M/s Mallick Brothers, Hooghly v. ITO, WD-2(2), HOOGHLY, Hooghly

ITA 448/KOL/2016 | 2010-2011
Pronouncement Date: 29-11-2017 | Result: Partly Allowed

Appeal Details

RSA Number 44823514 RSA 2016
Assessee PAN AAEFM5690A
Bench Kolkata
Appeal Number ITA 448/KOL/2016
Duration Of Justice 1 year(s) 8 month(s) 14 day(s)
Appellant M/s Mallick Brothers, Hooghly
Respondent ITO, WD-2(2), HOOGHLY, Hooghly
Appeal Type Income Tax Appeal
Pronouncement Date 29-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 29-11-2017
Assessment Year 2010-2011
Appeal Filed On 15-03-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA [BEFORE HONBLE SRI N.V.VASUDEVAN JM & DR.ARJUN LAL SAINI AM] I.T.A NO. 448/KOL/201 6 ASSESSMENT YEAR : 2010-11 M/S MALLICK BROTHERS -VS.- I.T.O. WARD-2 (2) HOOGHLY HOOGHLY. [PAN : AAEFM 5690 A] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI SOUMITRA CHOU DHURY ADVOCATE FOR THE RESPONDENT : SHRI SOUMYAJIT DASGUPTA ADDL.CIT DATE OF HEARING : 21.11.2017. DATE OF PRONOUNCEMENT : 29.11.2017. ORDER PER N.V.VASUDEVAN JM THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 14.01.2016 OF CIT-(A)- 6 KOLKATA RELATING TO A.Y.2010-11. 2. THE ASSESSEE IS A PARTNERSHIP FIRM. THE ASSE SSEE CARRIES ON THE BUSINESS OF DISTRIBUTION FOR INDIAN LP GAS OF INDIAN OIL CORPOR ATION LTD. FOR A.Y.2010-11 THE ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL INC OME OF RS.4 04 529/-. THE AO COMPLETED THE ASSESSMENT U/S 143(3) OF THE INCOME T AX ACT 1961(ACT) BY AN ORDER DATED 19.03.2013 DETERMINING THE TOTAL INCOME AT RS .19 07 520/- AFTER MAKING THE FOLLOWING ADDITIONS :- SL.NO. PARTICULARS AMOUNT AMOUNT 1. RETURNED INCOME RS.4 04 529.00 2. PURCHASES NOT CONFIRMED [AS DISCUSSED IN PARA NO.3A O 3B] RS.11 17 251.00 3. UNEXPLAINED PURCHASE [AS DISCUSSED IN PARA NO.4 AND 4A] RS.2 22 890.00 4. OVERHEAD EXPENSES [AS DISCUSSED IN PARA 5] RS.1 62 853.00 RS.15 02 994.00 5. TOTAL RS.19 07 523.00 6. ROUNDED OFF U/S 288A RS.19 07 520.00 2 ITA NO.448/KOL/2016 M/S MALLICK BROTHERS A.Y.2010-11 2 3. THE ASSESSEE FILED AN APPLICATION U/S 154 O F THE ACT POINTING OUT THAT THE FIGURE OF ADDITION ON ACCOUNT OF UNCONFIRMED PURCHASE AT RS.1 1 17 251/- MADE IN THE ORDER OF ASSESSMENT U/S 143(3) OF THE ACT DATED 19.03.2013 W AS ERRONEOUS. THIS APPLICATION WAS ACCEPTED BY THE AO AND ADDITION WAS REDUCED TO RS.1 0 68 251/- FROM RS.11 17 251/-. ORDER U/S 154 OF THE ACT WAS PASSED ON 26.04.2013. 4. THE ASSESSEE FILED AN APPEAL BEFORE CIT(A) ON 09 .05.2013 IN FORM NO.35 WHICH IS THE FORM IN WHICH THE APPEAL HAS TO BE FILED BEF ORE CIT(A). THE ASSESSEE HAS MENTIONED THAT THE APPEAL IS BEING FILED AGAINST TH E ORDER PASSED U/S 143(3)/154 OF THE ACT AND IN THE COLUMN WITH REGARD TO THE DATE OF SE RVICE OF THE ORDER AGAINST WHICH THE APPEAL IS FILED IT HAS BEEN MENTIONED AS N.A. IN TH E COLUMN IN THE FORM OF THE APPEAL REGARDING DATE OF SERVICE OF THE ORDER AGAINST WHIC H APPEAL IS BEING FILED IT HAS BEEN MENTIONED AS 26.04.2013. IN THE GROUNDS OF APPEAL R AISED BEFORE CIT(A) THE ASSESSEE HAS HOWEVER CHALLENGED THE ADDITION OF RS.11 17 251 /- (WHICH WAS MODIFIED TO RS.10 68 251/- BY THE ORDER U/S 154 OF THE ACT DATE D 26.04.2013). THE ASSESSEE ALSO CHALLENGED THE ADDITION OF RS.2 22 890/- MADE IN TH E ORDER U/S 143(3) OF THE ACT DATED 19.03.2013. 5. WE HAVE ALREADY SEEN THAT IN THE FORM OF APPEAL I.E. FORM NO.35 FILED BEFORE CIT(A) THE ASSESSEE HAS MENTIONED THE SECTION UNDER WHICH THE APPEAL AGAINST WAS PASSED AS 143(3)/154 OF THE ACT. SINCE THE GROUNDS OF APPEAL WERE WITH REFERENCE TO THE ORDER DATED 19.03.2013 PASSED U/S 143(3) OF THE ACT CIT(A) WAS IN DOUBT AS TO WHICH IS THE ORDER WHICH IS THE SUBJECT MATTER OF THE APPEAL FILED BEFORE HIM. THE CIT(A) CALLED UPON THE ASSESSEE TO CLARIFY THE POSITION. THE ASSE SSEE GAVE THE FOLLOWING CLARIFICATION :- (1) THAT AFTER RECEIVING ORIGINAL DEMAND NOTICE AN D ORDER U/S 143(3) DATED 19.03.2013 A DISCREPANCY OF RS.49 000/- [RS.16 78 2 88 RS.16 29 299] WAS DETECTED AND INFORMED TO I.T.O. 24(2) BY WRITTEN PE TITION ON 11.04.2013 [WITHIN THE STATUTORY PERIOD U/S 249(2) - DATE AS PER ORIGI NAL SERVICE OF NOTICE FOR FILING APPEAL WAS 17.04.2013] 3 ITA NO.448/KOL/2016 M/S MALLICK BROTHERS A.Y.2010-11 3 (2) THAT I.T.O. RECTIFIED THE MISTAKE WHICH WAS APP ARENT FROM RECORD ON 26.04.2013 U/S 154 WHICH WAS RECEIVED ON THAT DATE BY THE APPELLANT THE ORDER U/S 154 ONLY WITH NOTICE OF DEMAND. (3) THAT WHILE FILING OF APPEAL TO YOUR HONOUR THE DATE OF RECEIPT WAS REFLECTED IN FORM NO.35 AS ON 26.04.2013. 6. THE ABOVE EXPLANATION GIVEN BY THE ASSESSEE WAS VERY VAGUE. THE CIT(A) THEREFORE DISMISSED THE APPEAL OF THE ASSESSEE ON T HE GROUND THAT THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE WERE WITH REFERENCE TO ADDIT IONS MADE IN THE ORDER U/S 143(3) OF THE ACT DATED 19.03.2013 BUT FORM 35 WAS IN RELATI ON TO THE ORDER DATED 26.04.2013 PASSED U/S 154 OF THE ACT. SINCE THE GROUNDS RAISED BY THE ASSESSEE DID NOT ARISE OUT OF THE ORDER DATED 26.04.2013 PASSED U/S.154 OF THE AC T THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 7. AGGRIEVED BY THE ORDER OF CIT(A) THE ASSESSEE HA S FILED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 8. IN THE GROUNDS OF APPEAL THE ASSESSEE HAS MADE I T VERY CLEAR THAT THERE IS A TYPOGRAPHICAL ERROR WHILE FILLING UP FORM NO.35 WHI CH IS THE FORM OF APPEAL FILED BEFORE CIT(A). INSTEAD OF MENTIONING THE SECTION UNDER WHI CH THE ORDER OF APPEAL AGAINST IS PASSED AS 143(3) IT HAS BEEN WRONGLY MENTIONED AS 1 43(3)/154 OF THE ACT. IT WAS THE PLEA OF THE ASSESSEE THAT CIT(A) WITHOUT GIVING REA SONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE ARBITRARILY CAME TO THE CONCLUSION THA T GROUND OF APPEAL DOES NOT ARISE OUT OF THE ORDER AGAINST WHICH THE APPEAL HAS BEEN FILE D. 9. AFTER HEARING THE RIVAL SUBMISSIONS WE ARE OF T HE VIEW THAT THE ORDER OF CIT(A) HAS TO BE SET ASIDE AND THE ASSESSEE SHOULD BE AFFO RDED OPPORTUNITY OF RECTIFYING THE TYPOGRAPHICAL ERROR IN FORM NO.35. IT IS CLEAR FROM ALL CIRCUMSTANCES THAT THE ASSESSEE INTENDED TO FILE AN APPEAL ONLY AGAINST THE ORDER U /S 143(3) OF THE ACT DATED 19.03.2013 AS MODIFIED BY THE ORDER DATED 26.04.2013 PASSED U/ S 154 OF THE ACT. WE ARE OF THE VIEW THAT THE APPROACH OF CIT(A) IS TOO TECHNICAL. WE TH EREFORE PERMIT THE ASSESSEE TO AMEND 4 ITA NO.448/KOL/2016 M/S MALLICK BROTHERS A.Y.2010-11 4 FORM NO.35 FILED BEFORE CIT(A) AND TO MENTION THE C ORRECT PROVISION OF LAW UNDER WHICH ORDER OF APPEAL AGAINST WAS PASSED AS ALSO TH E DATE OF SERVICE OF SUCH ORDER OF APPEAL AGAINST. THE CIT(A) IS THEREAFTER DIRECTED T O CONSIDER THE APPEAL OF THE ASSESSEE IN ACCORDANCE WITH LAW. IF THERE IS A DELAY IN FILI NG OF THE APPEAL BEFORE THE CIT(A) AS ON THE DATE WHEN THE APPEAL WAS PRESENTATION BY THE AS SESSEE ON 09.05.2013 BEFORE CIT(A) THE ASSESSEE SHOULD BE GIVEN AN OPPORTUNITY OF EXPL AINING THE DELAY IN FILING THE APPEAL. THE CT(A) SHALL CONSIDER ALL THE ISSUES ON MERIT IN CLUDING THE CONDONATION OF DELAY IF ANY IN FILING APPEAL BEFORE CIT(A) IN ACCORDANCE W ITH LAW AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE.. FOR STATISTICAL PU RPOSES THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. 10. IN THE RESULT THE APPEAL BY THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 29.11.2017. SD/- SD/- [DR.A.L.SAINI] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 29.11.2017. [RG SR.PS] COPY OF THE ORDER FORWARDED TO: 1.M/S MALLICK BROTHERS VILL. & P.O.-DR. PRASAD DAS MULLICK ROAD DIST. HOOGHLY PIN- 712103. 2. I.T. O. WARD-2(2) HOOGHLY. 3. C.I.T. (A)-6 KOLKATA. 4. C.I.T.-8 KOL KATA. 5. CIT(DR) KOLKATA BENCHES KOLKATA. TRUE COPY BY ORDER SR. PRIVA TE SECRETARY HEAD OF OFFICE/DDO ITAT KOLKATA BENCHES 5 ITA NO.448/KOL/2016 M/S MALLICK BROTHERS A.Y.2010-11 5