The Waterbase Limited, Kolkata V. DCIT, Circle-5(1), Kolkata, Kolkata

ITA 796/KOL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1420 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 20-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANDEEP VIMAL
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice
• Section: 143(3); 14A; 115JB

Judgement Text

I.T.A. NO. 796/KOL./2017 ASSESSMENT YEAR: 2012-2013 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA SMC BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NO. 796/KOL/2017 ASSESSMENT YEAR: 2012-2013 THE WATERBASE LIMITED,............................. .......................APPELLANT THAPAR HOUSE, 25, BRABOURNE ROAD, KOLKATA-700 001 [PAN: AABCT 0601 L]] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,........... ......RESPONDENT CIRCLE-5(1), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 APPEARANCES BY: SHRI SANDEEP VIMAL, FCA, FOR THE ASSESSEE SHRI SAILEN SAMADDAR, ADDL. CIT, D.R., FOR THE DEPA RTMENT DATE OF CONCLUDING THE HEARING : SEPTEMBER 26, 201 7 DATE OF PRONOUNCING THE ORDER : SEPTEMBER 26, 2017 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)-2, KOLKATA DAT ED 06.01.2017 PASSED EX-PARTE . 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH IS ENGAGED IN THE BUSINESS OF AQUA CULTURE AND TRADING OF FISH, C RAB AND FISH FEED. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION W AS FILED BY IT ON 28.09.2012 DECLARING TOTAL INCOME AT NIL AND BOOK LOSS OF RS.6,84,76,528/- UNDER SECTION 115JB OF THE ACT. IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 25.02.2015, THE I.T.A. NO. 796/KOL./2017 ASSESSMENT YEAR: 2012-2013 PAGE 2 OF 4 FOLLOWING ADDITIONS WERE MADE BY THE ASSESSING OFFI CER TO THE TOTAL INCOME OF THE ASSESSEE:- (I) DISALLOWANCE OF CAPITAL EXPENSES RS. 1,52,969/ - (II) DISALLOWANCE OF DEPRECIATION RS. 30,548/ - (III) DISALLOWANCE OF PUJA EXPENSES RS. 3,09,388/ - (IV) UNDISCLOSED INCOME RS.11,62,973/ - (V) DISALLOWANCE UNDER SECTION 14A RS. 19,352/ - 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) CHALLENGING THE VARIOUS ADDITIONS MADE BY THE ASSESSING OFFICER TO ITS TOTAL INCOME AND SINCE THERE WAS NO 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(APPEALS) DIS MISSED THE APPEAL OF THE ASSESSEE BY HIS APPELLATE ORDER DATED 06.01.201 7 PASSED EX-PARTE . AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), 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 THE PRELI MINARY ISSUE RAISED IN GROUND NO. 1 OF THIS APPEAL, THE ASSESSEE HAS CHALL ENGED THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) ON THE GROUND THAT NO PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD WAS GIVEN BY THE LD. CIT(APPEALS) TO THE ASSESSEE, WHICH IS IN VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. IN THIS REGARD, AN AFFIDAVIT HAS BEEN FILED ON BEHALF OF TH E ASSESSEE EXPLAINING THE REASONS FOR NON-APPEARANCE BEFORE THE LD. CIT(APPEA LS) AS UNDER:- 2. THAT THE COMPANY HAD RECEIVED NOTICES DATED 10 TH AUGUST, 2016, 20 TH OCTOBER, 2016 AND 13 TH DECEMBER, 2016 FROM THE COMMISSIONER OF INCOME TAX APPEALS-2 IN RE SPECT OF APPEAL NO. 50/CIT(A)-2/15-16 FOR THE ASSESSMENT YEA R 2012- 2013. 3. THAT THE RESPONSIBILITY OF ATTENDING TO AND COM PLYING WITH ALL INCOME TAX MATTERS WAS ENTRUSTED TO MR. S. MAJU MDER SON OF SHRI BHUPAL MAJUMDER AS AN AUTHORIZED REPRESENTA TIVE OF I.T.A. NO. 796/KOL./2017 ASSESSMENT YEAR: 2012-2013 PAGE 3 OF 4 THE COMPANY. THAT MR. S. MAJUMDER HAD ALSO APPEARED BEFORE THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEED INGS FOR THE ASSESSMENT YEAR 2012-2013. 4. THE SAID MR. S. MAJUNDER NEITHER ATTENDED TO TH E NOTICES OF THE COMMISSIONER OF INCOME TAX (APPEALS)-2 AND NOR DID HE INFORM THE COMPANY WITH REGARD TO THE NON-COMPLIANC E OF THE SAME AND HAS SUBSEQUENTLY RESIGNED FROM THE SERVICE S OF THE COMPANY. 5. THAT AS A RESULT OF THE SAME THE SAID NOTICES W ERE NOT COMPLIED WITH BY THE COMPANY AND AS EX-PARTE ORDER DATED 26 TH DECEMBER, 2016 WAS PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-2. KEEPING IN VIEW THE REASONS GIVEN BY THE ASSESSEE A S ABOVE, I AM SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR NON-COMPLIANC E ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY THE LD. CIT(APPEA LS) FIXING THE APPEAL OF THE ASSESSEE FOR HEARING FROM TIME TO TIME. EVEN TH E LD. D.R. HAS NOT RAISED ANY MATERIAL OBJECTION IN THIS REGARD. I, TH EREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) DISMI SSING THE APPEAL OF THE ASSESSEE EX-PARTE AND REMIT THE MATTER BACK TO HIM FOR DECIDING THE APPEAL OF THE ASSESSEE AFRESH ON MERIT AFTER GIVING ONE MORE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS UNDERTAKEN BY TH E LD. COUNSEL FOR THE ASSESSEE AT THE TIME HEARING BEFORE THE TRIBUNAL, T HE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE LD. CIT(APPEALS) AND SHAL L EXTEND ALL THE POSSIBLE COOPERATION TO THE LD. CIT(APPEALS) IN ORD ER TO ENABLE HIM TO DISPOSE OF THE SAID APPEAL EXPEDITIOUSLY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON SEPTEMBER 26 , 2017. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 26 TH DAY OF SEPTEMBER, 2017 I.T.A. NO. 796/KOL./2017 ASSESSMENT YEAR: 2012-2013 PAGE 4 OF 4 COPIES TO : (1) THE WATERBASE LIMITED, THAPAR HOUSE, 25, BRABOURNE ROAD, KOLKATA-700 001 (2) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-5(1), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-2, KOLKA TA; (4) COMMISSIONER OF INCOME TAX ,KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/DDO INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.