SERI MULTIPLE ASSET INVESTMENT,KOLKATA V. ACIT, CIR-29, KOLKATA

ITA 2630/KOL/2024

AI Insights

The case involves Seri Multiple Asset Investment, a Category-II Alternative Investment Fund registered with SEBI, which appealed against the order of the Commissioner of Income Tax (Appeals) - NFAC, Delhi. The appeal was initially dismissed by the CIT(A) on the grounds that the assessee had withdrawn it, based on an erroneous assumption that the assessee had opted for the Direct Tax Vivad se Vishwas Scheme for the assessment order. The Tribunal found that the CIT(A) had not adjudicated the appeal on its merits and thus remanded the case back to the Assessing Officer for a fresh assessment.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 668965 (ITAT-KOLKATA)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2016-2017
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside; Opportunity of being heard; Bad and doubtful debts; TDS; FORM 26AS
• Section: 143(3)

Judgement Text

"आयकर अपीलीय अधिकरण कोलकाता 'डी' पीठ, कोलकाता में IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘D’ BENCH, KOLKATA श्री प्रदीप क ुमार चौबे, न्याधयक सदस्य एवं श्री राक ेश धमश्रा, लेखा सदस्य क े समक्ष Before SHRI PRADIP KUMAR CHOUBEY, JUDICIAL MEMBER & SHRI RAKESH MISHRA, ACCOUNTANT MEMBER I.T.A. No.: 2630/KOL/2024 Assessment Year: 2016-17 Seri Multiple Asset Investment Vs. ACIT, Circle-29, Kolkata (Appellant) (Respondent) PAN: AANTS4505M Appearances: Assessee represented by : Amit Agrawal, AR. Department represented by : S.B. Chakraborty, Addl. CIT, Sr. DR Date of concluding the hearing : 19-June-2025 Date of pronouncing the order : 25-June-2025 ORDER PER RAKESH MISHRA, ACCOUNTANT MEMBER: This appeal filed by the assessee is against the order of the Commissioner of Income Tax (Appeals)-NFAC, Delhi [hereinafter referred to as Ld. 'CIT(A)'] passed u/s 250 r.w.s. 254 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) for AY 2016-17 dated 24.10.2024, which has been passed against the assessment order u/s 143(3) of the Act, dated 28.12.2018. Page | 2 I.T.A. No.: 2630/KOL/2024 Assessment Year: 2016-17 Seri Multiple Asset Investment. 2. The assessee is in appeal before the Tribunal raising the following grounds of appeal: “1. That on the facts and in the circumstances of the case, Ld. Commissioner of Income Tax (Appeals) National Faceless Appeal Centre (NFAC) [here-in- after referred to as Ld. CIT(Appeals)] was not justified and grossly erred in treating the appeal filed by the appellant as withdrawn for the second time based on incorrect assumption of facts. 2. That on the facts and in the circumstances of the case, Ld. CIT(Appeals) was not justified and grossly erred in disposing off the appeal disregarding the specific direction of the Hon'ble ITAT whereby issues were restored to the Ld. CIT(Appeals) for deciding appeal on merits. 3. That on the facts and in the circumstances of the case, the Ld. CIT(Appeals) was not justified rather grossly erred in not deleting addition of interest of Rs. 28,13,52,763/- to the total income of the appellant based on Form 26AS instead of actual income of Rs. 3,00,80,483/- offered by the appellant 4. That on the facts and in the circumstances of the case, the Ld. CIT(Appeals) was not justified rather grossly erred in ignoring that fact that amount appearing in Form 26AS is neither received nor accounted by the appellant and hence does not represent real income of the appellant. 5. That on the facts and in the circumstances of the case and without prejudice to the Ground No 3 and 4 taken here-in-above, the Ld. CIT(Appeals) was not justified rather grossly erred in not allowing corresponding amount of Rs. 25,12,72,280/- as bad debts and/or business loss while computing income under the head \"Profits and gains of business or profession\". 6. That on the facts and in the circumstances of the case, the Ld. CIT(Appeals) was not justified rather grossly erred in ignoring the action of the AO in levying interest u/s 234C without appreciating the fact that such interest is liable to be computed on the returned income. 7. That the appellant craves leave to add, to amend, modify, rescind, supplement or alter any of the Grounds stated here-in-above, either before or at the time of hearing of this appeal.” 3. Brief facts of the case are that the assessee is Category-II Alternative Investment Fund registered with SEBI and had filed its return of income for AY 2016-17 showing total income of ₹ 21,12,430/-. The Assessing Officer (hereinafter referred to as Ld. 'AO') added the undisclosed Page | 3 I.T.A. No.: 2630/KOL/2024 Assessment Year: 2016-17 Seri Multiple Asset Investment. interest income of ₹ 28,13,53,763/- to the total income of the assessee and assessed the total income at ₹ 28,34,65,193/- u/s 143(3) of the Act. Aggrieved with the assessment order, the assessee filed an appeal before the Ld. CIT(A) who has merely mentioned in the appeal order that “As Form 5 has been issued on 03.01.2022, the assessee is allowed to withdraw the appeal.” Aggrieved with the order of the Ld. CIT(A), the assessee has filed the appeal before this Tribunal. 4. Rival contentions were heard and the submissions made and the details filed have been examined. The Ld. AR submitted before us that for the impugned assessment year AY 2016-17, the assessment order as well as the penalty order was passed and the assessee had opted for Direct Tax Vivad se Vishwas Scheme, 2024 (in short VSVS) against the penalty order only. The Ld. CIT(A) has however, decided and dismissed the appeal as withdrawn erroneously considering that the assessee had opted for VSV Scheme for the assessment order as well. The Tribunal had earlier remanded the matter to the Ld. CIT(A) who has again dismissed the appeal on the same ground. It was submitted that the addition was made on the basis of Form 26AS filed and the income was not received. The Ld. CIT(A) has mentioned that Form No. 5 has been issued on 03.01.2022 and the assessee is allowed to withdraw the appeal. The assessee is an Alternate Investment Fund of Category-II and registered under SEBI and follows the cash system of accounting and as the income shown in Form No. 26AS was not received, hence, the same was not accounted for. 5. The Ld. DR did not raise any serious objection to the request made by the Ld. AR to remand the appeal to the Ld. CIT(A) for adjudication on merits. Page | 4 I.T.A. No.: 2630/KOL/2024 Assessment Year: 2016-17 Seri Multiple Asset Investment. 6. We have considered the submissions made. The Bench raised a query as to whether the TDS claimed had been considered in the impugned assessment year to which the Ld. AR submitted that the assessee had claimed the credit for the TDS made. This, inter alia, implies that the assessee had considered a part of the income equivalent to the TDS made in the impugned assessment year and the rest of the income has been considered in the subsequent assessment year in the year of receipt. This approach is not correct as the entire income had to be given the same treatment. However, as the Ld. CIT(A) has not adjudicated the appeal on merits, therefore, as requested by the Ld. AR, we set aside both the orders of the Ld. CIT(A) as well as of the Ld. AO and remit the matter back to the Ld. AO to consider the submission of the assessee as per law and if permissible, grant the requisite relief and make the addition only after affording adequate opportunity of being heard to the assessee and as per law. Needless to say, the assessee shall be given a reasonable opportunity of being heard to make any further submission it wants to make in support of its grounds of appeal and shall not seek unnecessary adjournments. Accordingly, the grounds taken by the assessee in the appeal are allowed for statistical purposes. 7. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open Court on 25th June, 2025. Sd/- Sd/- [Pradip Kumar Choubey] [Rakesh Mishra] Judicial Member Accountant Member Dated: 25.06.2025 Bidhan (P.S.) Page | 5 I.T.A. No.: 2630/KOL/2024 Assessment Year: 2016-17 Seri Multiple Asset Investment. Copy of the order forwarded to: 1. Seri Multiple Asset Investment, Vishwakarma Building, 86C Topsia Road (South), Kolkata, West Bengal, 700046. 2. ACIT, Circle-29, Kolkata. 3. CIT(A)-NFAC, Delhi. 4. CIT- 5. CIT(DR), Kolkata Benches, Kolkata. 6. Guard File. //True copy // By order Assistant Registrar ITAT, Kolkata Benches Kolkata "