Atika Consultancy Pvt. Ltd., Kolkata V. ITO, Ward 4(2), Kolkata, Kolkata

ITA 519/KOL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1752 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 17-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice
• Section: 143(3); 148

Judgement Text

I.T.A. NO. 519/KOL./2017 ASSESSMENT YEAR: 2008-2009 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NO. 519/KOL/ 2017 ASSESSMENT YEAR: 2008-2009 ATIKA CONSULTANCY (P) LIMITED,..................... ........................APPELLANT C/O. S.L. KOCHAR, ADVOCATE, 86, CANNING STREET, KOLKATA-700 001 [PAN: AAFCA 8706 M] -VS.- INCOME TAX OFFICER,................................ ...............................RESPONDENT WARD-4(2), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 APPEARANCES BY: SHRI ANIL KOCHAR, ADVOCATE, FOR THE ASSESSEE SHRI ARINDAM BHATTACHARJEE, ADDL. CIT, D.R., FOR TH E DEPARTMENT DATE OF CONCLUDING THE HEARING : AUGUST 08, 2017 DATE OF PRONOUNCING THE ORDER : AUGUST 08, 2017 O R D E R PER SHRI P.M. JAGTAP, A.M. .: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-23, KOLKATA DA TED 18.11.2016 PASSED EX-PARTE . 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY. O N THE BASIS OF INFORMATION RECEIVED BY HIM REGARDING THE INVESTMEN T OF RS.30,00,000/- MADE IN THE SHARES OF THE ASSESSEE-COMPANY BY ONE N AME-LENDING COMPANY M/S. GURUDHAN SALES PVT. LIMITED, A NOTICE UNDER SECTION 148 WAS ISSUED BY THE ASSESSING OFFICER TO THE ASSESSEE ON 28.03.2015. THERE WAS, HOWEVER, NO RESPONSE ON THE PART OF THE ASSESS EE TO THE SAID NOTICE AS WELL AS THE SUBSEQUENT NOTICES ISSUED BY THE ASS ESSING OFFICER FIXING THE CASE OF THE ASSESSEE FOR HEARING FROM TIME TO T IME. THE ASSESSING OFFICER, THEREFORE, WAS LEFT WITH NO OPTION BUT TO COMPLETE THE ASSESSMENT I.T.A. NO. 519/KOL./2017 ASSESSMENT YEAR: 2008-2009 PAGE 2 OF 3 EX-PARTE TO THE BEST OF HIS JUDGMENT UNDER SECTION 144/147/ 143(3) OF THE ACT. IN THE ASSESSMENT SO COMPLETED VIDE AN ORDER D ATED 15.02.2016, ADDITION OF RS.30,00,000/- WAS MADE BY THE ASSESSIN G OFFICER TO THE TOTAL INCOME OF THE ASSESSEE BY TREATING THE SHARE APPLIC ATION MONEY RECEIVED BY THE ASSESESE FROM M/S. GURUDHAN SALES PVT. LIMIT ED AS UNEXPLAINED CASH CREDIT UNDER SECTION 68. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 144/147/143(3), AN APPEAL WAS PREFERRED BY THE ASSE SSEE BEFORE THE LD. CIT(APPEALS) AND SINCE NOTICE OF THE HEARING OF THE SAID APPEAL SENT THROUGH THE NOTICE SERVER COULD NOT BE SERVED DUE T O THE OFFICE PREMISES OF THE ASSESSEE-COMPANY BEING FOUND LOCKED, THE LD. CIT(APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSEC UTION VIDE HIS APPELLATE ORDER DATED 18.11.2016 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, THE NON-APPEARANCE ON THE PART OF THE ASSESSEE BEFORE THE LD. CIT(APPEALS) WAS DUE TO NON-RECEIPT OF THE NOTI CE OF HEARING AND THIS POSITION CLEARLY EVIDENT FROM THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) IS NOT DISPUTED EVEN BY THE LD. D.R. IT IS THUS CLE AR THAT THE IMPUGNED ORDER HAS BEEN PASSED BY THE LD. CIT(APPEALS) DISMI SSING THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION WITHOUT GIVING PRO PER AND EFFECTIVE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THER E IS A CLEAR VIOLATION OF THE PRINCIPLE OF NATURAL JUSTICE. I, THEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON M ERIT AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS UNDERTAKEN BY THE LD. COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL COMPLY WITH THE NOTICE OF THE LD. CIT(APPEALS) AND SHALL E XTEND ALL POSSIBLE I.T.A. NO. 519/KOL./2017 ASSESSMENT YEAR: 2008-2009 PAGE 3 OF 3 COOPERATION IN ORDER TO ENABLE THE LD. CIT(APPEALS) TO DISPOSE OF ITS APPEAL EXPEDITIOUSLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATE D AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON AUGUST 08, 20 17. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 8 TH DAY OF AUGUST, 2017 COPIES TO : (1) ATIKA CONSULTANCY (P) LIMITED, C/O. S.L. KOCHAR, ADVOCATE, 86, CANNING STREET, KOLKATA-700 001 (2) INCOME TAX OFFICER, WARD-4(2), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-23, KOLK ATA; (4) COMMISSIONER OF INCOME TAX ,KOLKAT A (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/DDO INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.