Doharia Ispat Pvt. Ltd., Kolkata V. ITO, Tech-2, Kolkata, Kolkata

ITA 466/KOL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6434 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 09-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA CIT LD
• Assessee Lawyers: SIDDHARTH AGARWAL LD
• Keywords: Bogus Share capital; Non compliance
• Section: 68

Judgement Text

INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA BEFORE SHRI WASEEM AHMED, AM & SHRI S.S.VISWA NETHRA RAVI, JM ITA NO. 466/KOL /2017 A.Y : 2012-13 M/S. DOHARIA ISPAT VS. INCOME TAX OFFICER PVT. LIMITED (TECH-2), KOLKATA PAN: AADCD1999H [ APPELLANT ] [ RESPONDENT ] APPELLANT BY : SHRI SIDDHARTH AGARWAL, ADVOCATE, LD.AR RESPONDENT BY : SHRI S. DASGUPTA, ADDL. C IT, LD.DR DATE OF HEARING : 21-03-2018 DATE OF PRONOUNCEMENT : 0 2-05-2018 ORDER SHRI S.S.VISWANETHRA RAVI, JM THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER D T. 25-11-2016 OF THE CIT-A, 23, KOLKATA FOR THE A.Y 2012-13. 2. THE ONLY ISSUE IS TO BE DECIDED AS TO WHETHER TH E CIT-A IS JUSTIFIED IN PASSING ORDER EX PARTE IN THE FACTS AND CIRCUMSTANC ES OF THE CASE. 3. THE LD. AR SUBMITS THAT THE ASSESSEE APPOINTED S HRI DIPAK AGARWAL AS AN AUTHORIZED REPRESENTATIVE TO REPRESENT ITS CA SE BEFORE THE CIT-A. THE ASSESSEE WAS UNDER BELIEF THAT THE AR WOULD MAK E PROPER COMPLIANCE IN THE FIRST APPELLATE PROCEEDINGS. THE ASSESSEE CA ME TO KNOW THAT THE AR DID NOT MAKE COMPLIANCE AND AS SUCH THE CIT-A PASS ED EX PARTE ORDER WITHOUT AFFORDING SUFFICIENT OPPORTUNITY OF HEARING TO ASSESSEE THE LD. AR FURTHER SUBMITS THAT THE CIT-A FIXED THE CASE FOR H EARING ON 11-11-2016. IN RESPONSE TO THIS, SHRI DIPAK AGARWAL, AR ATTENDE D AND HAS BEEN ASKED TO SUBMIT THE BALANCE SHEET AND P & L ACCOUNT ON 1 8-11-2016. DUE TO NON APPEARANCE OF AR, THE CIT-A DISMISSED THE APPEA L OF ASSESSEE BY EX PARTE AND PRAYED AN OPPORTUNITY BE GIVEN TO ASSESSE E TO PROSECUTE ITS ITA NO.466/KOL/2017 2 CASE BEFORE THE CIT-A AND TO REMAND THE MATTER TO T HE FILE OF THE CIT-A FOR HIS FRESH ADJUDICATION AND TO PROSECUTE ITS CAS E BEFORE THE CIT-A. 4. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDE RS OF THE AO & CIT- A. HE VEHEMENTLY OPPOSED TO THE ABOVE SUBMISSIONS O F THE LD.AR IN REMANDING THE MATTER TO THE FILE OF CIT-A AND REFER RED TO THE ORDER OF THE CIT-A AND ARGUED THAT THE CIT-A FIXED THE APPEAL OF THE ASSESSEE FOR HEARING AND THE AR DID NOT COMPLY WITH THE NOTICES. THE CIT-A HAS AFFORDED SUFFICIENT OPPORTUNITIES OF HEARING TO ASS ESSEE AND THE ASSESSEE FAILED TO AVAIL THESE OPPORTUNITIES BY FILING NECES SARY EVIDENCE AND EXPLANATION TO SUBSTANTIATE ITS GROUNDS AND CONTENT ION BEFORE THE CIT-A. THE CIT-A HAS RIGHTLY DISMISSED THE APPEAL OF ASSES SEE BY EX PARTE. HE SUPPORTED THE ORDER OF CIT-A. 5. HEARD RIVAL SUBMISSIONS AND PERUSED THE RECORD. IT IS NOTICED THAT THE AO FOUND THAT AN AMOUNT OF RS.1,30,00,000/- STA TED TO HAVE BEEN RECEIVED BY THE ASSESSEE FROM 12 COMPANIES AND THE DETAILS OF WHICH ARE AVAILABLE IN THE A.O ORDER AT PAGES- 1 & 2. FOR NON EXPLANATION, THE AO TREATED THE SAID AMOUNT AS BOGUS SHARE CAPITAL AND ADDED THE SAME TO THE TOTAL INCOME U/S. 68 OF THE ACT. ON PERUSAL OF ORDE R OF THE CIT-A, IT IS NOTICED THAT SHRI DIPAK AGARWAL,AR ATTENDED ON BEHA LF OF ASSESSEE BEFORE THE CIT-A AND SOUGHT ADJOURNMENT TO FILE BALANCE SH EET AND P & L ACCOUNT. THE CIT-A KEPT PENDING APPEAL UPTO 24-11 -2016. AS THERE WAS NO REPRESENTATION ON BEHALF OF ASSESSEE, THE CIT-A DISMISSED THE APPEAL OF ASSESSEE EX PARTE. ON PERUSAL OF AN AFFIDAVIT DT . 19-03-2018, COPY OF THE SAME IS ON RECORD, AS DEPOSED ON BEHALF OF ASSE SSEE BY ONE OF THE DIRECTORS, SHRI MANOJ KUMAR GOYAL STATING THE REASO N FOR NON COMPLIANCE APPEARS TO BE BEYOND THE CONTROL OF ASSESSEE, WHICH HAS BEEN POINTED OUT BY THE LD. AR OF THE ASSESSEE. ON PERUSAL OF ASSESS MENT ORDER, WE FIND THAT THE ASSISTANCE OF ASSESSEE IS REQUIRED TO SUBS TANTIATE ITS CLAIM AND CONTENTION. IN SUCH CIRCUMSTANCES, TAKING INTO CONS IDERATION THE ITA NO.466/KOL/2017 3 SUBMISSIONS OF LD. AR AND IN THE INTEREST OF NATURA L JUSTICE, WE DEEM IT FIT AND PROPER TO REMAND THE MATTER INVOLVED IN THE APP EAL TO THE FILE OF CIT- A FOR HIS FRESH ADJUDICATION AND TO PASS A FRESH OR DER AS PER LAW, AFTER GIVING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING H EARD TO ASSESSEE. THE ASSESSEE IS DIRECTED NOT TO SEEK ANY ADJOURNMENT AN D TO CO-OPERATE WITH THE CIT-A IN THE FIRST APPELLATE PROCEEDINGS FOR SP EEDY DISPOSAL OF THE CASE. THEREFORE, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 6. IN THE RESULT, THE APPEAL OF ASSESSEE-ITA NO.466 /KOL/2017 FOR THE A.Y 2012-13 IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 02-0 5-2018 SD/- SD/- WASEEM AHMED S.S.VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 02-05-2018 COPY OF THE ORDER FORWARDED TO: 1 . APPLICANT/ASSESSEE: M/S.DOHARIA ISPAT PVT. LTD 23A, N.S ROAD,KOLKATA, FORTUNE TOWER, 7 TH FLOOR, ROOM NO. 34, KOLKATA-700 001. 2 RESPONDENT/ASSESSEE: INCOME TAX OFFICER,(TECH-2), K OLKATA, AAYKAR BHAWAN, KOLKATA-700 069. 3 . CIT, 4 . CIT(A), 5 . DR, KOLKATA BENCHES, KOLKATA **PP/SPS TRUE COPY BY ORDER, SR.PS, H.O.O ITAT,KOL