M/s Deserve Vinimay Pvt. Ltd., Kolkata V. I.T.O.,Ward-9(1), Kolkata

ITA 971/KOL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0827 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 30-04-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Keywords: Opportunity of being heard; Non compliance; Set aside
• Section: 143(3); 250; 48; 9(1); 9(1); 9(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA D BENCH, KOLKATA [VIRTUAL COURT HEARING] (BEFORE SHRI P.M. JAGTAP, HONBLE VICE PRESIDENT, KZ & SHRI SATBEER SINGH GODARA, HONBLE JUDICIAL MEMBER) ITA NO. 971/KOL/2019 ASSESSMENT YEARS: 2014-15 DESERVE VINIMAY (P) LTD...........................................................................APPELLANT ROOM NO. 410 4 TH FLOOR 48 EZRA STREET KOLKATA 700 001 [PAN : AADCD 5368 G] VS. INCOME TAX OFFICER, WARD-9(1) KOLKATA.......................................................RESPONDENT APPEARANCES BY: SHRI SUNIL SURANA, FCA, APPEARED ON BEHALF OF THE ASSESSEE. SHRI SUPRIYO PAL, JCIT D/R, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JUNE 8 TH , 2020 DATE OF PRONOUNCING THE ORDER : JUNE 8 TH , 2020 ORDER PER P.M. JAGTAP, VP, KZ:- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 15, KOLKATA, (HEREINAFTER THE LD.CIT(A)), PASSED DT. 12/03/2019, PASSED EX-PARTE , WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH IS ENGAGED IN CONSTRUCTION BUSINESS. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 18/03/2015 DECLARING TOTAL INCOME AT NIL. IN THE PROFIT AND LOSS ACCOUNT FILED ALONG WITH THE SAID RETURN OF INCOME, A SUM OF RS.4,80,26,349/- WAS DEBITED BY THE ASSESSEE TOWARDS PAYMENT MADE TO KOLKATA MUNICIPAL CORPORATION (KMC) ON ACCOUNT OF CHARGES FOR REGULARISATION OF UNAUTHORISED CONSTRUCTION. ON THE BASIS OF INFORMATION RECEIVED, FROM KMC REGARDING NATURE OF THE SAID PAYMENT, THE ASSESSING OFFICER TREATED THE SAME AS PENAL IN NATURE AND THE DISALLOWANCE OF RS.4,80,26,349/- WAS MADE BY HIM. THE ASSESSING OFFICER ALSO TREATED THE LOAN AMOUNT AGGREGATING TO RS.1,00,00,000/-, RECEIVED BY THE ASSESSEE COMPANY DURING THE YEAR UNDER CONSIDERATION FROM THREE (3) PARTIES, NAMELY, M/S. TAPOVAN DEALER PVT. LTD., M/S. FARISTA VANIJYA PVT. LTD. AND M/S. MAXIMUM COMMERCIAL PVT. LTD., AS NOT GENUINE ON THE BASIS OF THE ADVERSE FINDINGS OF ENQUIRY CONDUCTED BY HIM AND MADE AN ADDITION OF RS.1,00,00,000/- TO THE TOTAL INCOME OF THE ASSESSEE. IN THE ASSET SIDE OF THE BALANCE SHEET, A SUM OF RS. 5,83,200/ ICICI BANK LTD. IN ABSENCE OF ANY SATISFACTORY EXPLANATION FORTHCOMING FROM THE ASSESSEE, THE SAID AMOUNT WAS ALSO ADDED BY THE ASSESSING OFFICER TO THE TOTAL INCOME OF THE ASSESSEE AND THE TOTAL INCOME OF THE ASSESSEE ACCORDINGLY WAS DETERMINED BY HIM AT RS.5,86,09,549/- IN THE ASSESSMENT COMPLETED U/S 143(3) OF THE ACT, VIDE AN ORDER DT. 09/12/2016. 2.1. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE ACT, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE TO THE NOTICES ISSUED BY THE HIM FIXING THE SAID APPEAL FOR HEARING FRO M TIME TO TIME, THE LD. CIT(A) PROSECUTION VIDE HIS APPELLATE ORDER DT. 12/03/2019, PASSED THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNA 3. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN SUPPORT OF THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL CHALLENGING THE ORDER OF THE LD. CIT(A) HAS SUBMITTED THAT NONE OF THE NOTICES STATED TO BE ISSUED BY THE LD. CIT(A) FIXING THE APPEAL OF THE ASSESSEE FOR HEARING ASSESSEE AND SUCH NON RECEIPT OF NOTICES RESULTED INTO NON THE A SSESSEE BEFORE THE LD. CIT(A). KEEPING IN VIEW THIS SUBMISSION MADE BY THE LD. COUNSEL FOR THE ASSESSEE, WE ARE SATISFIED THAT THERE WAS COMPLIANCE ON THE PART OF THE ASSESSEE BEFORE THE LD. CIT(A) WHEN ITS APPEAL WAS CALLED FOR HEARING. EVEN THE LD. D/R, HAS NOT RAISED ANY OBJECTION IN THIS REGARD. MOREOVER, AS PER THE SPECIFIC PROVISION CONTAINED IN SUB THE ACT, THE LD. CIT(A) WAS REQUIRED TO DISPOSE OFF THE APPEAL OF THE ASSESSEE IN WRITING STA TING THEREIN THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. IT APPEARS THAT THE COMPLY WITH THESE REQUIREMENT BY THE LD. CIT(A) EX-PARTE , DISMISSING THE APPEAL OF THE ASSESSEE FOR NON AND REMIT THE MATTER BACK TO HIM FOR DISPOSAL OF THE APPEAL AFRESH ON MERIT AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS 2 TO THE TOTAL INCOME OF THE ASSESSEE. IN THE ASSET SIDE OF THE BALANCE 5,83,200/ - WAS SHOWN BY THE ASSESSEE AS AN ADVANCE IN THE NAME OF ICICI BANK LTD. IN ABSENCE OF ANY SATISFACTORY EXPLANATION FORTHCOMING FROM THE THE SAID AMOUNT WAS ALSO ADDED BY THE ASSESSING OFFICER TO THE TOTAL INCOME OF THE ASSESSEE AND THE TOTAL INCOME OF THE ASSESSEE ACCORDINGLY WAS DETERMINED BY IN THE ASSESSMENT COMPLETED U/S 143(3) OF THE ACT, VIDE AN AGAINST THE ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE ACT, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE TO THE NOTICES ISSUED BY THE HIM FIXING THE SAID APPEAL FOR M TIME TO TIME, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE FOR NON PROSECUTION VIDE HIS APPELLATE ORDER DT. 12/03/2019, PASSED EX- PARTE. THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNA WE HAVE HEARD BOTH THE SIDES AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN SUPPORT OF THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL CHALLENGING THE ORDER OF THE LD. CIT(A) PASSED EX-PARTE , THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NONE OF THE NOTICES STATED TO BE ISSUED BY THE LD. CIT(A) FIXING THE FOR HEARING FROM TIME TO TIME WAS EVER RECEIVED BY THE ASSESSEE AND SUCH NON RECEIPT OF NOTICES RESULTED INTO NON - COMPLIANCE ON THE PART OF SSESSEE BEFORE THE LD. CIT(A). KEEPING IN VIEW THIS SUBMISSION MADE BY THE LD. COUNSEL FOR THE ASSESSEE, WE ARE SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE NON COMPLIANCE ON THE PART OF THE ASSESSEE BEFORE THE LD. CIT(A) WHEN ITS APPEAL WAS FOR HEARING. EVEN THE LD. D/R, HAS NOT RAISED ANY OBJECTION IN THIS REGARD. MOREOVER, AS PER THE SPECIFIC PROVISION CONTAINED IN SUB - SECTION (6) OF SECTION 250 OF THE ACT, THE LD. CIT(A) WAS REQUIRED TO DISPOSE OFF THE APPEAL OF THE ASSESSEE IN WRITING TING THEREIN THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. IT APPEARS THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) DOES NOT COMPLY WITH THESE REQUIREMENT S. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED , DISMISSING THE APPEAL OF THE ASSESSEE FOR NON AND REMIT THE MATTER BACK TO HIM FOR DISPOSAL OF THE APPEAL AFRESH ON MERIT AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS ITA NO. 971/KOL/2019 ASSESSMENT YEARS: 2014-15 DESERVE VINIMAY (P) LTD. TO THE TOTAL INCOME OF THE ASSESSEE. IN THE ASSET SIDE OF THE BALANCE SHOWN BY THE ASSESSEE AS AN ADVANCE IN THE NAME OF ICICI BANK LTD. IN ABSENCE OF ANY SATISFACTORY EXPLANATION FORTHCOMING FROM THE THE SAID AMOUNT WAS ALSO ADDED BY THE ASSESSING OFFICER TO THE TOTAL INCOME OF THE ASSESSEE AND THE TOTAL INCOME OF THE ASSESSEE ACCORDINGLY WAS DETERMINED BY IN THE ASSESSMENT COMPLETED U/S 143(3) OF THE ACT, VIDE AN AGAINST THE ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE ACT, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE TO THE NOTICES ISSUED BY THE HIM FIXING THE SAID APPEAL FOR DISMISSED THE APPEAL OF THE ASSESSEE FOR NON - PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNA L. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN SUPPORT OF THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL , THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NONE OF THE NOTICES STATED TO BE ISSUED BY THE LD. CIT(A) FIXING THE FROM TIME TO TIME WAS EVER RECEIVED BY THE COMPLIANCE ON THE PART OF SSESSEE BEFORE THE LD. CIT(A). KEEPING IN VIEW THIS SUBMISSION MADE BY THE LD. SUFFICIENT CAUSE FOR THE NON - COMPLIANCE ON THE PART OF THE ASSESSEE BEFORE THE LD. CIT(A) WHEN ITS APPEAL WAS FOR HEARING. EVEN THE LD. D/R, HAS NOT RAISED ANY OBJECTION IN THIS REGARD. SECTION (6) OF SECTION 250 OF THE ACT, THE LD. CIT(A) WAS REQUIRED TO DISPOSE OFF THE APPEAL OF THE ASSESSEE IN WRITING TING THEREIN THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR ORDER PASSED BY THE LD. CIT(A) DOES NOT S. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED , DISMISSING THE APPEAL OF THE ASSESSEE FOR NON -PROSECUTION AND REMIT THE MATTER BACK TO HIM FOR DISPOSAL OF THE APPEAL AFRESH ON MERIT AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS SUPPORTED BY THE LD . COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE LD. CIT(A) AND SHALL EXTEND ALL POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT(A) TO DISPOSE OFF THE APPEAL ON MERITS EXPEDITIOUSLY. 4. IN THE RESULT, APPEAL OF THE ASSESSEE PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON SD/- [S.S. GODARA] JUDICIAL MEMBER DATED : 08.06.2020 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. DESERVE VINIMAY (P) LTD ROOM NO. 410 4 TH FLOOR 48 EZRA STREET KOLKATA 700 001 2. INCOME TAX OFFICER, WARD- 9(1) KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 3 . COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE LD. CIT(A) AND SHALL EXTEND ALL POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT(A) TO DISPOSE OFF THE APPEAL ON MERITS EXPEDITIOUSLY. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL ORDER PRONOUNCED IN THE OPEN COURT ON THE 8 TH DAY OF JUNE 9(1) KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES ITA NO. 971/KOL/2019 ASSESSMENT YEARS: 2014-15 DESERVE VINIMAY (P) LTD. . COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE LD. CIT(A) AND SHALL EXTEND ALL POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT(A) TO IS TREATED AS ALLOWED FOR STATISTICAL JUNE , 2020. SD/- [ P.M. JAGTAP ] VICE PRESIDENT TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES