D.C.I.T CC - X,kolkata, Kolkata V. M/s Ramel Industries Ltd, Kolkata

ITA 1751/KOL/2013

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6022 (ITAT-KOLKATA)
• Duration Of Justice: 5 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2019
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 04-06-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P K SRIHARI
• Keywords: Search and seizure; Question of law
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C, BENC H KOLKATA BEFORE SHRI A.T.VARKEY, JM &DR. A.L.SAINI, AM ./ITA NO.1751/KOL/2013 ( / ASSESSMENT YEAR:2012-13) DCIT, CC-X, KOLKATA AAYAKAR BHAWAN POORVA, 110, SHANTIPALLY, KOLKATA-700107. VS. M/S RAMEL INDUSTRIES LTD. 15, KRISHNAGAR ROAD, BARASAT, KOLKATA- 126. ./ ./PAN/GIR NO.: AAECR 0035 M (ASSESSEE) .. (REVENUE) ASSESSEE BY :SHRI P.K. SRIHARI, CIT DR RESPONDENT BY : NONE / DATE OF HEARING : 19/12/2018 /DATE OF PRONOUNCEMENT : 23/01/2019 / O R D E R PER DR. A. L. SAINI: THE CAPTIONED APPEAL FILED BY THE REVENUE PERTAINI NG TO ASSESSMENT YEAR 2012-13, IS DIRECTED AGAINST AN ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), CENTRAL-II, KOLKATA (IN SHORT THE LD. CIT(A)] IN APPEAL NO. 85/CC-X/CIT(A)C-II/12-13, WHICH IN TURN ARISE OUT O F AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME T AX ACT, 1961 ( IN SHORT THE ACT) DATED 07.12.2012. 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE AS FOLLOWS: I) THAT IN THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD. CIT(A) HAS ERRED IN ALLOWING RELIEF FOR THE REASON THAT THE AS SESSEE COULD NOT TAKE A M/S RAMEL INDUSTRIES LTD. ITA NO.1751/KOL/2013 ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 2 22 2 RETRACTED POSITION THAN WHAT ITS DIRECTORS HAD ALR EADY DECLARED IN THE STATEMENT RECORDED U/S 132(4) OF THE INCOME TAX AC T. II) THAT IN THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THAT NO ADDITION CAN BE MADE ON THE BASIS OF STATEMENT MADE U/S 132(4) OF THE INCOME TAX ACT AND BASED HIS DECISION ON THE RETRACTED POSITION TAKEN LATER ON BY THE ASSESS EE THAT LIABILITIES TO THE EXTENT OF RS. 9,99,06,260/- WERE PAID DURING THE YE AR OUT OF THE LIABILITIES OF RS. 37,08,19,289/-, AS ADMITTED IN THE STATEMENT U/ S 132(4) OF THE INCOME TAX ACT. III) THAT IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN ALLOWING RELIEF TO THE TUNE OF RS. 9,99,06 ,260/ AS REPAYMENT IN CASH BY WAY OF REFUND TO THE DEPOSITORS, DISREGARDING TH E FACT THAT NONE OF SUCH DEPOSITORS WERE INCOME TAX ASSESSEE AND DID NOT HOL D PAN AND THEIR TRANSACTION WITH THE ASSESSEE WERE CONDUCTED IN CAS H AND THEREFORE COULD NOT BE VERIFIED FROM ANY INDEPENDENT SOURCE AS SUCH THERE WAS NO DOCUMENTARY EVIDENCES OR TRIAL TO CROSS VERIFY THE ASSESSEES TRANSACTION WITH SUCH DEPOSITORS. IV) THAT THE DEPARTMENT CRAVES LEAVE TO ADD, MODIFY OR ALTER ANY OF THE GROUNDS OF APPEAL AND /OR ADDUCE ADDITIONAL EVIDENC E AT THE TIME OF HEARING OF THE CASE. 3. AT THE OUTSET LD. DR FOR THE REVENUE POINTED OU T THAT DESPITE TWELVE HEARINGS BEFORE THIS TRIBUNAL NONE APPEARED ON BEHALF OF THE ASSESSEE TO DEFEND THE IMPUGNED ORDER PASSED BY THE LD CIT(A). IT WAS ALSO BROUGHT TO OUR NOTICE THAT DEPARTMENT HAS ALSO SERVED THE NOTICE TO THE ASSESS EE AS PER THE DIRECTION OF THIS TRIBUNAL THEN ALSO NONE APPEARED ON BEHALF OF THE A SSESSEE. THE LD. DR ALSO POINTED OUT THAT ISSUE INVOLVED IN THE PRESENT APPE AL RELATES TO MIXED QUESTION OF FACTS AS WELL AS LAW THEREFORE, THE CASE MAY BE REM ITTED BACK TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION. SINCE THE CIT(A) HAS PASSED HIS IMPUGNED ORDER ON THE BASIS OF STATEMENT RETRACTED BY THE ASSESSEE WI THOUT EVEN BOTHERING TO JUSTIFY THE REASONS AS TO WHY THE ASSESSEE HAS RETRACTED HI S STATEMENT RECORDED U/S 132(4) OF THE ACT; AND THUS, THE LD. CIT(A) DID NOT APPLY HIS MIND,WHILE PASSING THE IMPUGNED ORDER. THEREFORE, LD DR PRAYED THE BENCH T HAT THE APPEAL NEEDS TO BE DO NOVO ADJUDICATED BY THE LD CIT(A). M/S RAMEL INDUSTRIES LTD. ITA NO.1751/KOL/2013 ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 3 33 3 4. WE NOTE THAT IN THIS CASE DURING THE SEARCH AND SEIZURE ACTION, A STATEMENT OF THE ASSESSEE UNDERSECTION 132(4) OF THE ACT WAS RECORDE D AND BASED ON THATSTATEMENTTHE ASSESSMENT WAS FRAMED U/S 143(3), MAKING SOME ADDITION.ON APPEAL,LD. CIT(A) PASSED THE IMPUGNED ORDER ACCEPTI NG THE RETRACTED STATEMENT WITHOUT BOTHERING TO DISCUSS THE JUSTIFIABILITY OF THE ASSESSEES RETRACTED STATEMENT WHICH WAS RECORDED U/S 132(4) OF THE ACT. FROM A PE RUSAL OF THE GROUNDS OF APPEAL RAISED BY THE REVENUE REVEAL THAT THE LD CIT (A) HAS GIVEN RELIEF TO THE ASSESSEE WITHOUT EXAMINATION OF RELEVANT EVIDENCE A ND THEREFORE ACCORDING TO LD CIT- DR, THE ORDER PASSED BY THE LD CIT(A) IS PERVE RSE. WE ARE OF THE VIEW THAT ISSUE RAISED BY THE REVENUE CONTAINS MIXED QUESTION OF LAW AND FACTS, WHICH REQUIRES THE ASSISTANCE OF LD AR/ASSESSEE ALONG WIT H PAPER BOOKTO VERIFY THE FINDINGS OF THE LD CIT(A). SINCE THE AR/ASSESSEE I S NOT BOTHERED TO APPEAR BEFORE US THEREFORE, WE SET ASIDE THE ORDER OF LD CIT(A) A ND REMAND THE MATTER BACK TO THE FILE OF LD CIT(A) WITH THE DIRECTION TO PASS DENOVO ORDER AFTER GIVING OPPORTUNITY TO ASSESSEE AND ASSESSING OFFICER. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 23 .01.20 19. SD/- ( A.T.VARKEY ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; / DATE: 23/01/2019 ( SB, SR.PS ) / COPY OF THE ORDER FORWARDED TO : 1. /THE APPELLANT DCIT, CC-X, KOLKATA 2. ! / THE RESPONDENT M/S RAMEL INDUSTRIES LTD. 3. ' ( ) / THE CIT(A), 4. ' / CIT 5. #$% &&'( , '( , / DR, ITAT, M/S RAMEL INDUSTRIES LTD. ITA NO.1751/KOL/2013 ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 4 44 4 TRUE COPY BY ORDER ASSISTANT REGISTRAR, I.T.A.T, KOLKATA BENCHES, KOLKATA . KOLKATA 6. %)*+ / GUARD FILE. !# &