M/s Solar Smokeless Fuels Pvt. Ltd., Kolkata V. ACIT, CC-XXIV, KOLKATA, Kolkata

ITSSA 33/KOL/2013

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 1178 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 06-11-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 06-03-2013
• Court: TRIBUNAL
• Department Lawyers: SNEHOTPAL D UTT JCITLD
• Section: 132

Judgement Text

IT(SS) NO.33/KOL/2013 M/S. SOLAR SMOKELESS FUELS P.LTD C-AM 1 IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, K OLKATA BEFORE : SHRI MAHAVIR SINGH,JUDICIAL MEMBER, AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER I.T (SS) NO.33/KOL/2013 BLOCK PERIOD: 01-04-1986 TO 07-02-1997 M/S SOLAR SMOKELESS FUELS PVT. LTD VS. A.C.I.T, CC-XXIV, KOLKATA PAN: AADCS 6141G ( APPELLANT/ASSESSEE ) ( RESPONDENT/DEPARTMENT ) FOR THE APPELLANT/ASSESSEE: NONE FOR THE RESPONDENT/DEPARTMENT: SHRI SNEHOTPAL D UTT, JCIT/LD.DR DATE OF HEARING: 02-11-2015 DATE OF PRONOUNCEMENT: 06 -11-20 15 ORDER SHRI M.BALAGANESH, AM THIS APPEAL OF THE ASSESSEE ARISES OUT OF THE ORDE R OF THE LEARNED CIT(A), CENTRAL-III, KOLKATA IN APPEAL NO. 43/CC-XXIV/CIT( A)C-III/2005-06/KOLKATA DATED 26-11-2012 FOR THE BLOCK PERIOD 01-04-1986 TO 07- 02-1997 AGAINST THE PENALTY ORDER FRAMED U/S 158BFA(2) OF THE INCOME TAX ACT 1961 (HE REINAFTER REFERRED TO AS THE ACT). 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL I S AS TO WHETHER PENALTY U/S. 158BFA(2) OF THE ACT IS LEVIABLE TO THE TUNE OF RS .6,36,131/- IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THIS ISSUE ARE THAT A SEARC H AND OPERATION U/S. 132 OF THE I.T ACT 1961 WAS CONDUCTED ON 17-01-1997 IN VINAY PRAKA SH GROUP OF CASES, WHEREIN IT(SS) NO.33/KOL/2013 M/S. SOLAR SMOKELESS FUELS P.LTD C-AM 2 VARIOUS PREMISES IN RANCHI, PATNA AND CALCUTTA WER E COVERED. SEPARATE SEARCH WARRANTS WERE ISSUED ON 17-1-97 AT THE TWO COMBINE D OFFICE PREMISES AS UNDER:- 1. M/S. R.D ENTERPRISES PVT. LTD & M/S. SOLAR SMOKE LESS FUELS PVT. LTD AT KUJU, DIST HAZARIBAGH 2. M/S. R.D ENTERPRISES PVT. LTD & M/S SOLAR SMOKE LESS FUELS PVT. LTD AT QR.NO.6, MARWARI ARIYOGYA BHAWAN, BARI ATU, RANCHI 3.1 DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE LD.AO FOUND THAT CERTAIN SALES OF SOFT COKE ON MONTHLY LINKAGE SCHEME FOR THE MONT HS OF NOV. AND DEC. 1996 WERE MADE AND A PROFIT OF RS.9,86,250/- WAS DERIVED THER EON. THE SAID ADDITION WAS MADE IN THE HANDS OF THE ASSESSEE ON PROTECTIVE BASIS. IT IS NOT KNOWN FROM THE RECORDS THAT IN WHOSE HANDS SUBSTANTIVE ADDITION WAS MADE TO TH IS EFFECT WHILE MAKING PROTECTIVE ADDITION IN ASSESSEES HANDS. THIS ADDITION OF RS. 9,86,250/- MADE WAS CONFIRMED BY THE ITAT IN QUANTUM PROCEEDINGS ON SUBSTANTIVE BAS IS IN THE HANDS OF THE ASSESSEE. HOWEVER, THE COPY OF THE ITATS ORDER FOR QUANTUM PROCEEDINGS IS NOT ON RECORDS. 3.2 BASED ON THE CONFIRMATION OF ADDITION UPTO I TAT IN QUANTUM APPEAL THE LEARNED AO LEVIED PENALTY @ 60% AMOUNT TO RS. 6,3 6,131 U/S. 158BFA(2) OF THE ACT, ON PRESUMPTION THAT SUCH LEVY IS AUTOMATIC. IT IS SEEN FROM THE RECORDS THAT THE ASSESSEE HAD NOT BOTHERED TO MAKE ANY APPEARANCE B EFORE THE LD.CIT(A) DESPITE GIVING SEVERAL OPPORTUNITIES AND ULTIMATELY THE LD.CIT(A) WAS FORCED TO DISPOSE OFF THIS APPEAL IN CONFIRMING THE LEVY OF PENALTY EXPARTE. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS:- 1. FOR THAT THE LD. CIT(A) ERRED IN DISMISSING THE APPEAL OF THE APPELLANT WITHOUT AFFORDING ANY REASONABLE OPPORTU NITY OF HEARING TO THE APPELLANT AND PASSING AN EXPARTE ORD ER. 2. FOR THAT THE LD.CIT(A) ERRED IN CONFIRMING LEVY OF PENALTY OF RS.6,36,131/- U/S. 158BFA(2) OF THE INCOME TAX ACT, 1961 BY THE ASSESSING OFFICER ON THE APPELLANT. 3. FOR THAT THE OBSERVATIONS MADE BY THE CIT(A) IN THE APPEAL ORDER AND HOLDING THAT PENALTY U/S. 158BFA(2) HAS T O BE IMPOSED PROCEEDS ON INCORRECT APPRECIATION OF FACTS & LAW AND IT(SS) NO.33/KOL/2013 M/S. SOLAR SMOKELESS FUELS P.LTD C-AM 3 AS SUCH THE LEVY OF PENALTY CONFIRMED BY THE LD.CIT (A) WAS WRONG AND UNCALLED FOR. 4. FOR THAT FURTHER GROUNDS OF APPEAL MAY KINDLY BE ALLOWED TO BE TAKEN AT THE TIME OF HEARING OF THE APPEAL. 4. BEFORE US NONE APPEARED ON BEHALF OF THE ASSES SEE. 5. WE HAVE HEARD THE LD. DR AND PERUSED THE MAT ERIALS AVAILABLE ON RECORD. WE FIND THAT THE LD. CIT(A) HAD PASSED AN EXPARTE ORDER WIT HOUT APPEARANCE OF THE ASSESSEE. WE ALSO FIND ON WHAT GROUND THE ADDITION OF RS.9, 86,250/- WAS CONFIRMED IN THE HANDS OF THE ASSESSEE ON SUBSTANTIVE BASIS BY THE ITAT IN THE ABSENCE OF THE SAID ORDER ON RECORD. HENCE, IN THE INTEREST OF JUSTIC E AND FAIR PLAY, WE DEEM IT FIT AND APPROPRIATE TO SET ASIDE THIS ISSUE TO THE FILE OF THE LD.CIT(A) FOR FRESH ADJUDICATION AND TAKE A DECISION AFRESH, UNINFLUENCED BY HIS E ARLIER DECISION ON THE IMPUGNED ISSUE. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSE SSEE IN THIS APPEAL ARE ALLOWED FOR STATISTICAL PURPOSE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE THIS ORDER IS PRONOUNCED IN OPEN COURT ON 06 /11/ 2015 COPY OF THE ORDER FORWARDED TO: 1. . THE APPELLANT /ASSESSEE: M/S. SOLAR SMOKELESS FUELS PVT. LTD 4 G ANGADHAR BABU LANE, 1 ST FLOOR, KOL-12. 2 THE RESPONDENT / DEPARTMENT: ACIT, CC - XXIV, 18 RABINDRA SARANI, PODDAR COURT, KOLKATA. 3 4.. / THE CIT, / THE CIT(A) 5 . DR, KOLKATA BENCH SD/- ( MAHAVIR SINGH, JUDICIAL MEMBER ) SD/- (M. BALAGANESH, ACCOUNTANT MEMBER) DATE 06 /11/2015 IT(SS) NO.33/KOL/2013 M/S. SOLAR SMOKELESS FUELS P.LTD C-AM 4 6 . GUARD FILE . TRUE COPY, BY ORDER, ASSTT REGISTRAR ** PRADIP SPS