Venkatesh Advisory Services Private Limited , Kolkata V. ITO, Ward - 9(2), Kolkata, Kolkata

MA 125/KOL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4402 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 11-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R CHOWDHURY
• Assessee Lawyers: H V BHARDWAJ
• Keywords: Unexplained cash credit
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA [BEFORE HONBLE SHRI S.S. GODARA, JM & SHRI M.BAL AGANESH, AM ] M.A. NO. 125/KOL/2018 (ARISING OUT OF I.T.A NO. 776/KOL/2017 ) ASSESSMENT YEAR : 2012-1 3 VENKATESH ADVISORY SERVICES PVT. LTD. -VS- ITO, WARD-9(2), KOLKATA [PAN: AABCV 7016 P] (APPELLANT) (RESPOND ENT) I.T.A NO. 776/KOL/2017 ASSESSMENT YEAR : 2012-1 3 VENKATESH ADVISORY SERVICES PVT. LTD. -VS- ITO, WARD-9(2), KOLKATA [PAN: AABCV 7016 P] (APPELLANT) (RESPOND ENT) FOR THE APPELLANT : SHRI H.V. BH ARDWAJ, FCA FOR THE RESPONDENT : SHRI R. CHOWDHURY, ADDL. CIT DATE OF HEARING : 28.09.2018 DATE OF PRONOUNCEMENT : 31.10.2018 ORDER PER S.S. GODARA, JM 1. THE ASSESSEE HAS FILED ITS INSTANT MISCELLANEOUS APPLICATION SEEKING TO RECALL OUR ORDER DATED 18.06.2018 DISMISSING THE MAIN APPEAL F OR NON-PROSECUTION ON ACCOUNT OF ITS NON-APPEARANCE ON 18.06.2018. 2 MA NO.125/KOL/2018 (ARISING OUT OF I.T.A. NO.776/KOL/2017) VENKATESH ADVISORY SERVICES PVT. LTD. A.YR. 2012-13 2 HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEES ONLY PLEA DURING THE COURSE OF HE ARING IS THAT ITS ADDRESS HAS REMAINED UNCHANGED THROUGH OUT. IT HAS ALSO STATED TO HAVE RECEIVED OUR EX PARTE ORDER AT THE VERY ADDRESS. ITS CASE THEREFORE IS TH AT ITS NON-APPEARANCE DURING THE MAIN CASE HEARING IS NEITHER INTENTIONAL NOR DELIBE RATE BUT ON ACCOUNT OF NON-SERVICE OF NOTICE. ALL THIS INDICATES THAT THE ASSESSEES INSTANT MISCELLANEOUS APPLICATION CARRIES MERIT AS ITS NON-APPEARANCE IN MAIN APPEAL HEARING IS NEITHER INTENTIONAL NOR DELIBERATE. WE THEREFORE RECALL OUR ORDER DATED 18. 06.2018. THE MISCELLANEOUS APPLICATION MA NO. 125/KOL/2018 IS ALLOWED. 3. WE TAKE UP ASSESSEES MAIN APPEAL ITSELF I.T.A. NO. 776/KOL/2017 WITH THE CONSENT OF BOTH THE PARTIES. IT EMERGES FROM THE CI T(A)S ORDER THAT IT HAS BEEN PASSED HIS ORDER UNDER CHALLENGED EX PARTE ON ACCOU NT OF ASSESSEES NON-APPEARANCE AFTER FIXING THE CASE ON 16.02.2017 ONLY. HE HAS CO NFIRMED THE ASSESSING OFFICERS ACTION TREATING THE ASSESSEES SHARE CAPITAL AMOUNT ING OF RS. 8,94,50,000/- TO BE UNEXPLAINED CASH CREDITS U/S 68 OF THE ACT. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO DISPUTE THAT THIS LOWER APPELLATE ORDER H AS NOWHERE DISCUSSED MERITS OF THE ISSUE AS CONTEMPLATED U/S 250(6) OF THE ACT FOLLOWE D BY A DETAILED ADJUDICATION. WE THEREFORE RESTORE THE INSTANT MAIN APPEAL BACK TO T HE CIT(A) FOR AFRESH ADJUDICATION ON MERITS. IT IS MADE CLEAR THAT THE ASSESSEE SHALL APPEAR WITH A COPY OF OUR ORDER ON OR BEFORE 05.12.2018 ON ITS OWN. IT SHALL THEREAFTE R BE AFFORDED THREE EFFECTIVE OPPORTUNITIES OF HEARING TO CONCLUDE ARGUMENTS. ITS FAILURE IN DOING SO WOULD AMOUNT TO AUTOMATIC VACATION OF OUR INSTANT REMAND DIRECTI ONS. I.T.A. NO. 776/KOL/2017 IS ALLOWED FOR STATISTICAL PURPOSES. 3 MA NO.125/KOL/2018 (ARISING OUT OF I.T.A. NO.776/KOL/2017) VENKATESH ADVISORY SERVICES PVT. LTD. A.YR. 2012-13 3 4. THE ASSESSEES MISCELLANEOUS APPLICATION M.A. N O. 125/KOL/2018 IS ALLOWED AND MAIN APPEAL I.T.A. NO. 776/KOL/2017 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 31.10.2018 SD/- SD/- [M. BALAGANESH] [ S.S.GODARA ] ACCOUNTANT MEMBER JUDICIAL MEM BER DATED : 31.10.2018 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. VENKATESH ADVISORY SERVICES PVT .LTD., 42/1, STR AND ROAD, GROUND FLOOR, KOLKATA- 700007. 2. ITO, WARD-9(2), KOLKATA, AAYAKAR BHAWAN, KOLKATA -700069. 3..C.I.T(A).- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES