WD-1(1), KOLKATA (PAN: AABCD0881E) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 06.02.2017 DATE OF PRONOUNCEMENT: 06.02.2017 FOR THE APPELLANT: N O N E FOR THE RESPONDENT: MD. GHAYAS UDDIN, JCIT ORDER PER DR. A. L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAINI NG TO ASSESSMENT YEAR 2006-07, IS DIRECTED AGAINST THE ORDER PASSED BY THE LD. CIT(A) -I, KOLKATA IN APPEAL NO. 791/CIT(A)- 1/WARD-1(1)/2014-15 DATED 16.06.2016, WHICH IN TURN ARISES OUT OF ASSESSMENT ORDER PASSED BY THE ITO, WARD-1(1), KOLKATA U/S.144/147 OF THE I NCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR AY 2006-07, DATED 31. 03.2014 . 2. THE FACTS OF THE CASE QUA THE ASSESSEE ARE THAT THE ASSESSEES CASE WAS REOPENED BECAUSE OF INFORMATION RECEIVED FROM THE ACIT, CIR- 1(1), RAIPUR STATING THAT DURING THE SEARCH ASSESSMENT IN THE CASE OF COSMOS GROUP IT WA S FOUND THAT THE ASSESSEE COMPANY HAD PAID RS.7,50,000/- AS SHARE APPLICATION MONEY TO M/ S. AMARNATH ISPAT PVT. LTD. FURTHER INVESTIGATION WAS MADE DURING THE SEARCH PROCEEDIN G AS WELL AS DURING SEARCH ASSESSMENT PROCEEDING AND IT WAS CONCLUDED THAT THE ABOVE SAID SHARE APPLICATION MONEY WAS BOGUS. THE SOURCE OF SHARE APPLICATION MONEY AMOUNTING TO RS. 7.5 LACS REMAINED UNEXPLAINED IN THE HANDS OF THE ASSESSEE COMPANY, AS PER ENQUIRY M ADE DURING THE SEARCH PROCEEDINGS IN THE CASE OF COSMOS ISPAT GROUP OF COMPANIES. DURING THE ASSESSMENT PROCEEDINGS NONE APPEARED ON BEHALF OF THE ASSESSEE, THEREFORE, THE AO HAS COMPLETED THE ASSESSMENT U/S. 144/147 OF THE ACT BY MAKING THE ADDITION OF RS.7.5 LACS BEING UNEXPLAINED SHARE APPLICATION MONEY. AGGRIEVED FROM THE ORDER OF THE AO, THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A), WHO HAS CONFIRMED THE ORDER PASSED BY THE AO BY OBSERVING THE FOLLOWING: THE HEARING IN THIS CASE WAS INITIALLY FIXED ON 1 7.05.2016 BUT ON THE APPOINTED DATE NONE HAD ATTENDED. THE CASE WAS AGAIN FIXED ON 31.05.2016 AN D ON THAT DATE THE A.R. OF THE APPELLANT 2 ITA NO.1656/KOL/2016 DEEPRAJ VINIMAY (P) LTD..AY. 2006-07 HAD ATTENDED AND SOUGHT FOR ADJOURNMENT AND THE CAS E WAS ADJOURNED FOR 15.06.2016. BUT ON 15.06.2016 THE A.R. OF THE APPELLANT HAD NEITHER AP PEARED NOR FILED ANY WRITTEN SUBMISSION. UNDER THIS CIRCUMSTANCES, IT APPEARS THAT THE APPEL LANT DOES NOT WANT TO PURSUE THIS APPEAL; THEREFORE, I HAVE NO OPTION BUT TO DECIDE THE APPEA L ON MERITS ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE PRESENT APPEAL IS AGAINST THE ORDER U/S. 143(3) PASSED BY THE A.O. I HAVE CAREFULLY PERUSED THE GROUNDS OF APPEAL AND THE ORDER OF THE A.O. AS ALREADY DISCUSSED ABOVE, THE APPELLANT HAS FAILED TO OFFER ANY EXPLANATION FOR S UBMISSION IN SUPPORT OF THE GROUNDS RAISED IN THIS APPEAL NOR ANY SUPPORTING EVIDENCES WERE PR ODUCED BY HIM DESPITE ADEQUATE OPPORTUNITY HAVING BEEN PROVIDED. IN THIS CONNECTION, RELIANCE MAY BE PLACED UPON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF H.M. ESUFALI H. M. ABDULALI (1 973) 90 ITR 271 WHEREIN THE HON'BLE COURT HAS HELD THAT THE APPELLATE AUTHORITY CANNOT SUBSTITUTE ITS OWN JUDGEMENT IN PLACE OF THE JUDGEMENT OF THE A,O. UNLESS IT IS SHOWN THAT THE J UDGEMENT OF THE A.O. WAS BIASED, IRRATIONAL, VINDICTIVE OR CAPRICIOUS. IN THE INSTANT CASE, THE APPELLANT HAS NOT ABLE TO SHOW THAT THE DECISION OF THE A.O. WAS ARBITRARY, BIASED, IRRATIONAL, VINDICTIVE OR CA PRICIOUS WITHOUT ANY BASIS. I FIND NO REASON TO INTERFERE WITH THE DECISION OF THE A.O. IN THE RESULT, APPEAL FILED BY THE APPELLANT IS 'DI SMISSED'. 3. DURING THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A) NONE APPEARED ON BEHALF OF THE ASSESSEE, THEREFORE, THE LD. CIT(A) HAS PASSED THE EX PARTE ORDER CONFIRMING THE ADDITION MADE BY THE AO. NOT BEING SATISFIED WITH THE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN FURTHER APPEAL BEFORE US AND HAS TAKEN THE FOLLOWIN G GROUNDS OF APPEAL: 1. THAT THE ORDER PASSED BY THE LD. CIT(A)-1, KOL IS BAD IN LAW AS WELL AS IN FACTS OF THE CASE. 2. THAT THE LD. CIT(A)-1, KOL ERRED IN LAW AS WELL AS ON FACTS BY NOT GIVING THE APPELLANT, A PROPER OPPORTUNITY OF BEING HEARD AND THE SAME IS A GAINST THE PRINCIPLES OF NATURAL JUSTICE. 3. THAT THE LD. CIT(A)-1, KOL ERRED IN LAW AS WELL AS ON FACTS BY CONFIRMING THE ADDITION MADE BY THE LD. ASSESSING OFFICER TO THE TUNE OF RS.7500 00/- BEING SHARE APPLICATION MONEY RAISED BY THE APPELLANT. 4. THE SAID APPEAL WAS LISTED FOR HEARING BEFORE SM C BENCH ON 06.02.2017. NONE APPEARED ON BEHALF OF THE ASSESSEE. 5. LD. DR FOR THE REVENUE HAS STATED THAT THE LD. CIT(A) HAS PASSED THE ORDER EX PARTE WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD. THER EFORE, CONSIDERING THE PRINCIPLES OF NATURAL JUSTICE THE CASE SHOULD BE SENT BACK TO THE AO TO EXAMINE THE ISSUE AFRESH AND PASS THE ORDER AFTER CONSIDERING THE SUBMISSIONS, DOCUME NTS AND EVIDENCE FILED BY THE ASSESSEE. ALTHOUGH IN THIS APPEAL NONE APPEARED ON BEHALF OF THE ASSESSEE BUT LD. DR FOR THE REVENUE 3 ITA NO.1656/KOL/2016 DEEPRAJ VINIMAY (P) LTD..AY. 2006-07 HAS TAKEN THE VIEW AND SUGGESTED US TO SEND THE CAS E BACK TO THE FILE OF THE AO TO EXAMINE THE ISSUE AFRESH. WE ALSO NOTICED THAT THE ASSESSE E NEITHER APPEARED BEFORE THE AO NOR APPEARED BEFORE THE LD. CIT(A), THEREFORE, THE AO H AS ALSO PASSED AN EX PARTE ORDER U/S. 144 OF THE ACT AND LD. CIT(A) ALSO PASSED AN ORDER EX P ARTE WITHOUT THE PRESENCE OF THE ASSESSEE. THE BENCH HAS TAKEN THE VIEW THAT THIS C ASE WAS LISTED FOR HEARING ON 25.11.2016 BUT NONE WAS PRESENT ON BEHALF OF THE ASSESSEE NOR ANY ADJOURNMENT APPLICATION FILED BY THE ASSESSEE. THEREFORE, AGAIN THE NOTICE WAS SENT BY THE REGISTRY OF THE TRIBUNAL THROUGH RPAD FIXING THE APPEAL ON 09.01.2017. ON THIS DATE ALSO NONE APPEARED ON BEHALF OF THE ASSESSEE. AFTER CONSIDERING THE VIEW OF THE LD. DR FOR THE REVENUE, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND REMIT THE MATTER BACK TO THE FILE OF THE AO TO EXAMINE THE ISSUE AFRESH AFTER CONSIDERING THE EVIDENCE, DETAILS AND THE SUBMISSIONS SUBMITTED BY THE ASSESSEE. ACCORDINGLY, THE APPEAL OF ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT . SD/- SD/- (PARTHA SARATHI CHOUDHARY) (DR. A. L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 6TH FEBRUARY, 2017 JD. SR. P.S COPY OF THE ORDER FORWARDED TO: 1. APPELLANT DEEPRAJ VINIMAY (P) LTD., 235/2A, A. J. C. BOSE ROAD, KOL-20. 2. RESPONDENT ITO, WARD-1(1), KOLKATA. 3. CIT(A), KOLKATA 4. CIT, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .