Rawatsons Engineers Pvt. Ltd., Kolkata V. A.C.I.T.,Circle-15(1), Kolkata

ITA 2610/KOL/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 8319 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 17-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘A’ BENCH, KOLKATA {VIRTUAL COURT HEARING} (Before Shri Aby T. Varkey, Hon’ble Judicial Member & Shri Girish Agrawal, Hon’ble Accountant Member) ITA No. 2610/Kol/2019 Assessment Year: 2009-10 Rawatsons Engineering Pvt. Ltd.................................................................................................Appellant 7C, Mani Square 164/1, Manicktalla Main Road Kankurgachi Kolkata – 700 064 [PAN : AABCR 2957 D] Vs. Asstt. Commissioner of Income Tax, Circle-15(1), Kolkata.........................................Respondent Appearances by: None, appeared on behalf of the assessee. Shri Biswanath Das, Addl. CIT, Sr. D/R, appearing on behalf of the Revenue. Date of concluding the hearing : February 2 nd , 2022 Date of pronouncing the order : February 23 rd , 2022 ORDER Per Girish Agrawal, Accountant Member:- This appeal filed by the assessee is directed against the order of the Learned Commissioner of Income Tax (Appeals) - 5, Kolkata, (hereinafter the ‘ld. CIT(A)’), dt. 01/10/2019, passed ex-parte, whereby he dismissed the appeal of the assessee for non- prosecution. 2. None appeared before us on behalf of the assessee. 3. We find that the order of the ld. Assessing Officer dated 29/12/2016 is an ex- parte order passed u/s 144/147 of the Income-tax Act, 1961 (‘the Act’). It is noted that the assessee in the present case is a company which filed its return of income on 29/09/2009 disclosing total income of Rs.1,93,55,905/-. Notice u/s 148 of the Act was issued to the assessee which was served upon the assessee on 30/03/2016. According to the Ld. AO, reasons for reopening was supplied to the assessee on 20/07/2016. However, according to the Ld. AO it did not elicit any response from the assessee. Thereafter, the ld. Assessing Officer gave the assessee last opportunity of hearing seeking explanation of certain bank transactions carried out by the assessee. Since there was no compliance from the assessee, the ld. Assessing Officer proceeded to complete the assessment ex-parte u/s 144 of the Act and made an addition of Rs.62,50,000/- (aggregate of Rs.40,00,000/- + Rs.22,50,000/-) relating to the assessee’s transactions for payment and deposit of the said sum by treating it as unexplained income found in the books of the assessee during the relevant previous year. 4. Against the order passed by the ld. Assessing Officer u/s 144 of t assessee preferred an appeal before the ld. CIT(A). there was no satisfactory compliance on the part of the assessee to the notice him fixing the appeal for hearing from time to time, the ld. CIT(A) ex-parte order on the basis of material available on record and confirmed the addition of Rs.62,50,000/- made by the Assessing Officer by treating the same as unexplained income found in the books of accounts of the assessee. 5. Aggrieved by the said order of the ld. CIT(A), the assessee has preferred this appeal before the Tribunal. 6. As noted, none appeared perusal of records before us and the facts discussed (supra), according to us assessee ought to have been given proper opportunity to explain the facts as held by the Apex Court in the case of Tin Box (SC) that order must be made after the assessee has been given a of setting out his case. Accordingly, considering the above and the decision of Apex Court, to set aside the impugned order passed back to the file of the ld. CIT(A) with a direction to decide the same afresh after providing reasonable opportunity of being heard to the assessee. also directed to be diligent and adjudicate the appeal. 7. In the result, the appeal of the assessee is treated as allowed for statistical purposes. Kolkata, the Sd/- [Aby T. Varkey] Judicial Member Dated: 23.02.2022 {SC SPS} 2 Rawatsons Engineering Pvt. Ltd Against the order passed by the ld. Assessing Officer u/s 144 of t assessee preferred an appeal before the ld. CIT(A). According to the Ld. CIT(A), s there was no satisfactory compliance on the part of the assessee to the notice fixing the appeal for hearing from time to time, the ld. CIT(A) passed order on the basis of material available on record and confirmed the addition of made by the Assessing Officer by treating the same as unexplained income found in the books of accounts of the assessee. eved by the said order of the ld. CIT(A), the assessee has preferred this appeared on behalf of the assessee before us. However, perusal of records before us and the facts discussed (supra), according to us assessee ought to have been given proper opportunity to explain the facts as held by the Apex Court in the case of Tin Box Co. v. Commissioner of Income-tax [2001] 249 ITR 216 order must be made after the assessee has been given a reasonable opportunity Accordingly, considering the records before us, facts discussed above and the decision of Apex Court, we find it fair and proper in the interest of justice to set aside the impugned order passed ex-parte by the ld. CIT(A) and restore the m CIT(A) with a direction to decide the same afresh opportunity of being heard to the assessee. also directed to be diligent and make its submissions to enable him In the result, the appeal of the assessee is treated as allowed for statistical Kolkata, the 23 rd day of February, 2022. [Girish Ag Judicial Member Accountant Member ITA No. 2610/Kol/2019 Assessment Year: 2009-10 Rawatsons Engineering Pvt. Ltd Against the order passed by the ld. Assessing Officer u/s 144 of the Act, the According to the Ld. CIT(A), since there was no satisfactory compliance on the part of the assessee to the notices issued by passed the impugned order on the basis of material available on record and confirmed the addition of made by the Assessing Officer by treating the same as unexplained eved by the said order of the ld. CIT(A), the assessee has preferred this on behalf of the assessee before us. However, on perusal of records before us and the facts discussed (supra), according to us, the assessee ought to have been given proper opportunity to explain the facts as held by the [2001] 249 ITR 216 reasonable opportunity records before us, facts discussed it fair and proper in the interest of justice he ld. CIT(A) and restore the matter CIT(A) with a direction to decide the same afresh on merits opportunity of being heard to the assessee. The assessee is him to expeditiously In the result, the appeal of the assessee is treated as allowed for statistical Sd/- Girish Agrawal] Accountant Member Copy of the order forwarded to: 1. Rawatsons Engineering Pvt. Ltd 7C, Mani Square 164/1, Manicktalla Main Road Kankurgachi Kolkata – 700 064 2. Asstt. Commissioner of Income Tax, Circle 3. CIT(A)- 4. CIT- , 5. CIT(DR), Kolkata Benches, Kolkata. 1. Date of dictation- 02/02/2022 2. Date on which the typed draft is placed before the Other member 04/02/2022 3. Date on which the approved draft comes to the Sr.P.S./P.S. 4. Date on which the fair order is placed before the Dictating Member for Pronouncement 5. Date on which the file goes to the Bench Clerk 6. Date on which the file goes to the 7. The date on which the file goes to the Assistant R 8. Date of Despatch of the Order............... 3 Rawatsons Engineering Pvt. Ltd Rawatsons Engineering Pvt. Ltd 164/1, Manicktalla Main Road Asstt. Commissioner of Income Tax, Circle-15(1), Kolkata 5. CIT(DR), Kolkata Benches, Kolkata. Assistant Registrar ITAT, Kolkata Benches /02/2022 on which the typed draft is placed before the Dictating Member 04/02/2022 /02/2022 Date on which the approved draft comes to the Sr.P.S./P.S. - 23/02/2022 Date on which the fair order is placed before the Dictating Member for Pronouncement Date on which the file goes to the Bench Clerk 25/02/2022 Date on which the file goes to the O.S................................... The date on which the file goes to the Assistant Registrar for signature on the order..................... Date of Despatch of the Order...................... ITA No. 2610/Kol/2019 Assessment Year: 2009-10 Rawatsons Engineering Pvt. Ltd True copy By order Assistant Registrar/DDO ITAT, Kolkata Benches /02/2022 Date on which the fair order is placed before the Dictating Member for Pronouncement 23/02/2022 egistrar for signature on the order.....................