M/s Melcon (Vizag) Pvt. Ltd., Kolkata V. ITO, WD-4(2), KOLKATA, Kolkata

ITA 601/KOL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4482 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 05-04-2016
• Court: TRIBUNAL
• Department Lawyers: PINAKI MUKHERJEE JCITLD
• Assessee Lawyers: O P BAID FCALLB LD
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

ITA NO.601/KOL/2016 M/S. MELCON (VIZAG)PVT. LTD 1 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C, KOLKATA (BEFORE SHRI N.V.VASUDEVAN, J.M. &DR.A.L.SAINI, A.M .) ITA NO. 601/KOL/2016 : ASSTT. YEAR : 2010-1 1 M/S. MELCON (VIZAG) PVT.LTD C/O M/S. BAID & COMPANY, CHARTERED ACCOUNTANTS, 10/C BALLYGUNGE CIRCULAR ROAD, 2 ND FLOOR, KOLKATA-700019. PAN: AACCM3631N VS INCOME TAX OFFICER, WARD 4(2),P-7 CHOWRINGHEE D.C.I.T., CIRCLE-12, AAYAKAR BHAWAN, P- 7, CHOWRINGHEE SQUARE, KOLKATA 700 069 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI: O.P. BAID, ,FCA,LLB, LD.AR DEPARTMENT BY: SHRI PINAKI MUKH ERJEE, JCIT, LD.DR DATE OF HEARING : 19-09-2016 DATE OF PRONOUNCEMENT:-23-09 - 2016 ORDER PER DR. A.L.SAINI, A.M .: THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAIN ING TO ASSESSMENT YEAR 2010-11, IS DIRECTED AGAINST THE ORDER PASSED BY TH E COMMISSIONER OF INCOME-TAX (APPEALS)-2, KOLKATA IN APPEAL NO. 1250/CIT(A)-2/20 14-15, DATED 05-02-2016, WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT, THE ACT),DATED 23-03-2013. 2. THE FACTS OF THE CASE ARE STATED IN BRIEF. THE A SSESSEE COMPANY FURNISHED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2010-11 BY E-FILING ON 27-09-2010 FOR A TOTAL INCOME OF RS.2,80,147/-. THE RETURN WAS DULY PROCESSED U/S. 143(1). ITA NO.601/KOL/2016 M/S. MELCON (VIZAG)PVT. LTD 1 SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY U/ S. 143(3) OF THE ACT. THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT U/S 143(3) OF THE ACT, BY MAKING VARIOUS ADDITIONS ON 23-03-2013. THE ASSESSING OFFI CER DISALLOWED RENT CHARGES AT RS.1,80,000/- AND REPAIR CHARGES AT RS.32,591/-, HO LDING THAT THE HOUSE WAS USED EXCLUSIVELY FOR DIRECTORS RESIDENCE. 3. AGGRIEVED FROM THE ORDER OF THE ASSESSING OFFICE R, THE ASSESSEE FILED AN APPEAL BEFORE THE COMMISSIONER OF INCOME-TAX (APPEA LS)-2, KOLKATA, WHO HAS ALSO CONFIRMED THE ACTION OF THE ASSESSING OFFICER BY OB SERVING THE FOLLOWING:- 2. THE APPEAL WAS FIXED FOR HEARING FIRST ON 10/12 /2015. THE AR OF THE ASSESSEE FILED A LETTER ON 10/12/2015, SEEKING ADJO URNMENT OF THE HEARING IN THE 2 ND WEEK OF JANUARY, 2016. ACCORDINGLY, HEARING WAS RE -FIXED ON 12/01/2016 AND DULY ACKNOWLEDGED. NOBODY ATTENDED O R FILED ANY WRITTEN SUBMISSION TILL DATE. IT IS THUS PRESUMED THAT THE ASSESSEE IS NOT INTERESTED TO PURSUE THE APPEAL AND HAS NOTHING TO SAY IN DEFE NCE OF THE GROUNDS TAKEN. THE AO MADE THE ADDITION OF RS.2,12,591/- BY DISALLOWING RENT CHARGES AND REPAIR CHARGES AFTER DUE DELIBERATION. THERE IS NOTHING ON RECORD TO CONTROVERT THE DECISION OF THE AO. THEREF ORE, THE ADDITION OF RS.2,12,591/- IS CONFIRMED. 4. NOT BEING SATISFIED WITH THE ORDER OF THE COMMIS SIONER OF INCOME-TAX (APPEALS), THE ASSESSEE IS IN FURTHER APPEAL BEFORE US AND HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL:- L. THAT IN VIEW OF WHAT IS STATED IN PARA 6 UNDER T HE HEAD 'FACTS OF THECASE' ANNEXED HERETO AND FORMING PART HEREOF, TH E LD. CIT(A)- 2, KOL HAS ERRED IN LAW AS WELL AS ON FACTS IN DISM ISSING THE APPEAL FILED BY YOUR APPELLANT BEFORE HIM ON THE ALLEGED G ROUND OF NON- APPEARANCE OR NON-FILING OF WRITTEN SUBMISSION BY Y OUR APPELLANT ON THE DATE FIXED BY HIM FOR HEARING OR UPTO THE DATE OF HIS ORDER DATED 05.02.2016 AND THEREFORE CONFIRMING THE ADDITIONS E RRONEOUSLY, UNJUSTIFIABLY AND OR ILLEGALLY MADE BY THE LD. AO. ITA NO.601/KOL/2016 M/S. MELCON (VIZAG)PVT. LTD 1 2. THAT THE LD. AO HAS ERRED IN LAW AS WELL AS ON F ACTS BY ADDING BACK / DISALLOWING AND THE LD. CIT(A) - 2, KOL HAS ALSO ERRED IN LAW AS WELL AS ON FACTS BY UPHOLDING/ SUSTAINING ON THE ALLEGED GROUND OF THE SAID ADDITION OF RS. 1,80,000/-- UNDER THE HEAD RENT FOR THE PREMISES WHOLLY, EXCLUSIVELY AND OR GENUINELY USED BY YOUR APPELLANT COMPANY FOR THE STAY OF ITS STAFF AND VISITORS WHET HER IN TRANSIT OR OTHERWISE FOR THE BUSINESS PURPOSES. THE SAME SHOUL D THEREFORE BE ALLOWED IN FULL. 3. THAT THE LD. AO HAS ERRED IN LAW AS WELL AS ON F ACTS BY ADDING BACK AND OR DISALLOWING ERRONEOUSLY, ILLEGALLY AND OR UNJUSTIFIABLY ON THE ALLEGED GROUND AND ON ESTIMATE THE PROPORTIO NATE MAINTENANCE CHARGES OF RS. 32,591/- FOR THE PREMISE S FOR WHICH RENT OF RS. 1,80,000/- AS AFORESAID WAS PAID AND THE LD. CIT(A) - 2, KOL HAS ALSO ERRED IN LAW AS WELL AS ON FACTS BY UPHOLD ING/ SUSTAINING THE SAME ON THE ALLEGED GROUND. THE SAME SHOULD HAVE BE EN AND THEREFORE SHOULD BE ALLOWED IN FULL. 4. THAT BOTH THE IMPUGNED ORDERS NAMELY THE ASSESSM ENT ORDER AS WELL AS THE APPELLATE ORDER ARE WITHOUT APPLICAT ION OF MIND AND OR OTHERWISE VEXATIOUS, ARBITRARY, BASED ON SURMISES, GUESSES AND CONJECTURES, ILLOGICAL AND OR UNJUSTIFIED AND THERE FORE ILLEGAL AND/OR VOID AB-INITIO AND ARE LIABLE TO BE QUASHED, SET AS IDE, CANCELLED, RESCINDED, ANNULLED, AMENDED, ALTERED, REVISED, MOD IFIED AND/OR OTHERWISE NULLIFIED. 5. FIRST GROUND OF APPEAL RELATES TO NON APPEARANCE OR NON FILING OF WRITTEN SUBMISSION BY THE ASSESSEE BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS), THEREFORE, HE PASSED THE EX-PARTE ORDER WITHOUT TH E PRESENCE OF THE ASSESSEE . 6. THE LD AR FOR THE ASSESSEE HAS SUBMITTED THAT, T HE SOLITARY GRIEVANCE OF THE ASSESSEE IN THIS CASE IS THAT THE LD CIT (A) HAS PA SSED THE ORDER WITHOUT TAKING INTO ACCOUNT THE WRITTEN SUBMISSIONS FILED BY THE ASSESS EE. THE ORDER OF THE LD CIT (A) IS DATED 05/02/2016. THE ASSESSEE FILED ITS WRITTEN SU BMISSIONS BEFORE THE LD.CIT(A), ON DATED 12/01/2016. THE ASSESSEE HAS ADDUCED THE PROO F BEFORE US THAT WRITTEN ITA NO.601/KOL/2016 M/S. MELCON (VIZAG)PVT. LTD 1 SUBMISSIONS WERE FILED BY HIM BEFORE LD CIT(A), WEL L IN ADVANCE ON DATED 12/01/2016 WHICH HAVE NOT BEEN CONSIDERED BY HIM TH EREFORE THE ACTION OF THE LD.CIT(A) IS AGAINST THE PRINCIPLE OF NATURAL JUSTI CE. 6.1 THE LD.AR FOR THE ASSESSEE HAS FURTHER SUBMITTE D THAT THE APPEAL WAS FIXED FOR HEARING ON 10-12-2015. THEN THE LD.AR OF THE ASSESS EE FILED A LETTER ON 10-12-2015 SEEKING ADJOURNMENT OF THE HEARING IN THE 2 ND OF JANUARY, 2016. ACCORDINGLY, HEARING WAS RE-FIXED ON 12-01-2016. THE ASSESSEE FILED WRIT TEN SUBMISSION BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 12-01-2016, BUT THE COMMISSIONER OF INCOME-TAX (APPEALS) DID NOT CONSIDER THE SUBMISSI ONS OF THE ASSESSEE AT ALL, THEREFORE IT IS A GROSS NEGLIGENCE ON THE PART OF T HE LD CIT(A). 7. THE LD.DR FOR THE REVENUE HAS PRIMARILY REITERAT ED THE STAND AS TAKEN BY THE COMMISSIONER OF INCOME-TAX (APPEALS), WHICH WE HAVE ALREADY NOTED IN OUR EARLIER PARA OF THIS ORDER, AND IS NOT BEING REPEATED FOR T HE SAKE OF BREVITY. 8. HAVING HEARD THE RIVAL SUBMISSIONS, WE ARE OF TH E VIEW THAT THERE IS MERIT IN THE SUBMISSIONS OF THE ASSESSEE, AS THE PROPOSITION S CANVASSED BY THE LD.AR FOR THE ASSESSEE ARE SUPPORTED BY THE FACTS NARRATED ABOVE, IT IS VERY MUCH CLEAR THAT THE ASSESSEE HAS SUBMITTED WRITTEN SUBMISSION, BUT THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS IGNORED IT, WHICH IS TANTAMOUNT TO U NJUSTICE AND AGAINST THE PRINCIPLE OF NATURAL JUSTICE. THEREFORE, WE ARE OF THE VIEW T HAT THE ISSUE INVOLVED IN THIS APPEAL REQUIRES FRESH EXAMINATION AT THE END OF THE COMMIS SIONER OF INCOME-TAX (APPEALS). ACCORDINGLY, WE SET ASIDE THE IMPUGNED ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) AND RESTORE THIS ISSUE TO HIS FILE WITH T HE DIRECTION TO DECIDE THE ISSUE AFRESH AFTER GIVING PROPER OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. IN VIEW OF THE ABOVE ITA NO.601/KOL/2016 M/S. MELCON (VIZAG)PVT. LTD 1 CONCLUSION ON THE PRELIMINARY ISSUE, THE OTHER GROU NDS CHALLENGING ADDITIONS MADE ON MERITS ARE NOT TAKEN INTO CONSIDERATION. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 23-09 -2016 SD/- SD/- (N.V.VASUDEVAN) (DR. A.L.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:23/09/2016 *PRADIP (SR.PS) COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT/ASSESSEE 2 THE RESPONDENT/REVENUE 3. THE CIT-I, 4. THE CIT (A)-I, 5. DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, ASST. REGISTRAR , ITAT, KOLKATA BENCHES