M/s. Delta Ltd., Kolkata V. DCIT, Circle - 1, Kolkata , Kolkata

ITA 177/KOL/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1822 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 05-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PIJUSH MUKHERJEE
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA [BEFORE HONBLE SHRI M.BALAGANESH, AM & HONBLE S HRI S.S.VISWANETHRA RAVI, JM] I.T.A NO. 177/KOL/201 8 ASSESSMENT YEAR : 2004-0 5 M/S DELTA LTD. -VS- DCIT, CIRCLE-1, KO LKATA . [PAN: AABCD 0629 C] (APPELLANT) (RESPOND ENT) FOR THE APPELLANT : SHRI RAJEEVA KUMAR , ADVOCATE FOR THE RESPONDENT : SHRI PIJUSH MUKHERJEE, ADDL. CIT DATE OF HEARING : 21.08.2018 DATE OF PRONOUNCEMENT : 05. 09.2018 ORDER PER M.BALAGANESH, AM 1. THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-22, KOLKATA [IN SHORT THE LD CI T(A)] IN APPEAL NO. 105/CIT(A)- 22/2004-05/15-16/KOL DATED 31.10.2017 PASSED BY THE DCIT, CIRCLE-1, KOLKATA [ IN SHORT THE LD AO] UNDER SECTION 144 OF THE INCOME TA X ACT, 1961 (IN SHORT THE ACT) DATED 09.11.2006 FOR THE ASSESSMENT YEAR 2004-05. 2. THE ASSESSEE HAS RAISED SEVERAL GROUNDS OF APPEA L ON MERITS FOR VARIOUS ADDITIONS/DISALLOWANCES MADE BY THE LD. AO. WE FIND THAT THE ASSESSEE HAS RAISED PRELIMINARY GROUND THAT THE LD. CIT(A) ERRED IN DIS MISSING THE ENTIRE APPEAL OF THE ASSESSEE WITHOUT WAITING FOR THE REMAND REPORT FROM THE LD. AO. HENCE THE PRELIMINARY 2 ITA NO.177/KOL/2018 M/S DELTA LTD. A.YR. 2004-05 2 QUESTION TO BE DECIDED IN THIS APPEAL IS AS TO WHET HER THE LD. CIT(A) WAS JUSTIFIED IN DECIDING THE APPEAL OF THE ASSESSEE WITHOUT WAITING FOR THE REMAND REPORT FROM THE LD.AO AND WITHOUT ADJUDICATING THE EVIDENCES FILED BY THE ASSESSEE BEFORE HIM, IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSESS EE IS A PUBLIC LIMITED COMPANY AND HAD FILED ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2004 -05 ON 31.03.2005 DECLARING TOTAL LOSS OF RS. 3,24,29,630/- ALONG WITH AUDITED BALANCE SHE ET, PROFIT AND LOSS ACCOUNT AND TAX AUDIT REPORT IN FORM 3CD. IN THE COURSE OF ASSESSME NT PROCEEDINGS, THE LD. AO OBSERVED THAT ONLY DETAILS FILED BY THE ASSESSEE WERE WITH R EGARD TO DETAILS OF LOAN, INTEREST, ADDITION TO FIXED ASSETS, BANK ACCOUNTS, SUNDRY BAL ANCES WRITTEN OFF, PROCESSING CHARGES, BULKING CHARGES, AND GUNNY CLAIMS. SEVERAL OTHER DE TAILS THAT WERE CALLED FOR BY THE LD. AO WERE NOT FURNISHED BY THE ASSESSEE. FURTHER NO B OOKS OF ACCOUNTS TOGETHER WITH DETAILS AND VOUCHERS WERE PRODUCED BEFORE THE LD. A O. THE ASSESSEE STATED THAT THE FACTORY OF THE ASSESSEE COMPANY WAS CLOSED AND HENC E THE BOOKS OF ACCOUNTS WHICH WERE LYING AT THE FACTORY COULD NOT BE PRODUCED BE FORE THE LD. AO. THIS REPLY NOT PROVING SATISFACTORY, THE LD. AO PROCEEDED TO MAKE SEVERAL DISALLOWANCES AND ADDITIONS IN THE ASSESSMENT AND DETERMINED THE TOTAL INCOME O F THE ASSESSEE AT RS. 2,60,700/-. 4. BEFORE THE LD. CIT(A), THE ASSESSEE SUBMITTED TH E LEDGERS FOR DIFFERENT EXPENDITURE FOR CLAIM OF RS. 7,50,107/- , LEDGERS FOR REPAIRING EXPENSES OF RS. 2,49,75,708/-, LEDGER FOR MISCELLANEOUS EXPENSES OF RS. 59,00,999/-, LEDG ER FOR BROKERAGE EXPENSES OF RS. 5,80,616/-, LEDGER FOR PROCESSING CHARGES OF RS. 31 ,04,455/-. THE ASSESSEE IN RESPECT OF CLAIM OF WRITE OFF OF RS. 4,67,00,000/- TOWARDS SUN DRY BALANCES, SUBMITTED THE COPY OF LAWYERS LETTER STATING THAT THE LAWYER HAD INSPECT ED THE BOOKS OF THE COMPANY M/S B.T. W. INDUSTRIES LTD. AND THAT THE SAID COMPANY WAS WO UND UP BY THE ORDER OF THE HONBLE CALCUTTA HIGH COURT BY AN ORDER DATED 22.07.1998 IN C.P. NO. 68/1996. THE LD. CIT(A) TREATED THE AFORESAID SUPPORTING DOCUMENTS AS ADDIT IONAL EVIDENCES AND SOUGHT FOR THE 3 ITA NO.177/KOL/2018 M/S DELTA LTD. A.YR. 2004-05 3 REMAND REPORT FROM THE LD. AO. THE REMAND REPORT WA S NOT SUBMITTED BY THE LD. AO BEFORE THE LD. CIT(A). THE LD. CIT(A) ACCORDINGLY P ROCEEDED TO DISMISS THE APPEAL OF THE ASSESSEE BY OBSERVING AS UNDER: 09. DECISION: IT HAS TO BE RECORDED THAT THESE DOCUMENTS BRING AD DITIONAL AND NEW EVIDENCE WERE SENT TO THE LD. AO FOR VERIFICATION. HOWEVER, NO REPORT HAS REACHED FROM THE LD. AO DESPITE PROTRACTED PASSAGE OF TIME AND S EVERAL REMINDERS. AS THE EVIDENCE HAS NOT BEEN SCRUTINIZED BY THE LD. AO AND NOT VERI FIED, THE SAME REMAINS UNACCEPTABLE. THE APPELLANT HAS ALSO NOT BEEN ABLE TO SHOW WHAT E FFORTS IT HAS MADE BEFORE THE LD. AO TO HELP ENABLE THE SUBMISSION OF THE REMAND REPORT. AS SUCH I AM UNABLE TO DECIDE THE MATTER IN FAVOUR OF THE APPELLANT. THESE GROUNDS 1 AND 2 ARE THEREFORE DISMISSED. 10. AS REGARDS THE OTHER GROUNDS OF APPEAL NOTHING HAS BEEN SUBMITTED BY THE APPELLANT-COMPANY TO COUNTER THE VARIOUS FINDINGS O F THE LD. AO. AS SUCH THE ACTION OF THE LD. AO FOR THESE GROUND STANDS CONFIRMED, AND T HESE GROUND STANDS DISMISSED. IN THE FINAL RESULT, APPEAL FILED BY THE APPELLANT IS TREATED AS DISMISSED. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS. AT THE OUTS ET, WE FIND THAT THE LD. CIT(A) HAD INDEED CALLED FOR REMAND REPORT FROM THE LD. AO AND THAT THE LD. AO HAD NOT FURNISHED THE SAME. THE LD. DR ARGUED THAT THE REMAND REPORT COULD NOT BE FURNISHED BY THE LD. AO BECAUSE THE ASSESSEE DID NOT PRESENT ITSELF BEFO RE THE LD. AO DURING THE REMAND PROCEEDINGS. THE LD. AR PRAYED FOR ONE MORE OPPORTU NITY BEFORE THE LD. CIT(A) BY ASKING THAT THE LD. CIT(A) SHOULD HAVE VERIFIED THE BOOKS FILED BEFORE HIM BY HIMSELF, IF THE REMAND REPORT WAS NOT SUBMITTED BY THE LD. A O. HE ARGUED THAT THIS IS MANDATE PROVIDED IN THE STATUTE INASMUCH AS THE LD. CIT(A) POSSESS CO-TERMINUS POWERS WITH THAT OF LD. AO. WE FIND LOT OF FORCE IN THIS ARGUME NT OF THE LD. AR AND WE ACCORDINGLY DEEM IT FIT AND APPROPRIATE AND IN THE INTEREST OF JUSTICE AND FAIR PLAY TO SET ASIDE THE ENTIRE APPEAL TO THE FILE OF THE LD. CIT(A) FOR DE NOVO ADJUDICATION IN ACCORDANCE WITH LAW, UNINFLUENCED BY EARLIER DECISION TAKEN BY HIM IN THIS REGARD. SINCE THE APPEAL OF 4 ITA NO.177/KOL/2018 M/S DELTA LTD. A.YR. 2004-05 4 THE ASSESSEE IS SET ASIDE TO THE FILE OF THE LD CIT A FOR DENOVO ADJUDICATION ON PRELIMINARY GROUND RAISED HEREINABOVE, WE REFRAIN T O GIVE OUR OPINION ON OTHER GROUNDS RAISED BY THE ASSESSEE. ACCORDINGLY, GROUNDS RAISE D BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 05. 09.2018 SD/- SD/- [S.S. VISWANETHRA RAVI] [ M.BAL AGANESH ] JUDICIAL MEMBER ACCOUNTANT MEM BER DATED : 05. 09.2018 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. M/S DELTA LTD, 4, COUNCIL HOUSE STREET, KOLKATA- 700001. 2. DCIT, CIRCLE-1, KOLKATA, AAYAKAR BHAWAN, P-7, CH OWRINGHEE SQUARE, KOLKATA- 700069. 3..C.I.T.(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S