Fabline Engineers Pvt. Ltd., Kolkata V. ITO, Ward-5(3), Kolkata

ITA 302/KOL/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5218 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 05-10-2020
• Assessment Year: 2009-2010
• Appeal Filed On: 12-03-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA JCIT LD
• Assessee Lawyers: ABHISHEK BANSALCA LD
• Keywords: Unexplained cash credit; Opportunity of being heard; Set aside
• Section: 143(1); 147; 68; 263

Judgement Text

1 I.T.A NO 302/KOL/20 AY 2009 - 10 FABLINE ENGINEERS P.LTD. IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOLKATA BEFORE: SHRI P.M. JAGTAP, VICE - PRESIDENT (KZ) AND SHRI A.T. VARKEY, JUDICIAL MEMBER I.T.A NO . 302/KOL/2020 A.Y: 2009 - 10 M/S. FABLINE ENGINEERS VS. INCOME TAX OFFICER PVT. LTD. WARD 5(3), KOLKATA PAN: AANCS 0935N [APPELLANT] [RESPONDENT] FOR THE APPELLANT : SHRI ABHISHEK BANSAL,CA, LD. AR FOR THE RESPONDENT : SHRI JAYANTA KHANRA, JCIT, LD.SR.DR DATE OF HEARING (VIRTUAL) : 05 - 10 - 2020 DATE OF PRONOUNCEMENT : 05 - 10 - 2020 ORDER SHRI P.M. JAGTAP, V.P: THIS APPEAL PREFE RRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT (APPEALS) - 7, KOLKATA DATED 28 - 02 - 2018 PASSED EX PARTE, WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FOR NON - PROSECUTION. 2. THE ASSESSEE I N THE PRESENT CASE IS A COMPANY, WHICH IS ENGAGED IN THE BUSINESS OF SHARE DEALING & INVESTMENT. THE ORIGINAL RETURN OF INCOME FOR THE A . Y UNDER CONSIDERATION WAS FILED BY IT ON 11 - 07 - 2009 DECLARING TOTAL INCOME OF RS. 990/ - . THE SAID RETURN WAS INITIALLY PROCESSED U/S. 143(1) OF THE INCOM E TAX ACT, 1961 ( HEREINAFTER, REFERRED TO AS THE ACT ). THE ASSESSMENT, HOWEVER, WAS SUBSEQUENTLY RE - OPENED BY THE AO AND IN THE FRESH ASSESSMENT COMPUTED U/S. 147 /143(3) OF THE ACT BY AN ORDER DT 28 - 02 - 2011 , THE INCOME OF THE ASSESSEE WAS DETERMINED BY HIM AT RS. 20,490/ - . THE SAID ASSESSMENT MADE BY THE AO WAS SUBSEQUENTLY SET ASIDE BY THE LD. CIT VIDE HIS ORDER DATED 10 - 03 - 2014 PASSED U/S. 263 OF THE ACT GIVING DIRECTION TO THE AO TO MAKE THE ASSESSMENT AFRESH . A S PER DIRECTION OF THE LD. CIT GIVEN IN THE ORDER PASSED U/S. 263 OF THE ACT , THE FRESH ASSESSMENT PROCEEDINGS WERE INITIATED BY THE AO AND SINCE THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM DURING THE COURSE OF FRESH ASSESSMENT PROCEEDINGS, THE AO WAS L EFT WITH NO ALTERNATIVE BUT TO COMPLETE THE ASSESSMENT TO THE BEST OF HIS JUDGMENT ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. IN THE ASSESSMENT SO COMPLETED U/S. 144/263/143(3)/147 OF THE 2 I.T.A NO 302/KOL/20 AY 2009 - 10 FABLINE ENGINEERS P.LTD. ACT BY AN ORDER DATED 02 - 03 - 2015 , THE TOTAL INCOME OF THE ASSESS EE WAS DETERMINED BY THE AO AT RS. 3,20,36,500/ - AFTER MAKING ADDITION OF RS. 3,20, 00,000/ - BY TREATING THE SHARE APPLICATION MONEY INCLUDING THE SHARE PREMIUM RECEIVED BY THE ASSESSEE DURING THE A.Y UNDER CONSIDERATION AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE ACT. 3. AG AINST THE ORDER OF THE AO PASSED U/S. 144/263/143(3)/147 OF THE ACT, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUE D BY HIM FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME , T HE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE FOR NON - PROSECUTION VIDE HIS APPELLATE ORDER DATED 28 - 02 - 2018 PASSED EX PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THIS TRIBUNAL. 4 . WE HAVE HEARD THE ARGUMENTS OF BOTH THE PARTIES AND ALSO PERUSED THE RELEVANT RECORDS . I N SUPPORT OF THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL CHALLENGING THE IMPUGNED ORDER PASSED BY THE L D. CIT(A) EX PARTE , T HE LD. COUNSEL FOR THE ASSESSEE HAS STATED THAT APPLICATIONS WERE FILED BY THE ASSESSEE IN WRITING SEEKING ADJOURNMENT OF THE HEARING FIXED BY THE LD. CIT(A) ON FOUR (4) DIFFERENT DATES AND SINCE THE NOTICE STATED TO BE ISSUED BY THE LD. CIT(A) FIXING THE APPEAL OF THE ASSESSEE FOR FINAL HEARING ON 27 - 02 - 2018 WAS NEVER RECEIVED BY THE ASSESSEE, THE ASSESSEE COULD NOT COMPLY WITH THIS SAID NOTICE. HE HAS ALSO SUBMITTED THAT EVEN THE NOTICES WERE SENT BY THE AO DURING THE COURSE OF ASS ESSMENT PROCEEDINGS TO THE OLD ADDRESS OF THE ASSESSEE AND THEREFORE, THE ASSESSEE COULD NOT COMPLY WITH TH E SAID NOTICE S . H E HAS URGED THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX PARTE MAY BE SET ASIDE AND THE MATTER MAY BE RESTORED TO THE F ILE OF THE AO FOR MAKING FRESH ASSESSMENT AFTER GIVING THE ASSESSEE PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. T HE LD. DR , ON THE OTHER HAND, HAS RAISED STRONG OBJECTION IN THIS REGARD BY POINTING OUT THE NON - COMPLIAN T ATTITUDE OF THE ASSESSEE DUR ING THE ASSESSMENT PROCEEDINGS BEFORE THE AO AS WELL AS DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A). HOWEVER, WE CONSIDER IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO PUT FORTH IT S CASE ON MERIT S BEFORE THE AO ON THE ISSUES INVOLVED IN THE APPEAL . A CCORDINGLY, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX PARTE AND RESTORE THE MATTER TO THE FILE OF THE AO FOR MAKING FRESH ASSESSMENT ON MERIT S AFTER GIVING THE ASSESSE E PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS DIRECTED TO MAKE DUE COMPLIANCE BEFORE THE AO AND TO EXTEND ALL POSSIBLE CO - OPERATION IN ORDER TO ENABLE THE AO TO COMPLETE THE ASSESSMENT AFRESH EXPEDITIOUSLY. 3 I.T.A NO 302/KOL/20 AY 2009 - 10 FABLINE ENGINEERS P.LTD. 5 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH OCTOBER, 2020. SD/ - SD/ - A.T. VARKEY P.M. JAGTAP JUDICIAL MEMBER VICE PRESIDENT (KZ) DATED 05 - 10 - 2020 PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT/ASSESSEE: M/S. FABLINE ENGINEERS P.LTD C/O RAJESH MOHAN & ASSOCIATES, UNIT NO. 18, 5 TH FL., BAGATI HOUSE, 34 GANESH CHANDRA AVENUE, KOLKATA - 13. 2 RESPONDENT/REVENUE: THE ITO, WARD 5(3), KOLKATA AAYKAR BHAWAN, 8 TH FL., P - 7 CHOWRINGHEE SQ., KOLKATA - 69. 3. CIT, 4. CIT(A), KOLKATA. 5. DR, KOLKATA BENCHES, KOLKATA **PP/SPS TRUE COPY BY BY ORDER ASSISTANT REGI STRAR ITAT KOLKATA