ITO, Ward-1(4), Kolkata, Kolkata V. M/s Talent Vinimay Private Limited, Kolkata

ITA 2370/KOL/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9495 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-11-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 13-09-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R S BISWAS
• Keywords: Unexplained cash credit; Opportunity of being heard; Additional evidence; Accommodation entries
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI A.T.VARKEY, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 2370 / KOL / 2013 ASSESSMENT YEAR :2007-08 ITO WARD-1(4), P-7, CHOWRINGHEE SQUARE, KOLKATA-69 V/S . M/S TALENT VINIMAY PVT. LTD., P-41, PRINCEP STREET, 5 TH FLOOR, ROOM NO. 509, KOLKATA-72 [ PAN NO.AACCT 1833 H ] /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI R.S. BISWAS, CIT-DR /BY RESPONDENT NONE /DATE OF HEARING 09-01-2017 /DATE OF PRONOUNCEMENT 31-01-2017 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-I, KOLKATA DAT ED 13.06.2013. ASSESSMENT WAS FRAMED BY ITO WARD-1(4), KOLKATA U/S 144 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VI DE HIS ORDER DATED 31.12.2009 FOR ASSESSMENT YEAR 2007-08. 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F ASSESSEE THOUGH NOTICE OF HEARING WAS SENT THROUGH DR. HOWEVER WE D ECIDED TO HEAR THE PRESENT APPEAL AS WE FIND THAT THE HEARING IS POSSI BLE WITHOUT THE APPEARANCE OF ASSESSEE OR BY LD. AR FOR THE ASSESSEE. SHRI R.S . BISWAS, LD. DEPARTMENTAL REPRESENTATIVE REPRESENTED ON BEHALF O F REVENUE. ITA NO.2370/KOL/2013 A.Y. 2007-08 ITO WD.1(4) KOL. VS. M/S TALENT VINIMAY PV T. LTD. PAGE 2 3. FIRST ISSUE RAISED BY REVENUE IS THAT LD. CIT(A) ERRED IN DECIDING THE APPEAL OF ASSESSEE ON THE BASIS OF FRESH EVIDENCE W HICH WAS ADMITTED IN CONTRAVENTION OF THE PROVISION OF RULE 46A OF THE I NCOME TAX RULES, 1962 (HEREINAFTER REFERRED TO AS THE RULE) 4. AT THE OUTSET, LD. DR BEFORE US SUBMITTED THAT T HE ADDITION MADE BY ASSESSING OFFICER WAS DELETED BY LD. CIT(A) ON THE BASIS OF FRESH EVIDENCE WHICH WAS ADMITTED IN CONTRAVENTION OF THE PROVISIO N OF RULE 46A OF THE RULES. ACCORDINGLY, LD. DR PRAYED TO RESTORE THE ISSUE TO THE FILE OF AO. 5. HEARD LD. DR AND PERUSED THE MATERIALS AVAILABLE ON RECORD. ON EXAMINATION OF RECORDS AND ORDERS OF AUTHORITIES BE LOW, WE FIND THAT ASSESSMENT WAS FRAMED U/S. 144 OF THE ACT VIDE ORDE R DATED 31.12.2009. ON PERUSAL OF ASSESSMENT ORDER, WE FIND THAT SEVERAL N OTICES WERE ISSUED UPON THE ASSESSEE ON DIFFERENT DATES BUT SAME WERE NOT S ERVED UPON THE ASSESSEE. IN THE ABSENCE OF ANY COMPLIANCE ON THE PART OF ASS ESSEE, FINALLY, THE NOTICE WAS SERVED THROUGH AFFIXTURE AND EX-PARTE ASSESSMEN T WAS FRAMED. 5.1 THE AO TREATED THE MONEY DEPOSITED IN THE BANK ACCOUNT OF ASSESSEE AS UNEXPLAINED CASH CREDIT AND ACCORDINGLY ASSESSME NT WAS FRAMED AT 7,36,55,170/-. HOWEVER, THE LD. CIT(A) GRANTED RELI EF TO ASSESSEE AFTER OBSERVING THAT THE ASSESSEE WAS ENGAGED IN PROVIDIN G ACCOMMODATION ENTRIES. BEFORE APPELLATE STAGE, ASSESSEE SUBMITTED PAPER BOOK ALONG WITH AFFIDAVIT, COPY OF BANK STATEMENT, COPY OF BANK ACC OUNT WITH ICIC BANK DATED 18.03.2013 IN SUPPORT OF HIS CLAIM. HOWEVER, ON PER USAL OF THE ORDER OF LD. CIT(A), WE FIND THAT PAPER BOOK AND THE AFFIDAVIT D ATED 23.03.2013 WERE SUBMITTED FIRST TIME AND LD. CIT(A) HAS NOT CALLED FOR REMAND REPORT FROM AO. IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT THE A DDITIONAL EVIDENCE WERE ACCEPTED BY LD. CIT(A) WITHOUT HAVING ANY REMAND RE PORT FROM THE AO. THUS, IN OUR CONSIDERED VIEW, LD. CIT(A) HAS CONTRAVENED THE PROVISION OF RULE 46A OF THE INCOME TAX RULES. THE PROVISION OF RULE 46A REQUIRES THE COMMISSIONER APPEALS TO TAKE COGNIZANCE OF FRESH EV IDENCES ONLY AFTER GIVING A REASONABLE OPPORTUNITY TO ASSESSING OFFICER. BUT IN THE INSTANT CASE, NO SUCH ITA NO.2370/KOL/2013 A.Y. 2007-08 ITO WD.1(4) KOL. VS. M/S TALENT VINIMAY PV T. LTD. PAGE 3 REASONABLE OPPORTUNITY WAS GIVEN BY LD. CIT(A) TO A O. THE RELEVANT EXTRACT OF THE PROVISIONS OF RULE 46A OF INCOME TAX RULES READ AS UNDER : [ PRODUCTION OF ADDITIONAL EVIDENCE BEFORE THE [DEPUT Y COMMISSIONER (APPEALS) [AND COMMISSIONER (APPEALS) ] 46A .(1) THE APPELLANT SHALL NOT BE ENTITLED TO PRODUCE BEFORE THE [DEPUTY COMMISSIONER (APPEALS)] [OR, AS THE CASE MAY BE, TH E COMMISSIONER (APPEALS)], ANY EVIDENCE, WHETHER ORAL OR DOCUMENTA RY, OTHER THAN THE EVIDENCE PRODUCED BY HIM DURING THE COURSE OF PROCE EDINGS BEFORE THE [ASSESSING OFFICER], EXCEPT IN THE FOLLOWING CIRCUM STANCES, NAMELY:- (A) (B) (C) .. (D) . (2) . (3) THE [DEPUTY COMMISSIONER (APPEALS)] [OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS)] SHALL NOT TAKE INTO ACCOUNT ANY EVIDENCE PRODUCED UNDER SUB-RULE (1) UNLESS THE [ASSESSING OFFICER] H AS BEEN ALLOWED A REASONABLE OPPORTUNITY- IN VIEW OF THE PROVISIONS OF LAW, WE ARE INCLINED T O RESTORE THIS ISSUE TO THE FILE OF AO FOR FRESH ADJUDICATION AS PER LAW. HENCE, THI S GROUND OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 6. REMAINING GROUNDS DO NOT CALL FOR ANY ADJUDICATI ON AT THIS STAGE BECAUSE THE MATTER HAS ALREADY BEEN RESTORED BACK T O THE FILE OF AO FOR DECIDING THE ISSUE AFRESH AFTER PROVIDING REASONABL E OPPORTUNITY OF BEING HEARD TO ASSESSEE. 7. IN THE RESULT, REVENUES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT 31 /01/2017 SD/- SD/- ( !') ( !') (A.T.VARKEY) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP, SR.P.S $!% &- 31/01 /201 7 ITA NO.2370/KOL/2013 A.Y. 2007-08 ITO WD.1(4) KOL. VS. M/S TALENT VINIMAY PV T. LTD. PAGE 4 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ITO WARD-1(4), P-7, CHOWRINGHEE SQUARE, KOLKATA-69 2. /RESPONDENT- M/STALENTVINIMAYPVT. LTD., P-41, PRINC EP ST, 5 TH FL, RM.509,KOL-72 3. %.%/0 1 1 2 / CONCERNED CIT KOLKATA 4. 1 1 2- / CIT (A) KOLKATA 5. 567 /0, 1 /0 , / DR, ITAT, KOLKATA 6. 7:; / GUARD FILE. BY ORDER/ 1! , /TRUE COPY/ / % 1 /0 ,