Monolisha Suppliers Pvt. Ltd., Kolkata V. DCIT, Cir.11(1), Kolkata

ITA 453/KOL/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8276 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 22-07-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS CIT SR DR REVEN
• Keywords: Business income; Opportunity of being heard; Set aside; Capital Gains
• Section: 143(3); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA B BENCH, KOLKATA {VIRTUAL COURT HEARING} (BEFORE SHRI P.M. JAGTAP, HONBLE VICE-PRESIDENT, KZ & SHRI SANJAY GARG, HONBLE JUDICIAL MEMBER) ITA NO. 453/KOL/2020 ASSESSMENT YEAR: 2014-15 MONOLISHA SUPPLIERS PVT. LTD...................................................................................APPELLANT 3 RD & 4 TH FLOOR ARCADIA CENTRE PREMISE NO. 31 DR. AMBEDKAR SARANI KOLKATA - 700046 [PAN : AADCM 2791 C] VS. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-11(1), KOLKATA.............................RESPONDENT APPEARANCES BY: NONE, APPEARED ON BEHALF OF THE ASSESSEE. SMT. RANU BISWAS, ADDL. CIT, SR. D/R, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : AUGUST 9 TH , 2021 DATE OF PRONOUNCING THE ORDER : AUGUST 9 TH , 2021 ORDER PER P.M. JAGTAP, VICE-PRESIDENT, KZ :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 4, KOLKATA, (HEREINAFTER THE LD. CIT(A)), DT. 23/01/2020, PASSED EX-PARTE , WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FOR NON- PROSECUTION. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH IS MAINLY ENGAGED IN DEALING IN SHARES AND SECURITIES AS WELL AS MUTUAL FUNDS THROUGH PORTFOLIO MANAGEMENT SYSTEM. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 27/09/2014, DECLARING TOTAL INCOME OF RS.1,52,68,380/-. IN THE SAID RETURN OF INCOME, PROFIT FROM THE PURCHASE AND SALE OF UNITS OF MUTUAL FUNDS AND SHARES, WAS DECLARED BY THE ASSESSEE AS SHORT TERM CAPITAL GAIN. IN THE ASSESSMENT COMPLETED U/S 143(3) OF THE ACT VIDE ORDER DT. 29/09/2016, THE SAID PROFIT OF RS.24,84,101/- DECLARED BY THE ASSESSEE AS SHORT TERM CAPITAL GAINS, WAS TREATED BY THE ASSESSING OFFICER AS BUSINESS INCOME. 3. THE ACTION OF THE ASSESSING OFFICER IN TREATING THE PROFIT FROM PURCHASE AND SALE OF UNITS OF MUTUAL FUNDS AND SHARES AS BUSINESS INCOME INSTEAD OF SHORT TERM CAPITAL GAIN, WAS CHALLENGED BY THE ASSESSEE IN THE APPEAL FILED BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUE BY HIM FIXING THE APPEAL FOR HEARING ON THREE DIFFERENT OCCASIONS, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE FOR NON- PROSECUTION VIDE HIS APPELLATE ORDER DT. 23/01/2020 PASSED PARTE. AGGRIEVED BY THE SAID ORDER TRIBUNAL. 4. AT THE OUTSET, IT IS NOTED THAT THERE IS A DELAY OF 103 DAYS ASSESSEE IN FILING OF THIS APPEAL BEFORE THE TRIBUNAL. IN THIS REGARD, TH MOVED AN APPLICATION SEEKING CONDONATION OF THE SAID DELAY ON THE GROUND THAT DUE TO SUDDEN ANNOUNCEMENT OF LOCKDOWN TO CONTROL THE SPREAD OF COVID RELEVANT PERIOD, THE APPEAL COULD NOT BE FILED WITHIN THE SPECIFIED PERIO VIEW THIS REASON GIVEN BY THE ASSESSEE, WE ARE SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR THE DELAY OF 103 DAYS IN FILING OF THIS APPEAL BEFORE THE TRIBUNAL. NOT RAISED ANY OBJECTION IN THIS REGARD. THE SAID DELAY IS A 5. AT THE TIME OF HEARING FIXED IN THIS CASE TODAY, NONE ASSESSEE. T HIS APPEAL OF THE ASSESSEE IS, THEREFORE, BEING DISPOSED OFF AFTER HEARING THE ARGUMENTS OF THE LD. D/R AND PERUSING THE RELEVANT MATERI POINTED OUT BY THE LD. D/R, THE ADDRESS GIVEN BY THE ASSESSEE IN FORM NO. 36 IS DIFFERENT FROM THE ADDRESS MENTIONED BY THE LD. CIT(A) IN HIS IMPUGNED ORDER. SHE HA THAT THERE WAS THUS APPARENTLY SINCE THE SAME WAS NOT INFORMED TO THE OFFICE OF THE LD. CIT(A), THE NOTICE WERE SENT TO THE OLD ADDRESS OF THE ASSESSEE. IT IS THUS CLEAR THAT THE NOTICES OF HEARING SENT BY THE LD. CIT(A) TO THE OLD ADDRESS OF TH ASSESSEE COMPANY AND THE SAME POINTED OUT BY THE ASSESSEE IN GROUND NO. 2 OF THIS APPEAL, THE APPEAL FILED BY THE ASSESSEE BEFORE THE LD. CIT(A) WAS NOT DISPOSED EVIDENT FROM THE ORDER OF THE LD. CIT(A), IS NOT DISPUTED BY THE LD. D/R. AS PER THE SPECIFIC PROVISIONS CONTAINED IN SUB IS REQUIRED TO DISPOSE OFF AN APPEAL OF THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR DECISION. THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) CLEARLY DOES NOT COMPLY WITH THESE REQUIREMENTS. WE, THEREFORE, CONSIDER IT JUST AND PROPER TO SET ASIDE THE IMPUG PASSED BY THE LD. CIT(A) PROSECUTION AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OFF THE APPEAL OF THE 2 PROSECUTION VIDE HIS APPELLATE ORDER DT. 23/01/2020 PASSED BY THE SAID ORDER , THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE AT THE OUTSET, IT IS NOTED THAT THERE IS A DELAY OF 103 DAYS ON THE PART OF THE IN FILING OF THIS APPEAL BEFORE THE TRIBUNAL. IN THIS REGARD, TH MOVED AN APPLICATION SEEKING CONDONATION OF THE SAID DELAY ON THE GROUND THAT DUE TO SUDDEN ANNOUNCEMENT OF LOCKDOWN TO CONTROL THE SPREAD OF COVID - 19 VIRUS DURING THE RELEVANT PERIOD, THE APPEAL COULD NOT BE FILED WITHIN THE SPECIFIED PERIO VIEW THIS REASON GIVEN BY THE ASSESSEE, WE ARE SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR THE DELAY OF 103 DAYS IN FILING OF THIS APPEAL BEFORE THE TRIBUNAL. EVEN THE LD. D/R HAS NOT RAISED ANY OBJECTION IN THIS REGARD. THE SAID DELAY IS A CCORDINGLY CONDONED. AT THE TIME OF HEARING FIXED IN THIS CASE TODAY, NONE HAS APPEARED ON BEHALF OF THE HIS APPEAL OF THE ASSESSEE IS, THEREFORE, BEING DISPOSED OFF AFTER HEARING THE ARGUMENTS OF THE LD. D/R AND PERUSING THE RELEVANT MATERI AL AVAILABLE ON RECORD. AS POINTED OUT BY THE LD. D/R, THE ADDRESS GIVEN BY THE ASSESSEE IN FORM NO. 36 IS DIFFERENT FROM THE ADDRESS MENTIONED BY THE LD. CIT(A) IN HIS IMPUGNED ORDER. SHE HA APPARENTLY A CHANGE IN THE ADDRES S OF THE ASSESSEE COMPANY AND SINCE THE SAME WAS NOT INFORMED TO THE OFFICE OF THE LD. CIT(A), THE NOTICE WERE SENT TO THE OLD ADDRESS OF THE ASSESSEE. IT IS THUS CLEAR THAT THE NOTICES OF HEARING SENT BY THE LD. CIT(A) TO THE OLD ADDRESS OF TH E ASSESSEE COMPANY WERE NOT SERVED ON THE AND THE SAME , THEREFORE, COULD NOT BE COMPLIED WITH. MOREOVER, AS POINTED OUT BY THE ASSESSEE IN GROUND NO. 2 OF THIS APPEAL, THE APPEAL FILED BY THE ASSESSEE BEFORE THE LD. CIT(A) WAS NOT DISPOSED OFF ON MERIT AND THIS POSITION, THE ORDER OF THE LD. CIT(A), IS NOT DISPUTED BY THE LD. D/R. AS PER THE SPECIFIC PROVISIONS CONTAINED IN SUB - SECTION (6) OF SECTION 250 OF THE ACT, THE LD. CIT(A) IS REQUIRED TO DISPOSE OFF AN APPEAL OF THE ASSESSEE BY AN ORDER IN WRITING THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR DECISION. THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) CLEARLY DOES NOT COMPLY WITH THESE REQUIREMENTS. WE, THEREFORE, CONSIDER IT JUST AND PROPER TO SET ASIDE THE IMPUG EX-PARTE DISMISSING THE APPEAL OF THE ASSESSEE FOR NON PROSECUTION AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OFF THE APPEAL OF THE ITA NO. 453/KOL/2020 ASSESSMENT YEAR: 2014-15 MONOLISHA SUPPLIERS PVT. LTD PROSECUTION VIDE HIS APPELLATE ORDER DT. 23/01/2020 PASSED EX- , THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE ON THE PART OF THE IN FILING OF THIS APPEAL BEFORE THE TRIBUNAL. IN THIS REGARD, TH E ASSESSEE HAS MOVED AN APPLICATION SEEKING CONDONATION OF THE SAID DELAY ON THE GROUND THAT DUE TO 19 VIRUS DURING THE RELEVANT PERIOD, THE APPEAL COULD NOT BE FILED WITHIN THE SPECIFIED PERIO D. KEEPING IN VIEW THIS REASON GIVEN BY THE ASSESSEE, WE ARE SATISFIED THAT THERE WAS SUFFICIENT CAUSE EVEN THE LD. D/R HAS CCORDINGLY CONDONED. APPEARED ON BEHALF OF THE HIS APPEAL OF THE ASSESSEE IS, THEREFORE, BEING DISPOSED OFF AFTER HEARING THE AL AVAILABLE ON RECORD. AS POINTED OUT BY THE LD. D/R, THE ADDRESS GIVEN BY THE ASSESSEE IN FORM NO. 36 IS DIFFERENT FROM THE ADDRESS MENTIONED BY THE LD. CIT(A) IN HIS IMPUGNED ORDER. SHE HA S CONTENDED S OF THE ASSESSEE COMPANY AND SINCE THE SAME WAS NOT INFORMED TO THE OFFICE OF THE LD. CIT(A), THE NOTICE S OF HEARING WERE SENT TO THE OLD ADDRESS OF THE ASSESSEE. IT IS THUS CLEAR THAT THE NOTICES OF HEARING E ASSESSEE COMPANY WERE NOT SERVED ON THE , THEREFORE, COULD NOT BE COMPLIED WITH. MOREOVER, AS POINTED OUT BY THE ASSESSEE IN GROUND NO. 2 OF THIS APPEAL, THE APPEAL FILED BY THE OFF ON MERIT AND THIS POSITION, CLEARLY THE ORDER OF THE LD. CIT(A), IS NOT DISPUTED BY THE LD. D/R. AS PER THE SECTION (6) OF SECTION 250 OF THE ACT, THE LD. CIT(A) ASSESSEE BY AN ORDER IN WRITING STATING THEREIN THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR DECISION. THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) CLEARLY DOES NOT COMPLY WITH THESE REQUIREMENTS. WE, THEREFORE, CONSIDER IT JUST AND PROPER TO SET ASIDE THE IMPUG NED ORDER DISMISSING THE APPEAL OF THE ASSESSEE FOR NON - PROSECUTION AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OFF THE APPEAL OF THE ASSESSEE AFRESH ON MERITS IN ACCORDANCE WITH LAW SUFFICIENT OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS DIRECTED TO MAKE DUE COMPLIAN BEFORE THE LD. CIT(A) AND EXTEN CIT(A) TO DISPOSE OFF THE APPEAL AFRESH EXPEDITIOUSLY. 6. IN THE RESULT, TH E APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. KOLKATA, THE SD/- [ SANJAY GARG ] JUDICIAL MEMBER DATED: 09.08.2021 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. MONOLISHA SUPPLIERS PVT. LTD 3 RD & 4 TH FLOOR ARCADIA CENTRE PREMISE NO. 31 DR. AMBEDKAR SARANI KOLKATA - 700046 2. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 3 ASSESSEE AFRESH ON MERITS IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A PROPER A SUFFICIENT OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS DIRECTED TO MAKE DUE COMPLIAN EXTEN D ALL THE POSSIBLE CO-OPERATION IN ORDER TO ENABLE THE LD. CIT(A) TO DISPOSE OFF THE APPEAL AFRESH EXPEDITIOUSLY. E APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL KOLKATA, THE 9 TH DAY OF AUGUST, 2021. [ P.M. JAGTAP JUDICIAL MEMBER VICE MONOLISHA SUPPLIERS PVT. LTD DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE -11(1), KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES ITA NO. 453/KOL/2020 ASSESSMENT YEAR: 2014-15 MONOLISHA SUPPLIERS PVT. LTD AFTER GIVING THE ASSESSEE A PROPER A ND SUFFICIENT OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS DIRECTED TO MAKE DUE COMPLIAN CE IN ORDER TO ENABLE THE LD. E APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL SD/- P.M. JAGTAP ] VICE -PRESIDENT TRUE COPY BY ORDER ASSISTANT REGISTRAR /DDO ITAT, KOLKATA BENCHES