M/s. Assam Company India Limited, Kolkata V. Assistant Commissioner of Income Tax, Circle-2, Dibrugarh

SA 23/GTY/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0137 (ITAT-GUWAHATI)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 21-06-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 26-04-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: R P AGARWAL
• Keywords: Opportunity of being heard; Application of stay; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL GAUHATI E COURT AT KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT & SHRI A.T. VARKEY, JM] ITA NO. 122/GAU/2019 ASSESSMENT YEAR: 2013-14 ASSAM COMPANY INDIA LIMITED.................................APPELLANT ASSAM TEA HOUSE, 52, CHOWRINGHEE ROAD, KOLKATA 700 071. [PAN : AAACT 7590 B] ACIT, CIRCLE 2, DIBRUGARH..............................RESPONDENT PUSHKARA HOUSE, NATUN GAON, NH-37, MOHANAGHAT, DIBRUGARH, ASSAM 786 008. S.A. NO. 23/GAU/2019 (ARISING OUT OF ITA NO. 122/GAU/2019) ASSESSMENT YEAR: 2013-14 ASSAM COMPANY INDIA LIMITED.................................APPELLANT ASSAM TEA HOUSE, 52, CHOWRINGHEE ROAD, KOLKATA 700 071. [PAN : AAACT 7590 B] ACIT, CIRCLE 2, DIBRUGARH..............................RESPONDENT PUSHKARA HOUSE, NATUN GAON, NH-37, MOHANAGHAT, DIBRUGARH, ASSAM 786 008. APPEARANCES BY: SHRI R.P. AGARWAL, SR. ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. SHRI SANDIP SENGUPTA, JCIT, SR. DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JUNE 14 , 2019 DATE OF PRONOUNCING THE ORDER : JUNE 14, 2019 O R D E R PER P.M. JAGTAP, VICE PRESIDENT AT THE TIME OF HEARING OF THIS STAY APPLICATION, IT IS OBSERVED THAT THE LD. CIT(A), DIBRUGARH VIDE HIS APPELLATE ORDER DATED 16.01.2019 IMPUGNED IN THE CORRESPONDING APPEAL OF THE ASSESSEE BEING ITA NO. 122/GAU/2019 HAS DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE ON THE GROUND THAT THE 2 ITA NO. 122/GAU/2019 & S.A. NO. 23/GAU/2019 (A.Y. 2013-14) ASSAM COMPANY INDIA LTD. SAME WAS FILED BY THE ASSESSEE MANUALLY AND NOT BY ON-LINE MODE AS IS MANDATORILY REQUIRED AND THE ISSUE RAISED BY THE ASSESSEE CHALLENGING THE SAME IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE VARIOUS DECISIONS OF THIS TRIBUNAL. WITH THE CONSENT OF BOTH THESE PARTIES, THE APPEAL OF THE ASSESSEE ITSELF IS THEREFORE HEARD AND THE SAME IS BEING DISPOSED OF. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH IS ENGAGED IN THE BUSINESS OF GROWING AND MANUFACTURING OF TEA. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 28.09.2013 DECLARING A LOSS OF RS. 17,50,10,508/-. IN THE ASSESSMENT COMPLETED U/S 143(3) VIDE AN ORDER DATED 30.03.2016. THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE AO AT RS. 18,87,24,129/- AFTER MAKING VARIOUS ADDITIONS / DISALLOWANCES. 3. AGAINST THE ORDER PASSED BY THE AO U/S 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND SINCE THE SAME WAS FILED BY THE ASSESSEE MANUALLY AND NOT BY ON-LINE MODE AS REQUIRED W.E.F. 01.03.2016, THE LD. CIT(A) DID NOT ADMIT THE APPEAL OF THE ASSESSEE AND DISMISSED IT AT THE THRESHOLD. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT IN THE CASE OF ALL INDIA FEDERATION OF TAX PRACTITIONERS VS ITO CITED BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE APPEAL FILED BY THE ASSESSEE BEFORE THE LD. CIT(A) MANUALLY WAS DISMISSED BY HIM IN LIMINE ON THE GROUND THAT THE SAME WAS 3 ITA NO. 122/GAU/2019 & S.A. NO. 23/GAU/2019 (A.Y. 2013-14) ASSAM COMPANY INDIA LTD. NOT FILED BY THE ASSESSEE BY ON-LINE MODE AS REQUIRED MANDATORILY W.E.F. 1 ST MARCH, 2016 AND VIDE ITS ORDER DATED 4 TH MAY, 2018 PASSED IN ITA NO. 7134/MUM/2017, THE MUMBAI BENCH OF THIS TRIBUNAL SET ASIDE THE ORDER OF THE LD. CIT(A) AND DIRECTED HIM TO CONSIDER THE APPEAL OF THE ASSESSEE ON MERIT WHICH WAS TO BE FILED BY THE ASSESSEE BY ONLINE MODE WITHIN 10 DAYS FROM THE DATE OF RECEIPT OF THE ORDER. THE LD. CIT(A) WAS ALSO DIRECTED BY THE TRIBUNAL TO CONDONE THE DELAY ON THE PART OF THE ASSESSEE IN FILING THE SAID APPEAL AND CONSIDER IT ON MERIT. FOR THIS DECISION, THE TRIBUNAL DERIVED SUPPORT FROM THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF STATE OF PUNJAB VS SHAMLAL MURAI & ORS. REPORTED IN AIR 1976 (SC) 1177 AND IN THE CASE OF RANI KUSUM VS SMT. KANCHAN DEVI AIR 2005 (SC) 3304 WHEREIN IT WAS HELD THAT WHEN THE TECHNICAL CONSIDERATION AND SUBSTANTIAL JUSTICE ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED AND CANNOT BE OVERSHADOWED OR NEGATIVED BY SUCH TECHNICAL CONSIDERATION. RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF ALL INDIA FEDERATION OF TAX PRACTITIONERS (SUPRA), WE SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(A) DISMISSING THE APPEAL OF THE ASSESSEE IN LIMINE AND DIRECT HIM TO CONSIDER ON MERIT, THE APPEAL OF THE ASSESSEE WHICH SHALL BE FILED BY THE ASSESSEE ON-LINE WITHIN A PERIOD OF 10 DAYS FROM THE DATE OF RECEIPT OF THIS ORDER. THE LD. CIT(A) IS ALSO DIRECTED TO CONDONE THE DELAY ON THE PART OF THE ASSESSEE IN FILING THE SAID APPEAL AND DISPOSE OF THE SAID APPEAL ON MERIT AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4 ITA NO. 122/GAU/2019 & S.A. NO. 23/GAU/2019 (A.Y. 2013-14) ASSAM COMPANY INDIA LTD. 5. AS A RESULT OF DISPOSAL OF THE CORRESPONDING APPEAL OF THE ASSESSEE BEING ITA NO. 122/GAU/2019, THE STAY APPLICATION FILED BY THE ASSESSEE HAS BECOME INFRUCTUOUS AND THE SAME IS ACCORDINGLY DISMISSED. 6. IN THE RESULT, THE STAY APPLICATION FILED BY THE ASSESSEE IS DISMISSED WHILE THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH JUNE, 2019 SD/- SD/- (A.T. VARKEY) (P.M. JAGTAP) JUDICIAL MEMBER VICE PRESIDENT DATED: 14/06/2019 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. ASSAM COMPANY INDIA LIMITED, ASSAM TEA HOUSE, 52, CHOWRINGHEE ROAD, KOLKATA 700 071. 2. ACIT, CIRCLE 2, DIBRUGARH. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, SR. P.S. / H.O.O. ITAT, GAUHATI BENCHES