Magnitude Infrastructure Pvt. Ltd., , Kolkata V. ITO, Ward - 4(2), Kolkata , Kolkata

ITA 2199/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2741 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 16-10-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: G HANGSHING CIT LD
• Assessee Lawyers: D S DAML E FCA LD
• Keywords: Principle of natural justice
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA BEFORE SHRI M.BALAGANESH, AM & SHRI S.S. VISWANETHRA RAVI, JM I.T.A NO. 2199/ KOL/201 7 A.Y 20 12 - 13 MAGNITUDE INFRASTRUCTURE VS. INCOME - TAX OFFICER PVT. LIMITED WARD 4(2), KOLKATA PAN: AAFCM 2577C (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI D.S. DAMLE, FCA, LD.AR FOR THE RESPONDENT : SHRI G. HANGSHING, CIT, LD.DR DATE OF HEARING : 23 .08.2018 DATE OF PRONOUNCEMENT : 29 .0 8 .2018 ORDER SHRI S.S. VISWANETHRA RAVI, JM: THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DT. 02 - 08 - 2017 OF THE COMMISSIONER OF INCOME TAX(APPEALS) , 2 , KOLKATA FOR THE A.Y 20 12 - 13, WHEREIN HE CONFIRMED THE ADDITIONS MADE U/S. 68 OF THE ACT BY THE AO EX PARTE ORDER . 2. BEFORE US THE CONTENTION OF THE LD.AR WAS THAT ON THE DATES OF HEARING AS FIXED BY THE CIT - A , THE ASSESSE SOUGHT ADJOURNMENTS EXCEPT ON LAST DATE OF HEARING ON 19 - 07 - 2017 . HE SUBMITS THAT HE WAS HELD UP IN MUMBAI IN PURSUANCE OF HIS PROFESSIONAL DUTIES BE ING EXTENDED AND APPROACHED THE CIT - A ON THE NEXT DATE I.E. 2 0 - 07 - 2017 AND CAME TO KNOW THE HEARING PROCEEDINGS WERE COMPLETED ON 19 - 07 - 2017 BY EX PARTE. THE LD. AR ARGUED THAT THERE WAS NO OPPORTUNITY OF THE ASSESSE TO CHALLENGE THE ACTION OF THE AO IN THE FIRST APPELLATE PROCEEDINGS. ON MERITS, THE LD.AR CONTENDED THAT THE ASSESSE COMPANY ISSUED EQUITY SHARES TO HOLDING COMPANY. BUT, THE 2 ITA NO. 2199/KOL/2017 MAGNITUDE INFRASTRUCTURE PVT. LTD 2 AO WRONGLY HE L D THAT THE SHARES WERE ALLOTTED TO DIFFERENT PRIVATE LIMITED COMPANIES AND REFERRED TO PARA - 2 OF THE ASSESSMENT ORDER. THE LD. DR DID NOT CONTROVERT THE SAME. 3 . HEARD BOTH THE PARTIES AND PERUSED THE RECORD . BEFORE US THE LD.AR BROUGHT TO OUR NOTICE TH E DETAILS OF EQUITY SHARES THAT HAVE BEEN ALLOTTED TO HOLDING COMPANY AND THE AO HELD THAT THE SHARES WERE ALLOTTED TO DIFFERENT PRIVATE LIMITED COMPANIES. WE FIND THAT THE AO DID NOT DISCUSS THE ALLOTMENT OF SHARES IN RESPECT OF HOLDING COMPANY IN HIS ORDER PASSED U/S. 143(3) OF THE ACT . THEREFORE, TAKING INTO CONSIDERATION F ACTS AND CIRCUMSTANCES OF THE CASE, SUBMISSIONS OF LD. AR AND IN THE INTEREST OF NATURAL JUSTICE, WE DEEM IT FIT AND PROPER TO REMAND THE MATTER TO THE FILE OF CIT - A FOR HIS CONSIDERATION AND TO PASS A N ORDER, AFTER GIVING THE ASSESSE E ADEQUATE OPPORTUNIT Y OF HEARING TO ASSESSEE TO SUBSTANTIATE ITS CONTENTION S /CLAIM . THE ASSESSE SHALL BE AT LIBERTY TO FILE REQUISITE EVIDENCES/EXPLANATION , IF ANY, IN SUPPORT OF ITS CLAIMS AND CONTENTION S . TH US, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL P URPOSE. 4 . IN THE RESULT, THE APPEAL OF ASSESSE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 29 .0 8 .2018 SD/ - SD/ - M. BALAGANESH S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 29 - 0 8 - 2018 3 ITA NO. 2199/KOL/2017 MAGNITUDE INFRASTRUCTURE PVT. LTD 3 **PP/SPS 1. APPELLANT M/S. MAGNITUDE INFRASTRUCTURE PVT. LTD. PLOT A3, BLOCK GP, SE C - V, SALTLAKE, KOLKATA - 91. 2 RESPONDENT INCOME TAX OFFICER, WARD 4(2), AAYKAR BHAVAN, P - 7 CHOWRINGHEE SQUARE, KOLKATA - 64. 3. THE CIT(A), 2 I , KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA // TRUE COPY// BY ORDER, SR.PS/H.O.O ITAT, KOLKATA