Moontree Realtors Pvt. Ltd., Kolkata V. ITO, WD-1(1), Kolkata, Kolkata

ITA 2295/KOL/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6297 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-05-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 05-12-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR P K SRIHARI
• Assessee Lawyers: V K JAIN
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D, KOLKATA [BEFORE SHRI P.M. JAGTAP, AM AND SHRI S.S. VISWANETHRA RAVI, JM] I.T.A. NO. 2295/KOL/2016 ASSESSMENT YEAR: 2012-13 MOONTREE REALTORS PVT. LTD.........................................................APPELLANT C/O. RSVPC & COMPANY, 41A, A.J.C. BOSE ROAD, SUITE NO. 613, KOLKATA 700 017. [PAN : AAHCM 8382 M] ITO, WARD 1(2)....................................RESPONDENT P-7, CHOWRINGHEE SQUARE, AAYAKAR BHAWAN, KOLKATA 700 069. APPEARANCES BY: SHRI V.K. JAIN, AR APPEARING ON BEHALF OF THE ASSESSEE. DR. P.K. SRIHARI, CIT APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : MAY 10, 2018 DATE OF PRONOUNCING THE ORDER : MAY 16, 2018 ORDER PER P.M. JAGTAP, AM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 1, KOLKATA DATED 31.10.2016 PASSED EX-PARTE WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH IS ENGAGED IN THE BUSINESS OF INVESTMENT IN SHARES AND SECURITIES. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 29.08.2012 DECLARING A TOTAL INCOME OF RS. 363/-. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE-COMPANY HAD RECEIVED SHARE CAPITAL AND PREMIUM AGGREGATING TO RS. 9,91,00,000/-. IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 25.03.2015, THE SAID AMOUNT OF SHARE CAPITAL PREMIUM WAS TREATED BY THE A.O. AS 2 I.T.A. NO. 2295/KOL/2016 ASSESSMENT YEAR: 2012-13 MOONTREE REALTORS PVT. LTD. UNEXPLAINED CASH CREDIT UNDER SECTION 68 AND ADDITION TO THAT EXTENT WAS MADE BY HIM TO THE TOTAL INCOME OF THE ASSESSEE. 3. AGAINST THE ORDER PASSED BY THE A.O. UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) DISPUTING THE ADDITION MADE BY THE A.O. UNDER SECTION 68 AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE VIDE HIS APPELLATE ORDER DATED 31.10.2016 PASSED EX-PARTE THEREBY CONFIRMING THE ADDITION MADE BY THE A.O. UNDER SECTION 68. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN ITS PRESENT APPEAL, THE ASSESSEE-COMPANY HAS RAISED A PRELIMINARY ISSUE CHALLENGING THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE ON THE GROUND THAT PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD WAS NOT GIVEN TO IT BY THE LD. CIT(A). IN SUPPORT OF ITS CASE ON THIS ISSUE, THE DIRECTOR OF THE ASSESSEE-COMPANY HAS FILED AN AFFIDAVIT MAKING THE FOLLOWING ASSERTIONS ON OATH: 1. THAT I AM DIRECTOR OF MOONTREE REALTORS PVT. LTD. SITUATED AT 7/1A, GRANT LANE, KOLKATA 700 012. 2. THAT I AM DULY AUTHORIZED VIDE BOARD RESOLUTION PASSED ON 2.12.2016 AND COMPETENT TO SWEAR THIS AFFIDAVIT ON BEHALF OF THE COMPANY. 3. THAT THE COMPANY HAS FILED AN APPEAL NO. 2295/KOL/2016 BEFORE THE HONBLE INCOME TAX APPELLATE TRIBUNAL, KOLKATA PRAYING FOR RELIEF ON THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) 1, KOLKATA. 3 I.T.A. NO. 2295/KOL/2016 ASSESSMENT YEAR: 2012-13 MOONTREE REALTORS PVT. LTD. 4. THAT THE COMPANY PLEAD AND AFFIRM THE FACTS THAT IT HAS NOT RECEIVED ANY NOTICE OF HEARING OF APPEAL STATED TO BE ISSUED BY LD. CIT(A)-1 FOR FIXING THE HEARING ON 29.08.2016, 16.09.2016 OR 28.10.2016. 5. THAT THE COMPANY HAD RECEIVED ONLY ONE NOTICE DATED 15.09.2016, FIXING THE HEARING ON 30.09.2016. 6. THAT THE COMPANY THROUGH ITS AUTHORIZED REPRESENTATIVE ATTENDED THE HEARING ON THAT DATE, I.E. 30.09.2016 AND SOUGHT FOR A SHORT ADJOURNMENT. ON THAT DATE, THE ADJOURNMENT COULD NOT BE GRANTED AS LD. CIT(A) WAS ABSENT. 7. THAT THE COMPANY HAS NOT RECEIVED ANY OTHER NOTICE THAN THE NOTICE DATED 15.09.2016, WHICH WAS DULY ATTENDED. 8. THAT THE ABOVE STATEMENTS ARE BASED ON RECORDS ARE TRUE AND CORRECT TO THE BEST OF OUR KNOWLEDGE & BELIEF. 5. IN OUR OPINION, THE ASSERTIONS MADE ON BEHALF OF THE ASSESSEE ON OATH IN THE AFFIDAVIT FILED BEFORE US AS ABOVE CLEARLY SHOW THAT PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD WAS NOT GIVEN BY THE LD. CIT(A) BEFORE DISMISSING THE APPEAL OF THE ASSESSEE VIDE HIS IMPUGNED ORDER PASSED EX-PARTE AND THERE IS A CLEAR VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. EVEN THE LEARNED DR HAS NOT BEEN ABLE TO DISPUTE THIS POSITION. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE DISMISSING THE APPEAL OF THE ASSESSEE AND REMIT THE MATTER BACK TO HIM FOR DISPOSING THE APPEAL OF THE ASSESSEE AFRESH ON MERIT AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH MAY, 2018. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER 4 I.T.A. NO. 2295/KOL/2016 ASSESSMENT YEAR: 2012-13 MOONTREE REALTORS PVT. LTD. DATED: 16/05/2018 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. MOONTREE REALTORS PVT. LTD., C/O. RSVPC & COMPANY, 41A, A.J.C. BOSE ROAD, SUITE NO. 613, KOLKATA 700 017. 2. ITO, WD 1(2), P-7, CHOWRINGHEE SQUARE, AAYAKAR BHAWAN, KOLKATA 700 069. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, SR. P.S. / H.O.O. ITAT, KOLKATA