I.T.O.,Ward-9(4), Kolkata V. M/s Stoney Commercial Pvt Ltd, Kolkata

ITA 1997/KOL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5730 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 26-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: IMOKABA JAMIR
• Assessee Lawyers: A K GUPTA
• Keywords: Unexplained cash credit
• Section: 292BB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B, BENCH KOLKATA BEFORE SHRI P.M. JAGTAP, V.P & SHRI S. S. GODARA, JM ./I.T.A NO.1997/KOL/2019 ( [ [ / ASSESSMENT YEAR: 2009-10) ITO, WARD-9(4), KOLKATA VS. M/S STONEY COMMERCIAL PVT. LTD. 16, GANESH CHANDRA AVENUE, 7 TH FLOOR, KOLKATA 700 013. ./ ./PAN/GIR NO.: AAMCS5873J (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI IMOKABA JAMIR, CIT RESPONDENT BY : SHRI A. K. GUPTA, FCA / DATE OF HEARING : 03/02/2020 /DATE OF PRONOUNCEMENT : 14/02/2020 / O R D E R PER SHRI S. S. GODARA: THIS REVENUES APPEAL FOR ASSESSMENT YEAR 2009-10 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (A) - 17, KOLKATA DATED 28.03.2019 PASSED IN CASE NO.439/CIT(A)-17/KOL/15-16 INVOLVING PROCEEDINGS U/S 143(3)/236/147/143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. IT TRANSPIRES AT THE OUTSET THAT THIS REVENUES APPEAL SUFFERS FROM NINE DAYS DELAY IN FILING. WE TAKE INTO CONSIDERATION SOLEMN AVERMENTS IN ITS CONDONATION PETITION AND ON ACCOUNT OF NO OBJECTION FROM THE ASSESSEE SIDE TO CONDONE THE IMPUGNED DELAY AND PROCEED TO ADJUDICATE THE APPEAL ON MERITS. 3. THE REVENUE HAS PLEADED TWO SUBSTANTIVE GRIEVANCES IN ITS INSTANT APPEAL. ITS FORMER GRIEVANCE READS THAT THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN REVERSING THE ASSESSING OFFICERS ACTION TREATING ASSESSEES SHARE CAPITAL OF RS.20,43,00,000/- AS UNEXPLAINED CASH CREDITS IN ASSESSMENT ORDER DATED I.T.A NO.1997/KOL/2019 M/S STONEY COMMERCIAL PVT. LTD. PAGE | 2 31.03.2014. WE NOTICE AT THE OUTSET THAT THE CIT(A)'S CORRESPONDING DETAILED DISCUSSION HAS NOWHERE DEALT WITH THIS FORMER ISSUE ON MERITS. LEARNED CIT-DR AT THIS STAGE SUBMITTED THAT THE CIT(A)'S LOWER APPELLATE ORDER HAS IN FACT HELD THAT SINCE THE ASSESSING OFFICER HAD FRAMED THE IMPUGNED ASSESSMENT IN CASE OF M/S STONEY COMMERCIAL PVT. LTD./ASSESSEE-RESPONDENT, THE SAME DESERVES TO BE QUASHED. MR. JAMIR'S CASE ACCORDINGLY IS THAT WE ARE IN ASSESSMENT YEAR 2008-09 INVOLVING THE IMPUGNED ASSESSMENT DATED 31.03.2014 U/S 143(3)/263/147/143(3) OF THE ACT, THEREFORE, THE SAME OUGHT NOT TO HAVE BEEN QUASHED IN VIEW OF AN AMALGAMATION SCHEME IN ISSUE APPROVED BY THE HON'BLE JURISDICTIONAL HIGH COURT DATED 11.09.2011 W.E.F. 01.04.2010. SECTION 292BB IS ALSO QUOTED IN SUPPORT OF THAT ONCE THE ASSESSEE HAS ITSELF PARTICIPATED IN THE ASSESSMENT PROCEEDINGS, THE ABOVE STATUTORY PROVISION COMES INTO PLAY. 4. LEARNED AUTHORIZED REPRESENTATIVE HAS STRONGLY SUPPORTED THE CIT(A)'S ACTION QUASHING THE IMPUGNED ASSESSMENT FRAMED IN CASE OF NON-EXISTING ENTITY I.E. M/S STONEY COMMERCIAL PVT. LTD. 5. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE FOREGOING RIVAL CONTENTIONS. WE NOTICE THAT THE ISSUE SOUGHT TO BE RAISED AT THE REVENUE'S BEHEST IS THAT THE CIT(A) OUGHT NOT TO HAVE QUASHED THE IMPUGNED ASSESSMENT FRAMED IN CASE OF THE ALLEGED NON-EXISTENT ENTITY IS NO MORE RES INTEGRA IN VIEW OF THE HON'BLE APEX COURT'S LATEST DECISION IN PCIT VS. MARUTI SUZUKI INDIA LTD. (2019) 107 TAXMANN.COM 375 (SC) THAT SUCH AN ASSESSMENT FRAMED IN CASE OF AN NON-EXISTENT ENTITY IS A NULLITY. THEIR LORDSHIPS HAVE ALSO CONSIDERED SECTION 292BB OF THE ACT AS WELL THAT AN ASSESSMENT IN CASE OF A NON-EXISTING ENTITY DOES NOT INVOLVE MERE PROCEDURAL VIOLATION AS WELL. COUPLED WITH THIS, WE ALSO NOTICE THAT ALTHOUGH THE ORIGINAL ASSESSEE I.E. M/S STONEY COMMERCIAL PVT. LTD. STOOD MERGED WITH M/S COSMIC CONSUMER GOODS PVT. LTD. ON 11.09.2011 W.E.F 01.04.2010 AND THE LATTER ALSO FILED ITS APPEAL BEFORE THE LD. CIT(A), THE REVENUE HAS CHOSEN TO IMPLEAD ONLY THE FORMER ENTITY AS THE RESPONDENT BEFORE US. WE CONCLUDE IN THESE FACTS AND CIRCUMSTANCES THAT BOTH THESE FAILURES ON REVENUE'S PART IN NOT FRAMING ASSESSMENT IN CASE OF M/S COSMIC CONSUMER GOODS PVT. LTD. AS WELL AS FILING THE INSTANT I.T.A NO.1997/KOL/2019 M/S STONEY COMMERCIAL PVT. LTD. PAGE | 3 APPEAL IN CASE OF AN NON-EXISTENT ENTITY IS FATAL TO ITS CAUSE. THE CIT(A)S FINDINGS UNDER CHALLENGE ARE AFFIRMED THEREFORE. 6. THIS REVENUES APPEAL IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 14.02.2020. SD/- ( P. M. JAGTAP ) SD/- (S. S. GODARA) VICE-PRESIDENT JUDICIAL MEMBER /KOLKATA; / DATE: 14/02/2020 RS / COPY OF THE ORDER FORWARDED TO : TRUE COPY BY ORDER ASSISTANT REGISTRAR, I.T.A.T, KOLKATA BENCHES, KOLKATA . 1. THE APPELLANT - ITO, WARD-9(4), KOLKATA 2. THE RESPONDENT - M/S STONEY COMMERCIAL PVT. LTD. 3. ( ) / THE CIT(A), KOLKATA [SENT THROUGH EMAIL] 4. / CIT 5. , , / DR, ITAT, KOLKATA [SENT THROUGH EMAIL] 6. [ / GUARD FILE.