Smt Pratima Sarkar, Kolkata V. ITO, WD-2, COOCHBEHAR, Coochbihar

ITA 1066/KOL/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4772 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 31-07-2015
• Court: TRIBUNAL
• Assessee Lawyers: PINAKI LAL CHOUDHURY
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

I.T.A. NO. 1066/KOL./2015 ASSESSMENT YEAR: 2009-2010 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NO. 1066 /KOL/ 2015 ASSESSMENT YEAR: 2009-2010 SMT. PRATIMA SARKAR,............................... ..........................APPELLANT PROP. OF M/S. GANESH FUEL, C/O. RAMTANU BHAWAN, NEAR NEW TOWN, COOCHBEHAR [PAN : AVHPS 5548 K] -VS.- INCOME TAX OFFICER,................................ ............................RESPONDENT WARD-2, COOCHBEHAR, DEBIBARI ROAD, P.O. DIST. COOCHBEHAR-736 101 APPEARANCES BY: SHRI PINAKI LAL CHOUDHURY, ADVOCATE, FOR THE ASSESS EE SHRI PRABAL CHOUDHURY, JCIT, SR. D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : APRIL 29, 2016 DATE OF PRONOUNCING THE ORDER : JUNE 03, 2016 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS), JALPAIGURI DA TED 12.09.2014 FOR THE ASSESSMENT YEAR 2009-10. 2. AT THE OUTSET, IT IS NOTED THAT THERE IS A DELAY OF 226 DAYS ON THE PART OF THE ASSESSEE IN FILING THIS APPEAL BEFORE T HE TRIBUNAL. IN THIS REGARD, THE ASSESSEE HAS FILED AN APPLICATION SEEKI NG CONDONATION OF THE SAID DELAY AND KEEPING IN VIEW THE REASONS GIVEN TH EREIN, WHICH ARE FULLY SUPPORTED BY A DOCUMENTARY EVIDENCE IN THE FORM OF MEDICAL CERTIFICATE, I AM OF THE VIEW THAT THE DELAY ON THE PART OF THE AS SESSEE IN FILING THIS APPEAL BEFORE THE TRIBUNAL IS FOR A SUFFICIENT CAUS E. THE SAID DELAY IS, THEREFORE, CONDONED AND THIS APPEAL OF THE ASSESESE IS BEING DISPOSED OF ON MERIT. I.T.A. NO. 1066/KOL./2015 ASSESSMENT YEAR: 2009-2010 PAGE 2 OF 4 3. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO IS ENGAGED IN THE BUSINESS OF RUNNING A RETAIL OUTLET OF DIESEL, PETROL AND LUBRICANTS UNDER LICENCE FROM INDIAN OIL CORPORATION. THE RETU RN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY HER ON 29.09. 2009 DECLARING TOTAL INCOME OF RS.1,758/-. IN THE ASSESSMENT COMPLETED U NDER SECTION 143(3) VIDE AN ORDER DATED 30.12.2011, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE ASSESSING OFFICER AT RS.9,34,641/ - AFTER MAKING THE FOLLOWING THREE ADDITIONS:- (1) UNDER-VALUATION OF CLOSING STOCK FOR 4KL PETROL RS.2,04,017/ - (2) REDUCTION OF 316 LITRES OF EXTRA- PREMIUM PETROL FROM STOCK RS.17,306/ - (3) DISALLOWANCE UNDER SECTION 40(A)(IA) ON ACCOUNT OF EXPENDITURE INCURRED ON CONSTRUCTION OF BUILDING AND PUMP AREA RS.8,11,560/ 4. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEF ORE THE LD. CIT(APPEALS). DURING THE COURSE OF APPELLATE PROCEE DINGS BEFORE THE LD. CIT(APPEALS), WRITTEN SUBMISSION WAS FILED BY THE A SSESSEE IN SUPPORT OF HER CASE ON THE ISSUES INVOLVED IN THE APPEAL. THE SAID WRITTEN SUBMISSION WAS FORWARDED BY THE LD. CIT(APPEALS) TO THE ASSESS ING OFFICER FOR THE LATERS COMMENTS. IN THE REMAND REPORT SUBMITTED TO THE LD. CIT(APPEALS), THE ASSESSING OFFICER OFFERED HIS COMMENTS ON THE W RITTEN SUBMISSION FILED BY THE ASSESSEE. A COPY OF THE REMAND REPORT WAS PROVIDED BY THE LD. CIT(APPEALS) TO THE ASSESSEE AND THE CASE WAS FIXED FOR HEARING TWICE TO GIVE THE ASSESSEE AN OPPORTUNITY OF FILING HER REJO INDER. THE ASSESSEE, HOWEVER, NOT AVAILED THE SAID OPPORTUNITY AND KEEPI NG IN VIEW THE SAME, THE LD. CIT(APPEALS) PROCEEDED TO DISPOSE OF THE AP PEAL OF THE ASSESESE BY RECORDING HIS CONCLUSION AS UNDER:- IN VIEW OF THESE FACTS, IT IS SEEN THAT THE ASSESS EE DOES NOT HAVE ANY ARGUMENT IN SUPPORT OF THE GROUNDS OF APPEAL TAKEN. THE APPEAL OF THE ASSESSEE IS DISMISS ED. I.T.A. NO. 1066/KOL./2015 ASSESSMENT YEAR: 2009-2010 PAGE 3 OF 4 AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 5. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERV ED THAT THE ASSESSEE IN SUPPORT OF HER CASE ON THE ISSUES INVOLVED IN THE A PPEAL HAD FILED WRITTEN SUBMISSION BEFORE THE LD. CIT(APPEALS) AND THE SAME WAS FORWARDED BY THE LD. CIT(APPEALS) TO THE ASSESSING OFFICER FOR H IS COMMENTS. THE ASSESSING OFFICER ALSO OFFERED HIS COMMENTS IN THE REMAND REPORT SUBMITTED TO THE LD. CIT(APPEALS) AND SINCE THE ASS ESSEE DID NOT FILE ANY REJOINDER TO THE COPY OF REMAND REPORT SUBMITTED BY THE ASSESSING OFFICER, WHICH WAS MADE AVAILABLE TO HER, THE LD. CIT(APPEAL S) PROCEEDED TO DISMISS THE APPEAL OF THE ASSESSEE BY OBSERVING THA T THE ASSESSEE DID NOT HAVE ANY ARGUMENT IN SUPPORT OF THE GROUNDS OF APPE AL TAKEN. HE, HOWEVER, APPEARS TO HAVE IGNORED THE FACT THAT THE SUBMISSION IN WRITING WAS ALREADY FILED BY THE ASSESSEE IN SUPPORT OF THE GROUNDS TAKEN IN HER APPEAL AND EVEN THE REMAND REPORT SOUGHT THEREON FR OM THE ASSESSING OFFICER WAS AVAILABLE ON RECORD BEFORE THE LD. CIT( APPEALS). HE DID NOT TAKE THE SAME INTO CONSIDERATION AND PROCEEDED TO D ISMISS THE APPEAL OF THE ASSESSEE FOR WANT OF REJOINDER FILED BY THE ASS ESSEE TO THE REMAND REPORT SUBMITTED BY THE ASSESSING OFFICER. AS PER T HE PROVISIONS OF SUB- SECTION (6) OF SECTION 250, IT IS INCUMBENT UPON TH E LD. CIT(APPEALS) TO DISPOSE OF THE APPEAL FILED BY THE ASSESSEE BY AN O RDER IN WRITING STATING THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR THE DECISION. IN MY OPINION, THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) IS NOT IN ACCORDANCE WITH THE RELEVANT PROVISIONS OF SECTION 250(6), INASMUCH AS, THE SAME DOES NOT STATE THE PO INTS FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR THE DECISION INSPITE OF THE FACT THAT WRITTEN SUBMISSION FILED B Y THE ASSEESSEE ON SUCH POINTS AS WELL AS THE COMMENTS OFFERED BY THE ASSES SING OFFICER BY WAY OF REMAND REPORT THEREON WERE AVAILABLE ON RECORD BEFO RE HIM. I, THEREFORE, SET ASIDE THE SAID ORDER AND REMIT THE MATTER BACK TO THE LD. CIT(APPEALS) WITH A DIRECTION TO DISPOSE OF THE APPEAL OF THE AS SESSEE AFRESH ON MERIT IN I.T.A. NO. 1066/KOL./2015 ASSESSMENT YEAR: 2009-2010 PAGE 4 OF 4 ACCORDANCE WITH LAW BY PASSING A WELL DISCUSSED AND WELL REASONED ORDER AFTER GIVING THE ASSESSEE SUFFICIENT OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JUNE 03, 2016 . SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 3 RD DAY OF JUNE, 2016 COPIES TO : (1) SMT. PRATIMA SARKAR, PROP. OF M/S. GANESH FUEL, C/O. RAMTANU BHAWAN, NEAR NEW TOWN, COOCHBEHAR (2) INCOME TAX OFFICER, WARD-2, COOCHBEHAR, DEBIBARI ROAD, P.O. DIST. COOCHBEHAR-736 101 (3) COMMISSIONER OF INCOME TAX (APPEALS), JALPAIGU RI (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.