Lata Realtors (p) Ltd., Howrah V. ITO, Ward 13(2) Kolkata, Kolkata

ITA 83/KOL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1441 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 17-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARNASHREE BANERJEE
• Assessee Lawyers: E PASS
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Difference of opinion; Change of opinion
• Section: 144

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI N.V.VASUDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 83 / KOL / 20 17 ASSESSMENT YEAR :2012-13 M/S LATA REALTORS PVT. LTD., 26, RAMLAL MUKHERJEE LANE, 2 ND FLOOR, GOLABARI, SALKIA, HOWRAH-711106 [ PAN NO.AABCL 6683 J ] V/S . INCOME TAX OFFICER, WARD-13(2), 110, SHANTIPALLY, E.M. BYE PASS-107 /APPELLANT .. / RESPONDENT /BY APPELLANT PARNASHREE BANERJEE, ADVOCATE /BY RESPONDENT ARINDAM BHATTACHERJEE, ADDL. CIT-DR /DATE OF HEARING 27-02-2018 /DATE OF PRONOUNCEMENT 28-02-2018 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-5, KOLKATA DATED 26.10.2016. A SSESSMENT WAS FRAMED BY ITO WARD-13(2), KOLKATA U/S 144 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 31.03.2015 FOR ASSE SSMENT YEAR 2012-13. GROUNDS RAISED BY ASSESSEE ARE REPRODUCED BELOW:- 1. THAT, ON FACT AND UNDER THE CIRCUMSTANCES OF THE CASE, THE COMMISSIONER OF INCOME TAX (APPEAL) IS UNJUSTIFIED AND UNLAWFUL IN CONFIRMING THE ORDER OF THE LD. ASSESSING OFFICER VIDE EX PARTIES ORDER. 2. THE ORDER HAS BEEN PASSED BY LD. CIT(A) WITHOUT AFFORDING ANY OPPORTUNITY AS NO NOTICE OF HEARING WAS EVER SERVED ON ASSESSES. 3. THE LD. A.O. WAS ALSO CASUAL WHILE PASSING THE A SSESSMENT ORDER U/S 144 DESPITE THE FACT THAT THE AO HAS HIMSELF ADMITTED THE COMPL IANCES BY THE ASSESSEE ON THE DIFFIDENT DATES OF HEARING, THE SAME IS ALSO EVIDEN T FROM THE PERUSAL OF ORDER SHEET. IN THESE CIRCUMSTANCES THE ORDER COMPLETED BY THE AO U /S 144, IS HIGHLY UNETHICAL AND AS SUCH LIABLE TO BE SET ASIDE. 4. THAT THE LD. ASSESSING OFFICER WAS NOT JUSTIFIED IN CONSIDERING THE SHARE CAPITAL INCLUDING PREMIUM FROM SHARE HOLDERS OF RS 1,64,00, 0001- AND UNSECURED LOAN OF RS ITA NO.83/KOL/2017 A.Y. 2012-13 M/S LATA REALTORS PVT. LTD. VS ITO W D-13(2) KOL. PAGE 2 20,00,0001- AS UNEXPLAINED CASH CREDIT IN THE BOOKS OF THE ASSESSEE AND THEREAFTER MAKING ADDITION TO THE RETURNED INCOME. 5. THAT THE ENTIRE ADDITION ON ACCOUNT OF CASH CRED IT BY THE AO IS BASED ON MERE SUSPICIOUS AND WITHOUT ANY MATERIAL EVIDENCE ON REC ORD AND HENCE LIABLE TO BE DELETED. 6. THAT THE ADDITION MADE BY AO IS BASED ON A PRE D ETERMINED AND BIASED MINDSET, CHANGE OF OPINION AND BASED ON PURE GUESS, SURPRISE S AND CONJECTURE WHICH DOES NOT HOLD GOOD IN LAW. 7. THAT THE ASST HAS BEEN MADE WITHOUT APPRECIATING THE DOCUMENTS AND EXPLANATION PRODUCED BEFORE THE AO AND WITHOUT ANY CONCRETE BAS IS. 8. THAT THE LD. ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING ADDITION ON ACCOUNT OF SHARE CAPITAL AS SAME WAS VERIFIED & CERTIFIED BY H IM IN EARLIER YEARS IN DETAILED ASSESSMENT. 9. THAT THE ADDITION MADE BY LD. ASSESSING OFFICER AND UPHELD BY LD. THE COMMISSIONER OF INCOME TAX (APPEAL) ARE LIABLE TO B E SET ASIDE. 10. THAT THE APPELLANT MAY ADD, ALTER, DELETE, WITH DRAW OR MODIFY ANY OF THE GROUND AT THE TIME OF HEARING OF THE MATTER WITH THE LEAVE OF THE HON'BLE ITAT. PARNASHREE BANERJEE, LD. ADVOCATE APPEARED ON BEHAL F OF ASSESSEE AND SHRI ARINDAM BHATTACHERJEE, LD. DEPARTMENTAL REPRESENTAT IVE APPEARED ON BEHALF OF REVENUE. 2. AT THE OUTSET IT WAS OBSERVED THAT THE LD. CIT-A HAS PASSED THE EX PARTE ORDER CONFIRMING THE ORDER OF THE AO WITHOUT DECIDING THE ISSUE ON MERIT. THE LD. CIT-A CONFIRMED THE ORDER OF THE AO EX PARTE DUE TO FACT THAT THE ASSESSEE FAILED TO ADVANCE ANY ARGUMENTS ON MERITS AND FAILED TO ATTEN D THE DATES OF HEARINGS FIXED BY THE LD. CIT-A DURING THE PROCEEDINGS. THEREFORE THE EX PARTE ORDER WAS PASSED BY THE LD. CIT-A VIDE ORDER DATED 26.10.2016. 3. THE LD. AR ALSO DREW OUR ATTENTION THAT THE ASSE SSMENT ORDER WAS ALSO PASSED EX PARTE U/S 144 OF THE ACT DESPITE THE FACT THAT THE ASSESSEE HAS APPEARED SEVERAL TIMES BEFORE THE AO. THE LD. AR IN SUPPORT OF HIS CLAIM FILED THE CERTIFIED COPIES OF THE ORDER SHEET ENTRIES DEPICTING THE ATT ENDANCE OF THE ASSESSEE BEFORE THE AO. AS SUCH, IT WAS PLEADED BEFORE US BY THE LD. AR TO PROVIDE ONE MORE OPPORTUNITY AND ACCORDINGLY THE MATTER SHOULD BE SET ASIDE TO T HE AO. PER CONTRA, IT IS THE ARGUMENT OF LD. DR FOR THE RE VENUE THAT OPPORTUNITIES WERE GIVEN TO ASSESSEE BUT IT DID NOT AVAIL THE SAME. TH EREFORE THE LD. CIT(A) HAD NO OPTION BUT TO DISPOSE OF THE MATTER EX PARTE . HOWEVER THE LD. DR SUBMITTED THAT IN CASE THE MATTER NEEDS TO BE RESTORED BACK THEN IT S HOULD GO TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION IN ACCORDANCE WITH THE PROVI SIONS OF LAW. ITA NO.83/KOL/2017 A.Y. 2012-13 M/S LATA REALTORS PVT. LTD. VS ITO W D-13(2) KOL. PAGE 3 4. BE THAT AS IT MAY, IT IS CLEAR FROM THE RECORD A ND LOOKING AT THE ABSENCE OF THE ASSESSEE, LD. CIT(A) CONCLUDED THAT THE ASSESSEE HA S NO INTEREST TO PURSUE THE MATTER AND TO GET IT DISPOSE OF ON MERITS. ON PERUS AL OF THE MATTER, IT OCCURS TO OUR MIND THAT LD. CIT(A) IS MOTIVATED TO DISPOSE OF THE MATTER EX PARTE ONLY BECAUSE OF HIS OBSERVATION THAT THE ASSESSEE FAILED TO APPEAR ON THE DATES OF HEARINGS. IN OUR CONSIDERED OPINION, IT CANNOT BE A GROUND TO DENY J USTICE WITHOUT GIVING REASONABLE OPPORTUNITY TO THE PARTY AFFECTED. IT IS BECAUSE IN THE INSTANT CASE THE ASSESSEE WAS NOT SERVED THE NOTICE FOR THE DATES OF HEARING BEFO RE THE LD. CIT(A). THE ASSESSEE HAS ALSO FILED THE AFFIDAVIT STATING THAT NOTICES F OR HEARING ISSUED BY THE LD. CIT(A) WERE NOT SERVED UPON THE ASSESSEE. THE CONTENTS OF THE AFFIDAVITS ARE AS UNDER:- AFFIDA VIT I, MRS. RITU GOYAL DIRECTOR OF MLS. LATA REALTORS PVT. LTD., 26, RAMLAL MUKHERJEE LANE, SALKIA, HOWRAH - 711106, DO HEREBY SOLEMNLY A FFIRM AND DECLARE AS FOLLOWS: 1. THAT M/S. LATA REALTORS PVT. LTD. HAS BEEN ASSES SED TO INCOME-TAX BY THE INCOME TAX OFFICER, WARD-L3(2), KOLKATA UNDER PAN N O. AABCL6683J. 2. THAT AGAINST THE SAID ASSESSMENT ORDER, MLS. LAT A REALTORS PVT. LTD. FILED AN APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-5, KOLKATA, ON THE GROUNDS MENTIONED IN THE MEMORANDUM OF APPEA L. 3. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS )-5, KOLKATA FIXED OUR APPEAL FOR HEARING ON 08.MC',OI6 AND 26.10.2016 VID E ISSUE OF NOTICES DATED 14.07.2016 AND 29.08.2016.AS STATED BY THE LD. CITC A) IN HIS ORDER PASSED U/S. 250 OF THE ACT ON 26.10.2C16. 4. THAT NONE OF THE NOTICES DATED 14.07.2016 AND 29 .08.2016 WERE SERVED TO US AT OUR ADDRESS, IN RECORD WITH THE LD. CLT(A)-5, KOLKATA AND AS ALSO MENTIONED BY THE LD. CIT(A)-5. KOLKATA IN HIS ORDER DATED 26.10.2016 . 5. THAT OUR CASE FOR THE A.Y. 2012-13 IN 282/CIT(A) -S/WD-13(2)I1S-16 WAS FIXED FOR HEARING BEFORE THE LD. CIT(A)-S, KOLKATA ON 08.08.2016 AND 26.10.2016 CAME TO OUR KNOWLEDGE ONLY ON RECEIPT OF THE LD. CIT(A)-S, KOLKATA'S ORDER DATED 26.10.2016. 6. THAT THE LD. CIT(A)-S, KOLKATA IN HIS ORDER DATE D 26.10.2016 STATED THAT NOTICES DATED 14.07.2016 AND 29.08.2016 ISSUED BY H IM WAS RETURNED BACK BY POSTAL AUTHORITY WITH THE COMMENT 'NOT FOUND AND NOT KNOWN', HOWEVER THE IMPUGNED ORDER DATED 26.10.2016 WAS SERVED BY THE P OSTAL AUTHORITY IN THE SAME ADDRESS. 7. THAT I INTEND TO PRAY BEFORE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL, KOLKATA FOR SETTING ASIDE OUR CASE TO THE LD. CIT(A )-S, KOLKATA FOR HEARING IT, SINCE NO EFFECTIVE HEARING OF OUR CASE COULD TAKE P LACE IN THE ABSENCE OF THE NOTICES FOR HEARING GETTING SERVED. 8. THAT THE STATEMENTS MADE IN PARAGRAPHS 1 TO 7 AB OVE ARE TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF. IT IS ALSO OBSERVED THAT THE ASSESSEE HAS APPEARED SEVERAL TIMES BEFORE THE AO ON THE DATES OF HEARING TILL 24.3.2015 BUT THE AO HAS PASSED THE ORDER U/S 144 OF THE ACT. FROM THE ORDER SHEET ENTRY, IT WAS ALSO OBSERV ED THAT NO NOTICE WAS ISSUED FOR MAKING THE BEST JUDGMENT ASSESSMENT AS MANDATED U/S 144 OF THE ACT. IN VIEW OF ABOVE AND IN THE INTEREST NATURAL JUSTICE AND FAIR PLAY WE ARE OF THE OPINION THAT THE ITA NO.83/KOL/2017 A.Y. 2012-13 M/S LATA REALTORS PVT. LTD. VS ITO W D-13(2) KOL. PAGE 4 AO SHOULD HAVE GIVEN ANOTHER OPPORTUNITY TO THE ASS ESSEE TO APPEAR BEFORE HIM TO EXPLAIN HIS POINTS OF CONTENTIONS BEFORE RESORTING TO THE PROVISIONS OF SECTION 144 OF THE ACT. THEREFORE, TO MEET END OF JUSTICE WE SET A SIDE THE MATTER TO THE FILE OF AO FOR FRESH ADJUDICATION AND ACCORDING TO THE PROVISIONS OF LAW AND AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE. THEREFORE, WE DIRECT THE ASSESSEE TO CO- OPERATE INCLUDING THE APPEARANCE AND PRODUCTION OF BOOKS OF ACCOUNT AS AND WHEN THE MATTER IS TAKEN UP BY AO. WE ORDER ACCORDINGLY. 5. IN THE RESULT, FOR STATISTICAL PURPOSE, APPEAL OF A SSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 28 /02/2018 SD/- SD/- ($ &) ( &) (N.V.VASUDEVAN) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP, SR.P.S (- 28 / 02 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S LATA REALTORS PVT. LTD. 26, RAMLAL M UKHERJEE LANE, 2 ND FLOOR, GOLABARI , SALKIA, HOWRAH-711106 2. /RESPONDENT-ITO, WARD-13(2), 110, SHANTDIPALLY, E.M . BYE PASS, KOLKATA-107 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA 5. 7 $$3, 3, / DR, ITAT, KOLKATA 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO 3,