M/S. Abhilasha Exports Pvt. Ltd., Kolkata V. I.T.O., Ward - 15(1), Kolkata, Kolkata

ITA 73/KOL/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 5301 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-11-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: B
• Next Hearing Date: 24-09-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 29-01-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Wrong claim; Accommodation entries; TDS; Set aside
• Section: 148; 143(3); 234B; 250

Judgement Text

| आयकर अपीलीय अिधकरण ᭠यायपीठ, कोलकाता | IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, KOLKATA BEFORE SHRI SANJAY GARG, HON’BLE JUDICIAL MEMBER & DR. MANISH BORAD, HON’BLE ACCOUNTANT MEMBER I.T.A. No. 73/Kol/2023 Assessment Year: 2011-12 M/s. Abhilasha Exports Pvt. Ltd. C/o M/s. Salarpuria Jajodia & Co. 7, C.R. Avenue 3 rd Floor Kolkata - 700072 [PAN : AAHCA5909J] Vs Income Tax Officer, Ward- 15(1), Kolkata अपीलाथᱮ/ (Appellant) ᮧ᭜ यथᱮ/ (Respondent) Assessee by : None Revenue by : Shri Abhijit Kundu, CIT, D/R सुनवाई कᳱ तारीख/Date of Hearing : 25/09/2023 घोषणा कᳱ तारीख /Date of Pronouncement: 15/11/2023 आदेश/O R D E R PER DR. MANISH BORAD, ACCOUNTANT MEMBER : The present appeal is directed at the instance of the assessee against the order of the National Faceless Appeal Centre, Delhi (hereinafter the “ld. CIT(A)”) dt. 29/12/2023, passed u/s 250 of the Income Tax Act, 1961 (“the Act”) for the Assessment Year 2011-12. 2. When the assessee was called for, none appeared on behalf of the assessee. Perusal of the record indicates that in the past, Shri Siddharth Jhajharia, was appearing as authorised representative but vide letter dt. 25/09/2023, he submitted that due to some unavoidable reasons, he intends to withdraw his power and has informed the assessee company to collect the no objection from him. We also observe that during the course hearing before the ld. CIT(A), assessee failed to appear on various dates of hearing and ld. CIT(A) framed an 2 I.T.A. No. 73/Kol/2023 Assessment Year: 2011-12 M/s. Abhilasha Exports Pvt. Ltd. ex-parte order confirmed the addition made by the Assessing Officer. We thus proceed to adjudicate the appeal on the basis of available records. 3. The assessee has raised the following grounds of appeal:- 1. For that in view of the facts and in the circumstances the Ld. CIT(A) was wholly unjustified in passing an exparte order without even discussing the merits of the matter and without even adjudicating the merits so raised in Ground of Appeal and in view of the fact the impugned order is liable to be set aside / remanded/ cancelled and it may be held accordingly. 2. Without prejudice to Ground No. 1 above, the Ld. CIT(A) has adjudicated the impugned order as exparte on the alleged ground of the appellant not having responded to the notices issued by Ld. CIT(A) and in such respect. Ld. CIT(A) failed to appreciate the fact that the impugned notices have been claimed to have been served on the ITBA which the appellant was not aware about and hence the alleged failure on part of appellant and hence the impugned order is liable to be set aside / remanded/ cancelled and it may be held accordingly. 3. Without prejudice to Grounds No. 1 & 2 above, the Ld. CIT(A) erred in not adjudicating on the validity of the impugned order u/s 144/ 147/ 143(3) and in view of the facts and in the circumstances it may be held accordingly. 4. Without prejudice to Grounds No. 1, 2 & 3 above, the Ld. CIT(A) erred in not adjudicating on the bogus addition of Rs. 22,68,66,860/- on account of estimated G.P. @ 8% calculated on the allegedly suppressed sale of Rs. 283,57,35,751/- and in view of the facts and in the circumstances it may be held accordingly. 5. Without prejudice to Grounds No. 1, 2, 3 & 4 above, the Ld. CIT(A) erred in not adjudicating on the baseless and addition of Rs. 62,93,70,000/- on account of expenses claimed in connection with contractual work and in view of the facts and in the circumstances it may be held accordingly. 6. For that in view of the facts and in the circumstances the Ld. CIT(A) was wholly unjustified in merely setting aside the order of AO in disallowing the credit for TDS of Rs. 36,133/- and in view of the facts and in the circumstances it may be held accordingly. 7. For that in view of the facts and in the circumstances the Ld. CIT(A) was wholly unjustified in affirming the action of the AO charging interest of Rs. 24,93,05,751/- and Rs. 7,42,646/- u/s 234B & 234D respectively and in 3 I.T.A. No. 73/Kol/2023 Assessment Year: 2011-12 M/s. Abhilasha Exports Pvt. Ltd. view of the facts and in the circumstances the AO may kindly be directed to delete the same. 8. For that your petitioner craves the right to alter / amend / modify the present grounds at the time of hearing.” 4. We will first take up Ground No. 1 & 2 through which the assessee has stated that he failed to get any notice and even if the same has been uploaded on the ITBA Income tax portal, the assessee was totally unaware and thus failed to appear on the given dates of hearing. The ld. D/R submitted that the notice of hearing were given on the e-mail address mentioned on the profile of the assessee company. 5. We have heard the ld. D/R perused the record placed before us. We notice that the assessee is a private limited company and declared income of Rs. 10,56,610/- in the e-return filed on 22/10/2011 for Assessment Year 2011-12. Case of the assessee was assessed u/s 143(3) of the Act vide order dt. 21/10/2013, determining the total income at Rs. 18,90,359/-. Thereafter information received from ADIT (Inv.) Unit -1(2), New Delhi, regarding certain transactions in the nature of accommodation entries. Notice u/s 148 of the Act were issued and duly served. The assessee merely furnished copies of bank statement and thereafter did no place any further information on record as called for by the ld. Assessing Officer. The ld. Assessing Officer accordingly made addition by way of applying high gross profit rate on the undisclosed sales thereby making addition of Rs.22,68,66,860/- and also made addition towards bogus claim of expenses in relation to contractual work at Rs.62,93,70,000/-. Income assessed at 4 I.T.A. No. 73/Kol/2023 Assessment Year: 2011-12 M/s. Abhilasha Exports Pvt. Ltd. Rs.85,81,27,219/-. Thereafter the assessee challenged the addition made by the Assessing Officer before the ld. CIT(A) but after filing the appeal did not appear on any of the dates of hearing which thus left any option for the ld. CIT(A) except to confirm the addition by giving the finding on merits. We notice that huge additions have been made in the hands of the assessee and when notices were issued, the assessee did not appear. The initial notices have been issued during Covid restrictions and has stated by the assessee that he was not aware of any of the notices issued on the ITBA portal as it was merely dealt with by the consultant taking care of the Income-tax matters. The finding of the ld. CIT(A) is merely a replica of the finding of the Assessing Officer and in absence of any details being filed by the assessee, the facts have not come on record. We, therefore, being fair to both the parties in the interest of justice and in order to compute the correct income of the assessee and also to adhere to the principles of natural justice, we deem it fit and proper to restore the issues on merits raised before us to the file of the ld. CIT(A) for fresh adjudication. 6. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the Court on 15 th November, 2023 at Kolkata. Sd/- Sd/- (SANJAY GARG) (DR. MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER Kolkata, Dated 15/11/2023 *SC SrPs 5 I.T.A. No. 73/Kol/2023 Assessment Year: 2011-12 M/s. Abhilasha Exports Pvt. Ltd. आदेश कᳱ ᮧितिलिप अᮕेिषत/Copy of the Order forwarded to : 1. अपीलाथᱮ / The Assessee 2. ᮧ᭜यथᱮ / The Respondent 3. संबंिधत आयकर आयुᲦ / Concerned Pr. CIT 4. आयकर आयुᲦ)अपील (/ The CIT(A)- 5. िवभागीय ᮧितिनिध ,आयकर अपीलीय अिधकरण, कोलकाता/DR,ITAT, Kolkata, 6. गाडᭅ फाई/ Guard file. आदेशानुसार/ BY ORDER, TRUE COPY Assistant Registrar आयकर अपीलीय अिधकरण ITAT, Kolkata