Swapan Kumar Saha, Kolkata V. I.T.O.,Ward-51(3), Kolkata

ITA 1041/KOL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7276 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 06-05-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA
• Keywords: Opportunity of being heard; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (SMC), KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT (KZ)] I.T.A. NO. 1041/KOL/2019 ASSESSMENT YEAR: 2008-09 SWAPAN KUMAR SAHA..........................................................................APPELLANT C/O. SUBASH AGARWAL & ASSOCIATES, ADVOCATES SIDDHA GIBSON, 1, GIBSON LANE, SUITE 213, 2 ND FLOOR, KOLKATA 700 069 [PAN: BBCPS 7217 P] VS ITO, WARD-51(3)KOLKATA..................................RESPONDENT KOLKATA. APPEARANCES BY: SHRI SIDDHARTH AGARWAL, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. SHRI JAYANTA KHANRA, JCIT, SR. DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : OCTOBER 15, 2019 DATE OF PRONOUNCING THE ORDER : OCTOBER 15, 2019 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 15, KOLKATA DATED 19.02.2019 PASSED EX-PARTE WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL WHO IS MAINLY ENGAGED IN THE BUSINESS OF TRADING OF OLD IRON & STEEL AND DEALING IN SHARES. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY HIM ON 08.09.2008 DECLARING A TOTAL INCOME OF RS. 61,3256/-. IN THE ASSESSMENT COMPLETED U/S 143(3) VIDE AN ORDER DATED 16.12.2010, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE AO AT RS. 11,83,755/- AFTER MAKING ADDITION OF RS. 11,20,712/- ON ACCOUNT OF UNDISCLOSED INCOME FOUND TO BE CREDITED IN THE UNDISCLOSED BANK ACCOUNT OF THE ASSESSEE AND RS. 1,717/- ON ACCOUNT OF INTEREST ACCRUED IN THE BANK ACCOUNT. ON APPEAL, THE LD. CIT(A) CONFIRMED THE SAID ADDITIONS MADE BY THE AO AND WHEN THE MATTER REACHED TO THE 2 I.T.A. NO. 1041/KOL/2019 ASSESSMENT YEAR: 2008-09 SWAPAN KUMAR SAHA TRIBUNAL IN THE SECOND APPEAL FILED BY THE ASSESSEE, THE TRIBUNAL RESTORED THE MATTER TO THE FILE OF THE AO FOR DECIDING THE ISSUES DE NOVO. AS PER THE DIRECTION OF THE TRIBUNAL, A FRESH ASSESSMENT WAS MADE BY THE AO U/S 254/143(3) OF THE ACT VIDE AN ORDER DATED 22.01.2016 WHEREIN HE AGAIN MADE BOTH THE ADDITIONS OF RS. 11,20,712/- AND RS. 1,717/- THEREBY ASSESSING THE TOTAL INCOME OF THE ASSESSEE AT RS. 11,83,755/-. 3. AGAINST THE ASSESSMENT MADE BY THE AO U/S 254/143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE FOR NON- PROSECUTION VIDE HIS APPELLATE ORDER DATED 19.02.2019 PASSED EX- PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN SUPPORT OF THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL CHALLENGING THE IMPUGNED ORDER PASSED BY THE LD. CIT(A), THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT NONE OF THE NOTICES OF HEARING SENT BY THE OFFICE OF THE LD. CIT(A) WAS EVER RECEIVED BY THE ASSESSEE AND SUCH NON-RECEIPT OF NOTICE RESULTED INTO NON-APPEARANCE OF THE ASSESSEE BEFORE THE LD. CIT(A). SINCE THIS SUBMISSION MADE BY THE LEARNED COUNSEL FOR THE ASSESSEE IS DULY SUPPORTED BY AN AFFIDAVIT FILED BY THE ASSESSEE CONFIRMING THE RELEVANT FACT ON OATH, I AM SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE NON-APPEARANCE OF THE ASSESSEE WHEN 3 I.T.A. NO. 1041/KOL/2019 ASSESSMENT YEAR: 2008-09 SWAPAN KUMAR SAHA HIS APPEAL WAS CALLED FOR HEARING BEFORE THE LD. CIT(A). EVEN THE LEARNED DR HAS NOT RAISED ANY OBJECTION IN THIS REGARD. I, THEREFORE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS UNDERTAKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE LD. CIT(A) AND SHALL EXTEND ALL THE COOPERATION IN ORDER TO ENABLE THE LD. CIT(A) TO DISPOSE OF THE APPEAL EXPEDITIOUSLY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH OCTOBER, 2019. SD/- (P.M. JAGTAP) VICE PRESIDENT DATED: 15/10/2019 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. SWAPAN KUMAR SAHA, C/O. SUBASH AGARWAL & ASSOCIATES, ADVOCATES SIDDHA GIBSON, 1, GIBSON LANE, SUITE 213, 2 ND FLOOR, KOLKATA 700 069. 2. ITO, WARD 51(3), KOLKATA. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA