ITO, Ward-10(2), Kolkata, Kolkata V. M/s Auto Trendz Impex Limited, Kolkata

ITA 1861/KOL/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4598 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 23-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDER
• Keywords: Reopening of assessment; Question of law; Onus to prove; Set aside
• Section: 143(3); 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C, BENC H KOLKATA BEFORE SHRI S.S. GODARA, JM &DR. A.L.SAINI, AM ./ITA NO.1861/KOL/2016 ( / ASSESSMENT YEAR: 2012-13) ITO, WARD-10(2), KOLKATA VS. M/S AUTO TRENDZ IMPEX LTD. 19/2, SAHAPUR COLONY (WEST), 2 ND FLOOR, NEW ALIPORE-700053 ./ ./PAN/GIR NO.: AAJCA 6154 H (ASSESSEE) .. (REVENUE) ASSESSEE BY : SHRI SANKAR HALDER, JCIT, SR. DR RESPONDENT BY : NONE / DATE OF HEARING : 20/08/2019 /DATE OF PRONOUNCEMENT : 28/08/2019 / O R D E R PER DR. A. L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE REVENUE, PERT AINING TO ASSESSMENT YEAR 2012-13, IS DIRECTED AGAINST THE ORDER PASSED BY T HE COMMISSIONER OF INCOME TAX (APPEAL)-4, KOLKATA, WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT , 1961 (IN SHORT THE ACT) DATED 28.03.2015. 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F ASSESSEE IN SPITE OF ISSUANCE OF NOTICE FOR HEARING MORE THAN ONE OCCASION AND LD . DEPARTMENTAL REPRESENTATIVE(DR), WAS PRESENT FOR THE APPELLANT R EVENUE. IN THE ABSENCE OF ANY APPEARANCE BY THE ASSESSEE, THE APPEAL IS BEING DIS POSED OF EX PARTE QUA THE ASSESSEE, AFTER HEARING LD. DR FOR THE REVENUE ON M ERITS IN TERMS OF RULE 24 OF THE INCOME TAX APPELLATE, TRIBUNAL, RULES, 1963. M/S AUTO TRENDZIMPEXLTD. ITA NO.1861/KOL/2016 ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 2 22 2 3. AT THE OUTSET LD. DR FOR THE REVENUE POINTED OUT THAT DESPITE TEN HEARINGS BEFORE THIS TRIBUNAL NONE APPEARED ON BEHALF OF THE ASSESS EE 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 ASSESSEE AS PER T HE DIRECTION OF THIS TRIBUNAL THEN ALSO NONE APPEARED ON BEHALF OF THE ASSESSEE. THE L D. DR ALSO POINTED OUT THAT ISSUE INVOLVED IN THE PRESENT APPEAL RELATES TO MIX ED QUESTION OF FACTS AS WELL AS LAW THEREFORE, THE CASE MAY BE REMITTED BACK TO THE FILE OF THE LD. AO FOR FRESH ADJUDICATION. 4. WE HAVE HEARD LD. D.R. AND PERUSED THE MATERIAL AVAILABLE ON RECORD.AT THE OUTSET ITSELF, WE NOTE THAT DURING THE ASSESSMENT S TAGE, NO CONFIRMATION WERE COLLECTED BY ASSESSING OFFICER FROM SHARE SUBSCRIBI NG COMPANIES. DURING THE ASSESSMENT STAGE, THERE WAS NO COMPLIANCE OF NOTIC E U/S 131 OF THE ACT. THE SHARE SUBSCRIBING COMPANIES WERE ALSO NOT PRESENT BEFORE THE AO TO EXPLAIN THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION . MERELY DUMPING PAPERS AND DOCUMENTS ON THE TABLE OF THE ASSESSING AUTHORITY D OES NOT IN ANY WAY MEAN COMPLIANCE, FOR THAT WE RELY OF THE JUDGMENT OF THE CO-ORDINATE BENCH OF ITAT KOLKATA IN THE CASE OF BISHAKHA SALES PVT. LTD. IN ITA NO. 1493/KOL/ 2013 WHEREIN IT WAS HELD THAT COMPLIANCE OF NOTICE U/S 1 31 IS NECESSARY. THE IMPORTANT FINDINGS OF THE CO-ORDINATE BENCH ARE AS FOLLOWS: THIS ALSO CLEARLY SHOWS THE EVASIONARY TACTICS TH AT ARE BEING ADOPTED TO WRIGGLE ITS WAY OUT OF THE CORNER IT HAS PUT ITSELF INTO BY ITS OWN ACTS AND COMMISSIONS. A PECULIARITY IN SUCH CASES THAT IS NOTICED IS THAT S HEAVES OF PAPER DOCUMENTS ARE READILY PRODUCED BUT WHEN A SUMMON IS ISSUED THE R ESPONSIBLE PERSONS CONVENIENTLY DISAPPEAR. ONLY THE ASSESSEE KNOWS THE INTRICACIES OF ITS ACCOUNTS. IT IS FOR THE ASSESSEE TO PROVE ITS CLAIM OF SHARE CAP ITAL / APPLICATION MONEY INTRODUCTION AND ITS AFFAIRS IN RESPECT OF ITS AC COUNTS. MERELY DUMPING PAPERS AND DOCUMENTS ON THE TABLE OF THE ASSESSING AUTHORI TY DOES NOT IN ANY WAY MEAN COMPLIANCE. THE BURDEN OF PROOF CANNOT BE SHIFTED O N THE REVENUE BY CARD LOADS OF DOCUMENTS. THE DOCUMENTS SUBMITTED MUST BE EXPLA INED. WE DO UNDERSTAND THE PREDICAMENT OF THE ASSESSEE INSOFAR AS IF ANY RESPO NSIBLE PERSON APPEARS THEN HE WOULD HAVE TO ANSWER MANY UNPLEASANT QUESTIONS WHIC H COULD LEAD TO THE REOPENING OF ASSESSMENTS IN MULTIPLE ASSESSMENT YEA RS AND MULTIPLE ASSESSEES. BUT THEN WHAT HAS BEEN CREATED AND KNOTTED UP BY THE AS SESSEE MUST BE ANSWERED AND UNRAVELED ONLY BY THE ASSESSEE AND NONE ELSE WOULD KNOW THE FACTS BETTER THAN THE ASSESSEE ITSELF. M/S AUTO TRENDZIMPEXLTD. ITA NO.1861/KOL/2016 ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 3 33 3 THUS, WE NOTE THAT MERELY SUBMITTING BOOKS OF ACCOU NTS AND DOCUMENTS BEFORE THE ASSESSING OFFICER DOES NOT IN ANY WAY MEAN COMPLIAN CE. WE NOTE THAT NEITHER THE ASSESSEE COMPANY NOR THE SHARE SUBSCRIBING COMPANIE S APPEARED BEFORE THE AO TO EXPLAIN THE IDENTITY, CREDITWORTHINESS AND GENUINEN ESS OF THE SHARE CAPITAL/PREMIUM. IN SPITE OF TEN HEARINGS, THE ASSE SSEE DID NOT APPEAR BEFORE US ALSO. THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE COU LD NOT PLEAD HIS CASE PROPERLY BEFORE THE ASSESSING OFFICER, HENCE ONE MORE OPPORT UNITY SHOULD BE GIVEN TO THE ASSESSEE TO PLEAD HIS CASE BEFORE THE ASSESSING OFF ICER. THE LD. DR FOR THE REVENUE DID NOT HAVE OBJECTION IF THE MATTER IS REMITTED BA CK TO THE FILE OF ASSESSING OFFICER.WE ARE OF THE VIEW THAT ISSUE RAISED BY THE REVENUE CONTAINS MIXED QUESTION OF LAW AND FACTS, WHICH REQUIRES THE ASSIS TANCE OF LD AR/ASSESSEE ALONG WITH PAPER BOOK TO VERIFY THE FINDINGS OF THE LD CI T(A). SINCE THE AR/ASSESSEE IS NOT BOTHERED TO APPEAR BEFORE US THEREFORE, WE SET ASIDE THE ORDER OF LD CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF LD AO WITH TH E DIRECTION TO PASS DENOVO ORDER AFTER GIVING OPPORTUNITY TO ASSESSEE AND ASSESSING OFFICER. THEREFORE, WE THINK IT FIT AND APPROPRIATE TO REMIT THIS ISSUE BACK TO THE FIL E 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. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS TREA TED TO BE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 28.08.2019 SD/- ( S.S.GODARA ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE: 28/08/2019 ( SB, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. ITO, WARD-10(2), KOLKATA 2. M/S AUTO TRENDZ IMPEX LTD. M/S AUTO TRENDZIMPEXLTD. ITA NO.1861/KOL/2016 ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 4 44 4 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