Span Commercial Pvt. Ltd., , Kolkata V. ITO, Ward - 5(1), Kolkata , Kolkata

ITA 430/KOL/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8730 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 14-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R SHYAM
• Assessee Lawyers: M D SHAH
• Keywords: Opportunity of being heard
• Section: 143(3); 68

Judgement Text

ITA NO. 430/KOL/2018 A.Y. 2012-2013 SPAN COMMERCIAL PVT. LIMITE D 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA D BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 430/KOL/2018 ASSESSMENT YEAR: 2012-2013 SPAN COMMERCIAL PVT. LIMITED,...................... ...........................APPELLANT 5 & 6, FANCY LANE, 6 TH FLOOR, KOLKATA-700 001 [PAN: AAECS 1229 G] -VS.- INCOME TAX OFFICER,................................ .................................RESPONDENT WARD-5(1), KOLKATA, AAYAKAR BHAWAN, 8 TH FLOOR, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 APPEARANCES BY: SHRI M.D. SHAH, A.R., FOR THE APPELLANT SHRI R. SHYAM, CIT, D.R. , FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : DECEMBER 20, 2018 DATE OF PRONOUNCING THE ORDER : DECEMBER 20, 2018 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ):- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-2, KOLKATA DAT ED 13.05.2016 PASSED EX-PARTE DISMISSING THE APPEAL OF THE ASSESS EE. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INVESTMEN T COMPANY, WHICH FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSI DERATION ON 07.12.2012 DECLARING TOTAL INCOME OF RS.1,88,365/-. IN THE ASS ESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 27.03.2015 , THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE ASSESSING OFFICE R AT RS.6,54,19,080/- AFTER MAKING ADDITION OF RS.6,52,00,000/- ON ACCOUN T OF SHARE CAPITAL AND ITA NO. 430/KOL/2018 A.Y. 2012-2013 SPAN COMMERCIAL PVT. LIMITE D 2 SHARE PREMIUM BY TREATING THE SAME AS UNEXPLAINED C ASH CREDIT UNDER SECTION 68 AND DISALLOWANCE OF RS.3,07,125/- UNDER SECTION 14A. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3)/144, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS). DURING THE COURSE OF APPELLATE PROCEE DINGS BEFORE THE LD. CIT(APPEALS), A LETTER WAS FILED BY THE ASSESSEE SE EKING WITHDRAWAL OF ITS APPEAL. THE LD. CIT(APPEALS), HOWEVER, DID NOT ACCE PT THE REQUEST OF THE ASSESSEE ON THE GROUND THAT THERE WAS NO PROVISION IN THE INCOME TAX ACT BY WHICH THE ASSESSEE COULD SEEK WITHDRAWAL OF HIS APPEAL. HE THEN PROCEEDED TO DISPOSE OF THE APPEAL OF THE ASSESSEE ON MERIT VIDE HIS APPELLATE ORDER DATED 13.05.2016 PASSED EX-PARTE WH EREBY HE UPHELD THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER. A GGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS RIGHTLY S UBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, WHEN THE REQUEST OF THE A SSESSEE FOR WITHDRAWAL OF HIS APPEAL WAS NOT FOUND ACCEPTABLE BY THE LD. C IT(APPEALS) AND THE APPEAL OF THE ASSESSEE WAS TO BE DISPOSED OF BY HIM ON MERIT, HE SHOULD HAVE GIVEN AN OPPORTUNITY OF BEING HEARD TO THE ASS ESSEE. A PERUSAL OF THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS), HOWE VER, SHOWS THAT NO SUCH OPPORTUNITY OF BEING HEARD WAS GIVEN BY HIM TO THE ASSESSEE AND THE ORDER OF THE ASSESSING OFFICER WAS UPHELD BY HIM BY PASSING A VERY CRYPTIC ORDER WITHOUT STATING THE POINTS FOR DETERM INATION, THE DECISION THEREON AND THE REASONS FOR THE DECISION AS REQUIRE D BY THE PROVISIONS OF SUB-SECTION (6) OF SECTION 250. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH BY P ASSING A SPEAKING ORDER AS REQUIRED BY SECTION 250(6) AFTER GIVING THE ASSE SSEE PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. ITA NO. 430/KOL/2018 A.Y. 2012-2013 SPAN COMMERCIAL PVT. LIMITE D 3 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 20, 2018. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE -PRESIDENT (KZ) KOLKATA, THE 20 TH DAY OF DECEMBER, 2018 COPIES TO : (1) SPAN COMMERCIAL PVT. LIMITED, 5 & 6, FANCY LANE, 6 TH FLOOR, KOLKATA-700 001 (2) INCOME TAX OFFICER, WARD-5(1), KOLKATA, AAYAKAR BHAWAN, 8 TH FLOOR, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-2, KOLKATA , (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.