M/s Vipul Eastern Infracon (p) Ltd., Kolkata V. ITO, Wd.8(2), Kolkata, Kolkata

ITA 66/KOL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1382 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-10-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 12-01-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MD USMAN CIT LD
• Assessee Lawyers: ASHOK KUMAR TULSYAN FCA LD
• Keywords: Assessment record
• Section: 263

Judgement Text

1 ITA NO.66/KOL/2017 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: K OLKATA BEFORE: SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUD ICIAL MEMBER I.T.A NO. 66/KOL/2017 A.Y: 2011-12 M/S. VIPUL EASTERN VS. I.T.O. WARD 8(2), KOLKATA INFRACON (P) LTD. PAN: AACU3090R [APPELLANT] [RESPONDEN T] FOR THE APPELLANT : SHRI ASHOK KUMAR TULSYAN, FCA, LD.AR FOR THE RESPONDENT : MD. USMAN, CIT, LD.SR.DR DATE OF HEARING : 19-09-2017 DATE OF PRONOUNCEMENT : 06-10-2017 ORDER SHRI S.S.VISWANETHRA RAVI, JM: THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER D T. 30-10- 2015 PASSED BY THE PR. CIT, KOLKATA FOR THE ASSESSM ENT YEAR 2011- 12. 2. HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. 3. THE LD.AR OF THE ASSESSEE SUBMITS THAT THE AO AL LOWED THE PAYMENTS MADE TO AN EXTENT OF RS. 225 LAKH UNDER TH E HEAD AS COMPENSATION PAYMENT. THE PR. CIT U/SEC 263 PROC EEDINGS WAS OF THE OPINION THAT THE PAYMENT OF RS. 150 LAKHS PAID TO TOPLINE BARTER PVT. LTD WAS NEITHER OWNER OF THE LAND NOR HAD ANY AGREEMENT WITH THE ASSESSEE FOR THE USE OF THE LAND. REGARDING OTH ER PAYMENT OF 75 LAKHS, THE PR. CIT WAS OF THE OPINION THAT THE ASSE SSEE ENTERED WITH AN AGREEMENT OF SALE OF PROPERTY WITH GLOBAL CASTIN G PVT. LTD, BUT SOLD TO ROSE VALLEY HOTELS & ENTERTAINMENTS LTD. TH EREBY, HE HELD THAT THE SAID PAYMENTS WERE NOT BUSINESS EXPENDITUR E OF THE ASSESSEE AND HELD ASSESSMENT ORDER DT. 17-03-2014 I S ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE AND DIRECTED THE AO TO REASSESS 2 ITA NO.66/KOL/2017 THE INCOME OF THE ASSESSEE AFTER MAKING PROPER ENQU IRY BY GIVING AN OPPORTUNITY TO THE ASSESSEE. 4. THE LD.DR SUBMITS THAT THE AO DID NOT CONSIDER T HE PAYMENT AT ALL IN THE ASSESSMENT PROCEEDINGS AND ESCAPED THE SAID INCOME TO TAX. HE ALSO SUBMITTED THAT THE ASSESSEE DID NOT C O-OPERATE WITH THE AO AND THE CIT IN THE RESPECTIVE PROCEEDINGS. 5. WE FIND THAT THE PR. CIT ISSUED NOTICE DT. 14-09 -2015 FIXING THE HEARING ON 30-09-2015. THE SAID NOTICE WAS RETURNED UNSERVED WITH AN ENDORSEMENT NOT CLAIMED. WE NOTE THAT THE PR. CIT ON PERUSAL OF THE ASSESSMENT RECORD FOUND THAT THE AO FAILED TO M AKE PROPER ENQUIRY WHICH WERE REQUIRED TO BE MADE TO ASCERTAIN THE RELEVANT FACTS WHICH ARE NECESSARY TO ALLOW THE CLAIM OF AS SESSEE AND THE SAID OPINION OR FINDING FORMED BY THE PR. CIT WAS NOT PR OSECUTED BY THE ASSESSEE BEFORE HIM AND WITHOUT THERE BEING PROPER ADJUDICATION, WE RESTRAIN OURSELVES IN INTERFERING WITH THE ORDER OF THE PR. CIT AND THEREFORE, TAKING INTO CONSIDERATIONS THE SUBMISSIO NS OF BOTH THE PARTIES AND IN THE INTEREST OF JUSTICE, WE DEEM IT FIT AND PROPER TO REMAND THE GROUNDS AS RAISED BY THE ASSESSEE BEFORE US TO THE FILE OF THE PR. CIT. THEREFORE, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 06-1 0-2017 SD/- SD/- WASEEM AHMED S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 06-10-2017 PP(SR.P.S.) 3 ITA NO.66/KOL/2017 COPY OF THE ORDER FORWARDED TO: 1 . A PPELLANT / ASSESSEE: M/S. VIPUL EASTERN INFRACON PVT. LTD C/O A.K TULSYAN & ASSOCIATES, SWASTIC CENTRE, 4 TH FLOOR, P-8, CHOWRINGHEE SQUARE, KOLKATA-69. 2 RESPO NDENT / REVENUE : THE I T O, WARD 8(2), AAYKAR BHAVAN , P-7, CHOWRINGHEE SQUARE, KOLKATA-69. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR.PS/H.O. O ITAT KOLKATA