Subhlaxmi Nirman Pvt. Ltd., New Delhi V. I.T.O.,Ward-1(3), Kolkata

ITA 2413/KOL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0691 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 07-11-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Assessee Lawyers: MIRAJ D SHAH R
• Keywords: Opportunity of being heard; Principle of natural justice; Non compliance; Set aside
• Section: 133(6); 68

Judgement Text

1 ITA NO. 2413/KOL/2019 SUBHLAXMI NIRMAN PVT. LTD. AY - 2012-13 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA ( ) . . , . . ! , ' #$ ) [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT (KZ) & SHR I A. T. VARKEY, JM] I.T.A. NO. 2413/KOL/2019 ASSESSMENT YEAR: 2012-13 SUBHLAXMI NIRMAN PVT. LTD. (PAN: AALCS1594H) VS. INCOME-TAX OFFICER, WARD-1(3), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 22.11.2019 DATE OF PRONOUNCEMENT 20.12.2019 FOR THE APPELLANT SHRI MIRAJ D. SHAH, R FOR THE RESPONDENT SHRI SUPRIYO PAL, JCIT ORDER PER SHRI A. T. VARKEY, JM: THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-17, KOLKATA DATED 01-10-2019 FOR THE ASSESSMENT YEAR 2012-13. 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE SHRI MIRAJ D. SHAH CONTENDED THAT THE IMPUGNED ORDER IS AN EX PARTE ORDER PASSED BY THE LD. CIT(A) AND IT WAS BROUGHT TO MY NOTICE THAT ASSESSEE HAD SHIFTED TO NEW ADDRESS I.E. 3 RD FLOOR, RZ-154, MAIN JAGDAMBA ROAD, TUGLAKABAD EXTN., NEW DELHI-110019 THEREFORE, THE ASSESSEE DID NOT RECEIVE ANY NOTICE ABOUT THE DATE OF HEARING BEFORE THE LD. CIT (A). HENCE, ACCORDING TO HIM, DUE TO THE AFORESAID REASON, THE ASSESSEE COULD NOT PARTICIPAT E DURING THE APPELLATE PROCEEDINGS AND SINCE THE ASSESSEE HAD NOT BEEN HEARD ON THE MERITS OF THE APPEAL, ACCORDING TO HIM, THERE IS VIOLATION OF NATURAL JUSTICE AND THAT NON-PARTICIPA TION BEFORE LD. CIT(A) WAS NOT INTENTIONAL ON THE PART OF THE ASSESSEE. MOREOVER, THE LD. AR ALSO BROUGHT TO OUR NOTICE THAT THE AO HAS MADE THE ADDITION U/S. 68 OF THE INCOME-TAX ACT , 1961 (HEREINAFTER REFERRED TO AS THE ACT). IT WAS ALSO BROUGHT TO OUR NOTICE THAT DURI NG ASSESSMENT STAGE, THE AO HAD ISSUED NOTICE U/S. 133(6) OF THE ACT TO THE SHARE SUBSCRIB ERS AND THE SAME WAS DULY COMPLIED WITH. HOWEVER, SINCE SUMMONS ISSUED BY THE LD. AR TO PROD UCE THE DIRECTORS COULD NOT BE COMPLIED WITH, ADVERSE VIEW HAS BEEN DRAWN AGAINST THE SHARE CAPITAL/PREMIUM AND THE 2 ITA NO. 2413/KOL/2019 SUBHLAXMI NIRMAN PVT. LTD. AY - 2012-13 ADDITION HAS BEEN MADE. ACCORDING TO LD. AR, THE RE ASON FOR NON COMPLIANCE WAS THAT THE DIRECTOR/DIRECTORS WERE OUT OF STATION, SO COULD NO T APPEAR BEFORE THE AO AND NON APPEARANCE OF THEM BEFORE THE AO WAS NOT INTENTIONAL OR DELIBE RATE. IN THE AFORESAID SCENARIO, ACCORDING TO LD. AR, GIVEN A CHANCE FOR THE ENDS OF JUSTICE, HE/THE LD. AR UNDERTAKES TO COMPLY WITH THE SUMMONS AND PRODUCE THE DIRECTORS B EFORE AO. THEREFORE, SINCE NO PROPER OPPORTUNITY WAS GIVEN BY THE AO AT THE ASSESSMENT S TAGE OR PROPER TIME TO PRODUCE THE DIRECTORS, HE PLEADS THAT THE MATTER MAY BE REMANDE D BACK TO AO. WE FIND FORCE IN THE CONTENTION OF THE ASSESSEE AND AS HELD BY THE HONB LE SUPREME COURT IN TIN BOX COMPANY VS. CIT (2001) 249 ITR 216 (SC) IF THE ASSESSEE DI D NOT GET PROPER OPPORTUNITY BEFORE AO, THEN THE MATTER NEEDS TO BE REMANDED BACK TO AO. I N THE SAID JUDGMENT, THE HONBLE APEX COURT HAS HELD AS UNDER (HEAD NOTE): HELD, REVERSING THE DECISION OF THE HIGH COURT, TH AT ONCE THE TRIBUNAL FOUND THAT THE INCOME-TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORT UNITY OF BEING HEARD, THAT THE ASSESSEE COULD HAVE PLACED THE EVIDENCE BEFORE THE APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL WAS REALLY OF NO CONSEQUENCE FOR IT WAS THE ASSESSMENT ORDER THAT CO UNTED: THAT ORDER HAD TO BE MADE AFTER THE ASSESSEE HAD BEEN GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD. THEREFORE, IN VIEW OF THE ABOVE FACTS DISCUSSED SIN CE THE AO HAS DRAWN ADVERSE INFERENCE AGAINST THE ASSESSEE ONLY ON THE BASIS THAT DIRECTO RS DID NOT COMPLY WITH THE SUMMONS, WE SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE AO FOR FRESH ASSESSMENT AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THE ASSESSEES AR TO COMPLY WITH THE U NDERTAKING BEFORE US. 3. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 20TH DECEM BER, 2019. SD/- SD/- (P. M. JAGTAP) (ABY. T. VARKEY) VICE PRESIDENT JUDICIAL MEMBER DATED :20TH DECEMBER, 2019 JD.(SR.P.S.) 3 ITA NO. 2413/KOL/2019 SUBHLAXMI NIRMAN PVT. LTD. AY - 2012-13 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SUBHLAXMI NIRMAN PVT. LTD., 3 RD FLOOR, RZ-154, MAIN JAGDAMBA ROAD, TUGLAKABAD EXTN., NEW DELHI-110019 2 RESPONDENT ITO, WARD-1(3), KOLKATA. 3. 4. 5. CIT(A)-17, KOLKATA (SENT THROUGH E-MAIL) CIT- , KOLKATA. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR