M/s. Moontree Construction (P) Ltd., , Kolkata V. ITO, Ward - 13(3), Kolkata , Kolkata

ITA 489/KOL/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3354 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 17-10-2019
• Assessment Year: 2014-2015
• Appeal Filed On: 21-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Accommodation entries; Set aside
• Section: 250; 144

Judgement Text

ITA NO. 489/KOL/2018 ASSESSMENT YEAR: 2014-2015 M/S. MOONTREE CONSTRUCTION (P) LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT AND SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER I.T.A. NO. 489/KOL/2018 ASSESSMENT YEAR: 2014-2015 M/S. MOONTREE CONSTRUCTION (P) LIMITED,............ ..........................APPELLANT 95A, C.R. AVENUE, KOLKATA-700073 PAN: AAICM3815E] -VS.- INCOME TAX OFFICER,................................ ........................................RESPONDENT WARD-13(3), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069 APPEARANCES BY: N O N E, FOR THE APPELLANT SHRI SUPRIYO PAL, JCIT, SR. D.R., FOR THE RESPONDEN T DATE OF CONCLUDING THE HEARING : OCTOBER 17, 2019 DATE OF PRONOUNCING THE ORDER : NOVEMBER 15, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-15, KOLKATA DA TED 03.01.2018 PASSED EX-PARTE, WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O N 26.09.2014 DECLARING TOTAL INCOME OF RS.3,53,130/-. IN THE PRO FIT & LOSS ACCOUNT FILED ALONG WITH THE SAID RETURN, CONTRACTUAL AND OTHER I NCOME WAS SHOWN BY THE ASSESSEE AT RS.35,75,00,000/- AND EXPENSES OF R S.35,71,46,865/- WERE DEBITED INCLUDING THE CONTRACTUAL EXPENSES OF RS.35 ,67,09,270/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE- COMPANY WAS REQUIRED BY THE ASSESSING OFFICER TO FURNISH THE DE TAILS OF CONTRACTUAL AND ITA NO. 489/KOL/2018 ASSESSMENT YEAR: 2014-2015 M/S. MOONTREE CONSTRUCTION (P) LIMITED 2 OTHER INCOME AS WELL AS THE CONTRACTUAL EXPENSES. T HE ASSESSEE WAS ALSO CALLED UPON BY THE ASSESSING OFFICER TO EXPLAIN AS TO WHY THE INCOME SHOWN BY IT IN THE FORM OF CONTRACTUAL AND OTHER IN COME SHOULD NOT BE TREATED AS THE ACCOMMODATION ENTRIES PROVIDED TO TH E PARTIES KEEPING IN VIEW THAT ITS CAPITAL BASE WAS ONLY RS.5,00,000/- A ND THERE WAS HARDLY ANY CASH OR BANK BALANCE TO ACHIEVE THE TURNOVER OF RS.35.75 CRORES. THE ASSESSEE-COMPANY, HOWEVER, FAILED TO FURNISH THE DE TAILS REQUIRED BY THE ASSESSING OFFICER AND ALSO FAILED TO OFFER ANY EXPL ANATION AS SOUGHT BY THE ASSESSING OFFICER. THE ASSESSING OFFICER, THEREFORE , WAS LEFT WITH NO OPTION BUT TO COMPLETE THE ASSESSMENT EX-PARTE TO T HE BEST OF HIS JUDGMENT ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD. IN THE ASSESSMENT SO COMPLETED UNDER SECTION 144 VIDE AN O RDER DATED 23.11.2016, THE ASSESSING OFFICER ESTIMATED THE BUS INESS INCOME OF THE ASSESSEE AT RS.2,14,50,000/- BEING COMMISSION @6% A LLEGEDLY RECEIVED BY THE ASSESSEE ON THE ACCOMMODATION ENTRIES OF RS. 35.75 CRORES GIVEN TO THE PARTIES. SINCE THE ASSESSEE HAD DECLARED THE BU SINESS INCOME OF RS.3,53,130/- IN THE RETURN OF INCOME, ADDITION OF RS.2,10,96,870/- WAS MADE BY THE ASSESSING OFFICER TO THE TOTAL INCOME O F THE ASSESSEE. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 144, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE ON T HE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SA ID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(APPEALS) DISMISSED T HE APPEAL OF THE ASSESSEE VIDE HIS APPELLATE ORDER DATED 03.01.2018 PASSED EX-PARTE THEREBY CONFIRMING THE ADDITION BY THE ASSESSING OF FICER TO THE TOTAL INCOME OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF T HE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE T RIBUNAL. 4. AT THE TIME OF HEARING FIXED BEFORE THE TRIBUNAL ON 17.10.2019, NOBODY APPEARED ON BEHALF OF THE ASSESSEE. THERE WA S A SIMILAR NON- COMPLIANCE ON THE PART OF THE ASSESSEE WHEN THIS AP PEAL WAS FIXED FOR ITA NO. 489/KOL/2018 ASSESSMENT YEAR: 2014-2015 M/S. MOONTREE CONSTRUCTION (P) LIMITED 3 HEARING BEFORE THE TRIBUNAL EARLIER ON 17.09.2019. THIS APPEAL OF THE ASSESSEE IS, THEREFORE, BEING DISPOSED OF EX-PARTE AFTER HEARING THE ARGUMENTS OF THE LD. D.R. AND PERUSING THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT THE APPEAL OF THE ASSES SEE WAS FIXED FOR HEARING BEFORE THE LD. CIT(APPEALS) ON FIVE OCCASIO NS, OUT OF WHICH THE ASSESSEE HAD SOUGHT ADJOURNMENTS ON FOUR OCCASIONS. ON FIFTH OCCASION, THERE WAS, HOWEVER, NO COMPLIANCE ON THE PART OF TH E ASSESSEE TO THE NOTICE ISSUED BY THE LD. CIT(APPEALS) AND KEEPING I N VIEW THE SAME, THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE LD. CIT (APPEALS) VIDE HIS IMPUGNED ORDER PASSED EX-PARTE WITHOUT GIVING ANY F URTHER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN OUR OPINION, THE LD. CIT(APPEALS), THEREFORE, CANNOT BE SAID TO HAVE GIVEN PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. MOREOVER, THE LD. C IT(APPEALS) AS PER THE PROVISIONS OF SUB-SECTION (6) OF SECTION 250 WAS RE QUIRED TO DISPOSE OF THE APPEAL OF THE ASSESSEE VIDE AN ORDER IN WRITING STATING THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR THE DECISION. IT IS OBSERVED THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) DOES NOT COMPLY WITH THESE REQUIREMENTS. WE, THEREFORE, CONSIDER IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PARTE AND REMIT T HE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT IN ACCORDANCE WITH LAW AFTER GIVING ONE MORE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON NOVEMBER 15, 2019. SD/- SD/- (SATBEER SINGH GODARA) (P.M. JAGTAP ) JUDICIAL MEMBER VICE-PRESIDENT) KOLKATA, THE 15 TH DAY OF NOVEMBER, 2019 ITA NO. 489/KOL/2018 ASSESSMENT YEAR: 2014-2015 M/S. MOONTREE CONSTRUCTION (P) LIMITED 4 COPIES TO : (1) M/S. MOONTREE CONSTRUCTION (P) LIMITED, 95A, C.R. AVENUE, KOLKATA-700073 (2) INCOME TAX OFFICER, WARD-13(3), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-15, KOLK ATA, (4) COMMISSIONER OF INCOME TAX, KOLKATA- , KOLKATA; (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.