ITO, WARD 11(1), KOLKATA, KOLKATA vs. M/S PADMALAYA VINIMAY PVT LTD., KOLKATA

The captioned appeal filed by the revenue, pertaining to assessment year 2009-10 is directed against the order passed by the Commissioner of Income Tax (Appeal)-4, Kolkata, which in turn arises out of an assessment order passed by the Assessing Officer u/s 144/ 263 / 147 / 143(3) of the Income Tax Act, 1961 (in short the Act).

At the outset itself, the ld. Counsel for the assessee assailed the impugned order by contending that the assessee could not represent his case properly before the Assessing Officer. The assessee could not make compliance of notice u/s 142(1) of the Act and directors of the assessee company were not examined by the M/s Padmalaya Vinimay Pvt. Ltd. Assessment Year:2009-10 Assessing Officer. The ld. Counsel for the assessee contended that in the interest of justice, another opportunity to contest the appeal before the Assessing Officer may be granted to the assessee. The ld. DR for the Revenue did not object, if the matter is remitted back to the file of Assessing Officer.

We note that in the assessee’s case under consideration, the assessment was carried out u/s 144 / 263 /147 / 143(3) of the Act and impugned order is an ex parte order, therefore, we do not wish to make any comments on the merits of the grounds raised by the assessee.

We note that the Assessing Officer passed an order u/s 144 observing the following:

Taking note of the above facts enquiry was started by issuing summons u/s 131 of the Income Tax Act to ascertain the genuineness of the transaction, and creditworthiness of the subscribing companies and also to understand the reason for investment with such a high premium to the principal officers of the companies calling for various details like documents for photo identity proof and address proof, narration of all debit and credit entries in all relevant Bank statement, copies of all ROC returns, sources of funds and utilization of funds, evidence of creditworthiness along with Income Tax Returns filed and copies of balance sheet, profit & loss account, Tax Audit Report for the relevant A.Y. written submission regarding purpose of raising fund by share application. But in most of the cases the deposition of the directors could not be taken as either the summons sent by post returned unserved or when served the directors appealed without bringing the specified details as required in the notices u/s 131.”

Considering the above facts, we note that assessee did not make compliance of notice u/s 142(1). Deposition of the directors could not be taken. We are of the view that one more opportunity should be given to the assessee to plead his case before the Assessing Officer. Therefore, without delving much deeper into the merits of the case, in the interest of justice, we restore the matter back to the file of Page | 2

In the result, the appeal of the revenue is allowed for statistical purposes.