M/S MODERN CONSTRUCTION,HOWRAH vs. THE ITO, WD-33(3), KOLKATA, KOLKATA

Both appeals by the assessee against the different orders of even dated 30-03-2016 passed by Commissioner of Income Tax (Appeals)-9, Kolkata for assessment years 20106-11 and 2011-12 respectively.

Since the assessee in both the appeals and the issue raised therein are similar and therefore both the appeals heard together and are being disposed of by way of consolidated order for sake of convenience. First we shall take up for A.Y.10-11.

It was submitted by Ld. AR that the assessee is a firm and carries on business as works contractor in Government sector. Assessee filed its return of income for the year under consideration on 25.10.2010 declaring total -35/Kol/2016 A.Ys. 10-11 & 11-12 M/s Modern Constrn. Vs. ITO—Wd-33(3) Kol. Page 2 income of ₹ 3,10,550/- and under scrutiny proceedings, the Assessing Officer determined the income of assessee at ₹19,85,493/- making additions on account of reimbursement, under various charges for generator, dumper and roller, depreciation on machinery, penal interest and disallowance u/s. 40A(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) against which appeal was preferred before CIT(A) but due to hospitalization one of assessee’s main partners, assessee could not prosecute its case before CIT(A) and for which CIT(A) passed ex parte order confirming the addition made by AO and urged to remit the appeal to the file of CIT(A) for fresh adjudication.

Ld. DR submits that CIT(A) has granted one year time and offered many opportunities from 02.03.2015 to 22.03.2016 wherein assessee could not avail the same to substantiate its claim before CIT(A) and relied on the orders of Authorities Below and alternatively argued to impose costs upon the assessee.

Heard rival submissions and perused the material available on record. We find that in response to the statutory notice u/s. 143(2)/142(1) of the Act assessee was represented before AO through its authorized representative and filed various details in support of its claim whereas before CIT(A) it is noticed the authorized representative appeared before CIT(A) on 15.01.2015 and discussed the case with CIT(A) and on another occasion on 16.02.2016 and 26.02.2016 assessee sought adjournment on the ground that one partner of assessee-firm was hospitalized and thereafter also assessee sought adjournment on 15.03.2016 and it was adjourned to 22.03.2016, but, however, assessee did not attend on 22.03.2016 thereby CIT(A) confirmed the order of AO. It is noticed that out of seven adjournments, assessee appeared on 15.01.2016, 16.2.2016 and 26.02.2016 and sought adjournments. Taking into consideration all the facts of the case, we are of the view that mater should go back to the file of CIT(A) for fresh adjudication, however subject to the condition of payment of cost of ₹500/- by the assessee in favour of State Legal Service Authority, West Bengal and produce the receipt of payment of ITA No.934-35/Kol/2016 A.Ys. 10-11 & 11-12 M/s Modern Constrn. Vs. ITO—Wd-33(3) Kol. Page 3 cost before CIT(A). The CIT(A) shall acknowledge the same and proceed to adjudicate the appeal afresh in accordance with law. Hence, assessee’s appeal is allowed for statistical purpose in terms of above direction. for AY 11-12.

As has been discussed in para-2 hereinabove, since the assessee and issue raised therein and relief sought before during the course of hearing are one and the same in this appeal also. Hence, we adopt the same view taken in the appeal for A.Y 2010-11 hereinabove. We hold accordingly.