M/s. Renovate Advisory Pvt. Ltd., , Kolkata V. ITO, Ward - 3(2) , Kolkata

ITA 2337/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8378 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 13-11-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RADHEY SHYAM
• Keywords: Bogus Share capital; Opportunity of being heard; Set aside
• Section: 14A; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (D), KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT & SHRI S. S. VISWANETHRA RAVI, JM] I.T.A. NO. 2337/KOL/2018 ASSESSMENT YEAR: 2012-13 M/S. RENOVATE ADVISORY PVT. LTD.,.........................................APPELLANT 119A, M.G. ROAD, 3 RD FLOOR, KOLKATA 700 007. [PAN: AAECR 8256 L] ITO, WARD 3(2), KOLKATA............................RESPONDENT P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. APPEARANCES BY: SHRI AMIT AGARWAL, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. SHRI RADHEY SHYAM, CIT (DR) APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : APRIL 11, 2019 DATE OF PRONOUNCING THE ORDER : APRIL 11, 2019 ORDER PER P.M. JAGTAP, VICE PRESIDENT THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 1, KOLKATA DATED 31.08.2018 PASSED EX-PARTE WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH IS ENGAGED IN THE BUSINESS OF TRADING IN FABRICS. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 30.09.2012 DECLARING A TOTAL INCOME OF RS. 71,362/-. IN THE ASSESSMENT COMPLETED U/S 144 OF THE ACT TO THE BEST OF HIS JUDGEMENT, THE AO DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS. 1,08,10,878/- AFTER MAKING THE FOLLOWING ADDITIONS: 1. UNEXPLAINED SHARE CAPITAL U/S 68 RS. 1,06,50,000/- 2. DISALLOWANCE U/S 14A RS. 79,316/- 2 M/S. RENOVATE ADVISORY PVT. LTD. I.T.A. NO. 2337/KOL/2018 ASSESSMENT YEAR: 2012-13 3. DISALLOWANCE OF FILING FEES RS. 10,200/- 3. AGAINST THE ORDER PASSED BY THE AO U/S 144, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO 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 FOR NON-PROSECUTION VIDE HIS APPELLATE ORDER DATED 31.08.2018 PASSED EX-PARTE. 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 SUPPORT OF THE PRELIMINARY ISSUE RAISED IN THIS APPEAL CHALLENGING THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE, THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE APPEAL OF THE ASSESSEE WAS FIXED FOR HEARINGS BY THE LD. CIT(A) IN THE MONTH OF AUGUST, 2018 AND AT THE TIME OF HEARING SO FIXED, THE ASSESSEE FILED APPLICATIONS SEEKING ADJOURNMENT WITH THE REQUEST TO FIX THE HEARING IN THE MONTH OF OCTOBER, 2018. HE HAS SUBMITTED THAT THE LD. CIT(A) HOWEVER DID NOT GRANT THE ADJOURNMENT AND DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION OF HIS IMPUGNED ORDER PASSED EX-PARTE ON 31.08.2018. HE HAS CONTENDED THAT LD. CIT(A) THUS HAS NOT GIVEN PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THIS POSITION, WHICH IS CLEARLY EVIDENT FROM PARA NO 3 OF THE CIT(A)S IMPUGNED ORDER, IS NOT DISPUTED EVEN BY THE LEARNED DR. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX- 3 M/S. RENOVATE ADVISORY PVT. LTD. I.T.A. NO. 2337/KOL/2018 ASSESSMENT YEAR: 2012-13 PARTE AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT AFTER GIVING THE ASSESSEE A PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH APRIL, 2019. SD/- SD/- (S. S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE PRESIDENT DATED: 11/04/2019 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. M/S. RENOVATE ADVISORY PVT. LTD., 119A, M.G. ROAD, 3 RD FLOOR, KOLKATA 700 007. 2. ITO, WARD 3(2), P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA