M/s. J.C. Construction (p) Ltd., North Lakhimpur V. Deputy Commissioner of Income Tax, Circle-Tezpur, Tezpur

ITA 314/GTY/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0540 (ITAT-GUWAHATI)
• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 19-11-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: DEVA RAJ SAHU
• Keywords: Opportunity of being heard; Application of stay; Set aside
• Section: 40A(3); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL GAUHATI E COURT AT KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT & SHRI S.S. VISWANETHRA RAVI, JM] ITA NO. 314/GAU/2018 ASSESSMENT YEAR: 2014-15 M/S. J.C. CONSTRUCTION PVT. LTD..................................APPELLANT D.K. ROAD, NORTH LAKHIMPUR -787 001, (ASSAM) [PAN : AABCT 3063 A] DCIT, CIRCLE, TEZPUR..........................................RESPONDENT AAYAKAR BHAWAN, EX-POLICE LINE, TEZPUR, ASSAM 784 001. S.A. NO. 10/GAU/2018 (ARISING OUT OF ITA NO. 314/GAU/2018) ASSESSMENT YEAR: 2014-15 M/S. J.C. CONSTRUCTION PVT. LTD...................................APPELLANT D.K. ROAD, NORTH LAKHIMPUR -787 001, (ASSAM) [PAN : AABCT 3063 A] DCIT, CIRCLE, TEZPUR........................................RESPONDENT AAYAKAR BHAWAN, EX-POLICE LINE, TEZPUR, ASSAM 784 001. APPEARANCES BY: SHRI DEVA RAJ SAHU, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. SHRI PRADIP SENGUPTA, JCIT, SR. DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : MARCH 08, 2019 DATE OF PRONOUNCING THE ORDER : MARCH 08, 2019 O R D E R PER P.M. JAGTAP, VICE PRESIDENT AT THE TIME OF HEARING OF STAY APPLICATION FILED BY THE ASSESSEE IN THIS CASE BEING S.A. NO. 10/GAU/2018, THE LEARNED REPRESENTATIVES OF BOTH THE SIDES HAVE AGREED THAT THE CORRESPONDING APPEAL OF THE ASSESSEE BEING ITA 2 ITA NO. 314/GAU/2018 & S.A. NO. 10/GAU/2018 (A.Y. 2014-15) M/S. J.C. CONSTRUCTION (P) LTD. NO. 314/GAU/2018 WHICH IS FILED AGAINST THE ORDER PASSED BY THE LD. CIT(A) EX-PARTE ITSELF CAN BE HEARD AND DISPOSED OF. ACCORDINGLY, THEY HAVE TAKEN NOTICE AND THE APPEAL OF THE ASSESSEE BEING ITA NO. 314/GAU/2018 HAS BEEN HEARD. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH IS ENGAGED IN THE BUSINESS OF EXECUTION OF CONTRACT WORKS. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 27.12.2014 DECLARING A TOTAL INCOME OF RS. 1,55,39,060/-. IN THE ASSESSMENT COMPLETED U/S 143(3) OF THE ACT VIDE AN ORDER DATED 27.12.2016, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE AO AT RS. 2,53,54,659/- AFTER MAKING THE ADDITIONS OF RS. 91,11,425/- ON ACCOUNT OF DISALLOWANCE U/S 40A(3) OF THE ACT AND DISALLOWANCE OF SUNDRY CREDITORS OF RS. 7,04,174/-. 3. AGAINST THE ORDER PASSED BY THE AO U/S 143(3), 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 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 27.09.2018 PASSED EX-PARTE FOR NON-PROSECUTION. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED BY THE LEARNED COUNSEL FOR THE ASSESSEE, NONE OF THE NOTICES STATED TO BE ISSUED BY THE LD. CIT(A) OFF-LINE AND ON-LINE FIXING THE APPEAL OF THE ASSESSEE FOR HEARING WAS RECEIVED BY THE ASSESSEE 3 ITA NO. 314/GAU/2018 & S.A. NO. 10/GAU/2018 (A.Y. 2014-15) M/S. J.C. CONSTRUCTION (P) LTD. AND THE ASSESSEE THEREFORE COULD NOT COMPLY WITH THE SAME. KEEPING IN VIEW THIS SUBMISSION MADE BY THE LEARNED COUNSEL FOR THE ASSESSEE, WE ARE SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE NON-COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES OF HEARING ISSUED BY THE LD. CIT(A) AND EVEN THE LEARNED DR HAS NOT RAISED ANY OBJECTION IN THIS REGARD. MOREOVER, AS PER THE PROVISIONS OF SUB-SECTION (6) OF SECTION 250, THE LD. CIT(A) WAS REQUIRED TO DISPOSE OF THE APPEAL OF THE ASSESSEE BY AN ORDER IN WRITING STATING THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. A PERUSAL OF THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) SHOWS THAT THE SAME DOES NOT COMPLY WITH THE SAIOD REQUIREMENTS. WE THEREFORE SET ASIDE THE SAID ORDER AND REMIT THE MATTER BACK TO THE LD. CIT(A) FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT BY PASSING A SPEAKING ORDER AFTER GIVING THE ASSESSEE A PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. AS UNDERTAKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE LD. CIT(A) AND SHALL EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT(A) TO DISPOSE OF THE APPEAL EXPEDITIOUSLY. 5. AS A RESULT OF DISPOSAL OF THE CORRESPONDING APPEAL OF THE ASSESSEE BEING ITA NO. 314/GAU/2018, THE STAY APPLICATION FILED BY THE ASSESSEE BEING S.A. NO. 10/GAU/2018 HAS BECOME INFRUCTUOUS AND THE SAME IS ACCORDINGLY DISMISSED. 4 ITA NO. 314/GAU/2018 & S.A. NO. 10/GAU/2018 (A.Y. 2014-15) M/S. J.C. CONSTRUCTION (P) LTD. 6. IN THE RESULT, THE STAY APPLICATION FILED BY THE ASSESSEE IS DISMISSED WHILE THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH MARCH, 2019 SD/- SD/- (S.S.VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE PRESIDENT DATED: 08/03/2019 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. M/S. J.C. CONSTRUCTION PVT. LTD., D.K. ROAD, NORTH LAKHIMPUR 787 001, ASSAM. 2. DCIT, CIRCLE TEJPUR. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, SR. P.S. / H.O.O. ITAT, GAUHATI BENCHES