M/s Arcade Dealcom Pvt. Ltd., Kolkata V. ITO, Ward-1(3), Kolkata

ITA 550/KOL/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0246 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-07-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 28-10-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S M SURANA SH
• Keywords: Revision of order; Opportunity of being heard; Principle of natural justice; Set aside
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA C BENCH, KOLKATA {VIRTUAL COURT HEARING} (BEFORE SHRI P.M. JAGTAP, HONBLE VICE-PRESIDENT, KZ & SHRI ABY T. VARKEY, HONBLE JUDICIAL MEMBER) ITA NO. 550/KOL/2020 ASSESSMENT YEAR: 2008-09 M/S. ARCADE DEALCOM PRIVATE LIMITED.................................................................APPELLANT 5/2 Q SEALS GARDEN LANE P.O. COSSIPUR KOLKATA - 700002 [PAN : AAGCA 2539 P] VS. INCOME TAX OFFICER, WARD-1(3), KOLKATA..................................................RESPONDENT APPEARANCES BY: SHRI S.M. SURANA ADVOCATE, APPEARED ON BEHALF OF THE ASSESSEE. SHRI GAURAV KANOJIA, CIT, D/R, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JULY 19 TH , 2021 DATE OF PRONOUNCING THE ORDER : JULY 19 TH , 2021 ORDER PER P.M. JAGTAP, VICE-PRESIDENT, KZ :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX - I, KOLKATA, (HEREINAFTER THE LD. CIT), DT. 07/03/2013, PASSED U/S 263 OF THE INCOME TAX ACT, 1961 (THE ACT). 2. THE ASSESSEE IN THE PRESENT CASE IS AN INVESTMENT COMPANY. IN THE ASSESSMENT COMPLETED U/S 143(3) R.W.S. 147 OF THE ACT, VIDE ORDER DT. 30/04/2010, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE ASSESSING OFFICER AT RS. 49,480/-. THE RECORDS OF THE SAID ASSESSMENT SUBSEQUENTLY CAME TO BE EXAMINED BY THE CONCERNED COMMISSIONER OF INCOME TAX AND ON SUCH EXAMINATION, HE FOUND THAT THE CLAIM OF THE ASSESSEE OF HAVING RECEIVED SHARE CAPITAL AND SHARE PREMIUM AGGREGATING TO RS.11.70 CRORES, WAS ACCEPTED BY THE ASSESSING OFFICER WITHOUT MAKING ENQUIRIES AND VERIFICATION WHICH WAS CALLED FOR IN THE FACTS AND CIRCUMSTANCES OF THE CASE. HE, THEREFORE, ISSUED A NOTICE U/S 263 OF THE ACT, FIXING THE CASE OF THE ASSESSEE FOR HEARING ON 28/01/2013. THE SAID NOTICE, HOWEVER, COULD NOT BE SERVED AS THE ASSESSEE COMPANY WAS NOT FOUND TO BE IN EXISTENCE AT THE GIVEN ADDRESS. THE LD. CIT, THEREFORE, PROCEEDED TO PASS AN ORDER U/S 263 OF THE ACT, EX-PARTE , WHEREBY HE SET ASIDE THE ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 147 OF THE ACT WITH A DIRECTION TO THE ASSESSING OFFICER TO MAKE AN ASSESSMENT AFRESH AFTER MAKING AN INDEPENDENT, DETAILED AND COMPLETE ENQUIRY ON THE ISSUE OF SHARE CAPITAL AND SHARE PREMIUM AGGREGATING TO RS.11.70 CRORES, RECEIVED BY THE ASSESSEE COMPANY DURING THE YEAR UNDER CONSIDERATION. 3. AGGRIEVED BY THE ORDER OF PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED ONE NOTICE U/S 263 OF THE ACT WAS ISSUED BY THE LD. CIT ON 11/01/2013 FIXING THE HEARING ON 28/01/2013 AND SINCE THE SAME WAS SENT BY THE LD. CIT TO THE OLD ADDRESS OF THE ASSESSEE COMPANY, IT COULD NOT BE COMPLIED WITH. HE HAS CONTENDED THAT TH HOWEVER, DID NOT GIVE ANY FURTHER OPPORTUNITY TO THE ASSESSEE AND PROCEEDED TO PASS THE IMPUGNED ORDER U/S 263 OF THE ACT, OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HE HAS CONTENDED THAT THERE IS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND EVEN THE LD. CIT D/R, HAS NOT BEEN ABLE TO REBUT OR CONTROVERT THIS POSITION WHICH IS CLEARLY APPARENT FROM THE IMPUGNED ORDER PASSED BY THE LD. CIT U/S 263 OF THE ACT. 4.1. IN THE CASE OF RATNA 05/06/2014] , CITED BY THE LD. COUNSEL FOR THE ASSESSEE, AN LD. CIT U/S 263 OF THE ACT UNDER SIMILAR FACTS AND CIRCUMSTANCES, WAS SET ASIDE BY THE HONBLE CALCUTTA HIG H COURT AND THE MATTER WAS REMITTED BACK TO THE CONCERNED CIT WITH A DIRECTION TO DECIDE THE SAME AFRESH AFTER AFFORDING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. HIGH COURT AND HAVIN G REGARD TO THE FACTS OF THE ORDER PASSED BY THE LD. CIT U/S 263 OF THE ACT AND REMIT THE MATTER BACK TO HIM FOR DECIDING THE SAME AFRESH AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. KOLKATA, THE SD/- [ ABY T. VARKEY ] JUDICIAL MEMBER DATED: 19.07.2021 {SC SPS} 2 M/S. ARCADE DEALCOM PRIVATE LIMITED AGGRIEVED BY THE ORDER OF THE LD. CIT PASSED U/S 263 OF THE ACT, THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED ONE NOTICE U/S 263 OF THE ACT WAS ISSUED BY THE LD. CIT ON 11/01/2013 FIXING THE HEARING ON 28/01/2013 AND SINCE THE SAME WAS SENT BY THE LD. CIT TO THE OLD ADDRESS OF THE COULD NOT BE COMPLIED WITH. HE HAS CONTENDED THAT TH HOWEVER, DID NOT GIVE ANY FURTHER OPPORTUNITY TO THE ASSESSEE AND PROCEEDED TO PASS THE IMPUGNED ORDER U/S 263 OF THE ACT, EX-PARTE , WITHOUT GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HE HAS CONTENDED THAT THERE IS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND EVEN THE LD. CIT D/R, HAS NOT BEEN ABLE TO REBUT OR CONTROVERT THIS POSITION WHICH IS CLEARLY APPARENT FROM THE IMPUGNED ORDER PASSED BY THE LD. CIT U/S 263 OF THE ACT. RATNA GIRI COMMERCIAL PVT. LTD. VS. ITO [W.P. NO. 440 OF 2014, DT. , CITED BY THE LD. COUNSEL FOR THE ASSESSEE, AN EX-PARTE ORDER PASSED BY THE LD. CIT U/S 263 OF THE ACT UNDER SIMILAR FACTS AND CIRCUMSTANCES, WAS SET ASIDE BY THE H COURT AND THE MATTER WAS REMITTED BACK TO THE CONCERNED CIT WITH A DIRECTION TO DECIDE THE SAME AFRESH AFTER AFFORDING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. KEEPING IN VIEW THIS DECISION OF THE HONBLE JURISDICTIONAL G REGARD TO THE FACTS OF THE PRESENT CASE, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT U/S 263 OF THE ACT AND REMIT THE MATTER BACK TO HIM FOR DECIDING THE SAME AFRESH AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL KOLKATA, THE 19 TH DAY OF JULY, 2021. [ P.M. JAGTAP VICE ITA NO. 550/KOL/2020 ASSESSMENT YEAR: 2008-09 M/S. ARCADE DEALCOM PRIVATE LIMITED THE LD. CIT PASSED U/S 263 OF THE ACT, THE ASSESSEE HAS WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT ONLY ONE NOTICE U/S 263 OF THE ACT WAS ISSUED BY THE LD. CIT ON 11/01/2013 FIXING THE HEARING ON 28/01/2013 AND SINCE THE SAME WAS SENT BY THE LD. CIT TO THE OLD ADDRESS OF THE COULD NOT BE COMPLIED WITH. HE HAS CONTENDED THAT TH E LD. CIT, HOWEVER, DID NOT GIVE ANY FURTHER OPPORTUNITY TO THE ASSESSEE AND PROCEEDED TO PASS THE , WITHOUT GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HE HAS CONTENDED THAT THERE IS THUS A CLEAR VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND EVEN THE LD. CIT D/R, HAS NOT BEEN ABLE TO REBUT OR CONTROVERT THIS POSITION WHICH IS CLEARLY APPARENT FROM THE IMPUGNED ORDER GIRI COMMERCIAL PVT. LTD. VS. ITO [W.P. NO. 440 OF 2014, DT. ORDER PASSED BY THE LD. CIT U/S 263 OF THE ACT UNDER SIMILAR FACTS AND CIRCUMSTANCES, WAS SET ASIDE BY THE H COURT AND THE MATTER WAS REMITTED BACK TO THE CONCERNED CIT WITH A DIRECTION TO DECIDE THE SAME AFRESH AFTER AFFORDING THE ASSESSEE A REASONABLE DECISION OF THE HONBLE JURISDICTIONAL CASE, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT U/S 263 OF THE ACT AND REMIT THE MATTER BACK TO HIM FOR DECIDING THE SAME AFRESH AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL SD/- P.M. JAGTAP ] VICE -PRESIDENT COPY OF THE ORDER FORWARDED TO: 1. M/S. ARCADE DEALCOM PRIVATE LIMITED 5/2 Q SEALS GARDEN LANE P.O. COSSIPUR KOLKATA - 700002 2. INCOME TAX OFFICER, WARD- 1(3), KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 3 M/S. ARCADE DEALCOM PRIVATE LIMITED M/S. ARCADE DEALCOM PRIVATE LIMITED 1(3), KOLKATA CIT(DR), KOLKATA BENCHES, KOLKATA. ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES ITA NO. 550/KOL/2020 ASSESSMENT YEAR: 2008-09 M/S. ARCADE DEALCOM PRIVATE LIMITED TRUE COPY BY ORDER ASSISTANT REGISTRAR /DDO ITAT, KOLKATA BENCHES