Daanvir Commodities Pvt. Ltd., , Kolkata V. ITO, Ward - 1(1), Kolkata , Kolkata

ITA 511/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7983 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 23-03-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDER
• Section: 143(3); 68; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA [BEFORE HONBLE SHRI S.S.GODARA, JM & HONBLE SHRI M.BALAGANESH, AM] I.T.A NO. 511/KOL/2018 ASSESSMENT YEAR : 2008-0 9 DAANVIR COMMODITIES PVT. LTD. -VS- ITO, WARD-1(1), KOLKATA [PAN: AACCD 5354 M] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI SUBASH AGARWA L, ADVOCATE FOR THE RESPONDENT : SHRI SANKAR HALDER, ADDL. CIT SR. DR DATE OF HEARING : 26.12.2018 DATE OF PRONOUNCEMENT : 01.01.2019 ORDER PER M.BALAGANESH, AM 1. THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-9, KOLKATA [IN SHORT THE LD CIT (A)] IN APPEAL NO.269/CIT(A)- 9/WD-1(1)/2015-16/KOL DATED 28.02.2017 AGAINST THE ORDER PASSED BY ITO, WARD- 1(1), KOLKATA[ IN SHORT THE LD AO] UNDER SECTION 263 / 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 28.03.2014 FOR TH E ASSESSMENT YEAR 2008-09. 2. AT THE OUTSET, THERE IS A DELAY OF 98 DAYS IN FI LING OF APPEAL BY THE ASSESSEE BEFORE US. THE ASSESSEE HAS ADDUCED THE REASONS THAT THE WHOLE TIME DIRECTOR WHO WAS IN-CHARGE OF ACCOUNTS AND TAXATION MATTER OF THE ASSESSEE COM PANY WAS SUFFERING FROM BILATERAL PLEURAL EFFUSION FROM 03.10.2017 TO 04.04.2018 AND WAS ADVISED SIX MONTHS BED REST. THE MEDICAL CERTIFICATE IN THIS REGARD WAS ALSO ENC LOSED ALONG WITH AFFIDAVIT FOR DELAY 2 ITA NO.511/KOL/2018 DAANVIR COMMODITIES PVT. LTD. A.YR. 2008-09 2 CONDONATION. WE HAVE GONE THROUGH THE SAME AND IN T HESE FACTS AND CIRCUMSTANCES WE FIND THAT THE ASSESSEE HAD DULY EXPLAINED THE REASO NS FOR THE DELAY IN FILING OF APPEAL AND WE ARE ACCORDINGLY INCLINED TO CONDONE THE DELA Y AND ADMIT THE APPEAL OF THE ASSESSEE FOR ADJUDICATION. 3. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS A S TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN CONFIRMING THE ADDITION TOWARDS SHARE CAPITAL AND SHARE PREMIUM U/S 68 OF THE ACT, IN THE FACTS AND CIRCUMSTANCES OF THE CASE . 4. AT THE OUTSET, WE FIND THAT THE LD. CIT(A) HAD P ASSED AN ORDER EX PARTE WITHOUT ADJUDICATING THE ISSUE ON MERITS. BOTH THE PARTIES MUTUALLY AGREED THAT THIS ISSUE REQUIRES TO BE SET ASIDE TO THE FILE OF LD. CIT(A) FOR DE NO VO ADJUDICATION. IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JU STICE AND FAIR PLAY, WE DEEM IT FIT AND APPROPRIATE TO REMAND THIS APPEAL TO THE FILE OF TH E LD. CIT(A) FOR DE NOVO ADJUDICATION ON MERITS. THE LD. CIT(A) IS DIRECTED TO ADJUDICATE THE ISSUE ON MERITS UNINFLUENCED BY EARLIER DECISION TAKEN BY HIM IN THIS REGARD. THE A SSESSEE IS DIRECTED TO APPEAR BEFORE THE LD. CIT(A) ON 20.03.2019 AND NOT TO TAKE ANY ADJOUR NMENT EXCEPT DUE TO EXCEPTIONAL OR UNAVOIDABLE CIRCUMSTANCES. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 01.01.2019 SD/- SD/- [S.S. GODARA] [ M .BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEM BER DATED : 01.01.2019 SB, SR. PS 3 ITA NO.511/KOL/2018 DAANVIR COMMODITIES PVT. LTD. A.YR. 2008-09 3 COPY OF THE ORDER FORWARDED TO: 1. DAANVIR COMMODITIES PVT. LTD., C/O, SUBASH AGA RWAL & ASSOCIATES, SIDHA GIBSON, 1, GIBSON LANE, SUITE-213, 2 ND FLOOR, KOLKATA-700069. 2. ITO, WARD-1(1), KOLKATA, AAYAKAR BHAWAN, P-7, CH OWRINGHEE SQUARE, KOLKATA- 700069. 3..C.I.T.(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER A SSISTANT REGISTRAR ITAT , KOLKATA BENCHES