M/s Dakshin Damodar Cold Storage (P) Ltd., Burdwan V. ACIT(IT), Cir-1, Burdwan, Burdwan

ITA 523/KOL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1751 (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: 2006-2007
• Appeal Filed On: 17-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 142(1); 144

Judgement Text

I.T.A. NO. 523/KOL./2017 ASSESSMENT YEAR: 2006-2007 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NO. 523/KOL/ 2017 ASSESSMENT YEAR: 2006-2007 DAKSHIN DAMODAR COLD STORAGE (P) LIMITED,.......... ..................APPELLANT BANKURA MORE, P.O. MACHKHANDA, DIST. BURDWAN-713 101 [PAN: AAACD 9300 R] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,.............. ....................RESPONDENT CIRCLE-1, BURDWAN, AAYAKAR BHAWAN, COURT COMPOUND, P,O, & DIST. BURDWAM-713 101 APPEARANCES BY: SHRI SOUMITRA CHOUDHURY, 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), BURDWAN DATED 30.12.2016, WHEREBY HE CONFIRMED THE DISALLOWANCE MADE BY THE A SSESSING OFFICER OUT OF VARIOUS EXPENSES AGGREGATING TO RS.13,13,546/-. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH IS ENGAGED IN THE BUSINESS OF RUNNING A COLD STORAGE. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 18.12.2006 D ECLARING A LOSS OF RS.10,39,654/-. THE CASE OF THE ASSESSEE WAS SELECT ED BY THE ASSESSING OFFICER FOR SCRUTINY AND NOTICES UNDER SECTION 143( 2) AND 142(1) WERE ISSUED BY HIM TO THE ASSESSEE ON 08.11.2007. THERE WAS, HOWEVER, NO COMPLIANCE ON THE PART OF THE ASSESSEE TO THE SAID NOTICES AS WELL AS THE SUBSEQUENT NOTICES ISSUED BY THE ASSESSING OFFICER UNDER SECTION 142(1) FIXING THE CASE OF THE ASSESSEE FOR HEARING FROM TI ME TO TIME. THE I.T.A. NO. 523/KOL./2017 ASSESSMENT YEAR: 2006-2007 PAGE 2 OF 4 ASSESSING OFFICER, THEREFORE, WAS LEFT WITH NO OPTI ON BUT TO COMPLETE THE ASSESSMENT EX-PARTE UNDER SECTION 144 TO THE BEST OF HIS JUDGMENT ON T HE BASIS OF MATERIAL AVAILABLE ON RECORD. IN THE ASSES SMENT SO COMPLETED VIDE AN ORDER DATED 29.12.2008, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE ASSESSING OFFICER AT RS.2,73,890/ - AFTER MAKING THE FOLLOWING DISALLOWANCES:- (I) ELECTRIC CHARGES AND OTHERS RS.11,25,918/ - (II) ADVERTISEMENT RS. 5,500/ - (III) FUEL & LUBRICANT RS. 1,50,882/ - (IV) MEDICAL EXPENSES RS. 2,364/ - (V) TRAVELLING EXPESES RS. 28,882/ - TOTAL RS.13,13,546/ - 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), WHO DISMISSED THE SAID APPEAL AND CONFIRMED THE DIS ALLOWANCE MADE BY THE ASSESSING OFFICER ON ACCOUNT OF VARIOUS EXPENSE S FOR THE FOLLOWING REASONS GIVEN IN HIS IMPUGNED ORDER:- I HAVE EXAMINED THE MATERIAL ON RECORD AND FIND TH AT THE APPELLANT HAS NOWHERE BEEN ABLE TO SHOW THAT HE DID INCUR THE EXPENSES OR THAT THE EXPENSES, EVEN IF IN CURRED, WERE WHOLLY OR EXCLUSIVELY FOR HIS BUSINESS IN THE BACKDROP OF THE FACT THAT HE HAS SHOWN THAT THERE W AS NO OPERATION OF THE COLD STORAGE THROUGHOUT THE RELEVA NT PERIOD. I CANNOT FIND ANY MATERIAL ON RECORD TO SHO W THAT THERE WAS ANY ABERRATION OR ARBITRARINESS OR UNLAWF ULNESS IN THE ORDER OF THE AO IN THIS REGARD. THE APPEAL O F THE APPELLANT STANDS DISMISSED. FURTHER THERE IS NO EVIDENCE THAT THERE WAS PROVID ED FOR THE APPELLANTS LATEST CONTENTION THAT THE ADDITION OF RS.13 LAKH ODD THAT THE AO HAS MADE WAS NOT ACCOUNT OF DISALLOWANCE OF EXPENSES BUT ON ACCOUNT OF STOCK DISCREPANCY. NO SUCH FEATURE EMERGES FROM THE AOS ORDER OR THE MATERIAL ON RECORD. THE SAID DISALLOWANCE IS IN THE FORM OF EXPENSES CLAIMED AS IS EVIDENT FROM THE PRO FIT AND LOSS ACCOUNT OF THE APPELLANT. THIS GROUND ALSO CAN NOT THEREFORE BE ENTERTAINED AND IS DISMISSED. I.T.A. NO. 523/KOL./2017 ASSESSMENT YEAR: 2006-2007 PAGE 3 OF 4 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. THE LD. COUN SEL FOR THE ASSESSEE HAS SUBMITTED THAT THE APPEAL AGAINST THE ORDER OF THE ASSESSING OFFICER PASSED UNDER SECTION 144 WAS FILED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) IN FEBRUARY, 2009 AND WHEN THE SAME WA S FIXED FOR HEARING BY THE LD. CIT(APPEALS) INITIALLY IN DECEMBER, 2012 , THE RELEVANT DETAILS AND DOCUMENTS WERE FURNISHED BY THE ASSESSEE VIDE L ETTER DATED 04.12.2012 TO SUPPORT AND SUBSTANTIATE ITS CASE ON THE ISSUES RELATING TO VARIOUS DISALLOWANCES MADE BY THE ASSESSING OFFICER . HE HAS SUBMITTED THAT THE APPEAL OF THE ASSESSEE, HOWEVER, WAS NOT D ISPOSED OF BY THE LD. CIT(APPEALS) IMMEDIATELY THEREAFTER AND THE SAME WA S AGAIN FIXED FOR HEARING BY THE NEW INCUMBENT IN FEBRUARY, 2016 WHEN THE DETAILS AND DOCUMENTS FURNISHED EARLIER VIDE LETTER DATED 04.12 .2012 WERE AGAIN FILED BY THE ASSESSEE VIDE LETTER DATED 02.12.2016. HE HA S CONTENDED THAT THE LD. CIT(APPEALS), HOWEVER, HAS NOT TAKEN INTO CONSI DERATION THESE RELEVANT DETAILS AND DOCUMENTS FURNISHED BY THE ASS ESSEE WHILE CONFIRMING THE DISALLOWANCE MADE BY THE ASSESSING O FFICER OUT OF VARIOUS EXPENSES AND THIS POSITION CLEARLY EVIDENT FROM THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) IS NOT DISPUTED EVEN BY THE LD. D. R. HE, HOWEVER, HAS CONTENDED THAT IF THE TRIBUNAL IS INCLINED TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE, THE MATTER MAY BE SENT BACK TO THE AS SESSING OFFICER FOR VERIFICATION OF THE DETAILS AND DOCUMENTS FILED BY THE ASSESSEE FOR THE FIRST TIME BEFORE THE LD. CIT(APPEALS) AS THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE DURING THE COURSE OF ASSESSMEN T PROCEEDINGS RESULTING IN THE PASSING OF AN EX-PARTE ORDER BY THE ASSESSING OFFICER UNDER SECTION 144. I FIND MERIT IN THIS CONTENTION OF THE LD. D.R. AND SINCE THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO NOT RAISE D ANY OBJECTION IN THIS REGARD, I SET ASIDE THE IMPUGNED ORDER PASSED BY TH E LD. CIT(APPEALS) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFF ICER FOR MAKING THE ASSESSMENT AFRESH AFTER VERIFYING THE RELEVANT DETA ILS AND DOCUMENTS I.T.A. NO. 523/KOL./2017 ASSESSMENT YEAR: 2006-2007 PAGE 4 OF 4 FURNISHED BY THE ASSESSEE AND AFTER GIVING PROPER A ND SUFFICIENT 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 AUGUST 08, 20 17. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 8 TH DAY OF AUGUST, 2017 COPIES TO : (1) DAKSHIN DAMODAR COLD STORAGE (P) LIMITED, BANKURA MORE, P.O. MACHKHANDA, DIST. BURDWAN-713 101 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, BURDWAN, AAYAKAR BHAWAN, COURT COMPOUND, P,O, & DIST. BURDWAM-713 101 (3) COMMISSIONER OF INCOME TAX (APPEALS), BURDWAN ; (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.