M/s. Saha & Mondal Construction, Purba Medinipur V. ACIT, Circle - Haldia, Purba Medinipur

ITA 553/KOL/2010

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100102 (ITAT-KOLKATA)
• Duration Of Justice: 5 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2015
• Appeal Filed By: Assessee
• Bench Allotted: Not Allotted
• Assessment Year: 2005-2006
• Appeal Filed On: 17-03-2010
• Court: TRIBUNAL
• Department Lawyers: N O N E
• Assessee Lawyers: N O N E
• Keywords: Bogus purchase; Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI M. BALAGANES H, AM] I.T.A NO. 553/KOL/2010 ASSESSMENT YEAR: 2005-06 M/S. SAHA & MONDAL CONSTRUCTION VS. ASSISTANT COM MISSIONER OF INCOME-TAX, (PAN: AAMFS4328M) CIRCLE-HALDIA. ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 23.11.2015 DATE OF PRONOUNCEMENT: 23.11.2015 FOR THE APPELLANT: N O N E FOR THE RESPONDENT: N O N E ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XXXIII, KOLKATA IN APPEAL NO.17/CIT(A)-XXXIII/CIR-HAL/08-09 DATED 12.0 2.2013. ASSESSMENT WAS FRAMED BY ACIT, CIRCLE-HALDIA, U/S. 143(3) OF THE INCOME-T AX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR AY 2005-06 VIDE ITS ORDER DATED 3 0.06.2007. PENALTY WAS IMPOSED BY ACIT, CIRCLE-HALDIA U/S. 271(1)(C) OF THE ACT VIDE ITS ORDER DATED 28.03.2008. 2. WE HAVE HEARD THIS MATTER EX PARTE. NONE IS PRE SENT FOR REVENUE OR FROM THE ASSESSEE. REVENUE HAS FILED A PETITION FOR ADJOURNM ENT ASKING FOR ADJOURNMENT IN TWENTY MATTERS OUT OF TWENTY THREE TOTALLY FIXED IN THE CA USE LIST. THE REASON GIVEN BY REVENUE IN ITS PETITION DATED 23.11.2015 READS AS UNDER: I AM DIRECTED TO REQUEST TO THE HONBLE C BENCH , ITAT, KOLKATA THAT SHRI RAJAT KUMAR KUREEL, JCIT, SR. (DR) WILL NOT BE ABLE TO REPRESEN T THE ABOVE MENTIONED CASES SINCE HE IS GOING ON A VISIT TO BURDWAN FOR OFFICIAL WORK ON 23 RD NOVEMBER, 2015. ACCORDINGLY, I AM DIRECTED TO REQUEST THAT THE CAS E MAY KINDLY BE ADJOURNED FOR A LATER DATE AS PER THE CONVENIENCE OF THE HONBLE BENCH. WE FIND THAT THE REVENUE IS SEEKING ADJOURNMENT ON FRIVOLOUS GROUND AND THIS IS A REGULAR FEATURE. HENCE, WITHOUT GIVING ADJOURNMENT, THIS B EING A SMALL CASE, VERY OLD MATTER AND APPEAL IS PENDING SINCE 2010, WE PROCEEDED TO DECID E IT EX PARTE. 3. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE ORDER OF CIT(A) CONFIRMING THE LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT ON AC COUNT OF DISALLOWANCE OF TRUCK HIRE CHARGES, BOGUS PURCHASES AND STAFF QUARTER RENT AND BOGUS MATERIAL PURCHASE. 2 ITA NO.553/K/2010 SAHA & MONDAL CONSTN., AY 2005-06 4. BRIEFLY STATED FACTS ARE THAT THE AO LEVIED PENA LTY EX PARTE AND STATED THAT NONE APPEARED ON BEHALF OF ASSESSEE NOR FILED ANY EXPLAN ATION. THE CIT(A) CONFIRMED THE PENALTY DESPITE THE FACT THAT THE PLEA WAS RAISED B EFORE HIM THAT THESE DISALLOWANCES ARE ON ESTIMATE BASIS. AGGRIEVED, ASSESSEE IS IN APPEAL B EFORE TRIBUNAL. 5. WE FIND FROM THE GROUNDS RAISED AND CASE RECORDS THAT THE PENALTY WAS LEVIED BY THE AO EX PARTE AND EVEN CIT HAS NOT CONSIDERED THE PLEA OF THE ASSESSEE THAT THE REVISION PETITION FILED BY ASSESSEE BEFORE CIT-XVIII, KOLKAT A U/S. 264 OF THE ACT WAS PENDING. IT WAS THE PLEA OF THE ASSESSEE BEFORE CIT(A) THAT NO CROSS EXAMINATION OF THE PARTIES CONCERNED TO WHOM ENQUIRY REPORT WAS OBTAINED QUA T HESE DISALLOWANCES OF EXPENSES OR BOGUS PURCHASES AND IN THE ABSENCE OF THE SAME, PEN ALTY WAS CONFIRMED BY CIT(A). WE FIND THAT REASONABLE OPPORTUNITY OF BEING HEARD WAS NOT ALLOWED TO THE ASSESSEE AND ACCORDINGLY, WE SET ASIDE THE PENALTY ORDER PASSED BY AO AND RESTORE THE MATTER BACK TO HIS FILE TO ADJUDICATE AFRESH AFTER ALLOWING REASON ABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COOPERA TE WITH THE AO IN THE PENALTY PROCEEDINGS. APPEAL OF ASSESSEE IS ALLOWED FOR STA TISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- (M. BALAGANESH) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 23RD NOVEMBER, 2015 JD. SR. P.S COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT M/S. SAHA & MONDAL CONSTRUCTION,VILL & P.O. MECHEDA, DIST. PURBA MEDINIPUR, PIN-721137 2 RESPONDENT ACIT, CIRCLE-HALDIA. 3 . THE CIT(A), KOLKATA 4. 5. CIT KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .