Alfa Steel Re Rolling Mills P. ltd, Satara V. ITO [ CIB ] Kolhapur, Kolhapur

ITA 457/PUN/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62743 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 06-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Application of stay
• Section: 234B; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO. 457/PN/2011 (ASSTT. YEAR : 2005-06) A LFA STEEL RE ROLLING MILLS PVT. LTD. ... APPELLANT CHAL PRATAP DYANE AT & POST WAI, SATARA PAN : AAGCA5400P V. INCOME TAX OFFICER . RESPONDENT (CIB), KOLHAPUR S.A. NO. 65/PN/2012 (ARISING OUT O F ITA NO.457/PN/2012) (ASSTT. YEAR : 2005-06) ALFA STEEL RE ROLLING MILLS PVT. LTD. APPLICANT CHAL PRATAP DYANE AT & POST WAI, SATARA PAN : AAGCA5400P V. INCOME TAX OFFICER. RESPONDENT (CIB), KOLHAPUR ASSESSEE BY : SHRI M.K. KULKARNI DEPARTMENT : SHRI ALOK MISHRA DATE OF HEARING : 01/06/12 DATE OF PRONOUNCEMENT : -6-12 ORDER PER SHRI SHAILENDRA KUMAR YADAV, JM THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE ORD ER OF CIT(A) CENTRAL, PUNE ON FOLLOWING GROUNDS : 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A)- IV, PUNE WAS NOT JUSTIFIED IN CONFIRMING TH E ASSESSMENT ORDER OF THE A.O. WHEREIN AN INCOME OF RS. 45 LAKHS WAS ASSESSED IN AN EXPARTE ORDER THROUGH IT WAS EXPLAINED TO HIM THAT SUCH 2 ITA NO.457/PN/2012 & S.A. NO.65/PN/2012 ALFA STEEL RE -ROLLING MILLS PVT. LTD. A.Y. 2005-06 INCOME WAS NEVER EARNED BY THE APPELLANT-ASSESSEE A S SUBJECT TRANSACTIONS OF SALE AND PURCHASE WERE NEVER MATERI ALIZED. THE INCOME WHICH NEVER ACCRUED OR RECEIVED WAS ASSESSED TO TAX. THE ORDER OF THE LD. CIT(A) BE SET ASIDE AND MATTER BE RESTORED TO THE FILE OF THE A.O. FOR PROPER INVESTIGATION AND ORDER . 2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE APPELLANT-ASSESSEE DID NOT PAY ANY AMOUNT BY DEMAND DRAFTS IN AN AUCTION BY MSFC-KOLHAPUR DIVISION FOR BID IN AUCTIO N TO PURCHASE THE RE-ROLLING MILL SO AUCTIONED AND THEREFORE, NO ADDITION OF RS. 45 LAKHS COULD HAVE BEEN MADE AS INCOME IN THE HANDS O F THE ASSESSEE. THE ADDITION BE DELETED. 3) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW AND IN THE INTEREST OF JUSTICE THE APPELLANT-ASSESSEE PRAY S THAT THE ASSESSED-INCOME HAVING NOT EARNED OR RECEIVED BE DE LETED. 4) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LEVY OF INTEREST U/S 234A, 234B AND 234C IS NOT JUS TIFIED. THE LEVY OF INTEREST BE QUASHED. 2. AT THE OUTSET OF HEARING, THE LD. A.R FILED AN A FFIDAVIT INTER ALLIA ASSESSEE OPPOSED EX PARTE ORDER U/S. 144 OF THE ACT . ACCORDING TO ASSESSEE, IT IS A PRIVATE LIMITED CO. FLOATED IN YE AR 2003, BUT REMAINED DEFUNCT AS NO BUSINESS WAS CARRIED OUT. IN F.Y. 20 04-05 RELEVANT TO A.Y. 2005-06, ASSESSEE COMPANY TRIED TO PURCHASE STEEL R OLLING UNIT IN AUCTION FROM MSFC BUT SINCE IT HAD SO MANY OTHER STATUTORY LIABILITY BUT THE SAME WAS ACCEPTED AND WITH THE CONSENT OF MSFC, GOT TRAN SFERRED TO SIDDSIVINAYAK ISPAT, PUNE. THE SAID SIDDHIVINAYAK ISPAT CLAIMED TO HAVE ISSUED DEMAND DRAFT IN THE NAME OF ASSESSEE COMPANY AND THE COMPANY IN TURN CLAIMED TO HAVE HANDED OVER THE SAME DEMAND DRAFTS TOTALING RS. 45 LACS TO MSFC. IN THE PROCESS NO INCOME CAME TO BE EARNED BY THE COMPANY. THIS SITUATION WAS EXPLAINED BEFORE CONCE RNED A.O, BUT SAME WAS NOT TAKEN INTO ACCOUNT BY HIM AND ACCORDING TO LD. A.R FOR 3 ITA NO.457/PN/2012 & S.A. NO.65/PN/2012 ALFA STEEL RE -ROLLING MILLS PVT. LTD. A.Y. 2005-06 ASSESSEE APPEAL FILED BY ASSESSEE WAS ALSO DISMIS SED BY CIT(A) VIDE ITS ORDER DATED 30/12/2011 IN SIMILAR MANNER. NOW ASSE SSEE BEFORE US CONTENDED THAT STAND OF ASSESSEE HAS NOT BEEN APP RECIATED BY BOTH THE LOWER AUTHORITIES AND DECISION HAS BEEN TAKEN WITHO UT APPRECIATING THE FACTUAL POSITIONS PLACED BEFORE AUTHORITIES BELOW. SO IN THE INTEREST OF JUSTICE, ORDER SHOULD BE SET ASIDE SO THAT THE ASSE SSEE CAN MAKE OUT ITS CASE BEFORE LOWER AUTHORITIES. ON THE OTHER HAND, LD. D.R. SUPPORTED THE ORDER OF AUTHORITIES BELOW AFTER TAKING INTO CONSID ERATION ALL FACTS AND CIRCUMSTANCES. 3. WE FIND THAT CIT(A) HAS APPROVED THE EX PARTE O RDER OF THE A.O. THE FACTUAL STAND TAKEN BY ASSESSEE WITH REGARD TO OPPOSED ADDITION HAS NOT BEEN DULY CONSIDERED BY THE LOWER AUTHORITIES W HICH IS NOT JUSTIFIED. IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF AO AS WELL AS CIT(A) AND RESTORE THE MATTER TO THE A.O, WITH A DIRECTIO N TO DECIDE THE SAME AS PER FACT AND LAW AFTER PROVIDING OPPORTUNITY OF HEA RING TO THE ASSESSEE. A.O WILL BE AT LIBERTY TO SUMMON ANY WITNESS REQUIR ED FOR ADJUDICATION OF THE ISSUE BEFORE HIM. ASSESSEE IS ALSO DIRECTED TO CO-OPERATE IN THE PROCEEDINGS. SINCE WE ARE RESTORING THE ISSUE FOR THE REASONS DISCUSSED ABOVE, WE ARE REFRAINING TO COMMENT ON THE MERITS OF THE ISSUE AT HAND. AS A RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURP OSES. S.A. NO. 65/P N/12 4. SINCE WE HAVE DISPOSED OFF THE APPEAL AS DISCUS SED ABOVE, THE ISSUE RAISED IN STAY GOES INFRUCTUOUS. ACCORDINGLY , THE SAME IS DISMISSED BEING INFRUCTUOUS. 4 ITA NO.457/PN/2012 & S.A. NO.65/PN/2012 ALFA STEEL RE -ROLLING MILLS PVT. LTD. A.Y. 2005-06 5. IN SUMMARY, ITA NO. 457/PN/2012 IS ALLOWED FOR S TATISTICAL PURPOSES AND STAY APPLICATION NO. 65/PN/2012 IS DIS MISSED AS INDICATED ABOVE. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 20TH J UNE 2012. SD/- SD/- ( G.S. PANNU ) ACCOUNTANT MEMBER ( SHAILENDRA KUMAR YADAV ) JUDICIAL MEMBER PUNE, DATED THE 20TH JUNE , 2012 US COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT III, PUNE 4. THE CIT(A)- CENTRAL, PUNE 4. THE D.R. B BENCH, PUNE 5. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE