Stan Commodities (P) Ltd., Kolkata V. I.T.O.,Ward-3(2), Kolkata

ITA 611/KOL/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9823 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 27-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Keywords: Opportunity of being heard; Set aside
• Section: 143(3); 133(6)

Judgement Text

ITA NO. 611/KOL/2019 ASS ESSMENT YEAR: 2012-2013 STAN COMMODITIES (P) LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA D BENCH, KOLKATA [VIRTUAL COURT HEARING] BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT & SHRI A.T. VARKEY, JUDICIAL MEMBER I.T.A. NO. 611/KOL/2019 ASSESSMENT YEAR: 2012-2013 STAN COMMODITIES (P) LIMITED,...................... .........................APPELLANT C/O. SUBASH AGARWAL & ASSOCIATES, ADVOCATES, SIDDHA GIBSON, 1, GIBSON LANE, SUITE 213, 2 ND FLOOR, KOLKATA-700069 [PAN: AAECS8372E] -VS.- INCOME TAX OFFICER,................................ ...................................RESPONDENT WARD-3(2), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069 APPEARANCES BY: SHRI SUBASH AGARWAL, ADVOCATE, FOR THE APPELLANT SHRI SUPRIYO PAL, ADDL. CIT, D.R., FOR THE RESPONDE N T DATE OF CONCLUDING THE HEARING : JUNE 29, 2020 DATE OF PRONOUNCING THE ORDER : JUNE 29, 2020 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-1, KOLKATA DAT ED 05.02.2019 PASSED EX-PARTE, WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF M.S. INGOTS. THE R ETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 30.09.2 012 DECLARING TOTAL INCOME OF RS.28,520/-. DURING THE COURSE OF ASSESSM ENT PROCEEDINGS, THE SUBSTANTIAL AMOUNTS OF SUNDRY CREDITORS SHOWN BY TH E ASSESSEE-COMPANY IN ITS BALANCE-SHEET WERE EXAMINED BY THE ASSESSING OFFICER. DURING THE ITA NO. 611/KOL/2019 ASS ESSMENT YEAR: 2012-2013 STAN COMMODITIES (P) LIMITED 2 COURSE OF SAID EXAMINATION, A NOTICE UNDER SECTION 133(6) WAS ISSUED BY HIM TO M/S. STEEL AND COAL JUNCTION, ONE OF THE SUN DRY CREDITORS OF THE ASSESSEE HAVING AN OUTSTANDING BALANCE OF RS.2,49,6 0,381/-. THE SAID NOTICE, HOWEVER, COULD NOT BE SERVED BY THE POSTAL AUTHORITY AT THE ADDRESS GIVEN BY THE ASSESESE. THE ASSESSEE ALSO CO ULD NOT FURNISH ANY EVIDENCE TO ESTABLISH THE EXISTENCE OF THE SAID CRE DITOR. NEITHER THE BOOKS OF ACCOUNT FOR THE YEAR UNDER CONSIDERATION NOR EVE N THE PURCHASE BILLS ISSUED BY M/S. STEEL AND COAL JUNCTION COULD BE PRO DUCED BY THE ASSESSEE. THE ASSESSING OFFICER, THEREFORE, TREATED M/S. STEE L AND COAL JUNCTION AS A BOGUS CREDITOR AND AN ADDITION OF RS.2,49,60,381/- WAS MADE BY HIM TO THE TOTAL INCOME OF THE ASSESSEE. 3. THE NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTION 133(6) TO ANOTHER CREDITOR NAMELY ASHIRWAD STEEL AND INDUSTRI ES WAS ALSO RETURNED BY THE POSTAL AUTHORITY WITH THE COMMENT NOT KNOWN . ALTHOUGH THE ASSESSEE FILED A LEDGER COPY OF THE SAID PARTY SHOW ING PAYMENTS OF RS.22,00,000/- MADE DURING THE YEAR UNDER CONSIDERA TION, THE ASSESSING OFFICER FOUND THAT CASH WAS DEPOSITED BY THE ASSESS EE-COMPANY IN ITS BANK ACCOUNT IMMEDIATELY BEFORE THE SAID CHEQUE PAY MENTS. SINCE THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF THE SAID C ASH DEPOSITS, AN ADDITION OF RS.22,00,000/- WAS MADE BY THE ASSESSIN G OFFICER TO THE TOTAL INCOME OF THE ASSESSEE. SIMILARLY A NOTICE SENT BY THE ASSESSING OFFICER UNDER SECTION 133(6) TO M/S. ENVIRONMENT MINERAL EX PORT REMAINED UN- SERVED BY THE POSTAL AUTHORITY AS THE SAID PARTY CO ULD NOT BE FOUND AT THE ADDRESS GIVEN BY THE ASSESSEE. ALTHOUGH THE ASSESSE E CLAIMED THAT A SUM OF RS.30,00,000/- WAS RECEIVED FROM THE SAID PARTY DURING THE YEAR UNDER CONSIDERATION THROUGH BANK, THE ASSESSING OFFICER F OUND THAT THE SAID AMOUNT WAS RECEIVED BY THE ASSESSEE IN CASH. KEEPIN G IN VIEW THAT THE EXISTENCE OF THE SAID PARTY WAS NOT ESTABLISHED AND THE RECEIPT OF CASH OF RS.30,00,000/- FROM THE SAID PARTY REMAINED UNEXPLA INED, THE ASSESSING OFFICER MADE AN ADDITION OF RS.30,00,000/- TO THE T OTAL INCOME OF THE ASSESSEE. FOR THE SAME REASON, HE ALSO MADE A FURTH ER ADDITION OF ITA NO. 611/KOL/2019 ASS ESSMENT YEAR: 2012-2013 STAN COMMODITIES (P) LIMITED 3 RS.49,000/- ON ACCOUNT OF CASH OF RS.49,000/- CLAIM ED TO BE RECEIVED BY THE ASSESSEE FROM ANOTHER PARTY MS. RITU PODDAR. AC CORDINGLY THE TOTAL INCOME OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERA TION WAS DETERMINED BY THE ASSESSING OFFICER AT RS.3,02,37,898/- IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) OF THE ACT VIDE AN ORDER DATED 27.03.2015. 4. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEF ORE THE LD. CIT(APPEALS) AND SINCE THERE WAS NO 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 05.02.2019 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 5. 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 ISSUED RAISED BY THE ASSESSEE IN THIS APPEAL CHALLE NGING THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PARTE, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE FIRST NOTICE STATED TO BE ISSUED BY THE LD. CIT(APPEALS) FIXING THE APPEAL OF THE ASSESSEE FOR HEARING ON 24.12.2018 WAS NOT RECEIVED BY THE ASSESSEE, WHILE THERE WAS V ERY SHORT TIME WHICH WAS MADE AVAILABLE TO THE ASSESSEE TO COMPLY WITH T HE NOTICES ISSUED SUBSEQUENTLY FIXING THE APPEAL OF THE ASSESSEE FOR HEARING IN A SHORT SUCCESSION ON 25.01.2019 AND 04.02.2019. HE HAS CON TENDED THAT PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD THUS WAS NOT GIVEN BY THE LD. CIT(APPEALS) TO THE ASSESSEE BEFORE DISMISSING THE APPEAL OF THE ASSESESE VIDE HIS IMPUGNED ORDER PASSED EX-PARTE AND THIS P OSITION CLEARLY APPARENT FROM THE PERUSAL OF THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) IS NOT DISPUTED EVEN BY THE LD. D.R. WE, THEREFORE, FIND IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO SET ASIDE THE IMP UGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PARTE AND REMIT THE MATTER BACK TO HIM FOR ITA NO. 611/KOL/2019 ASS ESSMENT YEAR: 2012-2013 STAN COMMODITIES (P) LIMITED 4 DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON M ERIT IN ACCORDANCE WITH LAW AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS UNDERTAKEN BY THE LD. COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE LD. CIT(APPEAL S) AND SHALL EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT(APPEALS) TO DISPOSE OF THE APPEAL AFRESH EXPEDITIOUSLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JUNE 29, 2020 . SD/- SD/- (A.T. VARKEY) (P.M. JAGTAP) JUDICIAL MEMBER VIC E-PRESIDENT) KOLKATA, THE 29 TH DAY OF JUNE, 2020 COPIES TO : (1) STAN COMMODITIES (P) LIMITED, C/O. SUBASH AGARWAL & ASSOCIATES, ADVOCATES, SIDDHA GIBSON, 1, GIBSON LANE, SUITE 213, 2 ND FLOOR, KOLKATA-700069 (2) INCOME TAX OFFICER, WARD-3(2), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-1, K OLKATA; (4) COMMISSIONER OF INCOME TAX- , KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.