M/s Davey Agenies, Asansol V. I.T.O Wd - 2(4),Asonasal, Asansol

ITA 1017/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5059 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-04-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 30-04-2013
• Court: TRIBUNAL
• Department Lawyers: R P NAG
• Assessee Lawyers: U DASGUPTA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

I.T.A. NO. 1017/KOL./2013 ASSESSMENT YEAR: 2008-2009 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 1017/KOL/ 2013 ASSESSMENT YEAR: 2008-2009 M/S. DAVEY AGENCIES,............................... ..............................APPELLANT 83, N.S. ROAD, ASANSOL [PAN: AAEFD 6610 K] -VS.- INCOME TAX OFFICER,................................ .............................RESPONDENT WARD-2(4), ASANSOL, PARMAR BUILDING, G.T. ROAD, ASANSOL-713 304 APPEARANCES BY: SHRI U. DASGUPTA, A.R., FOR THE ASSESSEE SHRI R.P. NAG, JCIT, SR. D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : MARCH 17, 2016 DATE OF PRONOUNCING THE ORDER : APRIL 06, 2016 O R D E R PER SHRI P.M. JAGTAP :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), DURGAPUR DATED 22.02.2013 PASSED EX PARTE FOR THE ASSESSMENT YEAR 2008-09. 2. THE ASSESSEE IN THE PRESENT CASE IS A PARTNERSHI P FIRM, WHICH IS ENGAGED IN THE BUSINESS OF TRADING OF PHARMACEUTICA L PRODUCTS AS C&FA/CONSIGNMENT AGENT. THE RETURN OF INCOME FOR TH E YEAR UNDER CONSIDERATION WAS FILED BY IT ON 29.09.2008 DECLARI NG TOTAL INCOME OF RS.4,16,051/-. IN THE ASSESSMENT COMPLETED UNDER SE CTION 143(3) VIDE ORDER DATED 31.12.2010, THE TOTAL INCOME OF THE ASS ESSEE WAS DETERMINED BY THE ASSESSING OFFICER AT RS.37,58,200/- AFTER MA KING ADDITIONS, INTER I.T.A. NO. 1017/KOL./2013 ASSESSMENT YEAR: 2008-2009 PAGE 2 OF 3 ALIA, ON ACCOUNT OF THE ALLEGED BOGUS LIABILITY AMO UNTING TO RS.25,86,623/- AND DISALLOWANCE OF RS.7,45,482/- MADE UNDER SECTIO N 40(A)(IA) OF THE ACT. AGAINST THE ORDER PASSED BY THE ASSESSING OFFI CER UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEF ORE THE LD. CIT(APPEALS), WHO DISMISSED THE SAME IN LIMINE FOR NON-PROSECUTION ON THE PART OF THE ASSESSEE, AS ACCORDING TO HIM, THER E WAS NO COMPLIANCE ON THE PART OF THE ASSESESE TO THE NOTICES ISSUED BY H IM FIXING THE APPEAL FOR HEARING FROM TIME TO TIME. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEA L BEFORE THE TRIBUNAL. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN GROUND NO . 1, THE ASSESSEE HAS RAISED A PRELIMINARY ISSUE CHALLENGING THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX PARTE ON THE GROUND THAT PROPER AND SUFFICIENT OPPORTUNITY WAS NOT GIVEN BY HIM DURING THE COURSE OF APPELLATE PROCEEDINGS. IN THIS REGARD, THE LD. COUNSEL FOR TH E ASSESSEE HAS POINTED OUT FROM THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) THAT AS PER THE ADJOURNMENT SOUGHT BY THE ASSESSEE, THE HEARING FIX ED ON 29.01.2013 WAS ADJOURNED BY THE LD. CIT(APPEALS) TO 12.02.2013. HE HAS SUBMITTED THAT THE ASSESSEE, HOWEVER, FAILED TO APPEAR ON 12.02.20 13 SINCE THE APPEAL OF THE ASSESSEE WAS TRANSFERRED FROM THE JURISDICTION OF THE LD. CIT(A), ASSANSOL TO THE LD. CIT(APPEALS), DURGAPUR, WHICH T HE ASSESSEE WAS NOT AWARE OF. IT IS THUS CLEAR THAT ONLY ONE OPPORTUNIT Y WAS EFFECTIVELY GRANTED TO THE ASSESSEE BY THE LD. CIT(APPEALS), DU RGAPUR AND THE SAME COULD NOT BE AVAILED BY THE ASSESSEE DUE TO SUFFICI ENT CAUSE AS EXPLAINED BY THE LD. COUNSEL FOR THE ASSESSEE BEFORE US. HAVI NG REGARD TO ALL THESE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND MERIT IN THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE LD. CIT(APPEA LS) HAS DISPOSED OF THE APPEAL OF THE ASSESSEE VIDE HIS IMPUGNED ORDER PASS ED EX PARTE WITHOUT GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING H EARD AND THERE IS A CLEAR VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. IN THAT VIEW OF THE MATTER, WE SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(APPE ALS) AND REMIT THE I.T.A. NO. 1017/KOL./2013 ASSESSMENT YEAR: 2008-2009 PAGE 3 OF 3 MATTER BACK TO HIM WITH A DIRECTION TO DISPOSE OF T HE APPEAL OF THE ASSESSEE AFRESH AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON APRIL 06, 201 6. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 6 TH DAY OF APRIL, 2016 COPIES TO : (1) M/S. DAVEY AGENCIES, 83, N.S. ROAD, ASANSOL (2) INCOME TAX OFFICER, WARD-2(4), ASANSOL, PARMAR BUILDING, G.T. ROAD, ASANSOL-713 304 (3) COMMISSIONER OF INCOME-TAX, KOLKATA; (4) CIT(APPEALS)- ,DURGAPUR (4) THE DEPARTMENTAL REPRESENTATIVE (5) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.