Basuki Commercial & Finvest Private Limited, Kolkata V. ITO, Ward 7(3), Kolkata, Kolkata

ITA 979/KOL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6363 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 08-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A BHATTACHARJEE AD DL CIT LD
• Assessee Lawyers: A K TIBREWAL; AMI T AGARWAL LD ARS
• Keywords: Opportunity of being heard; Principle of natural justice; Earning of tax free income
• Section: 143(3); 14A; 68

Judgement Text

INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA BEFORE SHRI S.S.VISWANETHRA RAVI, JM & DR. S HRI ARJUN LAL SAINI, AM ITA NO. 979/KOL /2017 A.Y : 2012-13 BASUKI COMMERCIAL VS. I.T.O. WARD 7(3), KOLKATA & FINVEST PVT. LTD. PAN:AABCB 0530C [ APPELLANT ] [ RESPONDENT ] APPELLANT BY : S/SHRI A.K TIBREWAL, FCA & AMI T AGARWAL, ADVOCATE, LD.ARS RESPONDENT BY : SHRI A. BHATTACHARJEE, AD DL. CIT, LD.DR DATE OF HEARING : 25-04-2018 DATE OF PRONOUNCEMENT : 15 -06-2018 ORDER SHRI S.S.VISWANETHRA RAVI, JM THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER D T. 25-04-2018 OF THE CIT-A, 16, KOLKATA FOR THE A.Y 2012-13, WHEREIN HE DISMISSED THE APPEAL OF ASSESSEE BY EX PARTE. 2. THE ONLY ISSUE IS TO BE DECIDED AS TO WHETHER TH E CIT-A IS JUSTIFIED IN PASSING EX PARTE ORDER IN THE FACTS AND CIRCUMSTANC ES OF THE CASE. 3. THE LD. AR SUBMITS THAT NO NOTICE OR WHATSOEVER RECEIVED FROM THE CIT-A, THEREBY, THE ASSESSEE HAS NO OPPORTUNITY TO SUPPORT ITS GROUND OF APPEAL RAISED IN THE FIRST APPELLATE PROCEEDING BY FILING REQUISITE EVIDENCE AND EXPLANATION. WITHOUT AFFORDING SUFFICIENT OPPOR TUNITY TO ASSESSEE, THE CIT-A CONFIRMED THE ORDER OF AO, WHICH IS NOT JUSTI FIED IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THE AO DETERMINED THE TO TAL INCOME OF ASSESSEE AT RS.95,30,370/- VIDE HIS ORDER PASSED U/ S. 143(3) DT. 24-03- 2015 BY MAKING THE FOLLOWING ADDITIONS:- I) SHARE CAPITAL U/S. 68 OF THE ACT RS.95,00,000/- II) DISALLOWANCE U/S. 14A RS. 25,967/-, AND III) DONATION RS. 3,0000 = RS.95,30,370/- ITA NO. 979/KOL/2017 2 4. THE ABOVE ORDER OF THE AO WAS CHALLENGED BEFORE THE CIT-A. HE FURTHER SUBMITS THAT ASSESSEE DID NOT FILE ANY SUBM ISSIONS AND PAPER BOOK DETAILS BEFORE THE CIT-A. BUT, THE CIT-A MENTIONED IN HIS ORDER THAT THE ASSESSEE FILED VARIOUS DOCUMENTS ALONG WITH PAPER B OOK, WHICH IS INCORRECT AND PRAYED TO REMAND THE ISSUE INVOLVED IN THE APPEAL TO THE FILE OF CIT-A FOR HIS FRESH ADJUDICATION. 5. ON THE OTHER HAND, THE LD. DR SUBMITS THAT THE A O HAS MADE THE IMPUGNED ADDITIONS FOR WANT OF EXPLANATION AND EVID ENCE. IN SUPPORT OF THE CLAIMS AND CONTENTIONS, THE ASSESSEE HAS FAILED TO ESTABLISH THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE T RANSACTIONS BEFORE THE AO. THE ASSESSEE DID NOT DISALLOW ANY EXPENDITURE R ELATING TO EXEMPT INCOME. THE ASSESSEE HAS NOT MADE ANY COMPLIANCE IN RESPONSE TO NOTICE ISSUED BY THE CIT-A AND THE CIT-A WAS JUSTIFIED IN CONFIRMING THE ORDER OF THE AO. 6. HEARD BOTH THE PARTIES AND PERUSED THE RECORD. I T IS OBSERVED FROM THE ORDER OF THE CIT-A THAT THE ASSESSEE SAID TO HA VE BEEN FILED VARIOUS DOCUMENTS ALONG WITH PAPER BOOK. BUT, HOWEVER, THE LD.AR CONTROVERTED THE SAME THAT THESE WERE NOT FILED BEFORE THE CIT-A . WE FIND THAT SINCE THE AO MADE THE ADDITIONS U/S. 68 & 14A OF THE ACT AND THE ASSISTANCE OF ASSESSEE IS REQUIRED TO SUBSTANTIATE ITS CLAIM AND CONTENTION. IN SUCH CIRCUMSTANCES, TAKING INTO CONSIDERATION THE SUBMIS SIONS OF LD.AR AND IN THE INTEREST OF NATURAL JUSTICE, WE DEEM IT FIT AND PROPER TO REMAND THE MATTER TO THE FILE OF CIT-A FOR HIS FRESH ADJUDICAT ION AND TO PASS A FRESH ORDER AS PER LAW, AFTER GIVING THE ASSESSEE ADEQUAT E OPPORTUNITY OF BEING HEARD TO ASSESSEE. THE ASSESSEE IS DIRECTED NOT TO SEEK ANY ADJOURNMENT AND SHALL CO-OPERATE WITH THE CIT-A IN THE FIRST A PPELLATE PROCEEDINGS FOR SPEEDY DISPOSAL OF THE CASE BY FILING REQUISITE EVI DENCES AND EXPLANATION IN SUPPORT OF THE CONTENTION AND CLAIM. THEREFORE, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ITA NO. 979/KOL/2017 3 7. IN THE RESULT, THE APPEAL OF ASSESSEE-ITA NO.979 /KOL/2017 FOR THE A.Y 2012-13 IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 15 -06-2018 SD/- SD/- ARJUN LAL SAINI S.S.VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 15-06-2018 COPY OF THE ORDER FORWARDED TO: 1 . APPLICANT/ASSESSEE: M/S. BASUKI COMMERCIAL & FINVES T PVT. LTD C/O SHRI NATHMAL AGARWAL, 3 BENTINCK STREET, 3 RD FLOOR, KOLKATA-700 001. 2 RESPONDENT/ASSESSEE: INCOME TAX OFFICER, WARD 7(3) , KOLKATA, AAYKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069. 3 . CIT, 4 . CIT(A), 5 . DR, KOLKATA BENCHES, KOLKATA **PP/SPS TRUE COPY BY ORDER, SR.PS, H.O.O ITAT,KOL