Bangbhumi Tradecomm (P) Ltd, Kolkata V. ITO, Ward-9(2), Kolkata

ITA 177/KOL/2021

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0733 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 11-05-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Assessee Lawyers: BRIJESH KUMAR SINGH
• Keywords: Unexplained cash credit; Opportunity of being heard; Set aside
• Section: 143(3); 142(1); 13; 131

Judgement Text

ITA NO. 177/KOL/2021 A.Y. 20 12-2013 BANGBHUMI TRADECOM PVT. LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA [VIRTUAL COURT HEARING] BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT & SHRI A.T. VARKEY, JUDICIAL MEMBER I.T.A. NO. 177/KOL/2021 ASSESSMENT YEAR: 2012-2013 BANGBHUMI TRADECOM PVT. LIMITED,................... ..............................APPELLANT C/O. SUBASH AGARWAL & ASSOCIATES, ADVOCATES, SIDDHA GIBSON, 1, GIBSON LANE, SUITE-213, 2 ND FLOOR, KOLKATA-700069 [PAN:AAECB8393C] -VS.- INCOME TAX OFFICER,................................ ............................................RESPOND ENT WARD-9(2), KOLKATA, 54/1, RAFI AHMED KIDWAI ROAD, KOLKATA-700016 APPEARANCES BY: SHRI BRIJESH KUMAR SINGH, ADVOCATE, APPEARED ON BEH ALF OF THE ASSESSEE SMT. RANU BISWAS, ADDL. CIT , APPEARED ON BEHALF OF THE REVENUE DATE OF CONCLUDING THE HEARING : JULY 13, 2021 DATE OF PRONOUNCING THE ORDER : JULY 13, 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 THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-16, KOLKAT A DATED 06.03.2017 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 20.02.2013 DECLARING TOTAL INCOME OF RS.652/-. THE SAID RETURN WAS SELECTED FOR SCRUTINY BY THE ASSESSING OFFICER IN ORDER TO VERIF Y THE SUBSTANTIAL ITA NO. 177/KOL/2021 A.Y. 20 12-2013 BANGBHUMI TRADECOM PVT. LIMITED 2 AMOUNT OF SHARE CAPITAL AND SHARE PREMIUM OF RS.5.0 1 CRORES RECEIVED BY THE ASSESSEE-COMPANY DURING THE YEAR UNDER CONSIDER ATION. HE ACCORDINGLY ISSUED A NOTICE UNDER SECTION 142(1) OF THE ACT TO THE ASSESSEE, IN RESPONSE TO WHICH COPIES OF RETURNS OF INCOME, AUDITED ACCOUNTS ETC. OF THE SHAREHOLDERS WERE FILED BY THE ASSESSEE. THEREAFTER THE ASSESSING OFFICER ISSUED A SUMMONS UNDER SECTIO N 131 OF THE ACT TO THE DIRECTORS OF THE SHAREHOLDER COMPANIES REQUIRIN G THEIR PERSONAL APPEARANCE AND PRODUCTION OF SEVERAL DOCUMENTS SHOW ING SOURCE OF INVESTMENT MADE IN THE SHARES OF THE ASSESSEE-COMPA NY. SINCE THERE WAS NO RESPONSE TO THE SAID SUMMONS, THE ASSESSING OFFI CER TREATED THE ENTIRE SHARE CAPITAL AND SHARE PREMIUM AMOUNT AGGREGATING TO RS.5.01 CRORES AS UNEXPLAINED CASH CREDIT AND ADDITION TO THAT EXTENT WAS MADE BY HIM TO THE TOTAL INCOME OF THE ASSESSEE-COMPANY IN THE ASS ESSMENT COMPLETED UNDER SECTION 143(3) OF THE ACT VIDE AN ORDER DATED 20.03.2015. 3. 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) AND SINCE THERE WAS NO COMPLIANCE ON T HE PART OF THE ASSESSEE TO THE NOTICE ISSUED BY HIM FIXING THE SAI D APPEAL FOR HEARING ON 29.11.2016, THE LD. CIT(APPEALS) DISMISSED THE APPE AL OF THE ASSESSEE VIDE HIS APPELLATE ORDER DATED 06.03.2017 PASSED EX -PARTE MAINLY FOR NON-PROSECUTION THEREBY CONFIRMING THE ENTIRE ADDIT ION OF RS.5.01 CRORES MADE BY THE ASSESSING OFFICER UNDER SECTION 68. AGG RIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED TH IS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, SUMMONS UNDER SECTION 131 WERE ISSUED BY THE ASSESSING OFFICER TO THE DIRECTORS OF THE SHAREHOLDER COMPANI ES ON 23.02.2015 AND THE ASSESSMENT WAS MADE ON 20.03.2015 THEREBY ALLOW ING A VERY SHORT PERIOD TO THE SHAREHOLDERS TO COMPLY WITH THESE SUM MONS. HE HAS ALSO ITA NO. 177/KOL/2021 A.Y. 20 12-2013 BANGBHUMI TRADECOM PVT. LIMITED 3 SUBMITTED THAT THE NON-COMPLIANCE ON THE PART OF TH E SHAREHOLDERS TO THE SUMMONS ISSUED UNDER SECTION 131 WAS NOT BROUGHT TO THE NOTICE OF THE ASSESSEE BY THE ASSESSING OFFICER AND NO OPPORTUNIT Y WAS GIVEN TO THE ASSESSEE-COMPANY TO PRODUCE THE SAID SHAREHOLDERS F OR EXAMINATION BEFORE THE ASSESSING OFFICER ALONG WITH THE NECESSA RY DOCUMENTARY EVIDENCE. HE HAS FURTHER SUBMITTED THAT EVEN THE LD . CIT(APPEALS) HAD FIXED THE APPEAL OF THE ASSESSEE FOR HEARING ONLY O N ONE OCCASION AND SINCE THE NOTICE OF THE SAID HEARING WAS NOT RECEIV ED BY THE ASSESSEE, THE SAME COULD NOT BE COMPLIED WITH. HE HAS CONTENDED T HAT AN OPPORTUNITY OF BEING HEARD THUS WAS NOT GIVEN BY THE LD. CIT(AP PEALS) TO THE ASSESSEE AND THE APPEAL OF THE ASSESSEE WAS DISMISSED BY HIM FOR NON-PROSECUTION VIDE HIS IMPUGNED ORDER PASSED EX-PARTE. KEEPING IN VIEW THESE SUBMISSIONS MADE BY THE LD. COUNSEL FOR THE ASSESSE E, WE FIND MERIT IN THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD WAS NOT GIVEN TO THE ASS ESSEE EITHER BY THE ASSESSING OFFICER OR BY THE LD. CIT(APPEALS) AND TH E ORDERS PASSED BY THEM ARE IN VIOLATION OF THE PRINCIPLE OF NATURAL J USTICE. EVEN THE LD. D.R. HAS NOT BEEN ABLE TO REBUT OR CONTROVERT THIS POSIT ION, WHICH IS CLEARLY EVIDENT FROM THE ORDERS OF THE ASSESSING OFFICER AN D LD. CIT(APPEALS). WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY T HE LD. CIT(APPEALS) EX-PARTE AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO FRAME THE ASSESSMENT AFRESH ON MERIT IN ACCORDANCE WITH LAW AFTER GIVING PROPER AND SUFFICIENT OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JULY 13, 2021 . SD/- SD/- (A.T. VARKEY) (P.M. JAGTAP) JUDICIAL MEMBER VICE-PRESIDENT KOLKATA, THE 13 TH DAY OF JULY, 2021 ITA NO. 177/KOL/2021 A.Y. 20 12-2013 BANGBHUMI TRADECOM PVT. LIMITED 4 COPIES TO : (1) BANGBHUMI TRADECOM PVT. LIMITED, C/O. SUBASH AGARWAL & ASSOCIATES, ADVOCATES, SIDDHA GIBSON, 1, GIBSON LANE, SUITE-213, 2 ND FLOOR, KOLKATA-700069 (2) INCOME TAX OFFICER, WARD-9(2), KOLKATA, 54/1, RAFI AHMED KIDWAI ROAD, KOLKATA-700016 (3) COMMISSIONER OF INCOME TAX (APPEALS)-16, KOLK ATA, (4) COMMISSIONER OF INCOME TAX , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY/DDO, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.