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Income Tax Appellate Tribunal, BENCH ‘SMC’ KOLKATA
Before: Hon’ble Shri N.S.Saini, AM ]
These are appeals filed by the assessee against the order all dated 09.01.2017 of C.I.T-(A)-16, Kolkata for A.Y. 2009-10, 2010-11 and 2011-12.
All these appeals are barred by limitation of 68 days. At the time of hearing the Authorised Representative of the assessee filed copy of the order of Hon’ble Calcutta High Court in the case of Bengal Waterproof Limited & Ors vs Bihar Rubber Company Limited & Ors and G.A.No.3225 of 2017, APO NO.463 of 2017 in CS No.161 of 2017 Bihar Rubber Company Limited & ANR vs Bengal Waterproof Limited & Ors. Order dated 27.11.2017 and submitted that there was non cooperation between two groups of the director of the company and therefore the relevant document and papers required to file the appeals were not available. After the appointment of a Special Officer by the Hon’ble Calcutta High Court the matter could proceed and after getting the details the appeals were filed. He further submitted that there is no malafide intention on the part of the assessee in filing the appeals belated. 6o 1116/Kol/2017 Bihar Rubber Co.Ltd A.Y.2009-10 to 2011-12 Hence he prayed that the delay in filing these appeals be condoned and the appeals be admitted for hearing.
On the other hand, the Learned Departmental Representative opposed the condonation of delay as argued by the Authorised Representative of the assessee.
After hearing both the parties, I am of the considered view that the assessee has a reasonable cause in not filing the appeals before the Tribunal within the prescribed time. Therefore I condone the delay and admit the appeals accordingly.
The assessee has raised the following common additional grounds on the jurisdiction of the AO for re-opening the assessment u/s 148 of the Act :- “1. That on the facts and circumstances of the case and in law, the Ld. CIT(A) ought to have appreciated that the Ld. Respondent for having applied no independent mind, before assuming jurisdiction to reopen u/s 147, to the input received from the Investigation Wing/ Maharashtra Sales Tax Authority as to certain suppliers, there had existed no valid “ Reason to believe “.
2. That on the facts and circumstances of the case nd in law, the Ld. CIT(A) ought to have appreciate that the assumption of jurisdiction under sec. 147, not being preceded by and founded on, on any legitimate and admissible, Reason to believe, the Reassessment Proceeding had been without jurisdiction and therefore, was liable to be quashed and nullified.
That the Appellant craves leave to modify, realign, anyone or more of the foregoing grounds, and/or go for newer ground(s), either before or during the Appeal hearing.”
At the time of hearing the Authorised Representative of the assessee submitted that he is not pressing these grounds of appeal and hence they are dismissed for want of prosecution and also made an endorsement to the effect in the grounds of appeal appended with Form No.36 Therefore these grounds of appeal are dismissed for want of prosecution. 6o 1116/Kol/2017 Bihar Rubber Co.Ltd A.Y.2009-10 to 2011-12
The assessee has also raised the following grounds of appeal on the merits of the additon except for change in figure in all the years under appeal :-
1. Without prejudice to Addl. Ground No. 1 and 2, that on the facts and circumstances of the case and in law, the Ld. CIT(A) was not justified in dismissing the Appeal and therefore, upholding the Assessment Order, passed under sec. 147 / 144, by means of a non-speaking order, after omitting to take, appropriate and judicious cognizance of, the evidence produced, explanations provided and finally, apply the law applicable thereto.
2. Without prejudice to Addl. Ground No. 1 and 2, that on the facts and circumstances of the case and in law, the Ld. CIT{A) has erred in arbitrarily upholding the disallowance of the entire purchase amount of Rs. Rs.19,20,539.00, by terming it bogus, merely on the ground of Information and allegation, obtained from DGIT(Inv) and Maharashtra VAT Authority, without ever examining and accordingly, finding any defect /anomaly in the Evidence and Records, produced and explained.
3. Without prejudice to Addl. Ground No. 1 and 2 , that the Ld. CIT{A) , for having been solely guided by the information, received by the Investigation Wing of Maharashtra VAT Department and thus, not founding his adjudication, on uncontroverted evidence and law applicable in this regard, be directed to accept the purchase of Rs. 19,20,539.00 as genuine and thus, delete the addition on account thereof.”
The Learned Authorised Representative of the assessee in the course of hearing submitted that the Assessing Officer has passed the order u/s 147 r.w.s. 144 of the Act ex-parte as the assessee could not put into appearance before him due to the dispute between the two groups of directors of the company. He further argued that before the CIT(A) the assessee made written submissions but the CIT(A) has passed the order without considering the submissions of the assessee. Therefore he submitted that in the interest of justice the matter should be restored back to the file of the Assessing Officer to pass fresh assessment order after considering the submissions of the assesse.
The Learned Departmental Representative had no objection to the above submission of the Authorised Representative of the assessee. 6o 1116/Kol/2017 Bihar Rubber Co.Ltd A.Y.2009-10 to 2011-12
Therefore in the given facts and circumstances of the case I set aside the orders of the lower authorities and restore the matter back to the file of the Assessing Officer to make assessment afresh as per law after allowing reasonable and proper opportunity of hearing to the assessee.
In the result the appeals of the assessee are allowed for statistical purposes.
Order pronounced in the open Court on 11.07.2018.