Ganesh Complex Pvt Ltd., Kolkata V. ITO, Ward-6(2), Kolkata

ITA 478/KOL/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4231 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 17-08-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA
• Assessee Lawyers: SAUMITRA CHOUDHURY
• Keywords: Unexplained cash credit; Opportunity of being heard; Reasonable cause; Set aside
• Section: 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (A), KOLKATA [BEFORE SHRI P.M. JAGTAP, HONBLE VICE PRESIDENT (KZ) & S. S. GODARA, HONBLE JUDICIAL MEMBER] [THROUGH VIRTUAL COURT] I.T.A. NO. 478/KOL/2020 ASSESSMENT YEAR: 2008-09 M/S. GANESH COMPLEX PRIVATE LIMITED...........................................................................APPELLANT C/O. RAJESH MOHAN & ASSOCIATES, UNIT NO. 18, 5 TH FLOOR, BAGATI HOUSE, 34, GANESH CHANDRA AVENUE, KOLKATA 700 013. [PAN: AADCG 0583 G] VS ITO, WARD 6(2), KOLKATA...............................RESPONDENT P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. APPEARANCES BY: SHRI SAUMITRA CHOUDHURY, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. SHRI JAYANTA KHANRA, JCIT APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : OCTOBER 09, 2020 DATE OF PRONOUNCING THE ORDER : OCTOBER 21, 2020 ORDER PER P.M. JAGTAP, VICE-PRESIDENT (KZ) THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS) - 17, KOLKATA DATED 20.03.2017 PASSED EX-PARTE WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH IS ENGAGED IN THE BUSINESS OF INVESTMENT AND TRADING IN SHARES. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS ORIGINALLY FILED BY THE ASSESSEE ON 18.10.2008 DECLARING A TOTAL INCOME OF RS. 2,430/-. THE SAID RETURN WAS INITIALLY PROCESSED BY THE AO U/S 143(1) OF THE ACT. 2 I.T.A. NO. 478/KOL/2020 M/S. GANESH COMPLEX PVT. LTD. THE ASSESSMENT, HOWEVER, WAS SUBSEQUENTLY REOPENED BY HIM AND IN THE ASSESSMENT COMPLETED U/S 147/143(3) OF THE ACT, ADDITIONS OF RS. 35,800/- AND RS. 24,000/- WERE MADE BY THE AO TO THE TOTAL INCOME OF THE ASSESSSEE ON ACCOUNT OF INCOME FROM SERVICE CHARGES AND DISALLOWANCE OF PRELIMINARY EXPENSES RESPECTIVELY. THE RECORD OF THE SAID ASSESSMENT, THEREAFTER, CAME TO BE EXAMINED BY THE CONCERNED LD. CIT AND ON SUCH EXAMINATION, HE FOUND THAT THE CLAIM OF THE ASSESSEE OF HAVING RECEIVED SHARE CAPITAL AND SHARE PREMIUM AMOUNT AGGREGATING TO RS. 15.35 CRORES WAS NOT PROPERLY VERIFIED BY THE AO IN TERMS OF SECTION 68. HE, THEREFORE, TREATED THE ORDER PASSED BY THE AO U/S 147/143(3) OF THE ACT AS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE AND SETTING ASIDE THE SAME VIDE HIS ORDER PASSED U/S 263, THE LD. CIT(A) DIRECTED THE AO TO MAKE THE ASSESSMENT AFRESH AS PER THE SPECIFIC DIRECTIONS GIVEN BY HIM. IN PURSUANCE OF THE ORDER PASSED BY THE LD. CIT U/S 263, FRESH ASSESSMENT PROCEEDINGS WERE INITIATED BY THE AO AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE ON THE PART OF THE ASSESSEE DURING THE COURSE OF THE SAID PROCEEDINGS, THE AO PASSED AN ORDER U/S 144/263 OF THE ACT ON 27.03.2014 MAKING A FURTHER ADDITION OF RS. 15.35 CRORES TO THE TOTAL INCOME OF THE ASSESSEE BY TREATING THE SHARE CAPITAL AND SHARE PREMIUM AMOUNT RECEIVED BY THE ASSESSEE-COMPANY DURING THE YEAR UNDER CONSIDERATION AS UNEXPLAINED CASH CREDIT. 3. AGGRIEVED BY THE ORDER OF THE AO PASSED U/S 144/263, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(A) 3 I.T.A. NO. 478/KOL/2020 M/S. GANESH COMPLEX PVT. LTD. DISMISSED THE APPEAL OF THE ASSESSEE VIDE HIS APPELLATE ORDER DATED 20.03.2017 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN SUPPORT OF THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL CHALLENGING THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE, THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT NONE OF THE NOTICES STATED TO BE ISSUED BY THE LD. CIT(A) FIXING THE APPEAL OF THE ASSESSEE FOR HEARING FROM TIME TO TIME WAS EVER RECEIVED BY THE ASSESSEE AND THE SAME, THEREFORE, COULD NOT BE COMPLIED WITH BY THE ASSESSEE- COMPANY. HE HAS CONTENDED THAT SUCH NON-RECEIPT OF NOTICES THUS RESULTED INTO NON-APPEARANCE OF THE ASSESSEE BEFORE THE LD. CIT(A) WHEN ITS APPEAL WAS FIXED FOR HEARINGS AND THE SAME CONSTITUTED REASONABLE CAUSE. THE LD. DR HAS NOT DISPUTED THIS POSITION. HE, HOWEVER, HAS CONTENDED THAT MATTER THE MAY BE SENT BACK TO THE LD. CIT(A) FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE FIND MERIT IN THIS CONTENTION OF THE LD. DR. THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE IS ACCORDINGLY SET ASIDE AND THE MATTER IS REMITTED BACK TO THE LD. CIT(A) FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT AFTER GIVING THE ASSESSEE PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. AS UNDERTAKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE LD. CIT(A) AND SHALL EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT(A) TO DISPOSE OF THE APPEAL AFRESH EXPEDITIOUSLY. 4 I.T.A. NO. 478/KOL/2020 M/S. GANESH COMPLEX PVT. LTD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST OCTOBER, 2020. SD/- SD/- (S.S. GODARA) (P.M. JAGTAP) JUDICIAL MEMBER VICE PRESIDENT DATED: 21/10/2020 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. M/S. GANESH COMPLEX PRIVATE LIMITED, C/O. RAJESH MOHAN & ASSOCIATES, UNIT NO. 18, 5 TH FLOOR, BAGATI HOUSE, 34, GANESH CHANDRA AVENUE, KOLKATA 700 013. 2. ITO, WARD 6(2), KOLKATA. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR ITAT, KOLKATA