M/s Rajlaxmi Oil Mill, South 24 Parganas V. I.T.O Wd - 53(1),kolkata, Karnataka

ITA 2406/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92076 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 27-09-2013
• Court: TRIBUNAL
• Department Lawyers: SNEHOTPAL DUTTA
• Assessee Lawyers: V N PUROHIT; H V BHARDWAJ
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3); 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH: KOLKATA [BEFORE SHRI MAHAVIR SINGH, JM ] I.T.A NO. 2406 /KOL/201 3 ASSESSMENT YEAR : 200 4 - 0 5 M/S. RAJLAXMI OIL MILL VS. INCOME - TAX OFFICER, WD - 53(1), KOLKATA (PAN: AAGFR4436B) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 28 .0 7 .2015 DATE OF PRONOUNCEMENT: 28 . 0 7 . 2015 FOR THE APPELLANT: S/ SHRI V. N. PUROHIT & H. V. BHARDWAJ FOR THE RESPONDENT: SHRI SNEHOTPAL DUTTA, JCIT ORDER THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT (A) - XXXIII , KOLKATA VIDE APPEAL NO. 2 86 /CIT(A) - XXXIII/ITO/WARD - 53(1)/09 - 10 DATED 2 2 . 0 7 .201 3 . ASSESSMENT WAS FRAMED BY ITO, WARD - 53(1), KOLKATA U/S. 1 43(3) /147 OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) FOR ASSESSMENT YEAR 200 4 - 0 5 VIDE HIS ORDER DATED 29 . 12 .20 0 9 . 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SHRI V. N. PUROHIT ARGUED THAT A SURVEY U/S. 133A OF THE ACT WAS CONDUCTED ON THE BUSINESS PREMISES OF THE ASSESSEE ON 29.04.2004 AND DURING THE COURSE OF SURVEY BOOKS OF ACCOUNT AND OTHER RELEVANT DOCUMENTS WERE IMPOUNDED. HE DREW MY ATTENTION TO THE ASSESSMENT ORDER WHERE THIS FACT IS RECORDED STATING THAT THE RETURN WAS DULY PROCESSED U/S. 143(1) OF THE I. T. ACT. ASST. U/S. 143(3) IN THE CASE OF ABOVE ASSESSEE WAS COMPLETED ON 31.12.07 AS A CONSEQUENCE OF SURVEY CONDUCTED ON 29.04.2004 U/S. 133A OF THE I. T. ACT IN THE BUSINESS PREMISES OF THE ASSESSEE. IN COURSE OF SURVEY BOOKS OF ACCOUNTS AND OTHER RELEVANT DOCUMENTS WERE IMPOUNDED. THE L D. COUNSEL STATED THAT THE AO HAS NOT ALLOWED INSPECTION OF THE RECORDS AND ALSO NOT ALLOWED COPIES OF IMPOUNDED DOCUMENTS TO THE ASSESSEE, WHICH ARE VERY VITAL FOR ARRANGING THE AFFAIRS AND FOR COOPERATING IN ASSESSMENT. HE STATED THAT THE PLEA WAS ALSO RAISED BEFORE CIT(A) AND HE RAISED GROUND NO. 8 BEFORE CIT(A), WHICH READS AS UNDER: 8. THAT THE LD. AO FAILED TO RECONCILE THE PRODUCTION, AS ALLEGED, WITH SALES. NO SCOPE WAS GIVEN TO THE ASSESSEE FOR THE SAID RECONCILIATION. NO COPY OF THE ALLEGED IMPOUNDED BOOKS WERE GIVEN TO THE ASSESSEE, AS IT WAS CLAIMED DURING THE COURSE OF ASSESSMENT VIDE WRITTEN SUBMISSION DATED 14.12.2009 IN REPLY TO THE SHOW CAUSE NOTICE DATED 11.12.2009. 2 ITA NO. 2406 /K/201 3 M/S. RAJLAXMI OIL MILL AY 200 4 - 0 5 3. LD. COUNSEL FOR THE ASSESSEE STATED THAT THIS FACT HAS RECORDED BY CIT(A) IN PAGE 8 OF ITS ORDER. IN VIEW OF THE ABOVE, LD. COUNSEL FOR THE ASSESSEE STATED THAT IN THE ABSENCE OF IMPOUNDED BOOKS OF ACCOUNT THE ADDITIONS MADE ARE ARBITRARY AND WITHOUT ANY BASIS BECAUSE THE PRINCIPLES OF NATURAL JUSTICE ARE VIOLATED AS NO PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE WAS PROVIDED. ON THE OTHER HAND, LD. SR. DR COULD NOT STATE ANYTHING AGAINST THE ABOVE SUBMISSIONS 4. I HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCU MSTANCES OF THE CASE. THE FACTS ARE VERY CLEAR THAT THERE WAS A SURVEY IN THE BUSINESS PREMISES OF THE ASSESSEE FROM WHERE BOOKS OF ACCOUNT AND OTHER MATERIALS WERE IMPOUNDED. IT IS ALSO A FACT FROM THE RECORDS AND THE ARGUMENT OF THE ASSESSEE THAT THE C OPIES OF IMPOUNDED MATERIAL W ERE NOT PROVIDED TO THE ASSESSEE. THIS IS GROSS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND ASSESSMENT FRAMED AND APPELLATE ORDER PASSED BY CIT(A) BOTH ARE LIABLE TO BE VOIDABLE. ACCORDINGLY, I QUASH BOTH THE ORDERS OF THE AUTHORITIES BELOW AND REMIT THE ISSUE BACK TO THE FILE OF AO WITH A DIRECTION TO RE - DECIDE THE ISSUE AFTER PROVIDING COPIES OF IMPOUNDED MATERIAL TO THE ASSESSEE. THE AO SHOULD ALSO PROVIDE REASONABLE TIME AFTER PROVIDING COPIES OF IMPOUNDED DOCUMENTS TO THE ASSESSEE. ASSESSEE WILL ALSO COOPERATE IN THE ASSESSMENT WITHOUT ANY FAIL. ACCORDINGLY, THIS APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5 . IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6 . ORDER IS PRONOUNCED IN THE OPEN COURT . S D / - (MAHAVIR SINGH) J UDICIAL MEMBER DATED : 28 TH JULY , 201 5 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . A PPELLANT M/S. RAJLAXMI OIL MILL, NUNGI STATION ROAD, P.O. BATANAGAR, 24 PGS (S), KOLKATA - 700140 . 2 RESPONDENT ITO, WARD - 53(1), KOLKATA. 3 . THE CIT (A), KOLKATA 4. 5. CIT, KOLKATA . DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .