BPMK Energy Systems Private Limited, Kolkata V. I.T.O.,Ward-10(1), Kolkata

ITA 787/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0644 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 12-04-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAYANT KHANRA
• Keywords: Opportunity of being heard; Set aside
• Section: 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (SMC), KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT (KZ)] I.T.A. NO. 787/KOL/2019 ASSESSMENT YEAR: 2009-10 BPMK ENERGY SYSTEMS PRIVATE LIMITED........................................APPELLANT C/O. RAJESH MOHAN & ASSOCIATES, UNIT NO. 18, 5 TH FLOOR, BAGATI HOUSE, 34, GANESH CHANDRA AVENUE, KOLKATA 700 013. [PAN: AABCB 2804 K] VS ITO, WARD-10(1)KOLKATA..................................RESPONDENT P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. APPEARANCES BY: SHRI SUNIL SURANA, FCA APPEARING ON BEHALF OF THE ASSESSEE. SHRI JAYANT KHANRA, JCIT, SR. DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : SEPTEMBER 16, 2019 DATE OF PRONOUNCING THE ORDER : SEPTEMBER 16, 2019 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 4, KOLKATA DATED 27.03.2019 PASSED EX-PARTE WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH IS ENGAGED IN THE BUSINESS OF TRADING IN ELECTRICAL APPLIANCES. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 01.10.2009 DECLARING A TOTAL INCOME OF RS. 3,970/-. IN THE ASSESSMENT ORIGINALLY COMPLETED U/S 147/143(3) OF THE ACT VIDE AN ORDER DATED 30.03.2011, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE AO AT RS. 70,510/-. THE SAID ASSESSMENT WAS AGAIN REOPENED BY THE AO AND IN THE FRESH ASSESSMENT COMPLETED US 147/143(3) VIDE AN ORDER DATED 25.11.2016, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE AO AT RS. 10,70,510/- AFTER MAKING AN ADDITION OF RS. 10,00,000/- BY 2 I.T.A. NO. 787/KOL/2019 ASSESSMENT YEAR: 2009-10 BPMK ENERGY SYSTEMS PRIVATE LIMITED TREATING THE CASH DEPOSITS FOUND TO BE MADE IN THE BANK ACCOUNT OF THE ASSESSEE AS UNEXPLAINED. 3. THE ADDITION OF RS. 10,00,000/- MADE BY THE AO TO ITS TOTAL INCOME BY TREATING THE CASH DEPOSITS MADE IN THE BANK ACCOUNT AS UNEXPLAINED WAS CHALLENGED BY THE ASSESSEE IN THE APPEAL FILED BEFORE LD. CIT(A) AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION VIDE HIS APPELLATE ORDER DATED 27.03.2019 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN SUPPORT OF THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL CHALLENGING THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE, THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT NONE OF THE NOTICES ISSUED BY THE LD. CIT(A) FIXING THE APPEAL OF THE ASSESSEE FOR HEARING WAS EVER RECEIVED BY THE ASSESSEE AND SUCH NON-RECEIPT OF NOTICES RESULTED INTO THE NON-APPEARANCE OF THE ASSESSEE BEFORE THE LD. CIT(A) WHEN ITS APPEAL WAS CALLED FOR HEARING BEFORE THE LD. CIT(A). I AM NOT FULLY SATISFIED WITH THIS SUBMISSION MADE BY THE LEARNED COUNSEL FOR THE ASSESSEE. IT IS OBSERVED THAT THE APPEAL FILED BY THE ASSESSEE WAS FIXED FOR HEARING BEFORE THE LD. CIT(A) INITIALLY ON 03.10.2018 WHEN THE ASSESSEE SOUGHT ADJOURNMENT. THE ASSESSEE THUS HAD RECEIVED AT LEAST THE NOTICE OF FIRST HEARING SENT BY THE LD. CIT(A) AND HAVING SOUGHT ADJOURNMENT ON THE SAID DATE, I AM OF THE VIEW THAT THE ASSESSEE OUGHT 3 I.T.A. NO. 787/KOL/2019 ASSESSMENT YEAR: 2009-10 BPMK ENERGY SYSTEMS PRIVATE LIMITED TO HAVE PURSUED THE MATTER TO FIND OUT THE NEXT DATE OF HEARING GIVEN BY THE LD. CIT(A) AND COMPLIED WITH THE SAME. AT THE SAME TIME, IT IS ALSO OBSERVED THAT THE LD. CIT(A), AS PER THE PROVISIONS OF SUB-SECTION (6) OF SECTION 250 WAS REQUIRED TO DISPOSE OF THE APPEAL OF THE ASSESSEE VIDE AN ORDER IN WRITING STATING THEREIN THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR THE DECISION. IT IS OBSERVED THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) DOES NOT COMPLY WITH THESE REQUIREMENTS. KEEPING IN VIEW ALL THESE FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE VIEW THAT THE MATTER SHOULD GO BACK TO THE LD. CIT(A) FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 250(6) SUBJECT TO A PAYMENT OF COST OF RS. 5,000/- BY THE ASSESSEE TO THE DEPARTMENT. I, THEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT IN ACCORDANCE WITH LAW AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS UNDERTAKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE LD. CIT(A) AND SHALL EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT(A) TO DISPOSE OF THE APPEAL EXPEDITIOUSLY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH SEPTEMBER, 2019. SD/- (P.M. JAGTAP) VICE PRESIDENT DATED: 16/09/2019 BISWAJIT, SR. PS 4 I.T.A. NO. 787/KOL/2019 ASSESSMENT YEAR: 2009-10 BPMK ENERGY SYSTEMS PRIVATE LIMITED COPY OF ORDER FORWARDED TO: 1. BPMK ENERGY SYSTEMS PRIVATE LIMITED, C/O. RAJESH MOHAN & ASSOCIATES, UNIT NO. 18, 5 TH FLOOR, BAGATI HOUSE, 34, GANESH CHANDRA AVENUE, KOLKATA 700 013. 2. ITO, WARD 10(1), KOLKATA. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA