M/s Phalguni Merchants Pvt. Ltd., Kolkata V. ITO, WD-5(3), KOLKATA, Kolkata

ITA 1022/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1634 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 12-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA
• Assessee Lawyers: MANISH TIWARI
• Keywords: Opportunity of being heard

Judgement Text

1 ITA NO.1022/KOL/2016 PHALGUNI MERCHANTS (P)LTD A.Y .2008-09 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C KOL KATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM & SHRI WAS EEM AHMED, AM ] ITA NO.1022/KOL/2016 ASSESSMENT YEAR : 2008-09 M/S PHALGUNI MERCHANTS PVT.LTD. -VERSUS- I.T.O., WARD-5(3) KOLKATA KOLKATA (PAN:AAECP 1468 L) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI MANISH TIWARI, FCA FOR THE RESPONDENT: SHRI S.DASGUPTA, ADDL. CIT(DR) DATE OF HEARING : 24.01.2018. DATE OF PRONOUNCEMENT : 02.02.2018. ORDER PER N.V.VASUDEVAN, JM: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 25.02.2016 OF C.I.T.(A)-6, KOLKATA RELATING TO A.Y.2008-09. 2. WE WILL TAKE UP FOR CONSIDERATION GROUND NO.1 R AISED BY THE ASSESSEE BEFORE THE TRIBUNAL. 3. THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINE SS OF DEALING IN SHARES AND MAKING INVESTMENTS. AN ORDER OF ASSESSMENT U/S 143( 3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (ACT) DATED 24.03.2014 WAS PASSED BY THE AO. AGGRIEVED BY CERTAIN ADDITIONS MADE BY THE AO IN THE AFORESAID ORDER OF ASSESSMENT THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). THE ORIGINAL APPEAL WAS P ENDING BEFORE CIT(A)-2, KOLKATA. CIT(A)-2, KOLKATA ISSUED A NOTICE DATED 20.08.2015 FIXING THE HEARING OF THE APPEAL OF THE ASSESSEE ON 09.11.2015. IT APPEARS THAT NOBODY APPEARED ON BEHALF OF THE ASSESSEE. ORDER OF THE CIT(A) IS SILENT AS TO WHETHER THIS NO TICE OF HEARING WAS SERVED ON THE ASSESSEE. THEREAFTER THE APPEAL WAS TRANSFERRED TO THE FILE OF CIT(A)-6, KOLKATA. THE CIT(A) ISSUED A NOTICE DATED 18.01.2016 FIXING THE APPEAL FOR HEARING ON 15.02.2016. THIS NOTICE WAS SERVED ON THE ASSESSEE ON 22.01.201 6 BUT NONE APPEARED ON 15.02.2016. THE CIT(A) THEREFORE PROCEEDED TO DECID E THE APPEAL EXPARTE AND FOUND NO GROUNDS TO INTERFERE WITH THE ORDER OF CIT(A). I T WAS SUBMITTED BY THE LD. COUNSEL 2 ITA NO.1022/KOL/2016 PHALGUNI MERCHANTS (P)LTD A.Y .2008-09 FOR THE ASSESSEE THAT THE ASSESSEE COULD NOT APPEAR ON 15.02.2016 BECAUSE AUTHORISED REPRESENTATIVE HAD SOME PERSONAL INCONVENIENCE. TH E REQUEST OF THE LD. COUNSEL FOR THE ASSESSEE WAS THAT THE ORDER OF THE CIT(A) SHOUL D BE SET ASIDE AND THE ISSUE RAISED BY THE ASSESSEE BEFORE THE CIT(A) SHOULD BE DIRECTE D TO DECIDE ON MERITS. THE LD. DR OPPOSED THE PRAYER OF THE ASSESSEE AS ABOVE. 4. WE HAVE GIVEN A VERY CAREFUL CONSIDERATION TO TH E RIVAL SUBMISSIONS. IN OUR VIEW AFTER THE CHANGE OF THE JURISDICTION FROM CIT( A)-2, KOLKATA TO CIT(A)-6, KOLKATA THERE WAS ONLY ONE OPPORTUNITY AFFORDED TO THE ASSE SSEE. IT HAS BEEN EXPLAINED THAT THE FAILURE OF THE AUTHORISED REPRESENTATIVE TO APPEAR ON THE SAID DATE WAS DUE TO HIS PERSONAL INCONVENIENCE. WE ARE OF THE VIEW THAT IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE, THE PLEA OF THE ASSESSEE FOR SETTING ASIDE THE ORDER OF THE CIT(A) FOR AFFORDING OPPORTUNITY OF BEING HEARD SHOULD BE ACC EPTED. WE ACCORDINGLY SET ASIDE THE ORDER OF CIT(A) AND DIRECT THE CIT(A) TO DECIDE VARIOUS GROUNDS OF APPEAL RAISED BY THE ASSESSEE BEFORE CIT(A) ON MERITS AFTER AFFOR DING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON 02.02.2018. SD/- SD/- [WASEEM AHMED] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 02.02.2018. [RG SR.PS] COPY OF THE ORDER FORWARDED TO: 1.M/S.PHALGUNI MERCHANTS PVT. LTD., C/O S.S.LOHIA & CO., ROOM NO.711, 7 TH FLOOR, NARAYANI BUILDING, 27, BRABOURNE ROAD, KOLKATA-7000 01. 2. I.T.O., WARD-5(3), KOLKATA. 3. C.I.T.(A)-6, KOLKATA. 4. C.I.T.-2, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, SENIOR PRIVATE SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHES 3 ITA NO.1022/KOL/2016 PHALGUNI MERCHANTS (P)LTD A.Y .2008-09