Antai Balaji Limited, Kolkata V. DCIT, Central Circle - 4(3), Kolkata, Kolkata

ITSSA 28/KOL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9388 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 11 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 08-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 27-04-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K NAYAK
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA A BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. GODARA, JUDICIAL MEMBER) IT(SS)A NO. 28/KOL/2018 ASSESSMENT YEAR: 2010-11 ANTAI BALAJI LTD..............................................................................APPELLANT FLAT 2B 2 ND FLOOR 12, HO CHI MINH SARANI KOLKATA 700 071 [PAN : AADCA 4284 C] VS. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-4(3), KOLKATA.........RESPONDENT APPEARANCES BY: SHRI SOUMITRA CHOUDHURY, ADVOCATE, APPEARED ON BEHALF OF THE ASSESSEE. SHRI A.K. NAYAK, CIT D/R, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : DECEMBER 4 TH , 2019 DATE OF PRONOUNCING THE ORDER : JANUARY 8 TH , 2020 ORDER PER J. SUDHAKAR REDDY, AM :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 21, KOLKATA, (HEREINAFTER THE LD.CIT(A)), PASSED U/S. 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 10/10/2017, FOR THE ASSESSMENT YEAR 2010-11. 2. AT THE OUTSET WE FIND THAT THERE IS A DELAY OF 102 (ONE HUNDRED TWO) DAYS IN FILING OF THIS APPEAL BY THE ASSESSEE. AFTER PERUSING THE PETITION FOR CONDONATION, WE ARE CONVINCED THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM FILING THE APPEAL IN TIME. HENCE THE DELAY IS CONDONED AND THE APPEAL IS ADMITTED. 3. AFTER HEARING RIVAL CONTENTIONS, WE FIND THAT THE LD. CIT(A) HAS PASSED AN EX-PARTE ORDER. THE ASSESSING OFFICER ALSO PASSED A BEST JUDGMENT ASSESSMENT ORDER. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NOTICES WERE NOT SERVED ON THE ASSESSEE AND THIS LED TO THE ASSESSEE NOT BEING PRESENT DURING THE ASSESSMENT PROCEEDINGS. HE PLEADS THAT THE ISSUE MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW, AFTER GIVING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD, ON THE GROUND OF VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 4. THE LD. D/R, AGREED WITH THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. WHILE AGREEING THAT THERE WERE VIOLATIONS OF PRINCIPLES OF NATURAL JUSTICE, HE ARGUED THAT A COMMITMENT BE TAKEN FROM THE ASSESSEE THAT HE WOULD CO-OPERATE IN DISPOSAL OF THE APPEAL. 5. IN VIEW OF THE ABOVE SUBMISSION MADE BY BOTH THE PARTIES, WE RESTORE TO THE FILE OF THE ASSESSING OFFICER FO ASSESSING OFFICER SHALL PROVIDE ADEQUATE OPPORTUNITY TO THE ASSESSEE BEFORE PASSING THE ASSESSMENT ORDER. THE ASSESSEE SHALL APPEAR BEFORE THE ASSESSING OFFICER, TAKE NOTICE AND THEREAFTER CO- OPERATE IN COMP 6. THE ASSESSEE IS FURTHER DIRECTED TO ONLY) IN FAVOUR OF PRIME MINISTER RELIEF FUND CIT(A) AS WELL AS THE ASSESSING OFFICER, IN THIS PROCEEDING VERIFY THE SAID PAYMENT BY THE ASSESSEE ASSESSMENT, IN ACCORDANCE WITH LAW. 6.1. FOR TH IS PROPOSITION TO LEVY COSTS, WHILE CONDONING THE ACTIONS OF THE ASSESSEE AS REASONABLE, WE RELY ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF VIJAY VISHIN MEGHANI VS. THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE IN ITA NO. 493 OF 2015 & 508 OF 2015, DT. SEPTEMBER 19, 2017, FOLLOWS:- 11. WE DO NOT FIND THAT ANY OF THESE DECIDED CASES HAVE ANY APPLICATION TO THE FACTS BEFORE US. WE HAVE IMPOSED THE COSTS NOT BECAUSE THE APPELLANT WAS NOT ACTING BONA FIDE BUT FINDING THAT EVEN AFTER THE LEGAL ADVICE WAS OBTAINED, THE MATTER WAS DECIDED IN FAVOUR OF THE ASSESSEE, THERE WAS TIME WHICH WAS CONSUMED AND IN ALL THIS DELAY OF 2984 DAYS OCCURRED. WHILE CONDONING SUCH DELAY, IT IS PERMISSIBLE FOR COURT, IN ITS RIGHTS AND EQUITIES HAVE TO BE BALANCED. TO RENDER SUBSTANTIAL JUSTICE AND NOT TO ENRICH THE REVENUE THAT THE COSTS HAVE BEEN IMPOSED. IT IS NOT, THEREFORE, A CASE WHERE THE STATE HAS BEEN ALLOWED TO RETAIN ANY ANY DIRECTIONS. IT IS THE COURT WHICH IN ITS DISCRETION HAS IMPOSED THIS CONDITION. WE DO NOT FIND ANY BASIS TO ALTER IT. THE REQUEST IN THAT BEHALF IS REFUSED. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ABOVE. KOLKATA, THE SD/- [S.S. GODARA] JUDICIAL MEMBER DATED : 08.01.2020 {SC SPS} 2 IN VIEW OF THE ABOVE SUBMISSION MADE BY BOTH THE PARTIES, WE RESTORE TO THE FILE OF THE ASSESSING OFFICER FO R FRESH ADJUDICATION IN ACCORDANCE WITH LAW. THE ASSESSING OFFICER SHALL PROVIDE ADEQUATE OPPORTUNITY TO THE ASSESSEE BEFORE PASSING THE ASSESSMENT ORDER. THE ASSESSEE SHALL APPEAR BEFORE THE ASSESSING OFFICER, TAKE NOTICE OPERATE IN COMP LETION OF THE ASSESSMENT PROCEEDINGS. THE ASSESSEE IS FURTHER DIRECTED TO PAY COST OF RS.5,000/- (RS. FIVE THOUSAND IN FAVOUR OF PRIME MINISTER RELIEF FUND , FOR HAVING NOT APPEARED BEFORE THE LD. CIT(A) AS WELL AS THE ASSESSING OFFICER, IN THIS PROCEEDING . THE ASSESSING OFFICER THE SAID PAYMENT BY THE ASSESSEE AND THEREAFTER PROCEED TO MAKE ASSESSMENT, IN ACCORDANCE WITH LAW. IS PROPOSITION TO LEVY COSTS, WHILE CONDONING THE ACTIONS OF THE ASSESSEE AS REASONABLE, WE RELY ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF VIJAY VISHIN MEGHANI VS. THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE IN ITA NO. 493 OF 508 OF 2015, DT. SEPTEMBER 19, 2017, WHEREIN AT PARA 11, IT HAS BEEN HELD AS 11. WE DO NOT FIND THAT ANY OF THESE DECIDED CASES HAVE ANY APPLICATION TO THE FACTS BEFORE US. WE HAVE IMPOSED THE COSTS NOT BECAUSE THE APPELLANT WAS NOT FIDE BUT FINDING THAT EVEN AFTER THE LEGAL ADVICE WAS OBTAINED, THE MATTER WAS DECIDED IN FAVOUR OF THE ASSESSEE, THERE WAS TIME WHICH WAS CONSUMED AND IN ALL THIS DELAY OF 2984 DAYS OCCURRED. WHILE CONDONING SUCH DELAY, IT IS PERMISSIBLE FOR COURT, IN ITS DISCRETION, TO IMPOSE COSTS. EVENTUALLY, THE RIGHTS AND EQUITIES HAVE TO BE BALANCED. TO RENDER SUBSTANTIAL JUSTICE AND NOT TO ENRICH THE REVENUE THAT THE COSTS HAVE BEEN IMPOSED. IT IS NOT, THEREFORE, A CASE WHERE THE STATE HAS BEEN ALLOWED TO RETAIN ANY BENEFIT OR HAS BEEN BENEFITED BY ANY DIRECTIONS. IT IS THE COURT WHICH IN ITS DISCRETION HAS IMPOSED THIS CONDITION. WE DO NOT FIND ANY BASIS TO ALTER IT. THE REQUEST IN THAT BEHALF IS REFUSED. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS DIRECTED KOLKATA, THE 8 TH DAY OF JANUARY, 2020. [ J. SUDHAKAR REDDY ACCOUNTANT MEMBER IT(SS)A NO. 28/KOL/2018 ASSESSMENT YEAR: 2010-11 ANTAI BALAJI LTD. IN VIEW OF THE ABOVE SUBMISSION MADE BY BOTH THE PARTIES, WE RESTORE THIS APPEAL R FRESH ADJUDICATION IN ACCORDANCE WITH LAW. THE ASSESSING OFFICER SHALL PROVIDE ADEQUATE OPPORTUNITY TO THE ASSESSEE BEFORE PASSING THE ASSESSMENT ORDER. THE ASSESSEE SHALL APPEAR BEFORE THE ASSESSING OFFICER, TAKE NOTICE LETION OF THE ASSESSMENT PROCEEDINGS. (RS. FIVE THOUSAND FOR HAVING NOT APPEARED BEFORE THE LD. ASSESSING OFFICER SHALL AND THEREAFTER PROCEED TO MAKE DE NOVO IS PROPOSITION TO LEVY COSTS, WHILE CONDONING THE ACTIONS OF THE ASSESSEE AS REASONABLE, WE RELY ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF VIJAY VISHIN MEGHANI VS. THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE IN ITA NO. 493 OF WHEREIN AT PARA 11, IT HAS BEEN HELD AS 11. WE DO NOT FIND THAT ANY OF THESE DECIDED CASES HAVE ANY APPLICATION TO THE FACTS BEFORE US. WE HAVE IMPOSED THE COSTS NOT BECAUSE THE APPELLANT WAS NOT FIDE BUT FINDING THAT EVEN AFTER THE LEGAL ADVICE WAS OBTAINED, THE MATTER WAS DECIDED IN FAVOUR OF THE ASSESSEE, THERE WAS TIME WHICH WAS CONSUMED AND IN ALL THIS DELAY OF 2984 DAYS OCCURRED. WHILE CONDONING SUCH DISCRETION, TO IMPOSE COSTS. EVENTUALLY, THE RIGHTS AND EQUITIES HAVE TO BE BALANCED. TO RENDER SUBSTANTIAL JUSTICE AND NOT TO ENRICH THE REVENUE THAT THE COSTS HAVE BEEN IMPOSED. IT IS NOT, THEREFORE, A CASE BENEFIT OR HAS BEEN BENEFITED BY ANY DIRECTIONS. IT IS THE COURT WHICH IN ITS DISCRETION HAS IMPOSED THIS CONDITION. WE DO NOT FIND ANY BASIS TO ALTER IT. THE REQUEST IN THAT BEHALF IS REFUSED. ALLOWED FOR STATISTICAL PURPOSES AS DIRECTED SD/- J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER COPY OF THE ORDER FORWARDED TO: 1. ANTAI BALAJI LTD FLAT 2B 2 ND FLOOR 12, HO CHI MINH SARANI KOLKATA 700 071 2. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 3 DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE -4(3), KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES IT(SS)A NO. 28/KOL/2018 ASSESSMENT YEAR: 2010-11 ANTAI BALAJI LTD. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES