Ullahas Nandini Udyog Pvt Ltd , Howrah V. ITO, Cir. -13(2), Kolkata

ITA 81/KOL/2021

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 0512 (ITAT-KOLKATA)
• Duration Of Justice: 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 08-03-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DHRUBAJYOTI ROY
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Set aside
• Section: 68; 144

Judgement Text

ITA NO. 81/KOL/2021 ASS ESSMENT YEAR: 2012-2013 ULL AHAS NANDINI UDYOG PVT. LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, KOLKATA [VIRTUAL COURT HEARING] BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT & SHRI A.T. VARKEY, JUDICIAL MEMBER I.T.A. NO. 81/KOL/2021 ASSESSMENT YEAR: 2012-2013 ULLAHAS NANDINI UDYOG PVT. LIMITED,................ ......................... APPELLANT MADHABI MANSION, FLAT NO. 402, 3/1/2, HARDEV BHATTACHARYA LANE, SHIBPUR, HOWRAH-711102 [PAN:AABCU0748D] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,................. ...................... RESPONDENT CIRCLE-13(2), KOLKATA, AAYAKAR BHAWAN, 110, SHANTI PALLY, KOLKATA-700107 APPEARANCES BY: SHRI MIRAJ D SHAH, A.R., APPEARED ON BEHALF OF THE ASSESSEE SHRI DHRUBAJYOTI ROY, JCIT, APPEARED ON BEHALF OF T HE REVENUE DATE OF CONCLUDING THE HEARING : MARCH 12, 2021 DATE OF PRONOUNCING THE ORDER : MARCH 12, 2021 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT:- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-5, KOLKATA DAT ED 31.03.2017 PASSED EX-PARTE, WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH IS ENGAGED IN THE BUSINESS OF PROMOTER & DEVELOPERS AS WELL AS DE ALERS OF RICE ON WHOLESALE BASIS. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 26.09.2012 DECLARING TOTAL INCOM E OF RS.34,24,893/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSEE-COMPANY WAS CALLED UPON BY THE ASSESSING OFFICER TO PRODUCE THE CONCERNED ITA NO. 81/KOL/2021 ASS ESSMENT YEAR: 2012-2013 ULL AHAS NANDINI UDYOG PVT. LIMITED 2 SHAREHOLDERS FROM WHOM SHARE CAPITAL AND SHARE PREM IUM AGGREGATING TO RS.2,92,25,000/- WAS RECEIVED BY THE ASSESSEE-COMPA NY DURING THE YEAR UNDER CONSIDERATION. THE ASSESSEE-COMPANY, HOWEVER, FAILED TO COMPLY WITH THIS REQUIREMENT. EVEN THE DIRECTORS OF THE AS SESSEE-COMPANY DID NOT APPEAR BEFORE THE ASSESSING OFFICER FOR THEIR E XAMINATIONS AS SOUGHT BY THE ASSESSING OFFICER. THE ASSESSING OFFICER, TH EREFORE, TREATED THE ENTIRE AMOUNT OF RS.2,92,25,000/- CLAIMED TO BE REC EIVED BY THE ASSESSEE- COMPANY ON ACCOUNT OF SHARE CAPITAL AND SHARE PREMI UM AS UNEXPLAINED AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSES SEE UNDER SECTION 68 OF THE ACT. HE ALSO MADE FURTHER ADDITION OF RS.12, 80,655/- ON ACCOUNT OF VARIOUS DISALLOWANCES AND COMPUTED THE TOTAL INCOME OF THE ASSESSEE AT RS.3,39,30,550/- IN THE ASSESSMENT COMPLETED UNDER SECTION 144 VIDE AN ORDER DATED 29.03.2015. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 144, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE ON T HE 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 FOR NON-PROSECUTION VIDE HIS APPELLATE ORD ER DATED 31.03.2017 PASSED EX-PARTE THEREBY CONFIRMING ALL THE ADDITION S MADE BY THE ASSESSING OFFICER TO THE TOTAL INCOME OF THE ASSESS EE. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PR EFERRED 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 OF THIS APPEAL CHALLENGING T HE ORDER OF THE LD. CIT(APPEALS) PASSED EX-PARTE DISMISSING THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION, THE LD. COUNSEL FOR THE ASSESSEE H AS SUBMITTED THAT NONE OF THE NOTICES STATED TO BE ISSUED BY THE LD. CIT(A PPEALS) FIXING THE APPEAL OF THE ASSESSEE FOR HEARING ON FOUR DIFFERENT OCCAS IONS WAS EVER RECEIVED ITA NO. 81/KOL/2021 ASS ESSMENT YEAR: 2012-2013 ULL AHAS NANDINI UDYOG PVT. LIMITED 3 BY THE ASSESSEE AND THIS POSITION GETS FURTHER FORT IFIED FROM THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) ITSELF WHERE HE HAS C LEARLY MENTIONED THAT NONE OF THE NOTICES OF HEARING SENT BY HIS OFFICE C OULD NOT BE SERVED ON THE ASSESSEE. IT IS THUS CLEAR THAT NON-COMPLIANCE ON THE PART OF THE ASSESSEE BEFORE THE LD. CIT(APPEALS) WAS ON ACCOUNT OF NON-SERVICE OF NOTICE AND SINCE THE SAME, IN OUR OPINION, CONSTITU TES THE SUFFICIENT CAUSE, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. C IT(APPEALS) EX-PARTE DISMISSING THE APPEAL OF THE ASSESSEE FOR NON-PROSE CUTION AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF T HE ASSESSEE AFRESH ON MERIT AFTER GIVING PROPER AND SUFFICIENT OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON MARCH 12, 202 1. SD/- SD/- (A.T. VARKEY) (P.M. JAGTAP) JUDICIAL MEMBER VICE-PRESI DENT KOLKATA, THE 12 TH DAY OF MARCH, 2021 COPIES TO : (1) ULLAHAS NANDINI UDYOG PVT. LIMITED, MADHABI MANSION, FLAT NO. 402, 3/1/2, HARDEV BHATTACHARYA LANE, SHIBPUR, HOWRAH-711102 (2) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-13(2), KOLKATA, AAYAKAR BHAWAN, 110, SHANTI PALLY, KOLKATA-700107 (3) COMMISSIONER OF INCOME TAX (APPEALS)-5, KOLKA TA; (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.