Petofarms Limited, Kolkata V. THE DCIT, CC-XXVII, KOLKATA, Kolkata

ITA 1081/KOL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1625 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 19-05-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: A K TIBREWAL
• Keywords: Revision of order; Opportunity of being heard
• Section: 143(3); 147; 148; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [BEFORE HONBLE SRI N.V.VASUDEVAN, JM & SRI.J.SUD HAKAR REDDY, AM] I.T.A NOS.1081 & 1082/KOL/2 014 ASSESSMENT YEARS : 2006-07 & 2007-08 PETROFARMS LTD., -VS.- D.C.I.T., CENTRAL CIRCLE-XXVII KOLKATA KOLKATA [PAN : AABCP 5729 K]] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI A.K.TIBREWAL, FCA FOR THE RESPONDENT : SHRI.SALLONG YADEN, ADDL. CIT DATE OF HEARING : 16.08.2017. DATE OF PRONOUNCEMENT : 23.08.2017. ORDER PER N.V.VASUDEVAN, JM ITA NO.1081/KOL/2014 IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 20.03.2014 OF CIT(A)-CENTRAL-II, KOLKATA RELATING TO A.Y.2006-07. 2. THE ASSESSEE IS A COMPANY. FOR A.Y.2006-07 THE A SSESSEE FILED RETURN OF INCOME DECLARING A TOTAL LOSS OF RS.4,68,091/-. AN ORDER D ATED 10.12.2008 WAS PASSED DETERMINING THE TOTAL LOSS AT RS.58,591/-. SUBSEQUE NTLY THE ASSESSMENT WAS REOPENED BY ISSUING NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 (ACT). AN ORDER OF ASSESSMENT DATED 28.03.2013 U/S 147 R.W.S. 143(3) OF THE ACT WAS PAS SED DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS.1,76,42,809/-. 3. AGAINST THE AFORESAID ORDER OF ASSESSMENT THE AS SESSEE FILED APPEAL BEFORE CIT(A). BEFORE CIT(A) THE APPEAL WAS FIXED FOR HEARING ON 1 3.11.2013 AND AT THE REQUEST OF THE ASSESSEE WAS ADJOURNED TO 27.12.2013, 15.01.2014, 2 4.01.2014. 21.02.2014, 05.03.2014, 13.03.2014 AND 18.03.2014. ON ALL THESE DATES THE APPEALS WERE ADJOURNED 2 ITA NOS.1081 & 1082/KOL/2014 PETROFARMS LIMITED A.YR..2006-07& 2007-08 2 AT THE REQUEST OF THE ASSESSEE ON THE GROUND THAT T HE AUTHORISED REPRESENTATIVE OF THE ASSESSE WAS EITHER NOT AVAILABLE OR WAS NOT PREPARE D FULLY TO ARGUE THE APPEAL. ON 18.03.2014 THE AUTHORISED REPRESENTATIVE OF THE ASS ESSEE APPEARED BEFORE CIT(A) AND REQUESTED FOR TIME AS DUE TO PRE-OCCUPATION HE COUL D NOT PREPARE AND ARGUE THE APPEAL. THE CIT(A) REFUSED TO GRANT ADJOURNMENT AS ACCORDIN G TO HIM SUFFICIENT OPPORTUNITY WAS ALREADY GRANTED TO THE ASSESSEE. THE APPEAL WAS ACCORDINGLY DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD BY CIT(A). THE APPE AL WAS PARTLY ALLOWED BY CIT(A). 4. AGGRIEVED BY THE ORDER OF CIT(A) THE ASSESSE E HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 5. THE FIRST AND FOREMOST PRAYER OF THE LD. COU NSEL FOR THE ASSESSEE WAS THAT THE APPEAL HAS BEEN DECIDED WITHOUT AFFORDING THE ASSES SEE PROPER OPPORTUNITY OF BEING HEARD. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS. IT IS C LEAR FROM THE ORDER OF CIT(A) THAT THOUGH SEVERAL OPPORTUNITIES WERE GIVEN TO THE ASSE SSEE ON 18.03.2014 WHEN THE FINAL OPPORTUNITY WAS GIVEN TO THE ASSESSEE THE LD. AR OF THE ASSESSEE WHO APPEARED BEFORE CIT(A) AND WHO ALSO APPEARED BEFORE THE TRIBUNAL I N THIS APPEAL, HAS REQUESTED TIME ON THE GROUND THAT HE COULD NOT PREPARE PROPERLY FO R THE CASE OWING TO FAMILY FUNCTIONS AND OTHER EXIGENCIES. WE ARE OF THE VIEW THAT IT WO ULD BE JUST AND PROPER TO DECIDE THE APPEAL OF THE ASSESSEE ON MERITS AFTER AFFORDING OP PORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ARE SATISFIED THAT IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE THE ASSESSEE DID NOT HAVE PROPER OPPORTUNITY OF BEING H EARD. THE CIT(A) WILL DECIDE VARIOUS GROUNDS OF APPEAL RAISED BY THE ASSESSEE BE FORE HIM ON MERITS AFTER AFFORDING THE ASSESSEE REASONABLE OPPORTUNITY OF BEING HEARD. THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 3 ITA NOS.1081 & 1082/KOL/2014 PETROFARMS LIMITED A.YR..2006-07& 2007-08 3 7. ITA NO.1082/KOL/2014 IS AN APPEAL BY THE AS SESSEE AGAINST THE ORDER DATED 20.03.2014 OF CIT-CENTRAL-II, KOLKATA RELATING TO A.Y.2007-08. 8. IN THE A.Y.2007-08 PURSUANT TO AN ORDER PASS ED U/S 263 OF THE ACT AN ORDER OF ASSESSMENT U/S 143(3) R.W.S. 263 OF THE ACT DATED 2 8.03.2013 WAS PASSED BY THE AO. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE PREF ERRED APPEAL BEFORE CIT(A). BEFORE CIT(A) THE APPEAL WAS FIXED FOR HEARING ON 1 3.11.2013 AND AT THE REQUEST OF THE ASSESSEE WAS ADJOURNED TO 27.12.2013, 15.01.2014, 2 4.01.2014. 21.02.2014, 05.03.2014, 13.03.2014 AND 18.03.2014. ON ALL THESE DATES THE APPEALS WERE ADJOURNED AT THE REQUEST OF THE ASSESSEE ON THE GROUND THAT T HE AUTHORISED REPRESENTATIVE OF THE ASSESSE WAS EITHER NOT AVAILABLE OR WAS NOT PREPARE D FULLY TO ARGUE THE APPEAL. ON 18.03.2014 THE AUTHORISED REPRESENTATIVE OF THE ASS ESSEE APPEARED BEFORE CIT(A) AND REQUESTED FOR TIME AS DUE TO PRE-OCCUPATION HE COUL D NOT PREPARE AND ARGUE THE APPEAL. THE CIT(A) REFUSED TO GRANT ADJOURNMENT AS ACCORDIN G TO HIM SUFFICIENT OPPORTUNITY WAS ALREADY GRANTED TO THE ASSESSEE. THE APPEAL WAS ACCORDINGLY DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD BY CIT(A). THE APPE AL WAS PARTLY ALLOWED BY CIT(A). 9. AGGRIEVED BY THE ORDER OF CIT(A) THE ASSESSE E HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 10. THE FIRST AND FOREMOST PRAYER OF THE LD. CO UNSEL FOR THE ASSESSEE WAS THAT THE APPEAL HAS BEEN DECIDED WITHOUT AFFORDING THE ASSES SEE PROPER OPPORTUNITY OF BEING HEARD. 11. WE HAVE HEARD THE RIVAL SUBMISSIONS. IT IS CLEAR FROM THE ORDER OF CIT(A) THAT THOUGH SEVERAL OPPORTUNITIES WERE GIVEN TO THE ASSE SSEE ON 18.03.2014 WHEN THE FINAL OPPORTUNITY WAS GIVEN TO THE ASSESSEE THE LD. AR OF THE ASSESSEE WHO APPEARED BEFORE CIT(A) AND WHO ALSO APPEARED BEFORE THE TRIBUNAL I N THIS APPEAL HAS REQUESTED TIME ON 4 ITA NOS.1081 & 1082/KOL/2014 PETROFARMS LIMITED A.YR..2006-07& 2007-08 4 THE GROUND THAT HE COULD NOT PREPARE PROPERLY FOR T HE CASE OWING TO FAMILY FUNCTIONS AND OTHER EXIGENCIES. WE ARE OF THE VIEW THAT IT WO ULD BE JUST AND PROPER TO DECIDE THE APPEAL OF THE ASSESSEE ON MERITS AFTER AFFORDING OP PORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ARE SATISFIED THAT IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE THE ASSESSEE DID NOT HAVE PROPER OPPORTUNITY OF BEING H EARD. THE CIT(A) WILL DECIDE VARIOUS GROUNDS OF APPEAL RAISED BY THE ASSESSEE BE FORE HIM ON MERITS AFTER AFFORDING THE ASSESSEE REASONABLE OPPORTUNITY OF BEING HEARD. THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 12. IN THE RESULT, THE APPEALS ARE ALLOWED FOR STA TISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 23.08 .2017 SD/- SD/- [J.SUDHAKAR REDDY] [ N.V.VASUDEVA N ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 23.08.2017. [RG PS] COPY OF THE ORDER FORWARDED TO: 1.PETROFARMS LIMITED, SUIT NO.7, 1 ST FLOOR, 53B, CHOWRINGHEE ROAD, KOLKATA-700071. 2. D.C.I/.T., CENTRAL CIRCLE-XXVII, KOLKATA. 3. CIT(A)- CENTRAL-II, KOLKATA 4. C.I.T. CENTRAL-II, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. BY ORDER TRUE COPY SENIOR PRIVATE SECRETARY HEAD OF OFFICE/D.D.O., I.T.A.T., KOLKATA BENCHES 5 ITA NOS.1081 & 1082/KOL/2014 PETROFARMS LIMITED A.YR..2006-07& 2007-08 5