M/s D. Bimala Enterprises, Mumbai V. DCIT, CIR-43, KOLKATA, Kolkata

ITA 945/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9399 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 21-11-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 05-05-2016
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Additional evidence
• Section: 143(3)

Judgement Text

I.T.A. NO. 945/KOL./2016 ASSESSMENT YEAR: 2008-2009 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA SMC BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NO. 945/KOL/ 2016 ASSESSMENT YEAR: 2008-2009 M/S. D. BIMALA ENTERPRISES,........................ ........................APPELLANT 1 ST FLOOR, OPP. C.D. HOUSE, 123, MATHURADAS MILL COMPOUND, M.M. JOSHI MARG, LOWER PAREL (WEST), MUMBAI-400 013 [PAN: AACFD 2155 M ] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,................. .............RESPONDENT CIRCLE-43, KOLKATA, 3, GOVERNMENT PLACE (WEST), KOLKATA-700 001 APPEARANCES BY: SHRI ASHOK MEHTA, C.A., FOR THE ASSESSEE SHRI ARUP CHATTERJEE, JCIT, D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : FEBRUARY 02, 2017 DATE OF PRONOUNCING THE ORDER : FEBRUARY 03, 2017 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-21, KOLKATA DA TED 01.03.2016 AND THE SOLITARY ISSUE INVOLVED THEREIN RELATES TO THE ADDITION OF RS.19,24,020/- MADE BY THE ASSESSING OFFICER AND CO NFIRMED BY THE LD. CIT(APPEALS) ON ACCOUNT OF PROPORTIONATE FREIGHT EX PENSES TO THE VALUE OF CLOSING STOCK. 2. THE ASSESSEE IN THE PRESENT CASE IS A PARTNERSHI P FIRM, WHICH IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND EXPORT OF GARMENTS. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION W AS FILED BY IT ON 04.10.2008 DECLARING TOTAL INCOME OF RS.13,95,230/- . DURING THE COURSE OF APPELLATE PROCEEDINGS, IT WAS NOTICED BY THE ASSESS ING OFFICER THAT THE ASSESSEE HAS NOT INCLUDED THE PROPORTIONATE AMOUNT OF EXPENDITURE INCURRED ON FREIGHT AND CARRIAGE IN THE VALUE OF CL OSING STOCK. BY RELYING I.T.A. NO. 945/KOL./2016 ASSESSMENT YEAR: 2008-2009 PAGE 2 OF 3 ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS.- BRITISH PAINTS LIMITED [188 ITR 44], HE INCREASED T HE VALUATION OF CLOSING STOCK AS SHOWN BY THE ASSESSEE BY RS.19,24,020/- BE ING PROPORTIONATE FREIGHT AND CARRIAGE EXPENSES AS ALLEGEDLY ATTRIBUT ED TO THE CLOSING STOCK AND MADE ADDITION TO THAT EXTENT TO THE TOTAL INCOM E OF THE ASSESSEE IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN O RDER DATED 24.11.2010. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEF ORE THE LD. CIT(APPEALS) DISPUTING THE ADDITION OF RS.19,24,020 /- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF THE ALLEGED UNDER-V ALUATION OF CLOSING STOCK AND SINCE THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY THE LD. CIT(APPEALS) FIXING T HE SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(APPEALS) DIS MISSED THE SAME BY HIS APPELLATE ORDER DATED 01.06.2013 PASSED EX-PARTE WH ICH IS IMPUGNED BY THE ASSESSEE IN THE PRESENT APPEAL FILED BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LD. COUN SEL FOR THE ASSESSEE AT THE TIME OF HEARING BEFORE THE TRIBUNAL HAS FILED T HE RELEVANT DETAILS OF FREIGHT AND CARRIAGE EXPENSES ALONG WITH SUPPORTING BILLS AND VOUCHERS TO SUPPORT AND SUBSTANTIATE THE ASSESSEES CASE THAT T HE FREIGHT AND CARRIAGE EXPENDITURE CLAIMED BY THE ASSESSEE WERE NOT AT ALL ATTRIBUTABLE TO THE CLOSING STOCK. HE HAS ALSO FILED AN APPLICATION SEE KING ADMISSION OF THE SAID DOCUMENTARY EVIDENCE FILED FOR THE FIRST TIME BEFORE THE TRIBUNAL AS ADDITIONAL EVIDENCE. IN THE SAID APPLICATION, HE HA S GIVEN REASONS FOR NON- FILING OF THE SAID DOCUMENTARY EVIDENCE BEFORE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND HAS ALSO GIVEN REASONS FOR THE NON-COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY THE LD. CIT(APPEALS) FIXING THE APPEAL OF THE AS SESESE FOR HEARING FROM TIME TO TIME DURING THE COURSE OF APPELLATE PROCEED INGS. KEEPING IN VIEW THE SAID REASONS GIVEN BY THE ASSESSEE, I AM SATISF IED THAT THERE WAS A I.T.A. NO. 945/KOL./2016 ASSESSMENT YEAR: 2008-2009 PAGE 3 OF 3 SUFFICIENT CAUSE FOR THE FAILURE ON THE PART OF THE ASSESSEE TO COMPLY WITH THE NOTICES ISSUED BY THE LD. CIT(APPALS) FIXING TH E APPEAL OF THE ASSESSEE FOR HEARING FROM TIME TO TIME. I AM ALSO SATISFIED THAT THE ASSESSEE WAS NOT GIVEN PROPER AND SUFFICIENT OPPORTUNITY BY THE ASSESSING OFFICER TO FILE THE SAID DOCUMENTS WHICH ARE NOW FILED BY THE ASSESSEE AS ADDITIONAL EVIDENCE BEFORE THE TRIBUNAL, DURING THE COURSE OF ASSESSMENT PROCEEDINGS. EVEN THE LD. D.R. HAS NOT BEEN ABLE TO DISPUTE THIS POSITION, WHICH IS CLEARLY EVIDENT FROM THE RECORD. I, THEREF ORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PA RTE AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR MAK ING THE ASSESSMENT AFRESH AFTER GIVING THE ASSESSEE PROPER AND SUFFICI ENT OPPORTUNITY OF BEING HEARD AND AFTER VERIFYING THE ADDITIONAL EVID ENCE FILED BY THE ASSESSEE BEFORE THE TRIBUNAL. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON FEBRUARY 03, 2017. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 3 RD DAY OF FEBRUARY, 2017 COPIES TO : (1) M/S. D. BIMALA ENTERPRISES, 1 ST FLOOR, OPP. C.D. HOUSE, 123, MATHURADAS MILL COMPOUND, M.M. JOSHI MARG, LOWER PAREL (WEST), MUMBAI-400 013 (2) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-43, KOLKATA, 3, GOVERNMENT PLACE (WEST), KOLKATA-700 001 (3) COMMISSIONER OF INCOME TAX(APPEALS)-21, KOLKAT A; (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.