Fives Stein India Projects Pvt. Ltd., Kolkata V. DCIT, Cir.8(1), Kolkata

ITA 488/KOL/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8275 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 5 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: 2013-2014
• Appeal Filed On: 04-09-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Keywords: Set aside
• Section: 143(3); 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH B KOLKATA BEFORE SHRI P.M. JAGTAP, VICE - PRESIDENT (KZ) AND SHRI S ANJAY GARG , JUDICIAL MEMBER . / ITA NO. 488/ KOL/20 20 ASSESSMENT YEAR: 20 1 3 - 14 M/S. FIVE STEIN INDIA PROJECTS PVT. LTD PLOT - 15, BLOCK - CP, 1 ST FLOOR, INFINIUM DIGISPACE, SECTOR - V, SALAT LAKE, KOLKATA - 700 01. PAN:AA DCS7768M / V/S . DCIT, CIR - 8(1), AAYKAR BHAWAN, P - 7 CHOWRINGHEE SQUARE, KOLKATA - 700 069. / APPELLANT .. / RESPONDENT HEARING THROUGH VIDEO CONFERENCING / BY APPELLANT NONE / BY RESPONDENT S MT. RANU BISWAS, ADDL. CIT, . DR / DATE OF HEARING 0 9 - 08 - 2021 / DATE OF PRONOUNCEMENT 09 - 08 - 2021 / O R D E R P ER SANJAY GARG, JUDICIAL MEMBER : TH E PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 30 - 04 - 2019 THE COMMISSIONER OF INCOME T AX (APPEALS) , 8 , KOLKATA [HEREINAFTER REFERRED TO AS CIT(A)] . 2. THE ASSESSEE IN THIS APPEAL HAS TAKEN FOLLOWING GROUNDS OF APPEAL: - 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) 8 , KOLKATA (HEREINAFTER REFERRED TO AS 'LD. CIT(A)'] GROSSLY ERRED IN CONFIRMING THE DISALLOWANCE MADE BY THE AO IN THE ASSESSMENT ORDER UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 ITA NO. 488/KOL/2020 A.Y 2013 14 M/S. FIVE STEIN INDIA PROJECTS (P) LTD. PAGE 2 (HEREINAFTER REFERRED TO AS 'ACT') DATED 31 03 2016 FOR THE RELEVANT AS SESSMENT YEAR TOWARDS COMMISSION PAID BY APPELLANT TO M/S. SUNSHINE COMMOTRADE PVT. LTD. (HEREINAFTER REFERRED TO AS 'SCPL') AMOUNTING TO RS. 8 ,35,135/ . 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) GROSSLY ERRED IN CONFIRMING THE DISALLOWANCE OF COMMISSION PAID BY APPELLANT TO SCPL AMOUNTING TO RS. 8 ,35,135/ ON THE CONTENTION THAT NEITHER THE APPELLANT APPEARED ON THE DATE OF HEARING FIXED ON 20 03 201 8 , 23 04 2019 AND 29 04 2019 NOR FILED ANY WRITTEN SUBMISSIONS IN SUPPORT OF THE GROUNDS OF APPEAL WITHOUT APPRECIATING THAT, THE APPELLANT HAD NOT RECEIVED ANY NOTICE FROM THE LD. CIT(A) FIXING THE HEARING ON THE AFORESAID DATES AND AS SUCH, IT HAD NO KNOWLEDGE OF ANY SUCH HEARING BEFORE THE LD. CIT(A) ON THE ABOVE DATE S. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW AND WITHOUT PREJUDICE TO GROUND NO. 1 & 2 ABOVE, THE LD. CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF COMMISSION PAID BY APPELLANT TO SCPL AMOUNTING TO RS. 8 ,35,135/ ON THE CONTENTI ON THAT APPELLANT FAILED TO OFFER ANY EXPLANATION IN SUPPORT OF ITS GROUNDS OF APPEAL WITHOUT APPRECIATING THAT, IN THE STATEMENT OF FACTS FILED BEFORE CIT(A) THE APPELLANT HAD EXPLAINED ITS CONTENTION IN SUPPORT OF THE ABOVE CLAIM, INCLUDING INTERA L IA, TH AT THE SAID ISSUE HAS ALREADY BEEN DECIDED IN FAVOUR OF THE APPELLANT BY THE HON'BLE IT AT IN ITS OWN CASE FOR EARLIER YEARS AND AS SUCH THE SAME WAS ALLOWABLE. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD TO AND/OR AMEND, ALTER, MODIFY OR RESCIND THE GROUNDS HEREINABOVE BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 3. THIS APPEAL OF THE ASSESSEE IS TIME BARRED BY 115 DAYS. A SEPARATE APPLICATION FOR CONDONAT ION OF DELAY HAS BEEN FILED , WHEREIN IT HAS BEEN PLEADED THAT THE ASSESSEE DID NOT R ECEIVE ANY NOTICE OF HEARING FROM THE O F LD. CIT(A) AND WAS NOT IN KNOWLEDGE OF THE PASSING OF THE IMPUGNED ORDER. WE FIND THAT THE IMPUGNED ORDER IS AN EX PARTE. CONSIDER ING THE SUBMISSIONS GIVEN BY THE ASSESSEE, T HE DELAY IN FILING THE PRESENT APPEAL IS HEREBY CONDONED. 4 . NONE HAS PUT IN APPEARANCE ON BEHALF OF THE ASSESSEE. WE FIND THAT THE ORDER OF THE LD. CIT(A) IS A N EX PARTE ORDER. THE PLEA OF THE ASSESSEE A S GIVEN IN HIS AFFIDAVIT I S THAT NO NOTICE OF HEARING WAS RECEIVED BY THE ASSESSEE. EVEN THE ASSESSEE DID NOT EVER RECEIVE THE COPY OF THE IMPUGNED ORDER ALSO. THA T THE ASSESSEE CAME TO KNOW ABOUT THE ORDER ONLY WHEN IT WAS UPLOADED ON THE WEBSITE OF THE D EPARTMENT. EVEN T HE LD. CIT(A) HAS NOT GIVEN HIS FINDINGS ON MERITS OF THE CASE RATHER HE HAS PASSED A NON - SPEAKING ORDER WITHOUT DISCUSSING EACH OF THE ISSUES ON MERITS. IN VIEW OF THIS, THE IMPUGNED ORDER OF THE LD. CIT(A) IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION THAT NOTICE WILL BE SENT TO THE ASSESSEE S CORRECT ADDRESS ITA NO. 488/KOL/2020 A.Y 2013 14 M/S. FIVE STEIN INDIA PROJECTS (P) LTD. PAGE 3 AND THEREAFTER TO DECIDE THE ISSUES INVOLVED ON MERITS AFTER GIVING PROPER AND ADEQUATE OPPORTUNITY OF HEARIN G TO THE ASSESSEE. IN VIEW OF OUR FINDINGS ABOVE, THE APPEAL OF THE ASSESS EE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT AT THE TIME OF HEARING ON 09 - 08 - 2021 SD/ - SD/ - ( P.M. JAGTAP) (S ANJAY GAR G ) VICE - PRESIDENT (KZ) JUDICIAL MEM BER DATED 09 - 08 - 2021 **PP/SPS / COPY OF ORDER FORWARDED TO: - 1. /APPELLANT /ASSESSEE: M/S. FIVES STEIN INDIA PROJECTS PRIVATE LIMITED, PLOT - 15, BLOCK - CP, 1 ST FLOOR, INFINIUM DIGISPACE, SECTOR - V, SALT LAKE, KOLKATA - 700 091. 2. /RESPONDENT - DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 8(1), AAYKAR BHAWAN, P - 7 CHOWRINGHEE SQUARE, KOLKATA - 700 069. 3. / CONCERNED CIT 4. - / CIT (A) 5. , / DR, ITAT, KOLKATA 6. / GUARD FILE. BY ORDER/ , /TRUE COPY/ SENIOR PRIVATE SECRETARY /D.D.O