Massive Infrastructure Pvt. Ltd., Kolkata V. I.T.O.,Ward-4(2), Kolkata

ITA 197/KOL/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5222 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-10-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 06-10-2020
• Assessment Year: 2012-2013
• Appeal Filed On: 14-02-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA JCIT LD
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice
• Section: 143(3); 13; 68

Judgement Text

1 ITA NO. 197 /KOL/20 AY 2012 - 13 IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOLKATA BEFORE: SHRI P.M. JAGTAP, VICE - PRESIDENT (KZ) AND SHRI A.T. VARKEY, JUDICIAL MEMBER I.T.A NO . 197 /KOL/2020 A.Y: 20 1 2 - 13 M/S. MASSIVE INFRASTRUCTURE VS. INCOME TAX OFFICER PVT. LTD. WARD 4 ( 2 ), KOLKATA PAN: AA HCM2088C [APPELLANT] [RESPONDENT] FOR THE APPELLAN T : NONE APPEARED FOR THE RESPONDENT : SHRI JAYANTA KHANRA, JCIT, LD.SR.DR DATE OF HEARING (VIRTUAL) : 0 6 - 10 - 2020 DATE OF PRONOUNCEMENT : 0 6 - 10 - 2020 ORDER SHRI P.M. JAGTAP, V.P: THIS APPEAL PREFERRED BY THE AS SESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT (APPEALS) - 2 , KOLKATA DATED 04 - 09 - 2019 PASSED EX PARTE, WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE AND CONFIRMED THE PENALTY OF RS. 62,25,580/ - IMPOSED BY THE AO U/S. 271(1) ( C) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER, REFERRED TO AS THE ACT ). 2. THE ASSESSEE I N THE PRESENT CASE IS A COMPANY. THE ASSESSMENT IN ITS CASE FOR THE A.Y UNDER CONSIDERATION WAS COMPLETED BY AN ORDER DATED 29 - 0 3 - 2015 PASSED U/S. 143(3) OF THE A CT BY THE A O , WHEREIN A N ADDITION OF RS. 1,92,00,00 0 / - WAS MADE BY THE AO TO THE TOTAL INCOME OF THE ASSESSEE BY TREATING THE SHARE APPLICATION AND SHARE PREMIUM AMOUNT AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE ACT. ON CONFIRMATION OF THE SAID ADDITION BY THE L D. CIT(A) IN THE QUANTUM PROCEEDINGS , A NOTICE WAS ISSUED BY THE AO REQUIRING THE ASSESSEE TO SHOW CAUSE AS TO WHY THE PENALTY U/S. 271(1) (C) OF THE ACT SHOULD NOT BE IMPOSED IN RESPECT OF SAID ADDITION AND SINCE THE ASSESSEE FAILED TO OFFER ANY SATISF ACTORY EXPLANATION IN RESPONSE TO THE SAID SHOW CAUSE NOTICE , THE AO PROCEEDED TO IMPOSE A PENALTY OF RS. 62,25,580/ - U/S. 271(1)( C) OF THE ACT BEING 100% OF TAX SOUGHT TO BE EVADED BY THE ASSESSEE IN RESPECT OF ADDITION O F RS. 1, 92,00,000/ - MADE ON A CCOUNT OF CASH CREDIT U/S. 68 OF THE ACT. 3. THE PENALTY IMPOSED BY THE AO U/S. 271(1)( C ) WAS CHALLENGED BY THE ASSESSEE IN THE APPEAL FILED BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE ON THE PART 2 ITA NO. 197 /KOL/20 AY 2012 - 13 OF THE ASSESSEE TO THE NO TICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE VIDE HIS APPELLATE ORDER DT. 04 - 09 - 2019 PASSED EX PARTE AND CONFIRMED THE IMPUGNED PENALTY IMPOSED BY THE AO U/S. 271(1) ( C) OF THE ACT . AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE TH E TRIBUNAL. 4 . AT THE TIME OF HEARING BEFORE TH E TRIBUNAL FIXED IN THIS CASE , NO NE HAS APPEARED ON BEHALF OF THE ASSESSEE. THE LD.DR HAS, HOWEVER, FAIRLY POINTED OUT THAT MOST OF THE NOTICES ISSUED BY THE LD. CIT(A) FIXING THE APPEAL OF THE ASSESSEE FOR HEARING WERE NOT SERVE D ON THE ASSESSEE AND THE SAME WERE RETURNED BACK WITH THE POSTAL REMARK S INSUFFICIENT ADDRESS IT IS THUS CLEAR THAT PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD WAS NOT GIVEN TO THE ASESSEE BY THE LD. CIT(A) BEFORE DISPOSING OFF THE APPEAL OF THE ASSESSEE BY THE IMPUGNED ORDER PASSED EX PARTE AND THERE IS A CLEAR VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. WE, THEREFORE, S ET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX PARTE AND REMIT THE MAT T ER BACK TO THE LD. CIT(A) FOR DISPOSING OFF THE APPEAL OF THE ASSESSEE AFRESH ON MERITS IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE PROPER AND SUFFICIENT OPPORTUNIT Y OF BEING HEARD. T HE ASSESSEE IS ALSO DIRECTED TO MAKE DUE COMPLIANCE BEFORE THE LD. CIT(A) AND TO EXTEND ALL POSSIBLE CO - OPERATION IN ORDER TO ENABLE THE LD. CIT(A) TO DISPOSE OFF THE APPEAL OF THE ASSESSEE AFRESH EXPEDITIOUSLY. 5 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH OCTOBER, 2020 SD/ - SD/ - A.T. VARKEY P.M. JAGTAP JUDICIAL MEMBER VICE PRESIDENT (KZ) DATED 0 6 - 10 - 2020 3 ITA NO. 197 /KOL/20 AY 2012 - 13 ** PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT/ASSESSEE: M/S. MASSIVE INFRASTRUCTURE PVT. LTD 8/1 LAL BAZAR ST., KOLKATA - 700 001. 2 RESPONDENT/REVENUE: INCOME TAX OFFICER, WARD 4(2), AAYKAR BHAWA N, P - 7 CHOWRINGHEE SQ., KOLKATA - 700 069 3. CIT, 4. CIT(A), KOLKATA. 5. DR, KOLKATA BENCHES, KOLKATA **PP/SPS TRUE COPY BY BY ORDER ASSISTANT REGISTRAR ITAT KOLKATA