Eisenmann India Private Limited , Mumbai V. ITO, Ward - 3(1), Kolkata , Kolkata

ITA 689/KOL/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6035 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 12-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Application of stay; Additional evidence
• Section: 143(3); 68

Judgement Text

I.T.A. NO 689/KOL/2018 ASSESSMENT YEAR: 2013-2014 & S.A. NO.70/KOL/2018 (IN ITA NO. 689/KOL/2018) ASSESSMENT YEAR: 2013-2014 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 689/KOL/2018 ASSESSMENT YEAR: 2013-2014 EISENMANN INDIA PRIVATE LIMITED,................... ....................APPELLANT TECHNOSOFT KNOWLEDGE GATEWAY, 1 ST FLOOR, PLOT NO. B-14, WAGLE INDUSTRIAL ESTATE, THANE(W)-400 604 [PAN: AACCE 4632 P] -VS.- INCOME TAX OFFICER,................................ ..............................RESPONDENT WARD-3(1), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 & S.A. NO. 70/KOL/2018 (ARISING OUT OF ITA NO. 689/KOL/2018) ASSESSMENT YEAR: 2013-2014 EISENMANN INDIA PRIVATE LIMITED,................... ....................APPLICANT TECHNOSOFT KNOWLEDGE GATEWAY, 1 ST FLOOR, PLOT NO. B-14, WAGLE INDUSTRIAL ESTATE, THANE(W)-400 604 [PAN: AACCE 4632 P] -VS.- INCOME TAX OFFICER,................................ ..............................RESPONDENT WARD-3(1), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 APPEARANCES BY: SHRI K.K. VED, A.R, FOR THE APPELLANT SHRI S. DASGUPTA, ADDL. CIT, D.R., FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : JULY 05, 2018 DATE OF PRONOUNCING THE ORDER : JULY 05, 2018 I.T.A. NO 689/KOL/2018 ASSESSMENT YEAR: 2013-2014 & S.A. NO.70/KOL/2018 (IN ITA NO. 689/KOL/2018) ASSESSMENT YEAR: 2013-2014 PAGE 2 OF 5 O R D E R PER SHRI P.M. JAGTAP, A.M. :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-1, KOLKATA DAT ED 28.03.2018 PASSED EX-PARTE AND THE SAME IS BEING DISPOSED OF ALONG WITH THE S TAY APPLICATION FILED BY THE ASSESSEE BEING S.A. NO. 70 /KOL/2018. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH IS ENGAGED IN THE BUSINESS OF DESIGN, SUPPLY AND INSTALLATION OF PAINT FINISHING SYSTEMS AND CONVEYORS ON A TURNKEY BASIS. THE RETURN OF INC OME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 28.11.2013 D ECLARING A LOSS OF RS.11,90,70,474/-. IN THE ASSESSMENT COMPLETED UNDE R SECTION 143(3) VIDE AN ORDER DATED 31.03.2016, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE ASSESSING OFFICER AT RS.89,60,651 /- AFTER MAKING THE FOLLOWING ADDITIONS:- (1) SHARE APPLICATION MONEY TREATED AS UNEXPLAINED CASH CREDITS UNDER SECTION 68 RS.9,70,00,000/ - (2) DISALLOWANCE OF WARRANTY EXPENSES RS.2,60,00,000/ - (3) DISALLOWANCE UNDER SECTION 40(A)(IA) RS. 43,54,754/ - (4) DISALLOWANCE OF INTEREST ON DELAYED PAYMENT OF TAXES RS. 1,05,232/ - (5) DISALLOWANCE OF PENALTY RS. 3,64,000/ - (6) DISALLOWANCE OF FINANCIAL CHARGES RS. 2,07,139/ - 3. 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) DISPUTING THE VARIOUS ADDITIONS MADE B Y THE ASSESSING OFFICER AND SINCE THERE WAS NO SATISFACTORY COMPLIA NCE ON THE 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 28.03.2018 PASSED EX-PARTE . I.T.A. NO 689/KOL/2018 ASSESSMENT YEAR: 2013-2014 & S.A. NO.70/KOL/2018 (IN ITA NO. 689/KOL/2018) ASSESSMENT YEAR: 2013-2014 PAGE 3 OF 5 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 IN GROUND NO. 1 CHALLENGING THE IMPUGNED ORD ER PASSED BY THE LD. CIT(APPEALS), THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE APPEAL OF THE ASSESSEE WAS FIXED FOR HEARING BY THE LD. CIT(APPEALS) ON THREE DATES, I.E. 14.03.2018, 21.03.2018 AND 27.03. 2018. HE HAS SUBMITTED THAT THE ASSESSEE HAD SOUGHT ADJOURNMENTS ON 14.03. 2018 AND 21.03.2018 AND GRANTING THE SAME, THE APPEAL OF THE ASSESSEE W AS FIXED FOR HEARING BY THE LD. CIT(APPEALS) ON 27.03.2018. HE HAS INVITED OUR ATTENTION TO PARAGRAPH NO. 3 OF THE IMPUGNED ORDER OF THE LD. CI T(APPEALS) TO POINT OUT THAT THE APPEAL OF THE ASSESSEE WAS DISMISSED B Y THE LD. CIT(APPEALS) VIDE HIS IMPUGNED ORDER PASSED ON 28.03.2018 ON THE GROUND THAT NONE APPEARED ON BEHALF OF THE ASSESSEE ON 27.03.2018 NO R ANY WRITTEN SUBMISSION WAS FILED BY THE ASSESSEE. HE HAS CONTEN DED THAT C.A. SHRI P.B. CHHAPGAR, AUTHORIZED REPRESENTATIVE OF THE ASSESSEE NOT ONLY ATTENDED THE OFFICE OF THE LD. CIT(APPEALS) BUT ALSO FILED A WRITTEN SUBMISSION ALONG WITH THE APPLICATION FOR ADDITIONAL EVIDENCE, WHICH WAS DULY RECEIVED BY THE OFFICE OF THE CIT(APPEALS) ON 27.03.2018. HE HA S SUBMITTED THAT THE STAFF MEMBER OF THE LD. CIT(APPEALS)S OFFICE, HOWE VER, INFORMED THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE THAT THE HEARING WOULD NOT TAKE PLACE ON 27.03.2018 SINCE THE LD. CIT(APPEALS) WAS VERY BUSY. HE ALSO INFORMED THAT THE NEXT HEARING WOULD BE FIXED ON SO ME OTHER DATE AND NOTICE OF THE SAME WOULD BE ISSUED TO THE ASSESSEE. HE HAS CONTENDED THAT IT WAS THUS NOT A CASE OF NON-APPEARANCE OR NON-COM PLIANCE ON THE PART OF THE ASSESSEE BEFORE THE LD. CIT(APPEALS) AS ON 27.0 3.2018 AS WRONGLY PRESUMED BY THE LD. CIT(APPEALS) AND THE LD. CIT(AP PEALS) HAS DISMISSED THE APPEAL OF THE ASSESSEE VIDE HIS IMPUGNED ORDER PASSED EX-PARTE ON THE BASIS OF SUCH WRONG PRESUMPTION WITHOUT GIVING PROP ER AND SUFFICIENT I.T.A. NO 689/KOL/2018 ASSESSMENT YEAR: 2013-2014 & S.A. NO.70/KOL/2018 (IN ITA NO. 689/KOL/2018) ASSESSMENT YEAR: 2013-2014 PAGE 4 OF 5 OPPORTUNITY OF BEING HEARD. SINCE THESE SUBMISSIONS MADE BY THE LD. COUNSEL FOR THE ASSESSEE ARE DULY SUPPORTED BY THE AFFIDAVIT FILED BY C.A. SHRI P.B. CHHAPGAR AFFIRMING THE RELEVANT FACTS ON OATH AS WELL AS THE SUBMISSIONS OF THE ASSESSEE DATED 26.03.2018 DULY R ECEIVED BY THE OFFICE OF THE LD. CIT(APPEALS), WE FIND THAT THE IMPUGNED ORDER IS PASSED BY THE LD. CIT(APPEALS) WITHOUT GIVING PROPER AND SUFFICIE NT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THERE IS A CLEAR VI OLATION OF PRINCIPLE OF NATURAL JUSTICE. EVEN THE LD. D.R. HAS NOT DISPUTED THIS POSITION, WHICH IS CLEARLY EVIDENT FROM THE RELEVANT RECORD PLACED BEF ORE THE TRIBUNAL. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY T HE LD. CIT(APPEALS) EX-PARTE AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT AFTER GIVING PROPER AN D SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. AS A RESULT OF DISPOSAL OF THE APPEAL OF THE ASS ESSEE, THE STAY APPLICATION FILED BY THE ASSESSEE BEING S.A. NO. 70 /KOL/2018 HAS BECOME INFRUCTUOUS AND THE SAME IS ACCORDINGLY DISMISSED. 6. IN THE RESULT, THE STAY APPLICATION FILED BY THE ASSESSEE IS DISMISSED WHILE THE APPEAL OF THE ASSESSEE IS TREAT ED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JULY 05, 2018 . SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP ) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 5 TH DAY OF JULY, 2018 COPIES TO : (1) EISENMANN INDIA PRIVATE LIMITED, TECHNOSOFT KNOWLEDGE GATEWAY, 1 ST FLOOR, PLOT NO. B-14, WAGLE INDUSTRIAL ESTATE, THANE(W)-400 604 I.T.A. NO 689/KOL/2018 ASSESSMENT YEAR: 2013-2014 & S.A. NO.70/KOL/2018 (IN ITA NO. 689/KOL/2018) ASSESSMENT YEAR: 2013-2014 PAGE 5 OF 5 (2) INCOME TAX OFFICER, WARD-3(1), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-1, KOLKA TA, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/D.D.O. INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.