ACIT, Circle-2(2), Kolkata, Kolkata V. M/s Nicco Corporation Ltd., Kolkata

ITA 2189/KOL/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8802 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2018
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 11-11-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PINAKI MUKHERJEE

Judgement Text

C.O.NO.-74 & 55 & 56/KOL/2018 & I.T.A. NO. 2189 & 1949 & 1950/KO L/2016 PAGE | 1 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B: KOLKATA BEFORE SHRI A. T. VARKEY, JM & SHRI A.L.SAINI, AM I.T.A. NO. 2189 & 1949 & 1950/KOL/2016 [ASSESSMENT YEAR: 2008-09 & 2010-11 & 2011-12] ACIT, CIRCLE-2(2), AAYKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-110069. VS. M/S. NICCO CORPORATION LTD., NICCO HOUSE, 2 HARE STREET, KOLKATA-700001. (PAN: AABCN0507G) APPELLANT RESPONDENT C.O.NO.-74 & 55 & 56/KOL/2018 I.T.A. NO. 2189 & 1949 & 1950/KOL/2016 [ASSESSMENT YEAR: 2008-09 & 2010-11 & 2011-12] M/S. NICCO CORPORATION LTD. (IN LIQUIDATION), NICCO HOUSE, 2 HARE STREET, KOLKATA-700001. (PAN: AABCN0507G) VS. ACIT, CIRCLE-2(2), AAYKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-110069. APPELLANT RESPONDENT DATE OF HEARING 26.12.2018 DATE OF PRONOUNCEMENT 28.12.2018 FOR THE APPELLANT SHRI PINAKI MUKHERJEE, ADDL. CIT S R.DR FOR THE RESPONDENT SHRI P.K.CHOUDHURY, AR PER BENCH THESE ARE ALL TOGETHER SIX APPEALS/CROSS-OBJECTIONS FI LED BY THE REVENUE AND THE ASSESSEE AGAINST THE ORDER OF LD. CIT (A)-I, KOLKATA FOR A.Y. 2008-09, 2010-11 & 2011-12 RESPECTIVELY. C.O.NO.-74 & 55 & 56/KOL/2018 & I.T.A. NO. 2189 & 1949 & 1950/KO L/2016 PAGE | 2 2. AT THE OUTSET ITSELF, LD.AR BROUGHT TO OUR NOTICE THAT THE ASSESSEE COMPANY IS SICK AND THE OFFICIAL LIQUIDATOR HAS TAKEN CONTROL OVER THE COMPANY AND HAS APPOINTED HIM AS THE AUTHORIZED REPRES ENTATIVE ON BEHALF OF THE ASSESSEE. ITA NO.2189/KOL/2016 FOR AY 2008-09 HAS BEEN TAKEN UP AS THE LEAD CASE AND THE RESULT OF WHICH WILL BE FOLLOWED IN ALL AYS BEFORE US. THE LD.DR DREW OUR ATTENTION TO GROUND NOS.2, 3, 4 & 5 WHEREIN THE REVENUE HAS ASSAILED THE DECISION OF LD.C IT(A) IN NOT FOLLOWING RULE 46A OF THE INCOME TAX RULES, 1962 (IN SHORT RULES). 3. IN ORDER TO BUTTRESS THE FACT THAT RULE 46A HAS BEEN VI OLATED BY THE LD.CIT(A) WHILE DECIDING THE APPEAL OF THE ASSES SEE, THE LD. DR DREW OUR ATTENTION TO THE FACT THAT DURING THE ASSESSMENT PR OCEEDINGS BEFORE THE AO, THE ASSESSEE CONTENDED THAT THERE WAS FIR E IN ITS PREMISES AND, THEREFORE, NO DOCUMENTS COULD BE PRODUC ED BEFORE HIM. HOWEVER, DURING THE APPELLATE PROCEEDINGS BEFORE LD. CIT(A) THE DOCUMENTS WERE PRODUCED FOR THE FIRST TIME, WHO IN TURN THOUGH CALLED FOR THE REMAND REPORT, DID NOT AWAIT FOR THE REPORT FROM THE AO AND HAD PROCEEDED TO PASS THE IMPUGNED ORDER WHICH ACCOR DING TO THE LD.DR IS IN VIOLATION OF RULE 46A OF THE RULES. WE F IND CONSIDERABLE FORCE IN THE AFORESAID CONTENTION OF THE LD.DR AND SINC E THE LD.AR COULD NOT CONTROVERT THE FACT THAT EVIDENCES PRODUCED FOR THE FIRST TIME BEFORE THE CIT(A) WAS ACCEPTED WITHOUT AWAITING THE REM AND REPORT FROM THE AO RESULTED IN VIOLATION OF RULE 46A OF RUL ES, SO WE SET ASIDE THE IMPUGNED ORDER AND REMAND THE MATTER BACK TO THE FIL E OF AO TO C.O.NO.-74 & 55 & 56/KOL/2018 & I.T.A. NO. 2189 & 1949 & 1950/KO L/2016 PAGE | 3 DECIDE THE ISSUES AFRESH AFTER GIVING OPPORTUNITY TO THE ASSESSEE. THE ASSESSEE IS AT LIBERTY TO PRODUCE ALL DOCUMENTS BEFORE THE AO TO SUBSTANTIATE ITS CLAIMS. THE AO IS DIRECTED TO FRAME TH E ASSESSMENT DE- NOVO UNTRAMMELED BY ANY OBSERVATION/DECISION OF THE L D.CIT(A). THUS, GROUNDS RAISED BY THE REVENUE ARE ALLOWED FOR STATISTIC AL PURPOSES. 4. IN THE RESULT, THE APPEALS OF THE REVENUE AND CO OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE FINAL RESULT, ALL THE APPEALS OF THE DEPARTM ENT/ASSESSEE AND C.OS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPO SES AS PER DIRECTION GIVEN ABOVE FOR AY 2008-09. ORDER IS PRONOUNCED IN THE OPEN COURT ON 28THDECEMB ER, 2018. SD/- SD/- (A.L.SAINI) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 28TH DECEMBER, 2018 *AMIT KUMAR* COPY OF THE ORDER FORWARDED TO: 1 APPELLANT ACIT, CIRCLE-2(2), AAYKAR BHAWAN, P-7, C HOWRINGHEE SQUARE, KOLKATA-110069. 2 RESPONDENT M/S. NICCO CORPORATION LTD., NICCO HOUSE, 2 HARE STREET, KOLKATA-700001. 3 4 5 CIT(A), KOLKATA. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, ASSISTANT REGISTRAR