M/s. Zenith Exports Limited, Kolkata V. ACIT, Circle-5, Kolkata, Kolkata

ITA 1844/KOL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4090 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2002-2003
• Appeal Filed On: 20-09-2016
• Court: TRIBUNAL
• Assessee Lawyers: MANISH TIWARI F
• Keywords: Condonation of delay
• Section: 10B; 148

Judgement Text

I.T.A. NO. 1844/KOL./2016 ASSESSMENT YEAR: 2002-2003 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA SMC BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NO. 1844/KOL/ 2016 ASSESSMENT YEAR: 2002-2003 M/S. ZENITH EXPORTS LIMITED,..................,.... .......................APPELLANT 19, R.N. MUKHERJEE ROAD, KOLKATA-700 001 [PAN: AAACZ 0986 F] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,.............. ............RESPONDENT CIRCLE-5, KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 APPEARANCES BY: SHRI MANISH TIWARI, F.C.A., FOR THE ASSESSEE SHRI DULAL CHANDRA MONDAL, JCIT, SR. D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : DECEMBER 20, 2016 DATE OF PRONOUNCING THE ORDER : DECEMBER 21, 2016 O R D E R THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-2, KOLKATA DAT ED 05.07.2016, WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINI BY TREATING THE SAME AS BARRED BY LIMITATION. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH IS ENGAGED IN THE BUSINESS OF EXPORT OF INDUSTRIAL LEATHER HAND G LOVES, SILK FABRICS & MADE-UPS AND MANUFACTURING OF YARNS, READY-MADE GAR MENTS AND 100% NATURAL SILK FABRICS. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 30.10.2002 DECLARI NG A LOSS OF RS.2,91,970/-. THE SAID RETURN WAS INITIALLY PROCES SED BY THE ASSESSING OFFICER UNDER SECTION 143(1) ON 13.02.2003. SUBSEQU ENTLY HE, HOWEVER, NOTICED THAT THERE WAS ESCAPEMENT OF INCOME OF THE ASSESSEE FOR THE YEAR I.T.A. NO. 1844/KOL./2016 ASSESSMENT YEAR: 2002-2003 PAGE 2 OF 3 UNDER CONSIDERATION AND ACCORDINGLY A NOTICE UNDER SECTION 148 WAS ISSUED BY HIM ON 31.03.2009 REOPENING THE ASSESSMEN T AFTER RECORDING THE REASONS. PURSUANT TO THE SAID NOTICE, ASSESSMEN T UNDER SECTION 147/143(3) WAS MADE BY THE ASSESSING OFFICER VIDE A N ORDER DATED 31.12.2009, WHEREIN THE CLAIM OF THE ASSESSEE FOR D EDUCTION UNDER SECTION 10B WAS DISALLOWED. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 147/143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) CHALLENGING THE VALIDITY OF THE SAID A SSESSMENT AS WELL AS DISPUTING THE DISALLOWANCE MADE THEREIN ON ACCOUNT OF ITS CLAIM FOR DEDUCTION UNDER SECTION 10B ON MERIT. SINCE THERE W AS A DELAY OF ABOVE 40 DAYS IN FILING THE SAID APPEAL, AN APPLICATION S EEKING CONDONATION OF THE SAID DELAY WAS ALSO FILED BY THE ASSESSEE ALONG WITH ITS APPEAL. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT(APPEALS), THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE APPEARED AND ARGUED THE CASE OF THE ASSESSEE. ACCORDING TO THE LD. CIT(APPEALS), HE, HOWEVER, DID NOT ADVANCE ANY ARGUMENT ON THE ISSUE OF DELAY ON THE P ART OF THE ASSESSEE IN FILING THE SAID APPEAL. THE LD. CIT(APPEALS), THERE FORE, REJECTED THE APPLICATION OF THE ASSESSEE FOR CONDONATION OF THE DELAY AND DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINI BY TREATING THE SAME AS BARRED BY LIMITATION. AGGRIEVED BY THE ORDER OF THE LD. CIT(A PPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, AN APPLICATION DATED MARCH 15, 2010 W AS FILED BY THE ASSESSEE ALONG WITH ITS APPEAL BEFORE THE LD. CIT(A PPEALS) SEEKING CONDONATION OF THE DELAY IN FILING THE SAID APPEAL. A COPY OF THE SAID APPLICATION IS ALSO PLACED ON RECORD BEFORE ME BY T HE LD. COUNSEL FOR THE ASSESSEE AND A PERUSAL OF THE SAME SHOWS THAT THE M ARGINAL DELAY IN FILING ITS APPEAL BEFORE THE LD. CIT(APPEALS) WAS EXPLAINE D THEREIN GIVING REASONS FOR THE SAID DELAY. IN THESE CIRCUMSTANCES, I AM OF THE VIEW THAT I.T.A. NO. 1844/KOL./2016 ASSESSMENT YEAR: 2002-2003 PAGE 3 OF 3 THE LD. CIT(APPEALS) OUGHT TO HAVE GIVEN AN OPPORTU NITY TO THE LD. A.R. OF THE ASSESSEE TO PLEAD THE CASE OF THE ASSESSEE ON T HIS ISSUE, EVEN THOUGH IT WAS INADVERTENTLY LEFT TO BE ARGUED BY HIM OR ATLEA ST SHOULD HAVE DISPOSED OF THE APPLICATION FOR CONDONATION OF DELA Y FILED BY THE ASSESSEE ON MERIT. SINCE THE LD. CIT(APPEALS) HAS FAILED TO DO SO, I CONSIDER IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO SET AS IDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH AFTE R CONSIDERING THE REQUEST OF THE ASSESESE FOR CONDONATION OF DELAY ON MERIT IN ACCORDANCE WITH LAW. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATE D AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 21, 2016. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 21 ST DAY OF DECEMBER, 2016 COPIES TO : (1) M/S. ZENITH EXPORTS LIMITED, 19, R.N. MUKHERJEE ROAD, KOLKATA-700 001 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-5, KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (3) COMMISSIONER OF INCOME TAX(APPEALS)-2, KOLKATA ; (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.