ATLANTIC DEVCON PVT. LTD.,KOLKATA vs. I.T.O.WARD-14(1), KOLKATA

The assessee in the present case is a Company, which filed its return of income for the year under consideration on 21.02.2013 declaring a loss of Rs.27,391/-. The said return was selected for scrutiny through CASS and a notice under section 143(2) was issued by the Assessing Officer to the assessee on 23.09.2013. As noted by the Assessing Officer, the assessee-company during the year under consideration had raised share capital and share premium aggregating to Rs.23.52 crores.

In order to verify the amount of share capital and share premium received by the assessee during the year under consideration in terms of section 68, the assessee-company was called upon by the Assessing Officer to produce the Directors of the share-subscriber companies for examination before him along with certain details and documents. The assessee, however, failed to comply with these requirements of the Assessing Officer. The Assessing Officer, therefore, issued summons under section 131 to the Director of the assessee-company requiring him to appear alongwith the Directors of the share-subscriber companies for examination alongwith the relevant details and documents. The assessee- company, however, failed to comply with the same. The Assessing Officer, therefore, held that the primary onus that lay on the assessee-company to explain the relevant cash credit in the form of share capital and share premium in terms of section 68 thus was not discharged and by relying on the various judicial pronouncements discussed by him in the assessment order, an addition of Rs.23.52 crores was made by him to the total income of the assessee by treating the share capital and share premium as unexplained cash credit under section 68 in the assessment completed under section 143(3) vide an order dated 27.03.2015.

Against the order passed by the Assessing Officer under section 143(3) of the Act, an appeal was preferred by the assessee before the ld. CIT(Appeals). Since there was no satisfactory compliance on the part of the assessee to the notices issued by him fixing the said appeal for hearing from time to time, the ld. CIT(Appeals) dismissed the appeal of the assessee for non-prosecution vide his appellate order dated 22.11.2016 passed ex-parte. Aggrieved by the order of the ld. CIT(Appeals), the assessee has preferred this appeal before the Tribunal.

We have heard the arguments of both the sides and also perused the relevant material available on record. In support of the preliminary issue raised by the assessee in the appeal challenging the impugned order passed by the ld. CIT(Appeals) ex-parte, the ld. Counsel for the assessee has submitted that the appeal of the assessee was fixed for hearing by the ld. CIT(Appeals) initially on 10.08.2016 and when the assessee sought adjournment of the said hearing fixed on 10.08.2016, a very short adjournment was granted by the ld. CIT(Appeals) fixing the appeal for hearing on 30.08.2016. She has submitted that the appeal of the assessee thereafter was fixed for hearing by the ld. CIT(Appeals) on 21.11.2016 and since the said notice could not be complied with by the assessee- company due to some unforeseen problem faced by its authorized representative, the ld. CIT(Appeals) proceeded to dismiss the appeal of the assessee for non-prosecution vide his impugned order passed ex- parte without giving any further opportunity of being heard to the assessee. She has contended that proper and sufficient opportunity of being heard thus was not given by the ld. CIT(Appeals) to the assessee before dismissing its appeal ex-parte for non-prosecution and even the ld. D.R. has not been able to bring anything on record to rebut or controvert this position apparent from the impugned order of the ld. CIT(Appeals). Moreover, as per the provisions of sub-section (6) of section 250, the ld. CIT(Appeals) was required to dispose of the appeal of the assessee vide an order in writing stating the points for determination, the decision thereon and the reasons for the decision. It is observed that the impugned order passed by the Ld. CIT(A) does not comply with these requirements. We, therefore, consider it fair and proper and in the interest of justice to set aside the impugned order passed by the ld. CIT(Appeals) ex-parte dismissing the appeal of the assesese for non- prosecution and remit the matter back to him for disposing of the appeal of the assessee afresh on merit in accordance with law by passing a well discussed and well reasoned order after giving proper and sufficient opportunity of being heard to the assessee. The assessee is directed to make due compliance before the ld. CIT(A) and extend all the possible cooperation in order to enable the ld. CIT(A) to dispose of the appeal afresh expeditiously.

In the result, the appeal of the assessee is treated as allowed for statistical purposes. Order pronounced in the open Court on August 25, 2021. Sd/- Sd/- (Madhumita Roy) (P.M. Jagtap) Judicial Member Vice-President

Kolkata, the 25th day of August, 2021 Copies to : (1) Atlantic Devcon Pvt. Ltd., C/o. Bijay Chaklanabish, Golepark, Tarunpally, Natagrah, Sodepur, Kolkata-700113 (2) Income Tax Officer, Ward-14(1), Kolkata, Aayakar Bhawan (Poorva), 110, Shantipally, Kolkata-700107