M/s ESBEE Exim Pvt Ltd, Kolkata v. I.T.O Wd - 5(3),kolkata, Kolkata

ITA 588/KOL/2013 | 2007-2008
Pronouncement Date: 31-10-2016

Appeal Details

RSA Number 58823514 RSA 2013
Assessee PAN AAACE5715H
Bench Kolkata
Appeal Number ITA 588/KOL/2013
Duration Of Justice 3 year(s) 7 month(s) 12 day(s)
Appellant M/s ESBEE Exim Pvt Ltd, Kolkata
Respondent I.T.O Wd - 5(3),kolkata, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 31-10-2016
Appeal Filed By Assessee
Bench Allotted A
Tribunal Order Date 31-10-2016
Date Of Final Hearing 17-10-2016
Next Hearing Date 17-10-2016
Assessment Year 2007-2008
Appeal Filed On 19-03-2013
Judgment Text
ITA NO. 588/KOL/13 M/S. ESBEE EXIM PVT.LTD 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH KOLKATA BEFORE SHRI M.BALAGANESH ACCOUNTANT MEMBE R AND SHRI S.S.VISWANETHRA RAVI JUDICIAL MEMBER I.T.A. NO. 588/KOL/2013 A.Y: 2007-08 M/S. ESBEE EXIM PVT.LTD VS. I.T.O WARD-5(3) PAN: AAACE 5715H KOLKATA (APPELLANT) (RESPONDENT) APPEARANCES BY: SHRI J.M. THARD ADVOCATE LD.AR FO R THE ASSESSEE SHRI SNEHANSHU BISWAS JCIT SR. D.R F OR THE REVENUE DATE OF HEARING : 17-10-2016 DATE OF PRONOUNCEMENT : 31 -10-2016 O R D E R SHRI S.S. VISWANETHRA RAVI JM :- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 24-01-2013 OF THE COMMISSIONER OF INCOME TAX( APPEALS) VI KOLKATA FOR THE ASSESSMENT YEAR 2007-08. 2. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOL LOWING GROUNDS OF APPEAL:- 1. A) FOR THAT ON THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE THE LD. CIT(A) ERRED IN DISMISSING THE APP EAL BY NOT CONDONING THE DELAY IN FILING THE APPEAL. THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITH IN THE LIMITATION PERIOD. B) FOR THAT WHILE HIMSELF HOLDING THAT THE APPELLAN T WAS ENTITLED TO THE RELIEF CLAIMED ON MERITS THE LD C. I.T(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL BY REFUS ING TO CONDONE THE DELAY MERELY ON THE GROUND THAT THERE W AS UNDUE DELAY IN FILING THE APPEAL. ITA NO. 588/KOL/13 M/S. ESBEE EXIM PVT.LTD 2 2. FOR THAT THE LD. CIT(A) SHOULD HAVE CONDONED THE DELAY FOR DOING CONSCIONABLE JUSTICE AS THE APPELLA NT WAS ENTITLED TO RELIEF CLAIMED ON MERITS AND THE DELAY IN FILING THE APPEAL WAS FOR SUFFICIENT CAUSE. 3. THAT THE APPELLANT CRAVES LEAVE TO ALTER AMEND MODIFY ANY OF THE GROUNDS AND/OR TAKE ADDITIONAL GROUNDS BEFORE OR AT THE TIME OF HE ARING OF THIS APPEAL. 3. THE ONLY ISSUE IN THIS APPEAL TO BE DECIDED IS A S TO WHETHER THE CIT-A JUSTIFIED IN NOT CONDONING THE DE LAY IN FILING THE APPEAL IN THE FACTS AND CIRCUMSTANCES OF THE CA SE. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A COMPANY AND DEALING IN TRADING. THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION DECLARING A TOTAL INCOME AT RS.19 440/- ON 27-03-2008. UNDER SC RUTINY STATUTORY NOTICES WERE ISSUED. IN RESPONSE THE LD . AR OF THE ASSESSEE APPEARED AND FURNISHED THE REQUISITE DETAILS AND SU PPORTING DOCUMENTS. BASING ON WHICH THE AO ISSUED NOTICES U/S. 133(6) OF THE ACT AND EXAMINED THE REPLIES RECEIVED FROM THE RESPECTIVE P ARTIES. DURING SUCH PROCEEDINGS THE AO MADE DISALLOWANCES U/S. 14A AND 40(A)(IA) OF THE ACT AND DETERMINED THE TOTAL INCOME OF ASSESSEE AT RS.2 1 31 960/- . 5. AGAINST WHICH THE ASSESSEE PREFERRED AN APPEAL B EFORE THE CIT(A) WITH A DELAY OF 456 DAYS CONTENDING THAT THE SAID DELAY IN FILING THE APPEAL WAS CAUSED DUE TO ADVISE OF TH E LAWYER AGAINST THE APPEAL BE FILED BEFORE THE DUE DATE I.E . ON OR BEFORE 12.12.09. THEREAFTER ACCORDING TO ASSESSEE AGAIN THE LAWYER HAS ADVISED THE ASSESSEE TO FILE THE APPEAL WITH A PETITION FOR CONDONATION OF DELAY IN VIEW OF THE ORDER OF THE MU MBAI BENCHES IN THE CASE OF BANSAL PARIVAHAN (INDIA) LTD VS. ITO REPORTED IN (2011) 43 SOT 619(2010) THE CIT-A CONS IDERING ITA NO. 588/KOL/13 M/S. ESBEE EXIM PVT.LTD 3 THE SUBMISSIONS OF ASSESSEE DISMISSED THE APPEAL WI THOUT CONDONING THE DELAY BUT HOWEVER ALLOWED THE GROU ND OF THE ASSESSEE ON MERITS. 6. AGGRIEVED BY SUCH ORDER OF THE CIT-A NOW THE AS SESSEE IS IN SECOND APPEAL BEFORE US BY RAISING THE ABOVE MENTIONED GRO UNDS OF APPEAL. 7. DURING THE COURSE OF ARGUMENTS BEFORE US THE LD AR FOR THE ASSESSEE SUBMITS THAT THE CIT-A DISMISSED THE APPEA L ONLY ON THE GROUND OF DELAY IN FILING THE SAME. FURTHER SUBMITS THE CI T-A DECIDED THE APPEAL IN FAVOUR OF ASSESSEE ON THE ISSUE OF DISALL OWANCES MADE BY THE AO. HE FURTHER SUBMITS THAT THE IMPUGNED APP EAL IS ARISING OUT OF DISALLOWANCES MADE U/SEC 40(A)(IA) OF THE ACT AND F OR NON FILING OF TDS CERTIFICATES. THE LD AR URGED THAT THE MATTER MAY B E REMANDED TO THE FILE OF THE CIT-A FOR FRESH ADJUDICATION. ON THE CONTRAR Y THE LD. DR HAS RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 8. HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATE RIAL AVAILABLE ON RECORD. IT IS NOTICED THAT THE GROUNDS OF APPEAL R AISED BEFORE THE CIT-A REGARDING THE DISALLOWANCES MADE U/S. 40(A)(IA) OF THE ACT. THE ASSESSEE FILED THE APPEAL AGAINST THE ASSESSMENT ORDER DATED 29-10-09 FOR MAKING SUCH DISALLOWANCES MADE U/S. 40(A)(IA) OF THE ACT W ITH THE DELAY OF 456 DAYS AND THE REASON MENTIONED THEREIN WAS THAT DUE TO ADVICE OF THE LAWYER IT COULD NOT FILE APPEAL IN TIME. THEREAFTER LAWYER ADVISED THE ASSESSEE TO FILE THE APPEAL WITH THE DELAY CONDONAT ION PETITION IN VIEW OF DECISION RENDERED BY THE ITAT MUMBAI BENCH IN THE C ASE OF SUPRA WHEREIN IT HELD THAT THE AMENDMENT MADE TO THE PROV ISIONS OF SECTION 40(A)(IA) OF THE ACT BY THE FINANCE ACT 2010 ARE R EMEDIAL AND CURATIVE IN NATURE BY RELYING ON THE DECISION OF THE HONBLE SU PREME COURT IN THE CASE ITA NO. 588/KOL/13 M/S. ESBEE EXIM PVT.LTD 4 OF ALLIED MOTORS (P) LTD REPORTED IN (1997) 224 ITR 677(SC). IT IS PERTINENT TO NOTE AS RIGHTLY POINTED BY THE LD.AR THE CIT-A FOUND THAT THE AMENDMENT AND THE DECISION OF THE HONBLE HIGH COUR T OF CALCUTTA IN THE CASE OF CIT VS VIRGIN CREATIONS IN ITAT NO. 302 OF 2011 GA 32 DA TED 23 RD NOVEMBER 2011 DELIVERED INTERPRETING THE AMENDMENT TO THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT THROUGH FINANCE ACT 2010 THAT NO DISALLOWANCE IS MAINTAINABLE IF THE ASSESSEE DEPOSI TS THE TDS BEFORE THE DUE DATE OF FILING OF RETURN. THE CIT-A HAVING FOUN D SO IN FAVOUR OF THE ASSESSEE DISMISSED THE APPEAL OF ASSESSEE ONLY O N THE GROUND THAT THE ASSESSEE DID NOT EXPLAIN THE DELAY PROPERLY IN FILI NG THE APPEAL. IN VIEW OF OUR DISCUSSION ABOVE AND TAKING INTO CONSIDERATION THE SUBMISSIONS OF ASSESSEE AND THE DECISIONS AS RENDERED BY THE HONB LE CALCUTTA HIGH COURT AND THE HONBLE SUPREME COURT IN THE CASES OF SUPRA IN THE INTEREST OF JUSTICE WE DEEM IT FIT AND PROPER TO REMAND THE MA TTER TO THE FILE OF THE CIT-A TO CONSIDER THE PETITION FOR CONDONATION OF D ELAY AND TO CONDONE THE SAME AND TO PASS AFRESH ORDER IN ACCORDANCE WITH LA W ON MERITS. THE ASSESSEE SHALL BE AT LIBERTY TO FILE REQUISITE EVID ENCES IF ANY TO SUBSTANTIATE ITS CLAIM BEFORE HIM AND THE ASSESSEE SHALL NOT SEEK ANY ADJOURNMENTS AND SHALL COOPERATE WITH THE PROCEEDIN GS. 9. IN THE RESULT THE APPEAL OF ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 31/10/ 2016 SD/- SD/- M.BALAGANESH S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 31 /10/2016 ITA NO. 588/KOL/13 M/S. ESBEE EXIM PVT.LTD 5 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT/ASSESSEE : M/S. ESBEE EXIM PVT. L TD P-46 HIDE ROAD EXTENSIONS KOLKATA-88. 2 THE RESPONDENT/DEPARTMENT- INCOME TAX OFFICER WAR D 5(3) AAYKAR BHAWAN P-7 CHOWRINGHEE SQUARE KOLKATA-69. 3 4. / THE CIT(A) THE CIT 5 . DR KOLKATA BENCH 6 . GUARD FILE . **PP/SPS TRUE COPY BY ORDER A SSTT REGISTRAR