Kitply Industries Ltd, Kolkata V. Deputy Commissioner of Income Tax, Circle-Tinsukia, Tinsukia

ITA 229/GTY/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1429 (ITAT-GUWAHATI)
• Duration Of Justice: 1 year(s) 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 12-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHEN JCIT SRDR
• Keywords: Depreciation
• Section: 143(3); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL GAUHATI BENCH E COURT AT KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L.SAINI, ACCOUNTANT MEMBER ITA NO. 22 9 / GAU / 2018 ASSESSMENT YEAR :2012-13 KITPLY INDUSTRIES LTD., WHITE HOUSE, 4 TH FLOOR, A- BLOCK, 119, PARK STREET, KOLKATA-700 016 [ PAN NO.AAACK 8228 P ] V/S . DCIT, CIRCLE- TINSUKIA,TINSUKIA- 786125 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI SANJAY MODI, FCA /BY RESPONDENT SHRI M.C OMI NINGSHEN, JCIT SR-DR /DATE OF HEARING 09-12-2019 /DATE OF PRONOUNCEMENT 13-12-2019 / O R D E R PER BEMCH:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2012-13 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-DIBRUGARHS OR DER DATED 16.07.2018 PASSED IN CASE NO. CIT(A), DIBRUGARH/10082/2015-16 INVOLVING PROCEEDINGS U/S 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT T HE ACT. HEARD BOTH THE LEARNED REPRESENTATIVES. CASE FILE PERUSED. 2. THE ASSESSEES SOLE SUBSTANTIVE GRIEVANCE CANVAS SED IN THE INSTANT APPEAL SEEKS TO REVERSE BOTH THE LOWER AUTHORITIES ADDING OF SUNDRY CREDITORS AMOUNT OF 20,32,83,000/- IN THE COURSE OF ASSESSMENT AS UPHEL D IN THE LOWER APPELLATE PROCEEDINGS. THE CIT(A)S DETAILED DISCUS SION TO THIS EFFECT READS AS UNDER:- ITA NO.229/GAU/2018 ASSESSM ENT YEAR: 2012-13 KITPLY INDUSTRIES LTD. VS. DCIT, CIR-TINSUKI A PAGE 2 4.2 IN THE WRITTEN SUBMISSION DATED 21.10.2016, IT WAS STATED ASSESSEE FURNISHED DETAILS LIKE NAMES, ADDRESSES, ALONGWITH CONFIRMATI ONS IN RESPECT OF SUNDRY CREDITORS. ON PERUSAL OF COPY OF SUBMISSION MADE BEFORE THE AO , IT IS SEEN THAT IN MOST OF THE CASES, ADDRESSES AND PAN OF PURPORTED CREDITORS WER E NOT FURNISHED. IN THE WRITTEN SUBMISSION DATED 15.03.2018 FILED BEFORE ME, IT WAS STATED THAT PROVISION OF SECTION 41(1) COULD NOT BE APPLIED IN CASE OF ASSESSEE. CON FIRMATIONS WERE FILED IN VERY FEW NUMBERS OF CASES. IT WAS MENTIONED THAT BALANCE OF SUNDRY CREDITORS AS ON 01.04.2011 WAS RS.28,75,49,621/- AND THAT AS ON 31. 03.2012 WAS RS.33,82,59,294/-. THE REST OF DEBTS WERE EXPENSES PAYABLE LIKE STATUT ORY DUES, MISCELLANEOUS LIABILITIES, BANK OVERDRAFTS, ADVANCES AGAINST SALE S ETC. IT WAS ARGUED THAT SINCE LIABILITIES WERE NOT WRITTEN BACK BY ASSESSEE, THE SAME CANNOT BE ADDED TO INCOME OF U/S.41(1) OF THE ACT. 4.3 I HAVE CAREFULLY CONSIDERED THE MATER. IF ASSES SEE CLAIMS THAT CERTAIN SUMS OF MONEY WERE PAYABLE TO CREDITORS, IT IS ITS DUTY TO PROVIDE DETAILS OF SUCH CREDITORS. FIRST, ASSESSEE HAS TO PROVIDE THE NAMES, PAN AND A DDRESSES OF SUCH CREDITORS. THE YEARS AND CIRCUMSTANCES AS TO HOW THE CREDITORS ARO SE ARE TO BE FURNISHED TO THE AO. DETAILS OF TRANSACTIONS WITH THE PARTIES SHOULD ALS O BE GIVEN. IN CASE OF PRESENT ASSESSEE, ONLY THE NAMES OF PURPORTED CREDITOR WERE GIVEN PAN AND ADDRESSEE WERE NOT AVAILABLE IN MOST OF THE CASES. CONFIRMATIONS C OULD BE FILED ONLY IN VERY FEW CASES. ASSESSEE HAD NOT GIVEN DETAILS OF THE YEARS AND TRANSACTIONS THAT HAD GIVEN RISE TO CLAIMS OF LIABILITIES. WHEN THE ACCOUNTANT OF ASSESSEE WAS ASKED REGARDING THE ABOVE-MENTIONED DETAILS, VIDE ORDER SHEET NOTIN G DATED 13.03.2018, IT WAS ADMITTED THAT FULL DETAILS WERE NO LONGER AVAILABLE AS ASSESSEE COMPANY HAD BEEN SICK FOR LAST SEVERAL YEARS. HE STATED THAT IF ADDI TION IS CONFIRMED, THE RESULTANT INCOME MAY BE SET OFF AGAINST BROUGHT FORWARD LOSS OF EARLIER YEARS. FROM THE ADMISSION OF ASSESSEE, IT IS CERTAIN THAT FULL DETA ILS OF CREDITORS / LIABILITIES PAYABLE ARE NOT AVAILABLE WITH ASSESSEE. AS STATED EARLIER, THI S APPEAL WAS FILED ON 223.04.2015. EVEN AFTER ELAPSE OF OVER THREE YEARS, ASSESSEE, WH O IS IN APPEAL, HAS FAILED TO FILE FACTS AND ARGUMENTS JUSTIFYING THE GROUNDS TAKEN IN ITS APPEAL. CONSIDERING THE FACTS, THERE IS NO OPTION BUT TO DISMISS APPEAL OF ASSESSE E. IN RESPECT OF ASSESSEES PLEA THAT BROUGHT FORWARD LOSS SHOULD BE ADJUSTED WITH I NCOME ASSESSED, THE AO IS DIRECTED TO VERIFY THE FACTUAL POSITION AND ALLOW W HATEVER ASSESSED INCOME CAN BE SET OFF AGAINST BROUGHT FORWARD LOSS/DEPRECIATION PER L AW. APPEAL IS DISMISSED. 3. MR. MODI VEHEMENTLY CONTENDS DURING THE COURSE O F HEARING THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AND ON FACT S IN MAKING THE IMPUGNED ADDITION REGARDING THE ASSESSEE SUNDRY CREDITORS SU M IN ISSUE OF 20.32 CRORES INVOLVING ALMOST 200 PARTIES. HIS FURTHER CA SE IS THAT THE LEARNED AUTHORITIES HAVE ACCEPTED THE CORRESPONDING SALES. THEY HAVE NEITHER DISALLOWED PURCHASES NOR THEY HAVE REJECTED THE COR RESPONDING BOOKS OF ACCOUNT. LEARNED COUNSEL ALSO QUOTES VARIOUS JUDICI AL PRECEDENTS IN SUPPORT OF ALL THESE PLEAS. THE REVENUE HAS CHOSEN TO DRAW STR ONG SUPPORT FROM THE CIT(A)S FOREGOING DETAILED DISCUSSION. ITA NO.229/GAU/2018 ASSESSM ENT YEAR: 2012-13 KITPLY INDUSTRIES LTD. VS. DCIT, CIR-TINSUKI A PAGE 3 4. AFTER GIVING OUR THOUGHTFUL CONSIDERATION TO THE FOREGOING RIVAL DETAILED ARGUMENTS, WE ARE OF THE VIEW THAT THE SOLE ISSUE R AISED HEREIN DESERVES TO BE RESTORED BACK TO THE ASSESSING OFFICER FOR THE REAS ON AS THAT NEITHER DURING THE COURSE OF ASSESSMENT NOR IN LOWER APPELLATE PROCEED INGS, ANY OF THE SAID PARTIES 200 PARTIES HAD BEEN CALLED OR PRODUCED ON FOR FACTUAL VERIFICATION. WE THEREFORE RESTORE ASSESSEES GRIEVANCE BACK TO THE FILE OF ASSESSING OFFICER FOR AFRESH ADJUDICATION AS PER LAW WITHIN THREE EFFECTI VE OPPORTUNITIES OF HEARING. THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE ASSES SING OFFICER ON OR BEFORE 30.04.2020 ALONG WITH COPY OF THIS REMAND ORDER. WE MAKE IT C LEAR THAT THE ASSESSEE SHALL BE ENTITLED TO RAISE ALL FACTUAL AND LEGAL ARGUMENTS IN CONSEQUENTIAL PROCEEDINGS. 5. THIS ASSESSEES APPEAL IS ALLOWED FOR STATISTICA L PURPOSES IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT 13/ 12/2019 SD/- SD/- (A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) JUDICIAL MEMBER) KOLKATA, *DKP - 13 / 12 /201 9 / / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-KITPLY INDUSTRIES LTD., WHITE HOUSE, 4 TH FLOOR, A-BLOCK, 119, PARK STREET, KOLKAT A-16 2. /RESPONDENT-DCIT, CIR-TINSUKIA-786125 3. * - / CONCERNED CIT GUAHATI 4. -- / CIT (A) GUAHATI 5. 0 33*, *, / DR, ITAT, GUAHATI 6. 7 / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO *,