M/s. Topsell Vinimay Pvt. Ltd., Howrah V. ITO, Ward 15(3), Kolkata, Kolkata

ITA 1070/KOL/2017

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5159 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 15-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: S AGARWAL SHRI A BHATTACHA
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENCH KOLKATA BEFORE SHRI A. T. VARKEY, JM & DR. A.L. SAINI, AM ITA NO.1070/KOL/2017 (ASSESSMENT YEAR: 2012-13) M/S. TOPSELL VINIMAY PVT. LTD. 16, RAMESHWAR MALIA LANE, 1 ST BYE LANE, 3 RD FLOOR, HOWRAH 711 101. VS. ITO, WARD-15(3), KOLKATA AAYAKAR BHAVAN POORVA, 110, SHANTIPALLY, KOLKATA 700 107. ./ ./PAN/GIR NO. : AAJCA 2234 J ( /APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY : SHRI S. AGARWAL, ADVOCATE REVENUE BY : SHRI A. BHATTACHARJEE, ADDL. CIT / DATE OF HEARING : 18/07/2018 /DATE OF PRONOUNCEMENT: 03/10/2018 / O R D E R PER DR. A. L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAINING TO ASSESSMENT YEAR 2012-13, IS DIRECTED AGAINST THE ORDER PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-5, KOLKATA IN APPEAL NO.60/CIT(A)-5/WD-15(3)/15-16 DATED 30.03.2017, WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT), DATED 30.03.2015. 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE ASSESSEE ASSAILED THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE COULD NOT REPRESENT HIS CASE BEFORE LD. CIT(A) AND THE ORDER BEING AN EX-PARTE ORDER, STOOD VITIATED ON ACCOUNT OF VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. THE LD COUNSEL SUBMITTED AN AFFIDAVIT BEFORE US AND STATED THAT NO NOTICE OF HEARING WAS EVER RECEIVED FROM THE LD. CIT(A) AND THE LD. CIT(A) HAS DISMISSED THE APPEAL DUE TO NON-APPEARANCE BEFORE HIM DURING THE APPELLATE PROCEEDINGS. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT SINCE THE ASSESSEE DID NOT RECEIVE ANY NOTICE OF HEARING FROM THE M/S. TOPSELL VINIMAY PVT. LTD. ITA NO.1070/KOL/2017 ASSESSMENT YEAR: 2012-13 2 LD. CIT(A), THEREFORE, HE COULD NOT PARTICIPATE IN THE APPELLATE PROCEEDINGS AND HENCE HE COULD NOT PLEAD HIS CASE BEFORE THE LD. CIT(A). THEREFORE, THE LD. COUNSEL FOR THE ASSESSEE PRAYED THE BENCH TO REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE REFRAINED FROM OBJECTING THE STAND OF THE LD. COUNSEL. 3. WE NOTE THAT LD. CIT(A) HAS PASSED THE EX PARTE ORDER OBSERVING THE FOLLOWING: 2. DETAILS OF THE NOTICES FOR HEARING ISSUED AND RESPONSE THERETO ARE LISTED AS UNDER: SL. NO. DATE OF NOTICE FOR HEARING DATE OF HEARING SERVICE STATUS RESPONSE 1 26.04.16 23.05.16 SERVED ADJOURNMENT SOUGHT VIDE LETTER DATED 23.05.16 2 01.06.16 NO RESPONSE 3 03.11.16 08.12.16 NOT SERVED NOTICE COULD NOT BE SERVED BY POSTAL DEPARTMENT AND RETURN WITH REMARKS NOT KNOWN 4 16.02.17 20.03.17 NOT SERVED NOBODY APPEARED NOTICES WERE SENT TO THE TWO KNOWN ADDRESSES BEING (I) 16, RAMESWAR MALIA LANE 1 ST LANE, 3 RD FLOOR, HOWRAH 711101. (II) 67/44, STRAND ROAD, 1 ST FLOOR, ROOM NO.19, KOL-700006, BUT NOBODY APPEARED ON ANY DATE. I FEEL ALLOWING FURTHER TIME WILL NOT HELP IN GETTING PROPER RESPONSE. I, THEREFORE, DISPOSE OF THE APPEAL ON MERIT AND WITHOUT AFFORDING FURTHER OPPORTUNITY OF BEING HEARD. AFTER GOING THROUGH THE ABOVE DECISION OF THE LD CIT(A), IT IS ABUNDANTLY CLEAR THAT ASSESSEE HAS RECEIVED NOTICE FOR HEARING BEFORE THE LD. CIT(A) AND SUBSEQUENTLY SOUGHT ADJOURNMENT VIDE LETTER DATED 23.05.2016. SUBSEQUENT NOTICES SENT BY LD. CIT(A) HAD NOT SERVED UPON THE ASSESSEE AND THEREFORE, NON- COMPLIANCE WAS MADE ON BEHALF OF ASSESSEE. TO SUBSTANTIATE THIS, THE ASSESSEE HAS SUBMITTED BEFORE US IN THE AFFIDAVIT IN PARA 4 AS UNDER: 4.THAT NO NOTICE OF HEARING WAS EVER RECEIVED ON BEHALF OF THE SAID COMPANY BY ITS ANY AUTHORIZED PERSON. THEREFORE, IT SEEMS TO US THAT LD. CIT(A) OUGHT TO HAVE GIVEN MORE OPPORTUNITY TO THE ASSESSEE TO DEFEND HIS CASE, HENCE WE CONSIDER IT VIOLATION OF PRINCIPLE OF M/S. TOPSELL VINIMAY PVT. LTD. ITA NO.1070/KOL/2017 ASSESSMENT YEAR: 2012-13 3 NATURAL JUSTICE, AS SUFFICIENT OPPORTUNITY OF BEING HEARD WAS NOT GIVEN TO THE ASSESSEE. 4. WE NOTE THAT IN THE ASSESSEES CASE UNDER CONSIDERATION, THE ASSESSMENT WAS CARRIED OUT U/S 143(3) OF THE ACT AND THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) IS AN EX PARTE ORDER, THEREFORE, WE DO NOT WISH TO MAKE ANY COMMENTS ON THE MERITS OF THE GROUNDS RAISED BY THE ASSESSEE. 5. WE NOTE THAT A PERUSAL OF THE BODY OF THE IMPUGNED ORDER, IT IS APPARENT THAT IT IS AN EX PARTE ORDER WHICH HAS BEEN CHALLENGED BY THE ASSESSEE FOR WANT OF PROPER OPPORTUNITY . WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO PLEAD HIS CASE BEFORE THE LD. CIT(A). THEREFORE, WITHOUT DELVING MUCH DEEPER INTO THE MERITS OF THE CASE, IN THE INTEREST OF JUSTICE, WE RESTORE THE MATTER BACK TO THE FILE OF LD. CIT(A) FOR DE NOVO ADJUDICATION AND PASS A SPEAKING ORDER AFTER AFFORDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WHO IN TURN, IS ALSO DIRECTED TO CONTEST HIS STAND FORTHWITH. THEREFORE, WE DEED IT FIT AND PROPER TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO ADJUDICATE THE ISSUE AFRESH ON MERITS. FOR STATISTICAL PURPOSES, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 03/10/2018. SD/- (A. T. VARKEY) SD/- (A. L. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; DATED:03/10/2018 RS, SR. PS M/S. TOPSELL VINIMAY PVT. LTD. ITA NO.1070/KOL/2017 ASSESSMENT YEAR: 2012-13 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT- M/S. TOPSELL VINIMAY PVT. LTD. 2. / THE RESPONDENT.- ITO, WARD-15(3), KOLKATA 3. ( ) / THE CIT(A)- , KOLKATA 4. / CIT 5. , , / DR, ITAT, KOLKATA 6. [ / GUARD FILE. //TRUE COPY// BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/D.D.O, I.T.A.T, KOLKATA BENCHES, KOLKATA .