M/s Everglow Investment Pvt. Ltd., Kolkata V. ITO, WD-12(2), KOLKATA, Kolkata

ITA 1028/KOL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4516 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 13-05-2016
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH D KOL KATA [BEFORE HONBLE SHRI S.S.VISWANETHRA RAVI, JM & D R.ARJUN LAL SAINI, AM ] ITA NO.1028/KOL/2016 ASSESSMENT YEAR : 2005-06 M/S. EVERGLOW INVESTMENT PVT. LTD. -VERSUS- I.T.O., WARD-12(2). KOLKATA KOLKATA [PAN: AAACE 5803 G] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI SUNIL SURANA FOR THE RESPONDENT : MD.GHAYAS UDDIN, JCIT DATE OF HEA RING : 29.09.2016 DATE OF PRONOUNCEMENT : 30.09.2016. ORDER PER DR.ARJUN LAL SAINI, AM THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAINING TO A.Y.2005-06, IS DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INC OME TAX (APPEALS)-9, KOLKATA IN APPEAL NO.684/C.I.T.(A)-9/WD-12(2)/2014-15/KOL, DATED 30.03.2016, WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE LD. ASSE SSING OFFICER U/S 147/143(3) OF INCOME TAX ACT, 1961 (IN SHORT, THE ACT) DATED 06 .10.2009. 2. THE FACTS OF THE CASE ARE STATED IN BRIEF. TH E ASSESSEE HAD FILED ITS RETURN OF INCOME FOR A.Y.2005-06 ON 21.12.2005, DECLARING TOT AL INCOME OF RS.1,90,630/-. THE CASE WAS DULY PROCESSED ON 11.01.2007 U/S 143(1) OF THE ACT. SUBSEQUENTLY THE CASE WAS SELECTED FOR RE-ASSESSMENT U/S 148 OF THE ACT A ND THE AO HAS COMPLETED THE ASSESSMENT BY MAKING ADDITIONS ON ACCOUNT OF SHARE APPLICATION MONEY, EXPENSES DISALLOWED U/S 40(A)(IA) OF THE ACT AND EXCESS CLAI M OF LIABILITY. AGGRIEVED FROM THE ORDER OF THE LD AO THE ASSESSEE FILED AN APPEAL BEF ORE THE LD. CIT(A), WHO HAS DISMISSED THE APPEAL OF THE ASSESSEE BY OBSERVING T HE FOLLOWINGS :- IN THIS CASE, NOTICE U/S 250 WAS ISSUED ON 26/12/20 15 BY WHICH DATE OF HEARING WAS FIXED ON 23/03/2015 HOWEVER, NEITHER ANYBODY ATTEND ED NOR ANY WRITTEN REPLY WAS RECEIVED ON THE DATE OF HEARING. THEREFORE, FRESH N OTICES DATED 12/05/2015, 19/06/2015, ITA NO.1 028/KOL/2016 M/S. EVERGLOW I NVESTMENT PVT. LTD. A..Y.2005-06 2 28/07/2015, 04/12/2015 AND 10/03/2016 RESPECTIVELY WERE ISSUED BUT THERE WAS NO COMPLIANCE ON THE PART OF THE APPELLANT. SINCE THERE IS NO COMPLIANCE DURING THE APPELLANT PROCEEDINGS AND THERE IS NO NEW FACT/DETAILS AVAILABLE FOR CONSIDERATION, I DO NOT FIND ANY INFIRMITY IN THE AOS ORDER. THEREFORE, APPEAL IS DISMISSED. 3. NOT BEING SATISFIED WITH THE ORDER OF LD. CIT (A), THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. ALTHOUGH IN THIS APPEAL THE ASSESSEE HAS RAI SED MULTIPLE GROUNDS OF APPEAL BUT AT THE TIME OF HEARING THE SOLITARY GRIEVANCE OF THE A SSESSEE HAS BEEN CONFINED TO ONLY GROUND NO.1 WHICH RELATES TO AN EX PARTE ORDER MADE BY THE LD. CIT(A) WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. AR FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE UNDER CONSIDERATION NEV ER RECEIVED ANY NOTICES FROM THE OFFICE OF THE LD. CIT(A). SINCE, THE ASSESSEE DID NOT RECEIVE ANY NOTICE OF HEARING FROM THE LD. CIT(A), AT ALL, THEREFORE, HE COULD NO T FILE ANY WRITTEN SUBMISSION AND COULD NOT ATTEND THE OFFICE OF THE LD. CIT(A). IN T HIS WAYS THE LD. CIT(A) HAS PASSED THE ORDER WITHOUT GIVING AN OPPORTUNITY OF BEING HE ARD TO THE ASSESSEE WHICH IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. 5. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE HAS PRIMARILY REITERATED THE STAND TAKEN BY THE LD. CIT(A) WHICH WE HAVE ALREADY NOTED IN THE EARLIER PARA AND IS NOT BEING REPEATED FOR THE SAKE OF BREVITY. 6. HAVING HEARD THE RIVAL SUBMISSION, PERUSED T HE MATERIAL AVAILABLE ON RECORD, WE ARE OF THE VIEW THAT THERE IS MERIT IN THE SUBMISSI ONS OF THE ASSESSEE, AS THE PROPOSITION CANVASSED BY THE LD. AR FOR THE ASSESSEE ARE SUPPO RTED BY THE FACTS CITED BY HIM ABOVE. HE EXPLAINED THAT THE ASSESSEE DID NOT RECEI VE ANY NOTICE OF HEARING FROM THE LD. CIT(A). THEREFORE, HE COULD NOT FILE ANY WRITTE N SUBMISSION AND COULD NOT ATTEND THE OFFICE OF THE LD. CIT(A). EVEN LD DR FOR THE RE VENUE HAS AGREED ON THIS. THEREFORE, CONSIDERING THE ABOVE CITED FACTUAL POSI TION WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES FRESH EXAMINATION BY THE LD. CIT(A). ACCORDINGLY, WE REMIT THE CASE ITA NO.1 028/KOL/2016 M/S. EVERGLOW I NVESTMENT PVT. LTD. A..Y.2005-06 3 BACK TO THE LD. CIT(A) TO DECIDE THE APPEAL AFRESH AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, ALL THE GROUNDS OF APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 30.09.2016. SD/- SD/- [S.S.VISWANETHRA RAVI] [DR.ARJUN LAL SAINI] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 30.09.2016. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . M/S. EVERGLOW INVESTMENT PVT. LTD., 56/2, HAZRA ROA D, 3 RD FLOOR, KOLKATA- 700019. 2 I.T.O., WARD-12(2), KOLKTA. 3 . C.I.T.(A)- 9, KOLKATA. 4. C.I.T-4, KOLKA TA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES