A.P. Trading & finance Co. Ltd., , Kolkata V. ITO, Ward - 1(4), Kolkata , Kolkata

ITA 608/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7998 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 05-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDER CITD R RESPONDEN
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 143(3); 14A; 68

Judgement Text

ITA NO. 608/KOL/2018 A.Y. 2012-2 013 M/S. A .P. TRADING & FINANCE CO. LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA D BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 608/KOL/2018 ASSESSMENT YEAR: 2012-2013 A.P. TRADING & FINANCE CO. LIMITED,................ .............................APPELLANT P-39, PRINCEP STREET, 2 ND FLOOR, KOLKATA-700 072 [PAN: AADCA 8815 B] -VS.- INCOME TAX OFFICER,................................ ........................................RESPONDENT WARD-1(4), KOLKATA, AAYAKAR BHAWAN, 7 TH FLOOR, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 APPEARANCES BY: SHRI NARENDRA KEDIA, ADVOCATE, FOR THE APPELLANT SHRI SANKAR HALDER, ADDL. CIT(D.R) , FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : JANUARY 01, 2019 DATE OF PRONOUNCING THE ORDER : JANUARY 01, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ):- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-9, KOLKATA DAT ED 28.02.2017 PASSED EX-PARTE DISMISSING THE APPEAL OF THE ASSESS EE FOR NON- PROSECUTION. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH IS ENGAGED IN THE BUSINESS OF SHARE TRADING AND INVESTMENT. THE R ETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 25. 09.2012 DECLARING TOTAL INCOME OF RS.5,86,478/-. IN THE ASSESSMENT COMPLETE D UNDER SECTION 143(3) VIDE AN ORDER DATED 23.03.2015, THE TOTAL IN COME OF THE ASSESSEE ITA NO. 608/KOL/2018 A.Y. 2012-2 013 M/S. A .P. TRADING & FINANCE CO. LIMITED 2 WAS DETERMINED BY THE ASSESSING OFFICER AT RS.4,92, 09,212/- AFTER MAKING THE FOLLOWING TWO ADDITIONS:- (I) SHARE CAPITAL AND SHARE PREMIUM AMOUNT TREATED AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 RS.4,79,50,000/ - (II) DISALLOWANCE UNDER SECTION 14A READ WITH RULE 8D RS. 6,72,734/ - 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3), AN APPEAL WAS FILED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE ON T HE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SA ID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(APPEALS) DISMISSED T HE APPEAL OF THE ASSESSEE VIDE HIS APPELLATE ORDER DATED 28.02.2017 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN SUPPORT O F THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IN THIS APPAL CHALLENGING TH E IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PARTE, THE LD. CO UNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE NOTICE OF HEARING FIXING THE APPEAL OF THE ASSESSEE ON 15.12.2016 WAS NEVER RECEIVED BY THE ASSESSEE. H E HAS SUBMITTED THAT THE DIRECTOR OF THE ASSESSEE-COMPANY MR. VIRENDRA S INGH BENGANI ATTENDED THE OFFICE OF THE LD. CIT(APPEALS) ON THE NEXT DATE OF HEARING FIXED ON 03.02.2017 BUT THE HEARING DID NOT TAKE PL ACE. HE HAS SUBMITTED THAT THE ASSESSEE, THEREFORE, FILED A LETTER IN THE OFFICE OF THE LD. CIT(APPEALS) ON 13.02.2017 PRAYING THAT THE HEARING OF ITS APPEAL MAY BE FIXED IN THE FIRST WEEK OF MARCH, 2017. HE HAS SUBM ITTED THAT THE LD. CIT(APPEALS), HOWEVER, DID NOT TAKE COGNIZANCE OF T HE SAID LETTER AND PROCEEDED TO DISMISS THE APPEAL OF THE ASSESSEE VID E HIS IMPUGNED ORDER PASSED EX-PARTE ON 28.02.2017. HE HAS CONTENDED THA T THE LD. CIT(APPEALS) THUS HAS DISMISSED THE APPEAL OF THE A SSESSEE WITHOUT ITA NO. 608/KOL/2018 A.Y. 2012-2 013 M/S. A .P. TRADING & FINANCE CO. LIMITED 3 GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING H EARD AND THIS POSITION CLEARLY EVIDENT FROM THE RECORD INCLUDING THE COPY OF LETTER FILED BY THE ASSESSEE IN THE OFFICE OF THE LD. CIT(APPEALS) IS N OT DISPUTED EVEN BY THE LD. D.R. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDE R PASSED BY THE LD. CIT(APPEALS) EX-PARTE WITHOUT GIVING PROPER AND SUF FICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND REMIT THE MATTER BA CK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON M ERIT AFTER GIVING PROPER AND 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 JANUARY 01, 2019. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE -PRESIDENT (KZ) KOLKATA, THE 1 ST DAY OF JANUARY, 2019 COPIES TO : (1) M/S. A.P. TRADING & FINANCE CO. LIMITED, P-39, PRINCEP STREET, 2 ND FLOOR, KOLKATA-700 072 (2) INCOME TAX OFFICER, WARD-1(4), KOLKATA, AAYAKAR BHAWAN, 7 TH FLOOR, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-9, KOLKAT A, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.