M/s. Sarju Tradelink Pvt. Ltd., , Kolkata V. ITO, Ward - 7(3), Kolkata , Kolkata

ITA 1850/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0147 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 28-08-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHANKAR HALDER SRDR
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Opportunity of being heard; Set aside
• Section: 142(1); 143(1); 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI S.S. VISWANETHRA RAVI, JM &DR. A.L.SAIN I, AM ./ITA NO.1850/KOL/2018 ( / ASSESSMENT YEAR: 2012-13) M/S SARJU TRADELINK PVT. LTD. 2 ND FLOOR, EASTERN FLAT, 21, SOUTHERN AVENUE, 31, COLLEGE ROW, KOLKATA- 700009. VS. ITO, WARD-7(3), KOLKATA ./ ./PAN/GIR NO.: AAICS 7166 A (ASSESSEE) .. (REVENUE) ASSESSEE BY : SHRI MIRAJ D. SHAH, AR RESPONDENT BY : SHRI SHANKAR HALDER, SR. DR, JCIT / DATE OF HEARING : 25/03/2019 /DATE OF PRONOUNCEMENT : 29/03/2019 / O R D E R PER DR. A. L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE , P ERTAINING TO ASSESSMENT YEAR 2012-13 IS DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEAL)-18, KOLKATA, WHICH IN TURN ARISES OUT OF A N ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 144 OF THE INCOME TAX AC T, 1961 (IN SHORT THE ACT) DATED 18.02.2015. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE AR E AS FOLLOWS: M/S SARJUTRADELINK PVT. LTD. ITA NO.1850/KOL/2018 ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 2 22 2 1. THAT THE ORDER PASSED U/S 144 BY THE LD. CIT(A) IS BAD IN LAW AS WELL AS IN FACTS OF THE CASE. 2. THAT THE LD. CIT(A) ERRED IN LAW AS WELL AS IN F ACTS OF THE CASE BY NOT GIVING THE APPELLANT, A REASONABLE OPPORTUNITY OF BEING HEARD. 3. THAT THE LD. CIT(A) ERRED IN LAW AS WELL AS IN F ACTS OF THE CASE BY CONFIRMING THE ADDITIONS MADE BY THE LD. A.O. WHO TREATED THE SHAR E APPLICATION MONEY INCLUDING PREMIUM OF RS. 1,99,77,480/- AS UNEXPLAINED CASH CR EDIT AND ADDED BACK THE SAME TO THE TOTAL INCOME OF THE APPELLANT U/S 68 OF THE INCOME TAX ACT, 1961. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD/OR AMEND ANY GROUND OF THIS APPEAL. 3. AT THE OUTSET ITSELF, THE LD COUNSEL FOR THE ASS ESSEE SUBMITTED THAT THE ASSESSEE DID NOT GET FINAL NOTICE FOR HEARING DUE TO POSTAL ANOMALIES. IN THE ASSESSMENT PROCEEDINGS, THE FINAL SHOW CAUSE NOTICE RETURNED U NSERVED VIDE RELEVANT OBSERVATION OF ASSESSING OFFICER WHICH IS GIVEN BEL OW: IN THE INSTANT CASE, THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2012-13 FILED ON 11.10.2012 DECLARING INCOME OF RS. NIL. THE RETURN WAS U/S 143(1) ON 21.02.2013. SUBSEQUENTLY THE CASE WAS SELECTED FOR THROUGH COMPUTER ASSISTED SCRUTINY SELECTION (CASS). ACCORDINGLY, THE NOTICE WAS ISSUED ON 16.08.2013 AND WAS DULY SERVED ON THE ASSESSEE. THEREAFTER NOTICE U/S 142(1) OF THE I.T.ACT, 1961 ALONG WITH DETAILS WAS ISSUED ON 28.04.2014 THROUGH SPEED POST. HOWEVER, THERE WAS NO COMMUNICATION TILL 5 TH FEBRUARY, 2015. AS THE CASE IS GETTING BARRED BY LIMITATION ON 31 DAYS , A FINAL SHOW CAUSE WAS ISSU ED ON 06.02.2015 THEREBY ALLOWING ASSESSEE TO GIVE OPPORTUNITY TO APPEAR ON 16.02.2015 AT 11.30 AM. FAILING WHICH THE ASSESSEE IN THIS CASE SHALL BE CO MPLETED WITHOUT FURTHER REFERENCE TO THEM. HOWEVER, FINAL SHOW CAUSE HAS RE TRUNED UNSERVED ONCE AGAIN WITH POSTAL REMARK TO COMPLETE THE ASSESSMENT TO TH E BEST OF JUDGMENT ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 4. THE LD. COUNSEL ALSO SUBMITTED THAT DURING THE APPELLATE PROCEEDINGS THE ASSESSEE DID NOT RECEIVE THE NOTICE OF HEARING VIDE RELEVANT PARA OF THE ORDER OF LD. CIT(A) WHICH IS GIVEN BELOW: THIS APPEAL IS DIRECTED AGAINST ORDER U/S 144 DATE D 18.02.2015, PASSED BY ITO, WARD-7(3). APPEAL HAS BEEN FILED ON 11.06.2015. NOT ICES DATED 28.05.2018 & 18.06.2018 WERE ISSUED. E-MAIL ALSO GENERATED THROU GH ITBA ONLINE SYSTEMS AND IN REGISTERED PAN BASED E-MAIL ID. HOWEVER, NO ONE ATTENDED IN RESPONSE TO THESE NOTICES. HENCE, APPEAL IS DECIDED ON THE BASI S OF MATERIAL AVAILABLE ON RECORD. M/S SARJUTRADELINK PVT. LTD. ITA NO.1850/KOL/2018 ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 3 33 3 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. THE MAIN GRIEVANCE OF THE ASSESSEE (WHICH SPELLS OU T BY GROUND NO. 2 RAISED BY THE ASSESSEE) IS THAT SUFFICIENT OPPORTUNITY WAS NOT GR ANTED TO THE ASSESSEE BY THE ASSESSING OFFICER, AS THE FINAL SHOW CAUSE NOTICE R ETURNED UNSERVED DUE TO POSTAL ANOMALIES. DURING THE APPELLATE STAGE ALSO ASSESSEE DID NOT GET NOTICE FOR HEARINGS. THEREFORE WE ARE OF THE VIEW THAT THE ASSESSEE COUL D NOT PLEAD HIS CASE PROPERLY, HENCE ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE A SSESSEE TO PLEAD HIS CASE BEFORE THE ASSESSING OFFICER. THE LD. DR FOR THE RE VENUE DID NOT HAVE OBJECTION IF THE MATTER IS REMITTED BACK TO THE FILE OF ASSESSIN G OFFICER. THEREFORE WE THINK IT FIT AND APPROPRIATE TO REMIT THIS ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER, AND HENCE WE SET ASIDE THE ORDER OF LD. CIT(A) AND REMI T THE MATTER BACK TO THE FILE OF ASSESSING OFFICER FOR DE NOVO ADJUDICATION. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED TO BE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 29.0 3.2019 SD/- ( S.S.VISWANETHRA RAVI ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; / DATE: 29/03/2019 ( SB, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. M/S SARJU TRADELINK PVT. LTD. 2. ITO, WARD-7(3), KOLKATA 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES M/S SARJUTRADELINK PVT. LTD. ITA NO.1850/KOL/2018 ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 4 44 4