Kailashgiri Projects Pvt. Ltd., , Kolkata V. ITO, Ward - 9(4), Kolkata , Kolkata

ITA 247/KOL/2018

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1288 (ITAT-KOLKATA)
• Duration Of Justice: 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 15-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA
• Assessee Lawyers: S L KOCHAR
• Keywords: Unexplained cash credit; Application of stay
• Section: 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA [BEFORE HONBLE SHRI M.BALAGANESH, AM & SHRI S.S. VISWANETHRA RAVI, JM] S.A.NO.20/KOL/2018 (A/O I.T.A NO. 247 /KOL/2018) ASSESSMENT YEAR : 2009-10 KAILASHGIRI PROJECTS PVT. LTD. -VS- I.T.O, WARD -9(4), KOLKATA [PAN : AADCK 5438 N] (APPELLANT) (RESPONDENT) I.T.A NO.247/KOL/2018 ASSESSMENT YEAR : 2009-1 0 KAILASHGIRI PROJECTS PVT. LTD. -VS- I.T.O, WARD -9(4), KOLKATA [PAN : AADCK 5438 N] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI S.L. KOCHAR, ADV. FOR THE RESPONDENT : SHRI S. DASGUPTA, ADDL. CIT (DR) DATE OF HEARING : 07.03.2018 DATE OF PRONOUNCEMENT : 07.03.2018 ORDER PER M.BALAGANESH, AM BY VIRTUE OF THIS STAY APPLICATION THE ASSESSEE SEE KS TO KEEP THE DEMAND OF RS. 2,98,16,401/- IN ABEYANCE. WITH THE CONSENT OF BOTH THE PARTIES THE MAIN APPEAL WAS TAKEN UP FOR HEARING AT THE TIME OF HEARING OF THIS STAY APPLICATION. 2. THIS IS AN APPEAL OF THE ASSESSEE DIRECTED AGAI NST THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 3, KOLKATA ( IN SHORT THE LD CITA) IN APPEAL 2 S.A.NO.20/KOL/2018 ITA NO.1811/KOL/2017 KAILASHGIRI PROJECTS PVT . LTD. A.Y.2009-10 2 NO. 192/CIT(A)-3/WARD-9(4)/15-16/KOL: DATED 28.11.2 017 AGAINST THE ORDER PASSED BY THE ITO, WARD-9(4), KOLKATA [ IN SHORT THE LD AO] UNDER SECTION 144/263 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 18.03.201 5 FOR THE ASSESSMENT YEAR 2009- 10. 3.THE EFFECTIVE GROUND INVOLVED IN THIS APPEAL IS AS TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN PASSING AN EX PARTE ORDER, IN THE FACT S AND CIRCUMSTANCES OF THE CASE. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND THA T THE ASSESSMENT WAS FRAMED U/S 144 OF THE ACT WHEREIN A SUM OF RS. 5,09,50,000/- W AS ADDED TOWARDS SHARE CAPITAL AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. THE ASSE SSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) GAVE SEVERAL OPPORTUNITI ES TO THE ASSESSEE BUT NO APPEARANCE WAS MADE BY THE ASSESSEE. THE LD. CIT(A ) ACCORDINGLY CONFIRMED THE ORDER OF THE LD. AO. THE LD. AR BEFORE US PLEADED F OR ONE LAST OPPORTUNITY TO BE PROVIDED IN ORDER TO ADJUDICATE THE ISSUE ON MERITS AND ACCORDINGLY, PRAYED FOR SETTING ASIDE OF THIS APPEAL TO THE FILE OF LD. CIT(A). IN RESPONSE TO THIS, THE LD. DR VEHEMENTLY OBJECTED TO THE REQUEST OF THE LD. AR ON THE GROUND THAT THE ASSESSEE DESPITE GIVING SEVERAL OPPORTUNITIES HAD NOT APPEARED BEFORE THE L D. CIT(A). WE HAVE GONE THROUGH CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCE S, WE FIND THAT THE ASSESSEE IN THE INSTANT CASE SHOULD BE GIVEN ONE MORE OPPORTUNITY T O ADDRESS HIS GRIEVANCE ON MERITS BEFORE THE LD. CIT(A). ACCORDINGLY, IN THE INTEREST OF JUSTICE AND FAIR PLAY WE REMAND THIS APPEAL TO THE FILE OF THE LD. CIT(A) FOR DE NO VO ADJUDICATION. THE ASSESSEE IS ALSO DIRECTED NOT TO SEEK ANY ADJOURNMENT EXCEPT DUE TO EXCEPTIONAL OR BONAFIDE CIRCUMSTANCES. ACCORDINGLY GROUNDS RAISED BY THE A SSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES AND THE STAY PETITION IS HEREBY DISMISSED. 3 S.A.NO.20/KOL/2018 ITA NO.1811/KOL/2017 KAILASHGIRI PROJECTS PVT . LTD. A.Y.2009-10 3 5. IN THE RESULT, THE STAY PETITION OF THE ASSESSEE IS DISMISSED AND THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 07.03.2018. SD/- SD/- [S.S. VISWANETHRA RAVI] [M.BALAGAN ESH] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 07.03.2018. SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. KAILASHGIRI PROJECTS PVT. LTD., 161/1, M.G. ROAD , KOLKATA-700007 2. I.T.O, WARD-9(4), KOLKATA, AAYAKAR BHAWAN, KOLKA TA 3. CIT(A)- , KOLKATA 4. CIT, KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT KOLKATA BENCHES, KOLKATA.