Jalan Telecom Pvt. Ltd., , Kolkata V. ITO, Ward - 7(4), Kolkata , Kolkata

ITA 294/KOL/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6380 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 18 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: 2004-2005
• Appeal Filed On: 19-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ROBIN CHOUDHUR Y
• Keywords: Unexplained cash credit
• Section: 43B; 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC, KOLKATA [BEFORE SHRI P.M. JAGTAP, AM] I.T.A. NO. 294/KOL/2018 ASSESSMENT YEAR: 2004-05 M/S. JALAN TELECOM PVT. LTD.........................................APPELLANT C/O. SUBASH AGARWAL & ASSOCIATES, SIDDHA GIBSON, 2 ND FLOOR, 1, GIBSON LANE, SUITE 213, KOLKATA 700 069 [PAN: AABCJ 2168 C] ITO, WARD 7(4) KOLKATA.....................................RESPONDENT P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. APPEARANCES BY: SHRI SIDDHARTH AGARWAL, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. SHRI ROBIN CHOUDHURY, ADDL. CIT APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : MAY 31, 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) 17, KOLKATA DATED 03.06.2016 PASSED EX-PARTE. 2. THE ASSESSEE IN THE PRESENT CASE IS A PARTNERSHIP FIRM WHICH IS ENGAGED IN THE BUSINESS OF TRADING IN MOBILE HAND-SETS, CASH CARDS AND MOBILE ACCESSORIES. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 31.10.04 DECLARING A TOTAL INCOME OF RS. 1,85,270/-. THE SAID RETURN WAS SELECTED FOR SCRUTINY BY THE AO AND THE NOTICE UNDER SECTION 143(2) WAS ISSUED BY HIM TO THE ASSESSEE. ALTHOUGH THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE APPEARED BEFORE THE AO IN COMPLIANCE TO THE NOTICE ISSUED UNDER SECTION 143(2), THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES SUBSEQUENTLY ISSUED BY THE AO UNDER SECTION 142(1) ASKING FOR CERTAIN DETAILS AND DOCUMENTS. THE AO, THEREFORE, WAS LEFT WITH NO OPTION BUT TO COMPLETE THE ASSESSMENT EX-PARTE TO THE BEST OF 2 I.T.A. NO. 294/KOL/2018 ASSESSMENT YEAR: 2004-05 M/S. JALAN TELECOM (P) LTD. HIS JUDGEMENT. IN THE ASSESSMENT SO COMPLETED VIDE AN ORDER DATED 18.09.2006 U/S 144, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE AO AT RS. 5,60,070/- AFTER MAKING THE FOLLOWING ADDITIONS: 1. UNEXPLAINED CASH CREDIT U/S 68 RS. 2,31,252/- 2. DISALLOWANCE OF COMMISSION RS. 1,52,428/- 3. DISALLOWANCE OF PROFESSIONAL TAX U/S 43B RS. 2190/- 3. AGAINST THE ORDER PASSED BY THE A.O. U/S 144, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE VIDE HIS APPELLATE ORDER DATED 03.06.2016 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AT THE OUTSET, IT IS NOTED THAT THERE IS A DELAY OF 506 DAYS ON THE PART OF THE ASSESSEE IN FILING THIS APPEAL BEFORE THE TRIBUNAL. IN THIS REGARD, THE LEARNED COUNSEL FOR THE ASSESSEE HAS FILED AN AFFIDAVIT OF THE DIRECTOR OF THE ASSESSEE COMPANY EXPLAINING THE SAID DELAY AS WELL AS THE NON-COMPLIANCE BEFORE THE LD. CIT(A) AS UNDER: 1. THAT I AM OF THE DIRECTORS OF M/S. JALAN TELECOM PVT. LTD. AND AS SUCH, I AM COMPETENT TO SWEAR THIS AFFIDAVIT ON BEHALF OF THE SAID COMPANY. 2. THAT I BEING AGGRIEVED WITH THE ASSESSMENT ORDER DATED 18.09.2006 FILED APPEAL BEFORE THE LD. CIT(A). 3. THAT THE SAID APPEAL WAS DISMISSED BY THE LD. CIT(A) BY PASSING AN EX- PARTE ORDER DUE TO NON APPEARANCE OF ANYONE ON THE DATES FOR HEARING BEFORE THE LD. CIT(A). 4. THAT SHRI ASHOK KUMAR AGARWAL, A/R WAS ENGAGED IN THE INSTANT MATTER TO APPEAR BEFORE THE LD. CIT(A) AND WE WERE UNDER THE BONAFIDE 3 I.T.A. NO. 294/KOL/2018 ASSESSMENT YEAR: 2004-05 M/S. JALAN TELECOM (P) LTD. BELIEF THAT PROPER COMPLIANCES WERE MADE FROM THE END OF THE SAID SHRI ASHOK KUMAR AGARWAL, A/R. 5. THAT AFTER RECEIPT OF THE ORDER OF THE LD. CIT(A) ON 02.08.2016, IT CAME TO OUR KNOWLEDGE THAT NO COMPLIANCE WAS MADE BY THE SAID ASHOK KUMAR AGARWAL, A/R. 6. THAT THE SAID ORDER WAS HANDED OVER TO SHRI LAXMI NARAYAN SINHA ROY, ADVOCATE RESIDENT OF FARM SIDE, POST-CHINSURAH, DISTRICT-HOOGHLY FOR PREPARATION AND FILING OF APPEAL BEFORE THE HONBLE TRIBUNAL. 7. THAT ON OR AROUND 05.02.2018 WE WERE IN RECEIPT OF A PENALTY NOTICE U/S 271(1)(C) AND 271(1)(B) RELATING TO A.Y. 2004-05. 8. THAT WE TRIED TO CONTACT SHRI LAXMI NARAYAN SINHA ROY, ADVOCATE ON 05.02.2018 FOR PREPARATION OF A REPLY IN RESPONSE TO THE SAID PENALTY NOTICES AND CAME TO KNOW THAT THE SAID ADVOCATE HAD EXPIRED ON 04.02.2017 AND NO APPEAL WAS FILED BY HIM. 9. THAT ON OR AROUND 12.02.2018, WE CONTACTED SHRI SUBASH AGARWAL, ADVOCATE AND SENT HIM THE RELEVANT PAPERS FOR PREPARATION AND FILING OF APPEAL BEFORE THE LD. CIT(A). 10. THAT THE APPEAL PAPERS WERE PREPARED BY 17.02.2018 BY THE SAID ADVOCATE AND THEN THE APPEAL WAS FILED ON 19.02.2018. 5. KEEPING IN VIEW THE AFFIRMATION MADE ON OATH BY THE DIRECTOR OF THE ASSESSEE COMPANY AS ABOVE, I AM SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE DELAY OF 506 DAYS ON THE PART OF THE ASSESSEE IN FILING THIS APPEAL BEFORE THE TRIBUNAL. I, THEREFORE, CONDONE THE SAID DELAY. I ALSO SATISFIED THAT THERE WAS A SUFFICIENT CAUSE THAT PREVENTED THE ASSESSEE FROM COMPLYING WITH THE NOTICES ISSUED BY THE LD. CIT(A) DURING THE COURSE OF APPELLATE PROCEEDINGS FIXING THE APPEAL OF THE ASSESSEE FOR HEARING FROM TIME TO TIME. EVEN THE LEARNED DR HAS NOT BEEN ABLE TO DISPUTE THIS POSITION. HE HOWEVER, HAS CONTENDED THAT THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE EVEN DURING THE COURSE OF ASSESSMENT PROCEEDINGS RESULTING INTO ASSESSMENT UNDER SECTION 144 AND URGED THAT THE CASE MAY BE SENT BACK TO THE AO FOR EXAMINING ALL THE ISSUES INVOLVED IN THE CASE OF THE ASSESSEE. I FIND MERIT IN THIS CONTENTION OF THE LEARNED DR. ACCORDINGLY, THE IMPUGNED 4 I.T.A. NO. 294/KOL/2018 ASSESSMENT YEAR: 2004-05 M/S. JALAN TELECOM (P) LTD. ORDER PASSED BY THE LD. CIT(A) EX-PARTE IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE AO FOR DECIDING THE ISSUES INVOLVED IN THE CASE OF THE ASSESSEE AFRESH ON MERIT IN ACCORDANCE WITH LAW AFTER GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. AS UNDERTAKEN BY ITS DIRECTOR IN THE AFFIDAVIT, THE ASSESSEE COMPANY SHALL MAKE DUE COMPLIANCE BEFORE THE AO AND SHALL EXTEND ALL POSSIBLE COOPERATION IN ORDER TO ENABLE THE AO TO DECIDE THE ISSUES AFRESH ON MERITS EXPEDITIOUSLY. 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. JALAN TELECOM (P) LTD., C/O. SUBASH AGARWAL & ASSOCIATES, SIDDHA GIBSON, 1, GIBSON LANE, 2 ND FLOOR, SUITE 213, KOLKATA 700 069. 2. ITO, WD 7(4), KOLKATA. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, SR. P.S. / H.O.O. ITAT, KOLKATA