Sahara Tradecomm Pvt. Ltd., , Kolkata V. ITO, Ward - 1(4), Kolkata , Kolkata

ITA 282/KOL/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6382 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 16-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SATYAJIT MONDAL
• Assessee Lawyers: RAJESH KUMAR DUGGAR
• Keywords: Opportunity of being heard; Corroborative evidences
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC, KOLKATA [BEFORE SHRI P.M. JAGTAP, AM] I.T.A. NO. 282/KOL/2018 ASSESSMENT YEAR: 2011-12 M/S. SAHARA TRADECOMM PVT. LTD..................................APPELLANT 9/12, LAL BAZAR STREET MERCANTILE BUILDING, 3 RD FLOOR, ROOM NO. 10, BLOCK B. KOLKATA 700 006. [PAN: AAOCS 1875 J] ITO, WARD 1(4) KOLKATA...................................RESPONDENT P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. APPEARANCES BY: SHRI RAJESH KUMAR DUGGAR, FCA APPEARING ON BEHALF OF THE ASSESSEE. SHRI SATYAJIT MONDAL, ADDL. CIT APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : MAY 30, 2018 DATE OF PRONOUNCING THE ORDER : JUNE 08, 2018 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT (APPEALS) 1, KOLKATA DATED 22.08.2017 WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE BY TREATING THE SAME AS BARRED BY LIMITATION. 2. AT THE OUTSET, IT IS NOTED THAT THERE IS DELAY OF 114 DAYS ON THE PART OF THE ASSESSEE IN FILING THIS APPEAL BEFORE THE TRIBUNAL. IN THIS REGARD, THE ASSESSEE HAS FILED AN APPLICATION SEEKING CONDONATION OF THE SAID DELAY ON THE GROUND THAT ITS AUTHORISED REPRESENTATIVE SHRI RAJESH DUGGAR, FCA HAD SUFFERED WITH SERIOUS INJURY DURING THE RELEVANT PERIOD AND SINCE HE HAD TO UNDERGO MEDICAL BRAIN SURGERY, THE APPEAL COULD NOT BE COMPLETED AND FILED BEFORE THE TRIBUNAL IN TIME. KEEPING IN VIEW THIS REASON GIVEN BY THE ASSESSEE, I AM SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE DELAY ON THE PART OF THE 2 I.T.A. NO. 282/KOL/2018 ASSESSMENT YEAR: 2011-12 M/S. SAHARA TRADECOMM PVT. LTD. ASSESSEE IN FILING THIS APPEAL BEFORE THE TRIBUNAL. EVEN THE LEARNED DR HAS NOT RAISED ANY OBJECTION IN THIS REGARD. I, THEREFORE, CONDONE THE SAID DELAY AND PROCEED TO DISPOSE OF THE APPEAL OF THE ASSESSEE ON MERIT. 3. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 30.09.2011 DECLARING A TOTAL INCOME OF RS. 16,570/-. IN THE PROFIT AND LOSS ACCOUNT FILED ALONG WITH THE SAID RETURN A SUM OF RS. 24,10,50,000/- WAS CREDITED BY THE ASSESSEE AS CONTRACTUAL INCOME WHILE A SUM OF RS. 24,09,00,000/- WAS DEBITED AS SUBCONTRACT EXPENSES. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE COULD NOT FURNISH ANY DETAILS OR DOCUMENTS TO SUPPORT AND SUBSTANTIATE ITS CLAIM ON ACCOUNT OF CONTRACTUAL INCOME OR SUBCONTRACT EXPENSES AND ADMITTED THAT IT HAD PROVIDED BOGUS BILLS TO M/S. PACL INDIA LTD. WITHOUT EXECUTING IN SORT OF WORK/CONTRACT. IT WAS ALSO STATED BY THE ASSESSEE THAT A COMMISSION INCOME @0.10% OF THE AMOUNT OF CONTRACTUAL INCOME WAS EARNED BY IT FOR THE BOGUS BILLS PROVIDED. NO EVIDENCE WHATSOEVER HOWEVER COULD BE PRODUCED BY THE ASSESSEE TO SUPPORT AND SUBSTANTIATE ITS CLAIM THAT COMMISSION ONLY @0.10% WAS EARNED ON THE BOGUS BILLS. THE AO, THEREFORE, ESTIMATED THE COMMISSION INCOME EARNED BY THE ASSESSEE BY APPLYING THE RATE OF 0.50% AND MADE AN ADDITION OF RS. 12,05,250/- TO THE TOTAL INCOME OF THE ASSESSEE IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 28.03.2014. 4. AGAINST THE ORDER PASSED BY THE AO UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) DISPUTING 3 I.T.A. NO. 282/KOL/2018 ASSESSMENT YEAR: 2011-12 M/S. SAHARA TRADECOMM PVT. LTD. THE ADDITION OF RS. 12,05,250/- MADE BY THE ASSESSING OFFICER. THERE WAS HOWEVER A DELAY OF 6 DAYS ON THE PART OF THE ASSESSEE IN FILING THE SAID APPEAL BEFORE THE LD. CIT(A). IN THIS REGARD, AN APPLICATION WAS FILED BY THE ASSESSEE SEEKING CONDONATION OF THE SAID DELAY ON THE GROUND THAT ITS DIRECTORS WERE NOT AVAILABLE IN THE OFFICE DUE TO SOME UNAVOIDABLE CIRCUMSTANCES AND THE APPEAL, THEREFORE, COULD NOT BE SIGNED IN TIME WHICH RESULTED IN THE DELAY OF 6 DAYS. THIS EXPLANATION OF THE ASSESSEE WAS NOT FOUND ACCEPTABLE BY THE LD. CIT(A) IN THE ABSENCE OF ANY EVIDENCE TO SUPPORT AND SUBSTANTIATE THE SAME. HE, THEREFORE, REFUSED TO CONDONE THE DELAY ON THE PART OF THE ASSESSEE IN FILING THE APPEAL AND DISMISSED THE SAID APPEAL IN LIMINE BY TREATING IT AS BARRED BY LIMITATION. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 5. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT THE DELAY OF ONLY 6 DAYS IN FILING ITS APPEAL BEFORE THE LD. CIT(A) WAS EXPLAINED BY THE ASSESSEE BY SUBMITTING THAT ITS DIRECTORS WERE NOT AVAILABLE AT THE RELEVANT TIME IN THE OFFICE DUE TO SOME UNAVOIDABLE CIRCUMSTANCES AND SINCE THE APPEAL PAPERS COULD NOT BE SIGNED IN TIME, THERE WAS A DELAY IN FILING THE APPEAL. IN MY OPINION, THIS EXPLANATION OFFERED BY THE ASSESSEE CONSTITUTED A SUFFICIENT CAUSE FOR THE DELAY OF 6 DAYS ON THE PART OF THE ASSESSEE IN FILING ITS APPEAL BEFORE THE LD. CIT(A) AND THE LD. CIT(A) WAS NOT JUSTIFIED IN REFUSING TO CONDONE THE SAID DELAY FOR WANT OF ANY SUPPORTING EVIDENCE. IT IS WELL SETTLED THAT THE EXPRESSION SUFFICIENT CAUSE IS TO BE CONSTRUED LIBERALLY IN ORDER TO FURTHER THE CAUSE OF SUBSTANTIAL JUSTICE AND IT IS NOT CORRECT TO REFUSE TO CONDONE THE DELAY OF ONLY 6 DAYS FOR WHICH PLAUSIBLE EXPLANATION 4 I.T.A. NO. 282/KOL/2018 ASSESSMENT YEAR: 2011-12 M/S. SAHARA TRADECOMM PVT. LTD. WAS OFFERED BY THE ASSESSEE FOR WANT OF SUPPORTING EVIDENCE. I, THEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) DISMISSING THE APPEAL OF THE ASSESSEE IN LIMINE BY TREATING THE SAME AS BARRED BY LIMITATION AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT AFTER CONDONING THE DELAY AND AFTER GIVING THE ASSESSEE PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH JUNE, 2018. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER DATED: 08/06/2018 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. M/S. SAHARA TRADECOMM PVT. LTD., 9/12, LAL BAZAR STREET MERCANTILE BUILDING, 3 RD FLOOR, BLOCK B, ROOM NO. 10, KOLKATA 700 006. 2. ITO WARD 1(4), P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, SR. P.S. / H.O.O. ITAT, KOLKATA