Shivam Hire Purchase & Finvest Pvt. Ltd., , Kolkata V. ITO, Ward - 5(1), Kolkata, Kolkata

ITA 2140/KOL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0843 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 06-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SOUMYAJIT DASGUPTA
• Keywords: Unexplained investment; Opportunity of being heard; Application of stay
• Section: 143(3); 69; 154

Judgement Text

SA NO.126/KOL/2017 &ITA NO.2140/KOL/2017 SHIVAM HIR E PURCHASE & FINVEST (P)LTD. A.Y.2014-15 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C KOL KATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM & SHRI M.B ALAGANESH, AM ] S.A.NO.126/KOL/2017 (A/O ITA NO.2140/KOL/2017) ASSESSMENT YEAR : 2014-15 SHIVAM HIRE PURCHASE & FINVEST -VERSUS- I.T.O ., WARD-5(1) (P) LTD., KOLKATA KOLKATA (PAN: AAGCS0627 N) (APPELLANT) (RESPONDENT) ITA NO.2140/KOL/2017 ASSESSMENT YEAR : 2014-15 SHIVAM HIRE PURCHASE & FINVEST -VERSUS- I.T.O ., WARD-5(1) (P) LTD., KOLKATA KOLKATA (PAN: AAGCS0627 N) (APPELLANT) (RESPONDENT) FOR THE APPELLANT :SHRI ANIL KOCHAR, ADVOCATE FOR THE RESPONDENT: SHRI SOUMYAJIT DASGUPTA, ADDL. CIT(DR) DATE OF HEARING : 01.12.2017. DATE OF PRONOUNCEMENT : 01.12.2017. ORDER PER N.V.VASUDEVAN, JM: THIS IS AN APPEAL FILED BY THE ASSESSEE PRAYING FOR AN ORDER OF STAY OF RECOVERY OF OUTSTANDING DEMAND OF RS. 1,35,35,590/-. WHEN TH E STAY APPLICATION CAME UP FOR HEARING IT WAS NOTICED BY THE BENCH THAT THE ORDER OF CIT(A) IS AN EXPARTE ORDER AND THE ASSESSEES MAIN GRIEVANCE IN THE APPEAL IS THAT CIT(A) DID NOT AFFORD ANY OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE P ASSING THE IMPUGNED ORDER. WE THEREFORE PROPOSED THAT THE APPEAL ITSELF CAN BE DE CIDED INSTEAD OF DECIDING THE STAY APPLICATION. WITH THE CONSENT OF THE PARTIES THE AP PEAL WAS TAKEN UP FOR HEARING. 2. THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINES S OF MAKING INVESTMENTS. FOR A.Y.2014-15 AN ORDER OF ASSESSMENT U/S 143(3) OF TH E INCOME TAX ACT, 1961 (ACT) WAS PASSED ON 13.12.2016. AS AGAINST THE RETURNED INCOME OF NIL FILED BY THE SA NO.126/KOL/2017 &ITA NO.2140/KOL/2017 SHIVAM HIR E PURCHASE & FINVEST (P)LTD. A.Y.2014-15 2 ASSESSEE THE TOTAL INCOME OF THE ASSESSEE WAS DETER MINED AT A SUM OF RS.3,00,13,400/-. THE AO MADE TWO ADDITIONS IN THE ORDER OF ASSESSMEN T NAMELY (I) ADDITION OF RS.3 CRORES ON ACCOUNT OF UNEXPLAINED INVESTMENT IN UNLI STED EQUITY SHARES U/S 69 OF THE ACT AND (II) ADDITION OF RS.13,400/- U/S 14 A OF TH E ACT. 3. AGGRIEVED BY THE ORDER OF AO THE ASSESSEE PREFER RED APPEAL BEFORE CIT(A). THE APPEAL WAS FILED BY THE ASSESSEE BEFORE CIT(A) ON 02.03.2017. THE APPEAL HAD NOT BEEN LISTED FOR HEARING BEFORE CIT(A). THE ASSE SSEE HAD FILED A LETTER DT. 27.06.2017 IN THE OFFICE OF CIT(A) WHICH WAS RECEI VED ON 04.07.2017. IN THE SAID LETTER THE ASSESSEE HAD REQUESTED CIT(A) TO PERMIT THE ASSESSEE TO WITHDRAW THE APPEAL FOR THE FOLLOWING REASONS : WE HAVE INSTITUTED CAPTIONED APPEAL AGAINST THE OR DER OF THE ASSESSING OFFICER FOR A.Y.2014-15. WE ARE ALTERNATIVELY SEEKING REMED IAL ACTION UNDER SECTION 154 BEFORE THE AO IN THE MATTER. ACCORDINGLY, WE SEEK T O WITHDRAW APPEAL INSTITUTED BY US AGAINST THE SAID ORDER AND REQUEST YOUR HONOU R TO ALLOW US TO WITHDRAW THE CAPTIONED APPEAL. 4. THE CIT(A) AFTER RECEIPT OF THIS LETTER WITHOUT GIVING ANY NOTICE TO THE ASSESSEE DISMISSED THE APPEAL OF THE ASSESSEE UPHOLDING THE ORDER OF AO. ACCORDING TO THE CIT(A) THERE WAS NO PROVISION UNDER THE ACT FOR WIT HDRAWING THE APPEAL FILED BEFORE CIT(A). CIT(A) FURTHER NOTICED THAT THE ASSESSEE DI D NOT FILE ANY WRITTEN ARGUMENTS AGAINST THE FINDING OF THE AO. IN THE ABSENCE OF AN Y MATERIAL CIT(A) CONCLUDED THAT THERE IS NO INFIRMITY IN THE ORDER OF AO AND DISMIS SED THE APPEAL OF THE ASSESSEE. 5. AGGRIEVED BY THE ORDER OF CIT(A) THE ASSESSEE PR EFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL RAISING THE FOLLOWING GROUNDS O F APPEAL : 1.FOR THAT THE LD. CIT (A) ERRED IN DISMISSING THE APPEAL OF THE APPELLANT ON THE ALLEGED GROUNDS. 2.FOR THAT THERE WAS NO REASONABLE OPPORTUNITY OF H EARING GIVEN BY THE LD. CIT (A) TO THE APPELLANT WITH REFERENCE TO THE GROUNDS OF APPEAL TAKEN BY THE APPELLANT FOR ADJUDICATION. 3. FOR THAT EVEN THOUGH THE LD. CIT CA) DID NOT ALL OW WITHDRAWAL OF THE APPEAL AS REQUESTED BY THE APPELLANT, THE APPELLANT OUGHT TO HAVE BEEN INFORMED ABOUT SA NO.126/KOL/2017 &ITA NO.2140/KOL/2017 SHIVAM HIR E PURCHASE & FINVEST (P)LTD. A.Y.2014-15 3 THE SAME AND AN OPPORTUNITY OUGHT TO HAVE BEEN GIVE N TO THE APPELLANT TO PIECE ARGUMENTS AND CONTENTIONS ON THE ISSUES INVOLVED IN APPEAL. 4. FOR THAT THE ORDER OF THE LD. CIT CA) OUGHT TO H AVE CONSIDERED THE GROUNDS AGITATED BY THE APPELLANT AND OUGHT TO HAVE DECIDED THE SAME. 5. FOR THAT FURTHER GROUNDS OF APPEAL MAY KINDLY BE ALLOWED TO BE TAKEN AT THE TIME OF HEARING OF APPEAL. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS. AS RIGHTLY CONTENDED IN THE GROUNDS OF APPEAL THERE WAS NO OPPORTUNITY OF BEING HEARD AFFO RDED TO THE ASSESSEE BY CIT(A) BEFORE DISMISSING THE APPEAL OF THE ASSESSEE. CIT(A ) OUGHT TO HAVE INFORMED THE ASSESSEE THAT THERE IS NO PROVISION IN THE ACT AND THEREFORE THE ASSESSEES REQUEST FOR WITHDRAWAL OF APPEAL CANNOT BE ACCEDED TO. CIT(A) O UGHT TO HAVE FIXED THE APPEAL FOR HEARING AND CALLED UPON THE ASSESSEE TO PUT FORTH H IS CASE AGAINST THE ORDER OF AO BECAUSE CIT(A) WAS OF THE VIEW THAT THE APPEAL ONCE FILED CANNOT BE WITHDRAWN. IN OUR VIEW THEREFORE ORDER OF CIT(A) DESERVES TO BE S ET ASIDE AND HERE BY SET ASIDE. CIT(A) IS DIRECTED TO GIVE OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE ON THE GROUNDS RAISED BY THE ASSESSEE BEFORE CIT(A). THE ASSESSEE SHALL PUT FORTH ITS GRIEVANCES BEFORE CIT(A), WHO SHALL DECIDE THE SAME IN ACCORDA NCE WITH LAW AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. FOR STA TISTICAL PURPOSE THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. 7. IN VIEW OF THE DECISION ON MERITS OF THE APPEAL WE ARE OF THE VIEW THAT THE STAY APPLICATION IS INFRUCTUOUS AND THE SAME IS DISMISSE D AS INFRUCTUOUS. 8. IN THE RESULT THE APPEAL BY THE ASSESEE IS ALLOW ED FOR STATISTICAL PURPOSES AND THE STAY APPLICATION BY THE ASSESSEE IS DISMISSED. O RDER PRONOUNCED IN THE COURT ON 01.12.2017. SD/- SD/- [M.BALAGANESH] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 01.12.2017. [RG SR.PS] SA NO.126/KOL/2017 &ITA NO.2140/KOL/2017 SHIVAM HIR E PURCHASE & FINVEST (P)LTD. A.Y.2014-15 4 COPY OF THE ORDER FORWARDED TO: 1.SHIVAM HIRE PURCHSE & FINVEST (P)LTD., C/O S.L.KO CHAR, ADVOCATE, 5, ASHUTOSH CHOWDHURY LANE, KOLKATA-700019. 2.I.T.O., WARD-5(1), KOLKTA. 3. C.I.T.(A) - 2, KOLKATA. 4. C.I.T.-2, KOLKA TA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, SENIOR PR IVATE SECRETARY HEAD OF OFFICE/D.D.O, ITAT KOLKATA BENCH ES