M/s Aura Merchants Pvt. Ltd., Kolkata V. ITO, Ward-9(1), Kolkata

ITA 384/KOL/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 1508 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2024
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 25-02-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

आयकर अपील य अ धकरण, कोलकाता पीठ “सी’’, कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH: KOLKATA ी राजेश क ु मार, लेखा सट य एवं ी संजय शमा या यक सद य के सम [Before Shri Rajesh Kumar, Accountant Member & Shri Sonjoy Sarma, Judicial Member] I.T.A. Nos. 384 & 385/Kol/2024 Assessment Years: 2011-12 & 2012-13 M/s Aura Merchants Pvt. Ltd. (PAN: AAGCA 7509 M) Vs. ITO, Ward-9(1), Kolkata Appellant / )अपीलाथ ( Respondent / !"यथ Date of Hearing / स ु नवाई क% त'थ 09.05.2024 Date of Pronouncement/ आदेश उ*घोषणा क% त'थ 24.06.2024 For the Appellant/ नधा 0रती क% ओर से Shri Soumitra Choudhury, Advocate Shri P. Sarkar, Advocate For the Respondent/ राज व क% ओर से Shri Manish Kanojia, CITDR ORDER / आदेश Per Rajesh Kumar, AM: These are the appeals preferred by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals)-NFAC, Delhi (hereinafter referred to as the Ld. CIT(A)”] dated 29.12.2023 for the AY 2017-18. 2. At the outset, the ld. counsel for the assessee stated that the appeal of the assessee were decided ex-parte by the Ld. CIT(A) when the assessee failed to appear on the various dates of hearing without deciding the same on merit. The Ld. Counsel 2 I.T.A. Nos.384 & 385/Kol/2024 Assessment Years: 2011-12 & 2012-13 M/s Aura Merchants Pvt. Ltd. for the assessee also submitted that the assessee could not appear before the AO on the various dates of hearing and the case was decided ex-parte without considering the merits of the case. The Ld. A.R submitted that the AO has not elaborated in the assessment order as to how the AO tried to serve notice to the assessee when the affixture was done on the assessee. Accordingly the Ld. A.R prayed that in the interest of justice and fair play, the case may be restored to the file of AO so that the same \ could be decided de novo after taking merits into the account and after affording a reasonable opportunity of hearing to the assessee. 3. The Ld. D.R fairly agreed to the contention of the Ld. A.R that case the assessee’s appeal is restored to the file of AO for de novo adjudication after taking into facts and merits. 4. After hearing the rival contentions and perusing the material on record, we observe that the case of the assessee was decided ex-parte by the Ld. CIT(A) when the assessee failed to turn up the various dates of hearing without considering the merit of the case. Thus the order passed by the ld CIT(A) is in violation of Section 250(6) of the Act. Further we note that even before the AO the case was not attended or represented on behalf of the assessee and thus the merit of the case could not be considered while framing the assessment. Therefore in the interest of justice and fair play and with due deference to the principle of natural justice, we are inclined to restore these appeals to the file of AO with the direction to decide the same de novo after affording a reasonable opportunity of hearing to the assessee. Accordingly this appeal is allowed partly for statistical purposes. 5. Now we shall take in ITA No. 384/Kol/2024 for AY 2011-12 In this case the facts are materially same vis-à-vis facts in ITA No. 385/Kol/2024 which has been restored to the file of AO for de novo adjudication after affording a reasonable opportunity of hearing to the assessee. The counsel of the assessee also pointed out that the addition made in this year has resulted into double addition 3 I.T.A. Nos.384 & 385/Kol/2024 Assessment Years: 2011-12 & 2012-13 M/s Aura Merchants Pvt. Ltd. because a disallowance made in AY 2011-12(supra) of Rs. 14,09,50,000/- has been added in the impugned assessment year also. The Ld. Counsel for the assessee stated that this was the sole addition in AY 2011-12 on the ground of application money pending allotment. The assessee submitted that in AY 2012-13 when the assessee actually allotted the shares ,the same amount was again added. Therefore the Ld. A.R prayed before the bench that AO may please be directed to look into the said fact and only add the amount received during the year and not the one received in the earlier year i.e. AY 2011-12. Considering the all these facts and the evidences filed in the paper book, we find merit in the said contentions of the Ld. A.R the same amount was added in A.Y. 2011-12 as well as A.Y. 2012-13. We accordingly direct the AO to look into this issue. Therefore we restore the issue to the file of AO to decide the same de novo after taking into account the facts on record and also after affording a reasonable opportunity of hearing to the assessee. 6. In the result, both the appeals of the assessee are partly allowed for statistical purposes. Order is pronounced in the open court on 24 th June, 2024 Sd/- Sd/- (Sonjoy Sarma /संजय शमा ) (Rajesh Kumar/राजेश क ु मार) Judicial Member/ या यक सद य Accountant Member/लेखा सद य Dated: 24 th June, 2024 SM, Sr. PS 4 I.T.A. Nos.384 & 385/Kol/2024 Assessment Years: 2011-12 & 2012-13 M/s Aura Merchants Pvt. Ltd. Copy of the order forwarded to: 1. Appellant- M/s Aura Merchants Pvt. Ltd., 11/1A, Maharshi Devendra Road, Kolkata-700007 2. Respondent – ITO, Ward-9(1), Kolkata 3. Ld. CIT(A)-NFAC, Delhi 4. Ld. Pr. CIT- , Kolkata 5. DR, Kolkata Benches, Kolkata (sent through e-mail) True Copy By Order Assistant Registrar ITAT, Kolkata Benches, Kolkata