M/s. Technomat Industries, Kolkata V. ITO, Ward - 29(2), Kolkata, Kolkata

ITA 2159/KOL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9284 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 1997-1998
• Appeal Filed On: 03-12-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MALAKAR
• Assessee Lawyers: G B SINHA
• Keywords: Opportunity of being heard; Additional evidence; Difference of opinion
• Section: 143(3); 144

Judgement Text

, . . , , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH : KOLKATA ( ) . . , [BEFORE HONBLE SHRI B.R.MITTAL, JUDICIAL MEMBER] / I.T.A NO. 2159/KOL/2010 ! ! ! ! / ASSESSMENT YEAR : 1997-1998 M/S. TECHNO MAT INDUSTRIES, KOLKATA -VS.- IN COME TAX OFFICER, WARD-29(2), KOLKATA (PAN : AGFPK 6817 N) ( '# '# '# '# /APPELLANT ) ( $%'# $%'# $%'# $%'# / RESPONDENT ) '# '# '# '# / FOR THE APPELLANT : SHRI G.B. SINHA, A.R. $%'# $%'# $%'# $%'# / FOR THE RESPONDENT : SHRI S.K. MALAKAR, SR. D.R. &' &' &' &' / ORDER THE ASSESSEE HAS FILED THIS APPEAL FOR ASSESSMENT YEAR 1997-98 AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XVI, KOLKATA D ATED 16.07.2010 ON THE FOLLOWING GROUNDS :- (1) THAT THE LD. CIT(APPEALS) HAS ERRED BOTH IN LAW AND ON FACTS IN CONFIRMING THE ORDER OF ASSESSING AUTHORITY WITHOUT FOLLOWING THE DIRECTION OF THE LD. TRIBUNAL. (2) THAT THE LD. CIT(APPEALS) SHOULD HAVE APPLIED H IS MIND JUDICIALLY IN DISALLOWING THE EXPENDITURE AND CONFIRMING THE ASSE SSMENT ORDER. (3) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THAT THE LD. CIT(APPEALS) SHOULD HAVE CONSIDERED THAT THE LD. ITO HAD NOT SER VED NOTICE IN PROPER PROCESS AND ALSO TO PARTNERS PERSONAL ADDRESS. 2. BEFORE I TAKE UP FOR MY CONSIDERATION THE GROUND S OF APPEAL TAKEN BY THE ASSESSEE, IT IS RELEVANT TO STATE THAT THE ASSESSEE FILED THE RETUR N DECLARING TOTAL INCOME OF RS.15,180/-. THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) ON 31 .03.2000 ASSESSING TOTAL INCOME AT RS.3,64,420/-. BEING AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) VIDE H IS ORDER DATED 26.12.2001 DELETED SOME OF THE ADDITIONS MADE BY THE ASSESSING OFFICER. THE DEPARTMENT FILED APPEAL BEFORE THE TRIBUNAL BEING ITA NO. 172/KOL./2002 DISPUTING THE DELETION OF THE ADDITIONS MADE BY THE A.O. ITA NO.2159/KOL./2010 2 THE TRIBUNAL VIDE ITS ORDER DATED 21.02.2003 SET AS IDE THE ORDERS OF THE AUTHORITIES BELOW AND DIRECTED THE ASSESSING OFFICER TO ADJUDICATE THE GR OUNDS AFRESH AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE REL EVANT PARA 2 OF THE SAID ORDER OF THE TRIBUNAL READS AS UNDER :- 2. WE HAVE HEARD BOTH THE PARTIES AND HAVE GONE TH ROUGH THE ORDERS OF THE AUTHORITIES BELOW. AT THE TIME OF HEA RING OF THIS APPEAL, IT HAS BEEN POINTED OUT THAT THE EXPLANATION PUT FORWA RD BY THE ASSESSEE BEFORE THE CIT(A.) NEEDS SOME VERIFICATION AND EXAM INATION AT THE END OF THE AO AND AS SUCH THE MATTER MAY BE REMANDED BACK TO THE AO FOR A LIMITED PURPOSE TO EXAMINE AND VERIFY THE EXPLANATI ON PUT FORWARD BY THE ASSESSEE BEFORE THE CIT(A.). WE, THEREFORE, SET ASI DE THE ISSUES INVOLVED IN THIS APPEAL FOR A LIMITED PURPOSE AS OBSERVED AB OVE TO THE FILE OF THE AO DIRECTING HIM TO ADJUDICATE THE SAME AFRESH AFTE R PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. WE ORDER ACCORDINGLY. 3. IN VIEW OF THE ABOVE, THE ASSESSING OFFICER INIT IATED ASSESSMENT PROCEEDINGS AND ISSUED LETTER ON 29.04.2003 FIXING THE DATE OF HEARING ON 26.05.2003. THE CASE WAS PARTIALLY DISCUSSED WITH THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSES SEE AND ADJOURNED TO 27.06.2003. THEREAFTER THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE . THE ASSESSING OFFICER ISSUED NOTICES BUT THE SAME RETURNED UNSERVED. ACCORDINGLY, THE ASSE SSING OFFICER COMPLETED THE ASSESSMENT UNDER SECTION 254/144 ON 27.02.2004 ASSESSING TOTAL INCOME AT RS.2,85,400/-. THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A.) AGAINST THE AFO RESAID ASSESSMENT ORDER DATED 27.02.2004. THE LD. CIT(A.) VIDE HIS IMPUGNED ORDER DATED 16.07 .2010 HAS REJECTED THE APPEAL OF THE ASSESSEE. I CONSIDER IT PRUDENT TO STATE PARAS 4 TO 7 OF THE ORDER OF THE LD. CIT(A.), WHICH ARE AS UNDER :- 4. IN COMPLIANCE TO THE ORDER OF THE HONBLE ITAT, THE AO ISSUED A LETTER TO THE ASSESSEE ON 29.04.2003 FIXING DATE OF HEARING ON 26.05.2003. IN RESPONSE, THE AR OF THE ASSESSEE APPEARED AND THE A DJOURNMENT WAS GRANTED ON 27.06.2003. HOWEVER, ON THAT DATE NO COMPLIANCE WAS MADE ON BEHALF OF ASSESSEE. THE CASE WAS AGAIN FIXED FOR HEARING ON 1 5.10.2003 BUT THE LETTER OF FIXATION COULD NOT BE SERVED AT THE RETURNED ADD RESS. IT WAS GATHERED BY THE AO THAT THE NOTICE OF HEARING WAS SENT BY THE C IT(A.) AT A DIFFERENT ADDRESS AT A-7, KATZU NAGAR, KOLKATA-32. THE AO ISS UED A LETTER ON THE AFORESAID ADDRESS THROUGH REGD. POST WHICH WAS RETU RNED UNSERVED BY THE POSTAL AUTHORITIES. SUBSEQUENTLY, THE AO SERVED THE NOTICE BY AFFIXATION ON 26.02.2004 AT THE RETURNED ADDRESS. HOWEVER, THERE WAS NO COMPLIANCE ON BEHALF OF ASSESSEE. THUS, THE ASSESSEE WAS FAILED T O PRODUCE THE EVIDENCES BEFORE THE AO FOR EXAMINATION AS DIRECTED BY THE HO NBLE ITAT. THEREFORE, THE AO COMPLETED THE ASSESSMENT UNDER SECTION. 254/ 144 OF THE ACT AT TOTAL ASSESSED INCOME OF RS.2,85,400/- WHEREIN HE REPEATE D THE ADDITION MADE IN ITA NO.2159/KOL./2010 3 THE ORIGINAL ASSESSMENT ORDER ON PURCHASE ACCOUNT, ON ACCOUNT OF COST OF PRODUCTION AND SALES ACCOUNT. HE ALSO DISALLOWED PR OVISION OF TAXATION OF RS.6,316/-. THE ORDER UNDER SECTION. 254/144 DATED 27.02.2004 HAS BEEN CONTESTED IN THIS APPEAL. 5. IN GROUNDS NOS. 1 TO 5 OF THE ASSESSEE HAS CONTE STED THAT THE AO HAS PASSED THE ORDER UNDER SECTION. 254/144 WITHOUT GIV ING PROPER OPPORTUNITY OF BEING HEARD AND HE SHOULD HAVE ISSUED NOTICE TO THE ADDRESS OF THE PARTNERS. THE ASSESSEE HAS ALSO CONTENDED THAT BEFO RE PASSING THE ORDER HE SHOULD HAVE CONSIDERED THE DECISION OF THE CIT(A.) AND THE RELEVANT DOCUMENTS SUBMITTED AT THE TIME OF ORIGINAL ASSESSM ENT AND BEFORE THE CIT(A.). 6. DURING THE COURSE OF APPELLATE PROCEEDINGS, IT W AS SUBMITTED BY THE APPELLANT THAT THE PARTNERSHIP FIRM WAS CLOSED DUE TO DIFFERENCE OF OPINION BETWEEN THE PARTNERS AND THEY WERE NOT IN TALKING T ERMS. THE FIRMS OFFICE WAS CLOSED AND THE SAID CLOSURE OF OFFICE WAS KNOWN TO DEPARTMENT WHEN THE DEPARTMENTAL INSPECTOR VISITED THERE. THE AO SHOULD HAVE ISSUED PERSONAL NOTICE AT THE RESIDENCE ADDRESS OF PARTNERS. IT WAS SUBMITTED THAT BEFORE COMPLETING THE ASSESSMENT, THE AO SHOULD HAVE EXAMI NED THE EVIDENCES PRODUCED BEFORE THE CIT(A.). 7. I HAVE CONSIDERED THE SUBMISSION OF THE APPELLAN T AND PERUSED THE ASSESSMENT ORDER. FROM THE ASSESSMENT ORDER IT IS A PPARENT THAT THE AO ALLOWED SUFFICIENT OPPORTUNITIES TO THE APPELLANT B UT SAME WERE NOT AVAILED BY HIM. THE AO TRIED HIS LEVEL BEST TO SERVE THE NO TICE ON THE APPELLANT BUT HE COULD NOT SERVE THE NOTICE IN PERSON BECAUSE APP ELLANT DID NOT INFORM THE AO REGARDING CLOSURE OF OFFICE AND THE ADDRESS ON W HICH THE AO COULD COMMUNICATE WITH THE APPELLANT. ONLY AT ONE OCCASIO N THE APPELLANTS AR APPEARED BEFORE THE AO AND AFTER THAT HE DID NOT PR ODUCE THE ADDITIONAL EVIDENCES WHICH WERE PRODUCED BEFORE THE CIT(A.). T HE ONUS WAS ON THE APPELLANT TO INFORM THE AO ABOUT CHANGE OF ADDRESS BECAUSE IT WAS AWARE THAT THE HONBLE ITAT HAS SET ASIDE THE ASSESSMENT TO THE FILE OF THE AO AND IN COMPLIANCE TO THAT ORDER THE PROCEEDINGS WERE IN ITIATED BY THE AO FOR EXAMINATION OF EVIDENCES PRODUCED BEFORE THE CIT(A. ). HOWEVER, THE APPELLANT HAS FAILED TO DISCHARGE THE ONUS CAST ON HIM AND UNDER THE CIRCUMSTANCES, I AM OF THE OPINION THAT THE AO WAS JUSTIFIED IN MAKING THE ADDITIONS WHICH WERE MADE IN THE ORIGINAL ASSESSMEN T ORDER. THE ACTION OF THE AO IS UPHELD. THE GROUND NOS. 1 TO 5 ARE DISMIS SED. HENCE, THE ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. 4. AT THE TIME OF HEARING, THE LD. A.R. COULD NOT D ISPUTE THE CONTENTS OF THE ASSESSMENT ORDER THAT THE ASSESSEE FAILED TO APPEAR BEFORE THE ASSESSING OFFICER INSPITE OF GIVING REPEATED OPPORTUNITY BY THE ASSESSING OFFICER. THE LD. A.R. SUBMITTED THAT ONE MORE CHANCE BE GIVEN TO ITA NO.2159/KOL./2010 4 THE ASSESSEE BY SETTING ASIDE THE ORDERS OF THE AUT HORITIES BELOW. HE SUBMITTED THAT IF THE ADDITIONS MADE BY THE ASSESSING OFFICER ARE CONFIRM ED, IT WILL CAUSE HARDSHIP TO THE ASSESSEE. THE LD. A.R. HAS NOT DISPUTED THE FACT THAT THE ASS ESSEE FAILED TO FURNISH THE REQUISITE DETAILS BEFORE THE ASSESSING OFFICER PURSUANT TO THE ORDER OF THE TRIBUNAL DATED 21.02.2003. HOWEVER, THE LD. D.R. SUBMITTED THAT THE ORDER OF THE LD. CI T(A.) IN CONFIRMING THE ASSESSMENT ORDER BE SUSTAINED AS THE ASSESSEE FAILED TO COMPLY WITH THE DIRECTION OF THE TRIBUNAL PURSUANT TO WHICH THE ASSESSMENT ORDER UNDER SECTION 254/144 DATED 27 .02.2004 HAS BEEN PASSED. HE SUBMITTED THAT THE MATTER IS MORE THAN 14 YEARS OLD AND NO DO CUMENT HAS BEEN FILED BY THE ASSESSEE INSPITE OF BEST EFFORTS MADE BY THE ASSESSING OFFICER. HE S UBMITTED THAT THE APPEAL OF THE ASSESSEE BE DISMISSED. 5. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF T HE LD. REPRESENTATIVES OF THE PARTIES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE EARLIER ORDER OF THE TRIBUNAL. I OBSERVE THAT THE TRIBUNAL SET ASIDE THE ISSUE INVOL VED IN THE APPEAL TO THE FILE OF THE ASSESSING OFFICER DIRECTING TO ADJUDICATE THE SAME AFTER PROV IDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESESE. I OBSERVE THAT EVEN AT THE TIME OF THE ORIGINAL ASSESSMENT, THE ASSESSEE COULD NOT FURNISH THE REQUISITE DETAILS AND THE LD. CIT(A.) A LSO DELETED THE ADDITIONS BY ADMITTING FRESH EVIDENCES, WHICH WERE NOT PRODUCED BEFORE THE ASSES SING OFFICER. THEREFORE, THE TRIBUNAL SET ASIDE THE ORDER OF THE LD. CIT(A.). I OBSERVE THAT THE ASSESSING OFFICER HAD GIVEN NOT ONLY ONE OPPORTUNITY TO THE ASSESSEE BUT MADE EFFORTS THREE TIMES TO ISSUE NOTICE SO THAT THE FRESH ASSESSMENT COULD BE MADE CONSIDERING THE EVIDENCES AND DOCUMENTS AS THE ASSESSEE WANTED TO RELY. HOWEVER, THE ASSESSEE DID NOT COOPERATE WITH THE ASSESSING OFFICER. THEREFORE, I AGREE WITH THE ASSESSING OFFICER THAT THERE IS NO ALTERNA TIVE BUT TO PASS THE ASSESSMENT ORDER CONFIRMING THE ADDITIONS MADE ORIGINALLY. THE LD. C IT(A.) HAS CONFIRMED THE ORDER OF THE ASSESSING OFFICER NOT ONLY CONSIDERING THE ABOVE FA CTS BUT ALSO THE FACT THAT NO DETAILS WERE FILED BY THE ASSESSEE BEFORE HIM. EVEN AT THE TIME OF HEARING BEFORE ME, THE LD. A.R. WANTED TO FILE THE PAPER BOOK AND HE FAIRLY CONCEDED THAT THO SE DOCUMENTS WERE BEING FILED FOR THE FIRST TIME BEFORE THE TRIBUNAL AND NOT FILED BEFORE THE A UTHORITIES BELOW. NO REASONS HAVE BEEN GIVEN AS TO WHY THE PROPOSED DOCUMENTS COULD NOT BE FILED BEFORE THE AUTHORITIES BELOW. FURTHER, THERE IS NO APPLICATION BEFORE THE TRIBUNAL FOR ADM ITTING FRESH EVIDENCES PROPOSED TO BE FILED BY THE ASSESSEE. CONSIDERING THE ABOVE FACTS AND IN TH E ABSENCE OF ANY REASONABLE GROUND NOT TO APPEAR BEFORE THE ASSESSING OFFICER AND TO FURNISH THE REQUISITE DETAILS, AS DIRECTED BY THE ITA NO.2159/KOL./2010 5 TRIBUNAL BY ITS ORDER DATED 21.02.2003, I SEE NO RE ASON TO INTERFERE WITH THE ORDER OF THE LD. CIT(A.). HENCE, I CONFIRM HIS ORDER AND REJECT THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESEE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11.03.2011. SD/- [ B.R. MITTAL / . . ] JUDICIAL MEMBER/ DATED : 11 / 03 / 2011 COPY OF THE ORDER FORWARDED TO: 1. M/S. TECHNO MAT INDUSTRIES, C/O. CHINMOY KUNDU, 37A , HARISH MUKHERJEE ROAD, , KOLKATA-25. 2 ITO, WARD-29(2), KOLKATA. 10B, MIDDLETON ROW, KOLKA TA-71. 3. CIT(A)- ,KOLKATA 4. CIT, KOLKATA- 5. DR, KOLKATA BENCHES, KOLKATA (TRUE COPY) BY ORDER ASSISTANT REGISTRAR, I.T.A.T., KOLKATA LAHA, SR. P.S.