Atlantic Devcon Pvt. Ltd., Kolkata V. I.T.O.Ward-14(1), Kolkata

ITA 1683/KOL/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6416 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 25-08-2021
• Assessment Year: 2012-2013
• Appeal Filed On: 16-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MRS MANJU SHUKLA
• Keywords: Unexplained cash credit; Opportunity of being heard; Set aside
• Section: 143(3); 143(2); 131; 68

Judgement Text

ITA NO. 1683/KOL/2019 A.Y. 20 12-2013 ATLANTIC DEVCON PVT. LTD. 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA [VIRTUAL COURT HEARING] BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT & SMT. MADHUMITA ROY, JUDICIAL MEMBER I.T.A. NO. 1683/KOL/2019 ASSESSMENT YEAR: 2012-2013 ATLANTIC DEVCON PVT. LTD.,......................... .........................................APPELLANT C/O. BIJAY CHAKLANABISH, GOLEPARK, TARUNPALLY, NATAGRAH, SODEPUR, KOLKATA-700113 [PAN:AAKCA0522G] -VS.- INCOME TAX OFFICER,.................. .....................RESPONDENT WARD-14(1), KOLKATA, AAYAKAR BHAWAN (POORVA), 110, SHANTIPALLY, KOLKATA-700107 APPEARANCES BY: MRS. MANJU SHUKLA, A.R., APPEARED ON BEHALF OF THE ASSESSEE SHRI TUSHAR DHAWAL SINGH, CIT , APPEARED ON BEHALF OF THE REVENUE DATE OF CONCLUDING THE HEARING : AUGUST 25, 2021 DATE OF PRONOUNCING THE ORDER : AUGUST 25, 2021 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-5, KOLKATA DAT ED 22.11.2016 PASSED EX-PARTE, WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION . 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O N 21.02.2013 DECLARING A LOSS OF RS.27,391/-. THE SAID RETURN WA S SELECTED FOR SCRUTINY THROUGH CASS AND A NOTICE UNDER SECTION 143(2) WAS ISSUED BY THE ASSESSING OFFICER TO THE ASSESSEE ON 23.09.2013. AS NOTED BY THE ITA NO. 1683/KOL/2019 A.Y. 20 12-2013 ATLANTIC DEVCON PVT. LTD. 2 ASSESSING OFFICER, THE ASSESSEE-COMPANY DURING THE YEAR UNDER CONSIDERATION HAD RAISED SHARE CAPITAL AND SHARE PR EMIUM AGGREGATING TO RS.23.52 CRORES. 3. IN ORDER TO VERIFY THE AMOUNT OF SHARE CAPITAL A ND SHARE PREMIUM RECEIVED BY THE ASSESSEE DURING THE YEAR UNDER CONS IDERATION IN TERMS OF SECTION 68, THE ASSESSEE-COMPANY WAS CALLED UPON BY THE ASSESSING OFFICER TO PRODUCE THE DIRECTORS OF THE SHARE-SUBSC RIBER COMPANIES FOR EXAMINATION BEFORE HIM ALONG WITH CERTAIN DETAILS A ND DOCUMENTS. THE ASSESSEE, HOWEVER, FAILED TO COMPLY WITH THESE REQU IREMENTS OF THE ASSESSING OFFICER. THE ASSESSING OFFICER, THEREFORE , ISSUED SUMMONS UNDER SECTION 131 TO THE DIRECTOR OF THE ASSESSEE-C OMPANY REQUIRING HIM TO APPEAR ALONGWITH THE DIRECTORS OF THE SHARE-SUBS CRIBER COMPANIES FOR EXAMINATION ALONGWITH THE RELEVANT DETAILS AND DOCU MENTS. THE ASSESSEE- COMPANY, HOWEVER, FAILED TO COMPLY WITH THE SAME. T HE ASSESSING OFFICER, THEREFORE, HELD THAT THE PRIMARY ONUS THAT LAY ON T HE ASSESSEE-COMPANY TO EXPLAIN THE RELEVANT CASH CREDIT IN THE FORM OF SHA RE CAPITAL AND SHARE PREMIUM IN TERMS OF SECTION 68 THUS WAS NOT DISCHAR GED AND BY RELYING ON THE VARIOUS JUDICIAL PRONOUNCEMENTS DISCUSSED BY HI M IN THE ASSESSMENT ORDER, AN ADDITION OF RS.23.52 CRORES WAS MADE BY H IM TO THE TOTAL INCOME OF THE ASSESSEE BY TREATING THE SHARE CAPITAL AND S HARE PREMIUM AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 IN THE ASS ESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 27.03.2015 . 4. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3) OF THE ACT, AN APPEAL WAS PREFERRED BY THE A SSESSEE BEFORE THE LD. CIT(APPEALS). SINCE THERE WAS NO SATISFACTORY COMPL IANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING TH E SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(APPEALS) DIS MISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION VIDE HIS APPELLATE ORDER DATED ITA NO. 1683/KOL/2019 A.Y. 20 12-2013 ATLANTIC DEVCON PVT. LTD. 3 22.11.2016 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEA L BEFORE THE TRIBUNAL. 5. 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 THE APPEAL CHALLENGING TH E IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PARTE, THE LD. CO UNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE APPEAL OF THE ASSESSEE WAS F IXED FOR HEARING BY THE LD. CIT(APPEALS) INITIALLY ON 10.08.2016 AND WHEN T HE ASSESSEE SOUGHT ADJOURNMENT OF THE SAID HEARING FIXED ON 10.08.2016 , A VERY SHORT ADJOURNMENT WAS GRANTED BY THE LD. CIT(APPEALS) FIX ING THE APPEAL FOR HEARING ON 30.08.2016. SHE HAS SUBMITTED THAT THE A PPEAL OF THE ASSESSEE THEREAFTER WAS FIXED FOR HEARING BY THE LD. CIT(APP EALS) ON 21.11.2016 AND SINCE THE SAID NOTICE COULD NOT BE COMPLIED WIT H BY THE ASSESSEE- COMPANY DUE TO SOME UNFORESEEN PROBLEM FACED BY ITS AUTHORIZED REPRESENTATIVE, THE LD. CIT(APPEALS) PROCEEDED TO D ISMISS THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION VIDE HIS IMPUGNED ORDER PASSED EX- PARTE WITHOUT GIVING ANY FURTHER OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. SHE HAS CONTENDED THAT PROPER AND SUFFICI ENT OPPORTUNITY OF BEING HEARD THUS WAS NOT GIVEN BY THE LD. CIT(APPEA LS) TO THE ASSESSEE BEFORE DISMISSING ITS APPEAL EX-PARTE FOR NON-PROSE CUTION AND EVEN THE LD. D.R. HAS NOT BEEN ABLE TO BRING ANYTHING ON RECORD TO REBUT OR CONTROVERT THIS POSITION APPARENT FROM THE IMPUGNED ORDER OF T HE LD. CIT(APPEALS). MOREOVER, AS PER THE PROVISIONS OF SUB-SECTION (6) OF SECTION 250, THE LD. CIT(APPEALS) WAS REQUIRED TO DISPOSE OF THE APPEAL OF THE ASSESSEE VIDE AN ORDER IN WRITING STATING THE POINTS FOR DETERMIN ATION, THE DECISION THEREON AND THE REASONS FOR THE DECISION. IT IS OBS ERVED THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) DOES NOT CO MPLY WITH THESE REQUIREMENTS. WE, THEREFORE, CONSIDER IT FAIR AND P ROPER AND IN THE INTEREST OF JUSTICE TO SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PARTE DISMISSING THE APPEAL OF THE ASSESESE FOR NON- PROSECUTION AND REMIT THE MATTER BACK TO HIM FOR DI SPOSING OF THE APPEAL ITA NO. 1683/KOL/2019 A.Y. 20 12-2013 ATLANTIC DEVCON PVT. LTD. 4 OF THE ASSESSEE AFRESH ON MERIT IN ACCORDANCE WITH LAW BY PASSING A WELL DISCUSSED AND WELL REASONED ORDER AFTER GIVING PROP ER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASS ESSEE IS DIRECTED TO MAKE DUE COMPLIANCE BEFORE THE LD. CIT(A) AND EXTEN D ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT(A) TO DI SPOSE OF THE APPEAL AFRESH EXPEDITIOUSLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON AUGUST 25, 20 21. SD/- SD/- (MADHUMITA ROY) (P.M. JAGTAP) JUDICIAL MEMBER VICE-PRESIDENT KOLKATA, THE 25 TH DAY OF AUGUST, 2021 COPIES TO : (1) ATLANTIC DEVCON PVT. LTD., C/O. BIJAY CHAKLANABISH, GOLEPARK, TARUNPALLY, NATAGRAH, SODEPUR, KOLKATA-700113 (2) INCOME TAX OFFICER, WARD-14(1), KOLKATA, AAYAKAR BHAWAN (POORVA), 110, SHANTIPALLY, KOLKATA-700107 (3) COMMISSIONER OF INCOME TAX (APPEALS)-5, KOLKAT A, (4) COMMISSIONER OF INCOME TAX , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER SENIOR PRIVATE SE CRETARY/DDO, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.