M/s Modern Construction, Howrah V. THE ITO, WD-33(3), KOLKATA, Kolkata

ITA 934/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9545 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 05-01-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 03-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN J
• Assessee Lawyers: PIYAL GUPTA
• Keywords: Depreciation
• Section: 40A(3); 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER AND DR.A.L.SAINI, ACCOUNTAN T MEMBER ITA NO. 934 - 935 / KOL / 2016 ASSESSMENT YEAR :2010-11 & 2011-12 M/S MODERN CONSTRUCTION, 6, DHARMATLA ROAD (NORTH) BALLY, HOWRAH-711 201 [ PAN NO.AAKFM 4983 A ] V/S . ITO, WARD-33(3), 10B, MIDDLETON ROW /APPELLANT .. / RESPONDENT /BY ASSESSEE SHRI PIYAL GUPTA, ADVOCATE /BY REVENUE MD GHAYAS UDDIN, JCIT-DR /DATE OF HEARING 05-01-2017 ! /DATE OF PRONOUNCEMENT 13-01-2017 / O R D E R PER S.S.VISWANETHRA RAVI, JUDICIAL MEMBER:- BOTH APPEALS BY THE ASSESSEE AGAINST THE DIFFERENT ORDERS OF EVEN DATED 30-03-2016 PASSED BY COMMISSIONER OF INCOME TAX (AP PEALS)-9, KOLKATA FOR ASSESSMENT YEARS 20106-11 AND 2011-12 RESPECTIV ELY. 2. SINCE THE ASSESSEE IN BOTH THE APPEALS AND THE ISSUE RAISED THEREIN ARE SIMILAR AND THEREFORE BOTH THE APPEALS HEARD TO GETHER AND ARE BEING DISPOSED OF BY WAY OF CONSOLIDATED ORDER FOR SAKE O F CONVENIENCE. FIRST WE SHALL TAKE UP ITA NO.934/KOL/2016 FOR A.Y. 10-11 . 3. IT WAS SUBMITTED BY LD. AR THAT THE ASSESSEE IS A FIRM AND CARRIES ON BUSINESS AS WORKS CONTRACTOR IN GOVERNMENT SECTOR. ASSESSEE FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 25.10 .2010 DECLARING TOTAL ITA NO.934-35/KOL/2016 A.YS. 10-11 & 11-1 2 M/S MODERN CONSTRN. VS. ITOWD-33(3) KOL. PAGE 2 INCOME OF 3,10,550/- AND UNDER SCRUTINY PROCEEDINGS, THE ASS ESSING OFFICER DETERMINED THE INCOME OF ASSESSEE AT 19,85,493/- MAKING ADDITIONS ON ACCOUNT OF REIMBURSEMENT, UNDER VARIOUS CHARGES FO R GENERATOR, DUMPER AND ROLLER, DEPRECIATION ON MACHINERY, PENAL INTEREST A ND DISALLOWANCE U/S. 40A(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED T O AS THE ACT) AGAINST WHICH APPEAL WAS PREFERRED BEFORE CIT(A) BUT DUE TO HOSPI TALIZATION ONE OF ASSESSEES MAIN PARTNERS, ASSESSEE COULD NOT PROSEC UTE ITS CASE BEFORE CIT(A) AND FOR WHICH CIT(A) PASSED EX PARTE ORDER C ONFIRMING THE ADDITION MADE BY AO AND URGED TO REMIT THE APPEAL TO THE FIL E OF CIT(A) FOR FRESH ADJUDICATION. 4. LD. DR SUBMITS THAT CIT(A) HAS GRANTED ONE YEAR TIME AND OFFERED MANY OPPORTUNITIES FROM 02.03.2015 TO 22.03.2016 WH EREIN ASSESSEE COULD NOT AVAIL THE SAME TO SUBSTANTIATE ITS CLAIM BEFORE CIT(A) AND RELIED ON THE ORDERS OF AUTHORITIES BELOW AND ALTERNATIVELY ARGUE D TO IMPOSE COSTS UPON THE ASSESSEE. 5. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT IN RESPONSE TO THE STATUTORY NOTICE U/ S. 143(2)/142(1) OF THE ACT ASSESSEE WAS REPRESENTED BEFORE AO THROUGH ITS AUTH ORIZED REPRESENTATIVE AND FILED VARIOUS DETAILS IN SUPPORT OF ITS CLAIM W HEREAS BEFORE CIT(A) IT IS NOTICED THE AUTHORIZED REPRESENTATIVE APPEARED BEFO RE CIT(A) ON 15.01.2015 AND DISCUSSED THE CASE WITH CIT(A) AND ON ANOTHER O CCASION ON 16.02.2016 AND 26.02.2016 ASSESSEE SOUGHT ADJOURNMENT ON THE G ROUND THAT ONE PARTNER OF ASSESSEE-FIRM WAS HOSPITALIZED AND THEREAFTER AL SO ASSESSEE SOUGHT ADJOURNMENT ON 15.03.2016 AND IT WAS ADJOURNED TO 2 2.03.2016, BUT, HOWEVER, ASSESSEE DID NOT ATTEND ON 22.03.2016 THEREBY CIT(A ) CONFIRMED THE ORDER OF AO. IT IS NOTICED THAT OUT OF SEVEN ADJOURNMENTS, A SSESSEE APPEARED ON 15.01.2016, 16.2.2016 AND 26.02.2016 AND SOUGHT ADJ OURNMENTS. TAKING INTO CONSIDERATION ALL THE FACTS OF THE CASE, WE ARE OF THE VIEW THAT MATER SHOULD GO BACK TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION, HOWEVER SUBJECT TO THE CONDITION OF PAYMENT OF COST OF 500/- BY THE ASSESSEE IN FAVOUR OF STATE LEGAL SERVICE AUTHORITY, WEST BENGAL AND PRODUCE TH E RECEIPT OF PAYMENT OF ITA NO.934-35/KOL/2016 A.YS. 10-11 & 11-1 2 M/S MODERN CONSTRN. VS. ITOWD-33(3) KOL. PAGE 3 COST BEFORE CIT(A). THE CIT(A) SHALL ACKNOWLEDGE TH E SAME AND PROCEED TO ADJUDICATE THE APPEAL AFRESH IN ACCORDANCE WITH LAW . HENCE, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE IN TERMS OF ABOVE DIRECTION. ITA NO.935/KOL/2016 FOR AY 11-12 . 6. AS HAS BEEN DISCUSSED IN PARA-2 HEREINABOVE, SIN CE THE ASSESSEE AND ISSUE RAISED THEREIN AND RELIEF SOUGHT BEFORE DURIN G THE COURSE OF HEARING ARE ONE AND THE SAME IN THIS APPEAL ALSO. HENCE, WE ADO PT THE SAME VIEW TAKEN IN THE APPEAL FOR A.Y 2010-11 HEREINABOVE. WE HOLD ACCORDINGLY. 7. IN THE RESULT, BOTH THE APPEAL OF ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT 13/ 01/2017 SD/- SD/- (DR.A.L. SAINI) (S.S.VISWANETHRA RAVI) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP '#$- 13 / 01 /201 6 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-M/S MODERN CONSTRUCTION, 6 DHARMATALA ROA D (N), BALLY, HOWRAH-211 2. /REVENUE-ITO WARD-33(3), 10B MIDDLETON ROW 3.#,#-. / / CONCERNED CIT KOLKATA 4. /- / CIT (A) KOLKATA 5.2 3455-., -.!, / DR, ITAT, KOLKATA 6.489:; / GUARD FILE. BY ORDER/ , /TRUE COPY/ /# -.!,