Auro Shikha Vinimay Pvt. Ltd., Kolkata V. I.T.O., CC-4(3), Kolkata, Kolkata

ITSSA 18/KOL/2023

AI Insights

This case involves a series of appeals filed by various companies against the orders of the Commissioner of Income Tax (Appeals), Kolkata, which were based on the assessment orders passed by the Income Tax Officer following a search and seizure operation under section 132(1) and a survey operation under section 133A of the Income Tax Act, 1961. The operations were conducted on the 'Balaji Coke' Group, leading to the centralization of jurisdiction in Kolkata and subsequent assessments for multiple assessment years. The assessees challenged the ex-parte orders, citing improper service of notice as they were not served on their registered email IDs. The Tribunal, considering the Supreme Court's ruling on the scope of section 153A and the lack of proper notice, decided to set aside the orders and remand the cases for a fresh assessment.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 302875 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 25 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 25-05-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 24-05-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 30-01-2023
• Other Referred Cases: PCIT-vs.- Maruti Suzuki India Limited (2019) 416 ITR 613 (SC)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Assessment record
• Section: 133A; 153A

Judgement Text

IT(SS))A Nos. 2, 6, 7-22, 33/KOL/2023 A.Ys. : 2009-2010, 2007-08, 2008-09, 2010-11 to 2013-14, 2007-08, 2009-10 to 2012-13, 2010-11 to 2013-14, 2009-2010, 2010-2011, & 2008-2009 1 IN THE INCOME TAX APPELLATE TRIBUNAL, ‘C’ BENCH, KOLKATA Before Shri Rajpal Yadav, Vice-President & Shri Girish Agrawal, Accountant Member I.T.(SS)A. Nos. 2, 6, 7, 8, 9, 10 & 11/KOL/2023 Assessment Years: 2009-10, 07-08, 08-09, 2010-11, 2011-12, 12-13 & 2013-14 Tirupati Fuels Pvt. Limited,.....................Appellant 4, Government Place, Delta House, 2 nd Floor, Kolkata-700001 [PAN: AABCT8836F] -Vs.- Income Tax Officer,................................Respondent Central Circle-4(3), Kolkata, Aayakar Bhawan Poorva, 110, Shanti Pally, Kolkata-700107 & I.T.(SS)A. No. 12, 13, 14, 15 & 16/KOL/2023 Assessment Years: 2007-08, 09-10, 2010-11, 2011-12 & 2012-13 Balaji Coke Industry Pvt. Limited,.............Appellant 4, Government Place, Delta House, Kolkata-700001 [PAN: AABCB1212D] -Vs.- Income Tax Officer,................................Respondent Central Circle-4(3), Kolkata, Aayakar Bhawan Poorva, 110, Shanti Pally, Kolkata-700107 IT(SS))A Nos. 2, 6, 7-22, 33/KOL/2023 A.Ys. : 2009-2010, 2007-08, 2008-09, 2010-11 to 2013-14, 2007-08, 2009-10 to 2012-13, 2010-11 to 2013-14, 2009-2010, 2010-2011, & 2008-2009 2 & I.T.(SS)A. Nos. 7, 18, 19 & 20/KOL/2023 Assessment Years: 2010-11, 11-12, 12-13 & 2013-14 Auro Shikha Vinimay Pvt. Limited,.............Appellant 4, Government Place, Delta House, Kolkata-700001 [PAN: AACCA0986E] -Vs.- Income Tax Officer,................................Respondent Central Circle-4(3), Kolkata, Aayakar Bhawan Poorva, 110, Shanti Pally, Kolkata-700107 & I.T.(SS)A. Nos. 21/KOL/2023 Assessment Year: 2009-2010 Ortem Merchants Pvt. Limited,..................Appellant 4, Government Place, Delta House, Kolkata-700001 [PAN: AAACO2940G] -Vs.- Income Tax Officer,................................Respondent Central Circle-4(3), Kolkata, Aayakar Bhawan Poorva, 110, Shanti Pally, Kolkata-700107 & I.T.(SS)A. Nos. 22/KOL/2023 Assessment Year: 2010-2011 IT(SS))A Nos. 2, 6, 7-22, 33/KOL/2023 A.Ys. : 2009-2010, 2007-08, 2008-09, 2010-11 to 2013-14, 2007-08, 2009-10 to 2012-13, 2010-11 to 2013-14, 2009-2010, 2010-2011, & 2008-2009 3 Coastal Fuel Pvt. Limited,.......................Appellant 4, Government Place, Delta House, Kolkata-700001 [PAN: AABCC0074A] -Vs.- Income Tax Officer,................................Respondent Central Circle-4(3), Kolkata, Aayakar Bhawan Poorva, 110, Shanti Pally, Kolkata-700107 & I.T.(SS)A. Nos. 33/KOL/2023 Assessment Year: 2008-2009 Balaji Coke Industry Pvt. Limited,.............Appellant 4, Government Place (North), Delta House, Room No. 234, 2 nd Floor, Kolkata-700001 [PAN: AABCB1212D] -Vs.- Income Tax Officer,................................Respondent Central Circle-4(3), Kolkata, Aayakar Bhawan Poorva, 110, Shanti Pally, Kolkata-700107 Appearances by: Shri Miraj D. Shah, A.R., appeared on behalf of the assesseee Shri G. Hukugha Sema, CIT, appeared on behalf of the Revenue Date of concluding the hearing : May 25, 2023 Date of pronouncing the order : May 26, 2023 IT(SS))A Nos. 2, 6, 7-22, 33/KOL/2023 A.Ys. : 2009-2010, 2007-08, 2008-09, 2010-11 to 2013-14, 2007-08, 2009-10 to 2012-13, 2010-11 to 2013-14, 2009-2010, 2010-2011, & 2008-2009 4 O R D E R Per Bench:- This is a bunch of 19 (nineteen) appeals filed at the instance of the different assessees against the separate orders of ld. Commissioner of Income Tax (Appeals), Kolkata-21 dated 16.03.2022 for A.Ys. 2009-10, 07-08, 08-09, 2010-11 to 2013-14, dated 20.05.2022 for A.Y. 2007-08, dated 19.05.2022 for A.Y. 2009-10, dated 17.06.2022 for A.Ys. 2010-11 & 2011-12, dated 13.10.2022 for A.Y. 2012-13, dated 18.05.2022 for A.Y. 2010-11, dated 19.05.2022 for A.Y. 2011-12, dated 18.05.2022 for A.Ys. 2012-13 & 2013-14, dated 13.10.2022 for A.Y. 2009-10, dated 19.05.2022 for A.Y. 2010-11 & dated 29.12.2022 for A.Y.2008-09. 2. The ld. Counsel for the assessees during the course of hearing compiled the details of these appeals in tabular form exhibiting the following information:- Serial No., name of the assessee, assessment year, IT(SS) No., year in which appeals were filed before the Tribunal, Ground No., issues on which additions/disallowances made by the ld. Assessing Officer, amount involved under each Head of grounds of appeal and grounds by the ld. Counsel showing IT(SS))A Nos. 2, 6, 7-22, 33/KOL/2023 A.Ys. : 2009-2010, 2007-08, 2008-09, 2010-11 to 2013-14, 2007-08, 2009-10 to 2012-13, 2010-11 to 2013-14, 2009-2010, 2010-2011, & 2008-2009 5 whether assessment orders were abated or non-abated. IT(SS))A Nos. 2, 6, 7-22, 33/KOL/2023 A.Ys. : 2009-2010, 2007-08, 2008-09, 2010-11 to 2013-14, 2007-08, 2009-10 to 2012-13, 2010-11 to 2013-14, 2009-2010, 2010-2011, & 2008-2009 6 Therefore, in order to appreciate these details involved scientifically, we take this chart on the record and made part of this order. 3. Brief facts of the case are that a search & seizure operation under section 132(1) coupled with the survey operation under section 133A of the Income Tax Act, 1961 were carried out in “Balaji Coke” Group of Cases on 29.03.2012. According to the ld. Assessing Officer, thereafter search and seizure operation on subsequent dates were carried out on various concerns of the Group and at residences of the Directors of those concerns at Kolkata. These operations were carried out at factory premises in Vishakhapatnam, Dhanbad, Uluberia and in Gujarat. The Group is engaged in the business of manufacturing and trading of LAM Coke, Coke, Coal, Steel and allied products. According to the ld. Assessing Officer, during search and survey, various details were found and seized. The jurisdictions over all the assessees were centralized at Kolkata. He passed an assessment order on 23.03.2015 under section 143(3)/153A/144 on the different entities. IT(SS))A Nos. 2, 6, 7-22, 33/KOL/2023 A.Ys. : 2009-2010, 2007-08, 2008-09, 2010-11 to 2013-14, 2007-08, 2009-10 to 2012-13, 2010-11 to 2013-14, 2009-2010, 2010-2011, & 2008-2009 7 4. Dissatisfied with their orders passed in the individual cases in each assessment year, assessees carried the matters in appeals before the ld. CIT(Appeals). The ld. CIT(Appeals) concurred with the ld. Assessing Officer in an ex-parte order impugned herein. 5. Ld. Counsel for the assessee while impugning these orders contended that on the e-mail ID registered with the Income Tax Portal since 2020, no notice has been sent. For buttressing this contention, he filed an affidavit of the ld. Authorized Representative of the assessee, namely Shri Pankaj Baid, who is a practising Advocate. This affidavit reads as under:- IT(SS))A Nos. 2, 6, 7-22, 33/KOL/2023 A.Ys. : 2009-2010, 2007-08, 2008-09, 2010-11 to 2013-14, 2007-08, 2009-10 to 2012-13, 2010-11 to 2013-14, 2009-2010, 2010-2011, & 2008-2009 8 IT(SS))A Nos. 2, 6, 7-22, 33/KOL/2023 A.Ys. : 2009-2010, 2007-08, 2008-09, 2010-11 to 2013-14, 2007-08, 2009-10 to 2012-13, 2010-11 to 2013-14, 2009-2010, 2010-2011, & 2008-2009 9 IT(SS))A Nos. 2, 6, 7-22, 33/KOL/2023 A.Ys. : 2009-2010, 2007-08, 2008-09, 2010-11 to 2013-14, 2007-08, 2009-10 to 2012-13, 2010-11 to 2013-14, 2009-2010, 2010-2011, & 2008-2009 10 Therefore, he prayed that the impugned orders be set aside and the ld. 1 st Appellate Authority be directed to decide these appeals on merit. 6. On the other hand, ld. CIT(DR) submitted that assessment orders are also ex-parte orders and, therefore, it is better that if these proceedings are reinstituted at the level of ld. Assessing Officer, who can re-examine all these details. 7. We have duly considered the rival contentions and gone through the record carefully. A perusal of the assessment record would indicate that assessment orders have been framed under section 143(3)/153A/144. When these assessment orders were framed on 23.03.2015, the meaning and scope of section 153A was in a very dwindling stage. Recently Hon’ble Supreme Court in the case of PCIT-vs.- Maruti Suzuki India Limited (2019) 416 ITR 613 (SC) has adjudicated the scope of section 153A, wherein Hon’ble Supreme Court concurred with various Hon’ble High Courts on one aspect that the income in a searched assessment under section 153A is to be determined on the basis of incriminating material found during the course of search. The assessment orders before us are no doubt ex-parte but they are not passed IT(SS))A Nos. 2, 6, 7-22, 33/KOL/2023 A.Ys. : 2009-2010, 2007-08, 2008-09, 2010-11 to 2013-14, 2007-08, 2009-10 to 2012-13, 2010-11 to 2013-14, 2009-2010, 2010-2011, & 2008-2009 11 in the line of law laid down by the Hon’ble Supreme Court in 2023. 8. Apart from the above, a perusal of the affidavit of the ld. Counsel for the assessees would indicate that after becoming the e-notice mandatory, the e-mail of all these assessees have been registered on the Portal of the Income Tax Department and no notice on these e-mail have ever been issued or served by the Department. It is pertinent to note that the first two notices must be in physical term were replied by the assessees with a request for adjournment. These two notices were around September, 2019 but thereafter in March, 2020 COVID struck up. The Income Tax Department has also started services of notice through Electronic Mode only. The Department has not issued notices on the Registered Mail on the Portal of the Income Tax Department, therefore, there is no proper service upon the assessees. Hence, the orders of the ld. CIT(Appeals) passed on respective appeals of these appellants are not sustainable. 9. We appreciate the contentions of the ld. D.R. that impugned orders are ex-parte assessment order. For adjudicating these issues on merit, the ld. 1 st Appellate Authority would have to call for a remand report from the IT(SS))A Nos. 2, 6, 7-22, 33/KOL/2023 A.Ys. : 2009-2010, 2007-08, 2008-09, 2010-11 to 2013-14, 2007-08, 2009-10 to 2012-13, 2010-11 to 2013-14, 2009-2010, 2010-2011, & 2008-2009 12 ld. Assessing Officer and a round of enquiry would commence at the level of ld. Assessing Officer. Thus there will be multiplicity of the proceeding. The ld. 1 st Appellate Authority would be dependent upon the remand report of the ld. Assessing Officer, which would be akin to an assessment order because on every item, he has to conduct enquiry and submit a report. In order to avoid this exercise, we deem it appropriate that both the impugned orders are to be set aside and all these proceedings are remitted back to the file of ld. Assessing Officer for fresh adjudication in accordance with law. 10. In the result, all the appeals of different assessees are allowed for statistical purposes. Order pronounced in the open Court on May 26, 2023. Sd/- Sd/- (Girish Agrawal) (Rajpal Yadav) Accountant Member Vice-President(KZ) Kolkata, the 26 th day of May, 2023 Copies to : (1) Tirupati Fuels Pvt. Limited, 4, Government Place, Delta House, 2 nd Floor, Kolkata-700001 (2) Bal aji Coke Industry Pvt. Limited, 4, Government Place, Delta House, Kolkata-700001 IT(SS))A Nos. 2, 6, 7-22, 33/KOL/2023 A.Ys. : 2009-2010, 2007-08, 2008-09, 2010-11 to 2013-14, 2007-08, 2009-10 to 2012-13, 2010-11 to 2013-14, 2009-2010, 2010-2011, & 2008-2009 13 3) Auro Shikha Vinimay Pvt. Limited, 4, Government Place, Delta House, Kolkata-700001 (4) Ortem Merchants Pvt. Limited, 4, Government Place, Delta House, Kolkata-700001 (5) Coastal Fuel Pvt. Limited, 4, Government Place, Delta House, Kolkata-700001 (6) Income Tax Officer, Central Circle-4(3), Kolkata, Aayakar Bhawan Poorva, 110, Shanti Pally, Kolkata-700107 (7) Commissioner of Income Tax (Appeals), Kolkata-21; (8) Commissioner of Income Tax , (9) The Departmental Representative (10) Guard File TRUE COPY By order Assistant Registrar Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S.