M/S. Dutta Trading Co., Hooghly V. ITO, Ward-1(2), Hooghly, Kolkata

ITA 2238/KOL/2014

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3115 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 17-12-2014
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA PRASAD
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Opportunity of being heard
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC B BENC H: KOLKATA [BEFORE SHRI MAHAVIR SINGH, JM] I.T.A NOS.2237 & 2238/KOL/2014 ASSESSMENT YEARS: 2004-05 & 2005-06 M/S. DUTTA TRADING CO. VS. INCOME-TAX OFFICER, W D-1(2), HOOGHLY (PAN: AADFT3834G) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 07.12.2015 DATE OF PRONOUNCEMENT: 03.02.2016 FOR THE APPELLANT: SHRI MIRAJ D. SHAH, ADVOCATE FOR THE RESPONDENT: SHRI RAJENDRA PRASAD, JCIT, SR. DR ORDER BOTH THESE APPEALS BY ASSESSEE ARE IS ARISING OUT O F COMMON ORDER OF CIT(A)- XXXII, KOLKATA VIDE APPEAL NOS. 120 & 119/XXXII/13- 14/W-1(2)/HG/R&T/KOL DATED 23.09.2014. ASSESSMENTS WERE FRAMED BY ITO, WD-1(2 ), HOOGHLY U/S. 143(3)/147 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO A S THE ACT) FOR ASSESSMENT YEAR 2004-05 AND U/S. 144 OF THE ACT FOR AY 2005-06 VID E HIS SEPARATE ORDERS DATED 31.12.2008 AND 19.12.2007 RESPECTIVELY. 2. THE TWO INTER-CONNECTED COMMON ISSUES IN THESE A PPEALS OF ASSESSEE ARE AGAINST THE ORDER OF CIT(A) ARE AS UNDER: (I) THE AO AFTER REJECTING THE BOOKS OF ACCOUNT EST IMATED THE GROSS PROFIT AT 8% IN BOTH THE YEARS. (II) SECONDLY ALSO DISALLOWED LABOUR CHARGES IN AY 2004-05 AND ADDED SUNDRY CREDITORS IN AY 2005-06 WHICH ARE RELATED TO BUSINE SS. 3. I HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE F IRST OF ALL REFERRED THE AY 2004-05 AND STATED THAT THE REASONS RECORDED FOR ISSUANCE OF NO TICE UNDER SECTION 148 OF THE ACT WAS NOT PROVIDED TO THE ASSESSEE AND ACCORDINGLY HE COU LD NOT RAISE THE OBJECTIONS BEFORE AO FOR ISSUANCE OF NOTICE U/S 148 OF THE ACT IN TERMS OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF G.K.N. DRIVESHAFTS (INDIA) LTD . VS.- ITO [2003] 259 ITR 19, WHREIN IT IS HELD THAT WHEN A NOTICE U/S 148 OF THE ACT IS ISSUED, THEN THE PROPER CAUSE OF ACTION FOR THE NOTICEE IS TO FILE RETURN AND IF HE SO DESIRES, CAN SEEK REASONS FOR ISSUING 2 ITA NOS.2237 & 2238/K/2014 DUTTA TRADING CO. AY 2004-05 & 2005-06 NOTICE. THE AO IS DUTY BOUND TO FURNISH REASONS AND ON RECEIPT OF REASONS THE NOTICEE IS ENTILED TO FILE OBJECTIONS TO ISSUANCE OF NOTICE AN D AO IS AGAIN DUTY BOUND TO DISPOSE OF THE SAME BY PASSING A SPEAKING ORDER. BUT IN THIS C ASE, NO SUCH PROCEDURE WAS ADOPTED, LD. COUNSEL STATED. ON QUERY FROM THE BENCH, LD. SR . D.R. FAIRLY AGREED THAT THE ISSUE CAN BE REMITTED BACK TO THE FILE OF THE AO. 4. IN RESPECT TO AY 2005-06, LD. COUNSEL FOR THE AS SESSEE STATED THAT THE ASSESSMENT WAS FRAMED U/S 144 OF THE ACT AND BOOKS OF ACCOUNT WERE REJECTED WITHOUT PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. ON THIS ALSO, LD. SR. D.R. FAIRLY AGREED THAT THE ISSUE CAN BE REMITTED BACK TO THE F ILE OF THE AO. 5. IN TERMS OF THE ABOVE FACTS AND CIRCUMSTANCES IN BOTH THE YEARS, I SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND REMIT THE MATTE R BACK TO THE FILE OF THE AO FOR DECIDING THE ISSUES DE NOVO IN BOTH THE YEARS. ACCO RDINGLY, BOTH THE ASSESSMENTS ARE REMITTED BACK FOR FRAMING DE NOVO TO THE AO. 6. IN THE RESULT, BOTH THE APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 7. ORDER IS PRONOUNCED IN THE OPEN COURT ON 03.02.2 016 SD/- (MAHAVIR SINGH) JUDICIAL MEMBER DATED : 3 RD FEBRUARY, 2016 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. DUTTA TRADING CO., 3/210/43, S ARAT SARANI, SAHAPARA, MORE PUKUR, RISHRA, HOOGHLY, WB-712 205 2 RESPONDENT ITO, WD-1(2), HOOGHLY. 3. THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .