East India Spinning Pvt. Ltd., Kolkata V. I.T.O.,Ward-10(3), Kolkata

ITA 276/KOL/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 5796 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 04-03-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA
• Assessee Lawyers: VIKASH SURANA
• Keywords: Set aside
• Section: 143(3)

Judgement Text

ITA NO.276/KOL/2020 EAST INDIA SPINNING PVT. LTD. A.Y. 2012-13 1 | P A GE , B(SMC) , IN THE INCOME TAX APPELLATE TRIBUNAL B(SMC) BENCH : KOLKATA [BEFORE SHRI A. T. VARKEY, JM] I.T.A. NO. 276/KOL/2020 ASSESSMENT YEAR: 2012-13 EAST INDIA SPINNING PVT. LTD. (PAN: AABCF 5441 P) VS. ITO, WARD-10(3), KOLKATA APPELLANT RESPONDENT DATE OF HEARING (VIRTUAL) 02.02.2021 DATE OF PRONOUNCEMENT 05.02.2021 FOR THE APPELLANT SHRI VIKASH SURANA, A.R FOR THE RESPONDENT SHRI JAYANTA KHANRA, SR. D.R ORDER THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINS T THE ORDER OF LD. CIT(A)-4, KOLKATA DATED 31.01.2020 FOR ASSESSMENT YEAR 2012-1 3. 2. AT THE OUTSET, THE LD. A.R OF THE ASSESSEE SHR I VIKASH SURANA POINTED OUT THAT THE IMPUGNED ORDER IS AN EX-PARTE ORDER OF THE LD. CIT(A). ACCORDING TO LD. A.R, FROM A PERUSAL OF THE IMPUGNED ORDER IT CAN BE NOTE D THAT THE LD. CIT(A) ALLEGES THAT THE ASSESSEE COMPANY FAILED TO EXPLAIN THE SOURCE O F RS. 15,00,000/- (SHARE CAPITAL) RECEIVED FROM M/S WELCOME DEALCOM PVT. LTD.. HOWEVE R, IT WAS POINTED OUT BY THE LD. A.R THAT THE ASSESSEE HAD FILED DETAILED WRITTE N SUBMISSION ALONG WITH SUPPORTING DOCUMENTS ON 25.10.2018 WHICH IS EVIDENT FROM THE D EPARTMENTS SEAL AFFIXED, ACKNOWLEDGING RECEIPT OF THE SAME (DOCUMENTS). THUS , ACCORDING TO LD. A.R, THE LD. CIT(A) ERRED IN OBSERVING THAT THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF RS. 15 LAKHS. ACCORDING TO LD. A.R, IT WAS BROUGHT TO THE NOTICE OF THE FIRST APPELLATE AUTHORITY THAT THE SHARE SUBSCRIBERS M/S WELCOME DE ALCOM PVT. LTD. HAD UNDERGONE SCRUTINY ASSESSMENT U/S 143(3) OF THE INCOME TAX AC T, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WHEREIN THE AO WAS PLEASED TO TAX THE VERY SAME AMOUNT OF RS. 15 LAKHS IN ITS HAND. THEREFORE, ACCORDING TO LD. A.R, TAXING THE ASSESSEE COMPANY ITA NO.276/KOL/2020 EAST INDIA SPINNING PVT. LTD. A.Y. 2012-13 2 | P A GE AGAIN ON THE SAME AMOUNT WOULD AMOUNT TO DOUBLE TAX ATION WHICH IS NOT PERMISSIBLE. PER CONTRA, THE LD. D.R OPPOSING THE SUBMISSION OF ASSESSEE POINTED OUT THAT THESE FACTS WERE NOT PLACED BEFORE LD. CIT(A), SO IT SHOU LD BE RESTORED BACK TO THE FILE OF LD. CIT(A). 3. HAVING HEARD BOTH THE PARTIES, I MAKE IT CLEAR T HAT I AM NOT ENTERING INTO MERITS OF THE ADDITION OF RS. 15 LAKHS. IT IS NOTED THAT THE LD. CIT(A) HAS PASSED AN EX-PARTE ORDER BY NOTING THAT THE ASSESSEE HAS FAIL ED TO EXPLAIN THE SUM OF RS. 15 LAKHS WHICH WAS ADDED BY AO. WHEREAS ACCORDING TO L D. A.R, THE ASSESSEE HAD FILED ALL THE DOCUMENTS ALONG WITH WRITTEN SUBMISSI ON ON 25.10.2018 BEFORE THE LD. CIT(A). IN SUCH A SCENARIO, THE LD. CIT(A) WAS DUTY BOUND TO DECIDE THE APPEAL IN ACCORDANCE TO SECTION 250(6) OF THE ACT BY PASSIN G A REASONED ORDER. SECTION 250(6) OF THE ACT READS AS UNDER: 250(6).THE ORDER OF THE COMMISSIONER (APPEALS) DIS POSING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION, THE D ECISION THEREON AND THE REASON FOR THE DECISION. 4. SINCE THE ASSESSEE HAD FILED WRITTEN SUBMISSION ALONG WITH SUPPORTING DOCUMENTS BEFORE THE LD. CIT(A) ON 25.10.2018, THE LD. CIT(A) SHOULD HAVE DISPOSED OF THE APPEAL ON MERITS AFTER GOING THROUG H THE CONTENTS OF THE WRITTEN SUBMISSION AND DOCUMENTS FILED ALONG WITH IT IN ACC ORDANCE TO LAW. SINCE IT HAS NOT BEEN DONE, I AM INCLINED TO SET ASIDE THE IMPUGNED ORDER OF LD. CIT(A) AND RESTORE THE APPEAL BACK TO THE FILE OF LD. CIT(A) TO DECIDE THE APPEAL ON MERITS AFTER GOING THROUGH THE WRITTEN SUBMISSION AS WELL AS DOCUMENTS SUPPORTING IT IN ACCORDANCE TO LAW. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 5 TH FEBRUARY, 2021. SD/- (J.S. REDDY) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 05.02.2021 ITA NO.276/KOL/2020 EAST INDIA SPINNING PVT. LTD. A.Y. 2012-13 3 | P A GE SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. APPELLANT- EAST INDIA SPINNING PVT. LTD., UNIT NO. 227, 2 ND FLOOR, 21, HEMANTA BASU SARANI, B. B. D. BAG, KOLKATA-700001 2. RESPONDENT ITO, WARD-10(3), KOLKATA 3. THE CIT(A)- 4, KOLKATA (SENT THROUGH E-MAIL) 4. CIT- , KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES, KOLKATA