Bhubaneshwari Developers (P) Ltd., , Howrah V. DCIT, Circle - 13(1), Kolkata , Kolkata

ITA 537/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7994 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 28-03-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDER CIT DR REVEN
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Opportunity of being heard; Corroborative evidences
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA D BENCH, KOLKATA (BEFORE SRI S.S. GODARA, JUDICIAL MEMBER & SRI M. BALAGANESH, ACCOUNTANT MEMBER) ITA NO. 537/KOL/2018 ASSESSMENT YEAR: 2012-13 BHUBANESHWARI DEVELOPERS PVT. LTD................................APPELLANT 10, DR. ABANI DUTTA ROAD GROUND FLOOR SALKIA HOWRAH 711 106 [PAN : AADCB 8032 F] VS. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-13(1), KOLKATA.......................RESPONDENT APPEARANCES BY: SHRI MIRAJ D. SHAH, A/R, APPEARED ON BEHALF OF THE ASSESSEE . SHRI SANKAR HALDER, ADDL. CIT D/R. APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : DECEMBER 27 TH , 2018 DATE OF PRONOUNCING THE ORDER : JANUARY 1 ST , 2019 ORDER PER BENCH :- THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) -5, KOLKATA, (HEREINAFTER REFERRED TO AS THE LD. CIT(A)), DATED 25/10/2016, ARISING OUT THE ASSESSMENT ORDER OF THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE LD. AO), PASSED U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT), RELATING TO ASSESSMENT YEAR 2012-13. 2. THE PRIME GROUND RAISED BY THE ASSESSEE APART FROM CONTESTING THE ADDITION MADE U/S 68 OF THE ACT, IS THAT THE LD. CIT(A) ERRED IN PASSING EX-PARTE ORDER AGAINST THE ASSESSEE. 3. THE LD. CIT(A), ISSUED NOTICES TO THE ASSESSEE ON TWO OCCASIONS AND SINCE THE SAME WERE RETURNED BACK WITH POSTAL REMARK NO SUCH COMPANY IN THIS ADDRESS, PROCEEDED TO DISPOSE OFF THIS APPEAL WITHOUT AFFORDING FURTHER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. UNDER THESE CIRCUMSTANCES, THE LD. CIT(A) OUGHT TO HAVE ADJUDICATED THE ISSUE ON MERITS OF THE ADDITION WHICH, IN THE INSTANT CASE, WAS NOT DONE BY THE LD. CIT(A). WE FIND THAT THE LD. CIT(A) HAS ONLY MADE A GENERAL REMARK THAT THE ASSESSEE HAS NOT FURNISHED ANY SUPPORTING EVIDENCE DESPITE BEING AFFORDED WITH 2 ITA NO. 202/KOL/2018 ASSESSMENT YEAR: 2012-13 IMMENSE DEALMARK PVT. LTD ADEQUATE OPPORTUNITY. ACCORDINGLY HE UPHELD THE ACTION OF THE LD. ASSESSING OFFICER IN MAKING THE ADDITION OF RS.3,30,00,000/-, TOWARDS SHARE CAPITAL AND SHARE PREMIUM IN THE CASE OF THE ASSESSEE. [ 4. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 5. WE HAVE HEARD RIVAL SUBMISSIONS. IT IS NOT IN DISPUTE THAT THE LD. CIT(A) HAD PASSED AND EX-PARTE ORDER. BOTH THE PARTIES MUTUALLY AGREED THAT THIS ISSUE REQUIRES TO BE SENT BACK TO THE FILE OF THE LD. CIT(A) FOR DE NOVO ADJUDICATION. 5.1. IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, WE DEEM IT FIT AND PROPER IN THE INTEREST OF JUSTICE AND FAIRPLAY TO REMAND THIS APPEAL TO THE FILE OF THE LD. CIT(A) FOR DE NOVO ADJUDICATION ON MERITS AND THE LD. CIT(A) IS DIRECTED TO TAKE A DECISION UNINFLUENCED BY HIS EARLIER DECISION TAKEN IN THIS REGARD. THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE LD. CIT(A) ON 02/04/2019, AND NOT TO TAKE ADJOURNMENT EXCEPT DUE TO EXCEPTIONAL OR BONAFIDE CIRCUMSTANCES. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES 4. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. KOLKATA, THE 1 ST DAY OF JANUARY, 2019. SD/- SD/- [S.S. GODARA] [ M. BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 01.01.2019 {SC SPS} 3 ITA NO. 202/KOL/2018 ASSESSMENT YEAR: 2012-13 IMMENSE DEALMARK PVT. LTD COPY OF THE ORDER FORWARDED TO: 1 . BHUBANESHWARI DEVELOPERS PVT. LTD 10, DR. ABANI DUTTA ROAD GROUND FLOOR SALKIA HOWRAH 711 106 2. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-13(1), KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES