Premkunj Commodities Pvt. Ltd., Kolkata V. I.T.O.,Ward-5(2), Kolkata

ITA 804/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6316 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 16-04-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RADHEY SHYAM
• Keywords: Unexplained cash credit; Opportunity of being heard; Set aside
• Section: 142(1); 131; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (C), KOLKATA [ BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT (KZ) & SHRI S.S. VISWANETHRA RAVI, JM ] I.T.A. NO. 804/KOL/2019 ASSESSMENT YEAR: 2012-13 PREMKUNJ COMMODITIES PVT. LTD.....................................................APPELLANT 8, LYONS RANGE, KOLKATA 700 001. [PAN: AAGCP 5122 P] ITO, WARD 5(2), KOLKATA...................................RESPONDENT P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. APPEARANCES BY: SHRI SOUMITRA CHOUDHURY, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. SHRI RADHEY SHYAM, CIT, DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JULY 26, 2019 DATE OF PRONOUNCING THE ORDER : AUGUST 02, 2019 ORDER PER P.M. JAGTAP, VICE-PRESIDENT (KZ) THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 2, KOLKATA DATED 02.11.2017 PASSED EX-PARTE WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH IS ENGAGED IN THE BUSINESS OF INVESTMENT IN SHARES. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 26.03.2013 DECLARING A TOTAL INCOME AT NIL. THE SAID RETURN WAS SELECTED FOR SCRUTINY AND A NOTICE U/S 143(2) WAS ISSUED BY THE AO TO THE ASSESSEE ON 08.08.2013. THE SAID NOTICE ISSUED U/S 143(2) AS WELL AS THE SUBSEQUENT NOTICES ISSUED BY THE AO U/S 142(1) OF THE ACT HOWEVER REMAINED UNCOMPLIED WITH BY THE ASSESSEE. EVEN THERE WAS NO RESPONSE TO THE NOTICE ISSUED BY THE AO U/S 131 REQUIRING THE DIRECTOR OF THE ASSESSEE COMPANY TO APPEAR BEFORE HIM FOR EXAMINATION ALONG WITH CERTAIN DETAILS AND DOCUMENTS. THE AO, THEREFORE, WAS LEFT WITH 2 I.T.A. NO. 804/KOL/2019 ASSESSMENT YEAR: 2012-13 PREMKUNJ COMMODITIES PVT. LTD. NO OPTION BUT TO COMPLETE THE ASSESSMENT TO THE BEST OF HIS JUDGEMENT ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. IN THE ASSESSMENT SO COMPLETED U/S 144 OF THE ACT VIDE AN ORDER DATED 25.03.2015, ADDITION OF RS. 1,91,50,000/- WAS MADE BY THE AO ON ACCOUNT OF SHARE APPLICATION RECEIVED BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION INCLUDING PREMIUM OF RS. 1,84,63,000/- BY TREATING THE SAME AS UNEXPLAINED CASH CREDIT U/S 68. 3. AGAINST THE ORDER PASSED BY THE AO U/S 144, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED DURING THE COURSE OF APPELLATE PROCEEDINGS FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE VIDE HIS APPELLATE ORDER DATED 02.11.2017 PASSED EX-PARTE THEREBY CONFIRMING THE ADDITION MADE BY THE AO U/S 68. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN SUPPORT OF THE PRELIMINARY ISSUE RAISED IN THE APPEAL OF THE ASSESSEE CHALLENGING THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE, THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT ADJOURNMENTS WERE SOUGHT BY THE ASSESSEE BY FILING THE APPLICATIONS IN WRITING ON MOST OF THE OCCASIONS WHEN THE APPEAL WAS FIXED FOR HEARING BEFORE THE LD. CIT(A). HE HAS CONTENDED THAT THE LD. CIT(A) HOWEVER PROCEEDED TO DISMISS THE APPEAL OF THE ASSESSEE VIDE HIS IMPUGNED ORDER PASSED EX- PARTE WHEN THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE FAILED TO 3 I.T.A. NO. 804/KOL/2019 ASSESSMENT YEAR: 2012-13 PREMKUNJ COMMODITIES PVT. LTD. APPEAR ON 23.10.2017 DUE TO SOME UNAVOIDABLE REASONS. HE HAS CONTENDED THAT A PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD THUS WAS NOT AFFORDED TO THE ASSESSEE EITHER BY THE LD. CIT(A) DURING THE COURSE OF APPELLATE PROCEEDINGS OR EVEN BY THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. HE HAS URGED THAT THE MATTER MAY, THEREFORE, BE SENT BACK TO THE AO FOR GIVING THE ASSESSEE ONE MORE OPPORTUNITY OF PUTTING FORTH ITS CASE. ALTHOUGH THE LEARNED DR HAS NOT RAISED ANY OBJECTION FOR SENDING THE MATTER BACK TO THE AO FOR GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE, HE HAS CONTENDED THAT SOME COST SHOULD BE IMPOSED ON THE ASSESSEE FOR THE NON-COMPLIANCE BEFORE THE AUTHORITIES BELOW. 5. KEEPING IN VIEW THE SUBMISSIONS MADE BY BOTH THE SIDES AND HAVING REGARD TO ALL THE FACTS OF THE CASE, WE CONSIDER IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO SEND THE MATTER BACK TO THE AO FOR MAKING THE ASSESSEE AFRESH AFTER GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE, SUBJECT HOWEVER TO PAYMENT OF COST. WE ACCORDINGLY IMPOSE A COST OF RS. 5,000/- ON THE ASSESSEE AND SUBJECT TO THE PAYMENT OF THE SAID COST BY THE ASSESSEE TO THE DEPARTMENT, THE IMPUGNED ORDER OF THE LD. CIT(A) PASSED EX-PARTE IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE AO FOR MAKING THE ASSESSMENT 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 AO AND SHALL EXTEND ALL THE COOPERATION IN ORDER TO ENABLE THE AO TO COMPLETE THE ASSESSMENT AFRESH EXPEDITIOUSLY. 4 I.T.A. NO. 804/KOL/2019 ASSESSMENT YEAR: 2012-13 PREMKUNJ COMMODITIES PVT. LTD. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND AUGUST, 2019. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE PRESIDENT DATED: 02/08/2019 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. PREMKUNJ COMMODITIES PVT. LTD., 8, LYONS RANGE, KOLKATA 700 001. 2. ITO, WARD 5(2), KOLKATA. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA