M/s. Aditya Hydro Chem Pvt. Ltd., , Kolkata V. ITO, Ward - 4(3), Kolkata , Kolkata

ITA 2556/KOL/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1665 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 28-12-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K MONDAL
• Assessee Lawyers: S M SURANA
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENCH KOLKATA BEFORE SHRI S.S. GODARA, JM & DR. A. L. SAINI, AM ITA NO.2556/KOL/2017 (ASSESSMENT YEAR: 2012-13) M/S. ADITYA HYDRO CHEM PVT. LTD. 3 RD FLOOR, ROOM NO.301 (SOUTH), 1 OLD COURT, HOUSE CORNER, KOL-1. VS. ITO, WARD-4(3), KOLKATA AAYAKAR BHAVAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ./ ./PAN/GIR NO. : AAFCA 2596 P ( /APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY : SHRI S.M. SURANA, ADVOCATE REVENUE BY : SHRI K. MONDAL, SR. DR / DATE OF HEARING : 01/10/2018 /DATE OF PRONOUNCEMENT: 22/11/2018 / O R D E R PER DR. A. L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAINING TO ASSESSMENT YEAR 2012-13, IS DIRECTED AGAINST THE ORDER PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-13, KOLKATA IN APPEAL NO.151/CIT(A)-13/KOL/2014-15 DATED 08.08.2017 WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) DATED 17.03.2015. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS UNDER: 1. FOR THAT THE ORDER OF THE LD. CIT(A) IS ARBITRARY, ILLEGAL AND BAD IN LAW. 2. FOR THAT THE LD. CIT(A) ERRED IN PASSING THE ORDER EX PARTE WITHOUT GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD, THE NOTICE WAS NEVER SERVED EVEN THOUGH E MAIL ADDRESS WAS AVAILABLE WITH THE LD. CIT(A) AND ON THE SAID ADDRESS THE COPY OF THE ORDER WAS ALSO SENT. 3. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF SHARE CAPITAL INCLUDING PREMIUM OF RS.1,28,70,000/- AS UNEXPLAINED CASH CREDIT U/S 68. 4. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER OF THE LD. CIT(A) SHOULD HAVE PROPERLY APPRECIATED THE FACTS ON RECORD. M/S. ADITYA HYDRO CHEM PVT. LTD. ITA NO.2556/KOL/2017 ASSESSMENT YEAR: 2012-13 2 5. FOR THAT THE ASSESSEE CRAVES LEAVE TO ADD, ALTER OR AMEND ANY GROUND BEFORE OR AT THE TIME OF HEARING. 3. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE ASSESSEE ASSAILED IMPUGNED ORDER PASSED BY THE LD. CIT(A) WHICH IS WITHOUT MERIT AND DURING THE ASSESSMENT PROCEEDINGS THE LD. ASSESSING OFFICER DID NOT CONSIDER THE DOCUMENTS/EXPLANATIONS SUBMITTED BY THE ASSESSEE. 4. WE NOTE THAT IN THE ASSESSEES CASE UNDER CONSIDERATION, THE ASSESSMENT WAS CARRIED OUT U/S 143(3) OF THE ACT AND THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) IS AN EX PARTE ORDER, THEREFORE, WE DO NOT WISH TO MAKE ANY COMMENTS ON THE MERITS OF THE GROUNDS RAISED BY THE ASSESSEE. 5. WE NOTE THAT A PERUSAL OF THE BODY OF THE IMPUGNED ORDER OF THE LD. CIT(A), IT IS APPARENT THAT IT IS AN EX PARTE ORDER WHICH HAS BEEN CHALLENGED BY THE ASSESSEE FOR WANT OF PROPER OPPORTUNITY . WE FURTHER NOTE THAT ALL SUPPORTING DOCUMENTS IN SUPPORT OF THE MERITS OF THE CASE WAS FURNISHED TO THE ASSESSING OFFICER BUT THE ASSESSING OFFICER HAS NOT CONSIDERED SOME MATERIALS/DOCUMENTS SUBMITTED BY THE ASSESSEE WHILE FRAMING ASSESSMENT U/S 143(3) OF THE ACT. THEREFORE, WITHOUT DELVING MUCH DEEPER INTO THE MERITS OF THE CASE, IN THE INTEREST OF JUSTICE, WE RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR DE NOVO ADJUDICATION AND PASS A SPEAKING ORDER AFTER AFFORDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WHO IN TURN, IS ALSO DIRECTED TO CONTEST HIS STAND FORTHWITH. FOR STATISTICAL PURPOSES, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22/11/2018. SD/- (S.S. GODARA) SD/- (A. L. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; DATED:22/11/2018 RS, SR. PS M/S. ADITYA HYDRO CHEM PVT. LTD. ITA NO.2556/KOL/2017 ASSESSMENT YEAR: 2012-13 3 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT- M/S. ADITYA HYDRO CHEM PVT. LTD. 2. / THE RESPONDENT.- ITO, WARD-4(3), KOLKATA 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, KOLKATA 6. [ / GUARD FILE. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR, I.T.A.T, KOLKATA BENCHES, KOLKATA .