Rinki Plastics Pvt. Ltd., Kolkata V. D.C.I.T.-Circle-4(2), Kolkata

ITA 91/KOL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4495 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 18-01-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Assessee Lawyers: HARSH VARDHAN BHARDWAJ
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Set aside
• Section: 131; 143(3); 133(6); 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C, BENC H KOLKATA BEFORE SHRI A.T. VARKEY, JM &DR. A.L.SAINI, AM ./ITA NO.91/KOL/2019 ( / ASSESSMENT YEAR:2015-16) RINKI PLASTICS PVT. LTD. 5/1, CLIVE ROW, 2 ND FLOOR, ROOM NO. 50, KOLKATA-700001 VS. DCIT, CIRCLE-4(2), KOLKATA ./ ./PAN/GIR NO.: AAECR 5029 F (APPELLANT) .. (RESPONDENT) APPELLANT BY :SHRI HARSHVARDHAN BHARDWAJ, FCA RESPONDENT BY :SHRI SUPRIYO PAL, JCIT, SR. D.R. / DATE OF HEARING : 16/12/2019 /DATE OF PRONOUNCEMENT : 26/02/2020 / O R D E R DR. A.L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERT AINING TO ASSESSMENT YEAR 2015-16, IS DIRECTED AGAINST THE ORDER PASSED BY TH E COMMISSIONER OF INCOME TAX (APPEAL)-2, KOLKATA IN APPEAL NO. 10455/CIT(A)-2/17 -18, WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFI CER U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 12/12/2017 . 2. AT THE OUTSET ITSELF, THE LD COUNSEL FOR THE AS SESSEE SUBMITTED THAT DURING THE APPELLATE STAGE THE ASSESSEE SUBMITTED ADDITIONAL E VIDENCES BUT THE LD. CIT(A) DID NOT SEND THESE ADDITIONAL EVIDENCES TO THE AO FOR H IS EXAMINATION.THE COUNSEL SUBMITTED THAT LD. CIT(A) OUGHT TO HAVE SENT THESE ADDITIONAL EVIDENCES TO THE ASSESSING OFFICER FOR HIS EXAMINATION AND THEREAFTE R LD. CIT(A) OUGHT TO HAVE TAKEN REJOINDER FROM THE ASSESSEE TO ADJUDICATE THE ISSUES INVOLVED IN THE ASSESSEE`S APPEAL. THE ASSESSEE SUBMITTED ADDITIONA L EVIDENCES VIDE PARA 1 OF RINKI PLASTICS PVT. LTD. ITA NO.91/KOL/2019 ASSESSMENT YEAR:2015-16 P PP PA AA AG GG GE EE E | || | 2 22 2 THEORDER OF LD. CIT(A) WHEREIN THE ASSESSEE MENTION ED IT ITS WRITTEN SUBMISSION AS FOLLOWS: 4.3. ABOVE APART IT WAS DUTY TO I.T.O THAT WHEN NA MES AND FULL ADDRESSES WERE GIVEN TO HIM OF PARTIES TO WHO MATERIAL WAS SOLD AT DISCOUNT, TO ISSUE NOTICE U/S 133(6) OR SUMMON U/S 131 OF THE ACT TO VERIFY THE G ENUINENESS OF SALE AT DISCOUNT. ON TOTAL WRONG ASSUMPTION THAT COMPANY (ASSESSEE) HAS BEEN DECLARED A NPA IN SUMMARILY MADE THE ADDITION WHICH IS LIABLE TO BE K NOCKED DOWN. ALTERNATIVELY, I.T.O. MAY NOW BE ASKED BY YOUR GOODSELF TO VERIFY THE FACT FROM PARTIES. AGAIN THE LD. COUNSEL SUBMITTED THE WRITTEN SUBMISS ION IN RESPECT OF GROUND NO. 2 WHEREIN THE ASSESSEE SUBMITTED AS FOLLOWS: 5.2 SBIS LETTER DT. 10.11.17 REFERRED BY ASSESSIN G OFFICER WAS NEVER MADE AVAILABLE TO AFFORD OPPORTUNITY TO QUESTION THE BAN KS WRONG STATEMENT. AS STATED ABOVE, INTEREST HAS BEEN DEBITED BY BANK AND HAVE A LSO REALIZED THE SAME WHICH IS EVIDENT FROM THEIR OWN STATEMENT AT PAGE 3 TO REFER RED ABOVE. WHILE SUBMITTING THE WRITTEN SUBMISSION IN RESPECT OF GROUND NO. 3 THE ASSESSEE SUBMITTED AS FOLLOWS: IN WEST BENGAL TO DO BUSINESS SUCH DONATIONS TO PO OJA COMMITTEES IS TO BE PAID AS A COMMERCIAL EXPEDIENCE. COMPANY WAS ALIVE, SBI WAS SELLING ASSET TO REALIZE ITS DUES AND OLD DAMAGED MATERIAL WERE BEING SOLD H ENCE COMPANY WAS ALIVE. FILING FEES BY A COMPANY TO ROC IS MUCH. LATE FEE I S NOT A PENALTY BUT COMPENSATORY AS PER COMPANIES ACT, 1956. HENCE THES E ARE ESSENTIAL PAYMENTS BY A BODY CORPORATE AND ALLOWABLE. IT IS PRAYED TO ALLOW RELIEF IN FULL AND AS PRAYED FACTS AND SUBMISSION MAY BE GOT FURTHER VERI FIED BY ITO AS TO EVIDENCE AGAINST GROUND NO. 1 AND 2 HENCE,THE LD. COUNSEL FOR THE ASSESSEE PRAYED THE BENCH THAT MATTER MAY BE REMITTED BACK TO THE FILE OF LD. CIT(A) WITH A DIRE CTION TO OBTAIN PROPER REMAND REPORT AND ADJUDICATE THE ISSUE IN ACCORDANCE TO LA W. 3. WE HEARD BOTH THE PARTIES AND CAREFULLY GONE THR OUGH THE SUBMISSION PUT FORTH ON BEHALF OF THE ASSESSEE ALONG WITH THE DOCUMENTS FURNISHED AND THE CASE LAWS RELIED UPON, AND PERUSED THE FACT OF THE CASE INCLU DING THE FINDINGS OF THE LD CIT(A) AND OTHER MATERIAL AVAILABLE ON RECORD. WE NOTE THAT ADDITIONAL EVIDENCES WERE FILED BY ASSESSEE BEFORE THE LD. CIT(A) VIDE P ARA NOS. 1, 2 AND 3 OF THE ORDER OF LD CIT(A), AS NOTED ABOVE. THESE ADDITIONAL EVID ENCES WERE NOT SENT BY LD. CIT(A) TO THE ASSESSING OFFICER FOR HIS EXAMINATION . HENCE, IT IS A VIOLATION OF RINKI PLASTICS PVT. LTD. ITA NO.91/KOL/2019 ASSESSMENT YEAR:2015-16 P PP PA AA AG GG GE EE E | || | 3 33 3 PRINCIPAL OF NATURAL JUSTICE. WE NOTE THAT IT IS S ETTLED LAW THAT PRINCIPLES OF NATURAL JUSTICE AND FAIR PLAY REQUIRE THAT THE AFFECTED PAR TY IS GRANTED SUFFICIENT OPPORTUNITY OF BEING HEARD TO CONTEST HIS CASE. THEREFORE,IN TH E INTEREST OF JUSTICE, WE RESTORE THE MATTER BACK TO THE FILE OF LD.CIT(A) FOR DE NOVO ADJUDICATION AND PASS A SPEAKING ORDER AFTER TAKING PROPER REMAND REPORT FR OM AO AND AFFORDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THEREFO RE, WE DEEM IT FIT AND PROPER TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO ADJUDICATE THE ISSUE AFRESH ON MERITS. FO R STATISTICAL PURPOSES, THE APPEAL OF THE ASSESSEE IS ALLOWED. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 26.02.2020 SD/- ( A.T. VARKEY ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE: 26/02/2020 ( SB, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. RINKI PLASTICS PVT. LTD. 2. DCIT, CIRCLE-4(2), KOLKATA 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATABENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES