M/s Skylark Tracom Pvt. Ltd., Kolkata V. CIT, KOLKATA-1, Kolkata

ITA 1089/KOL/2014

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6190 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 20-05-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MD USMAN
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 263

Judgement Text

1 ITA NO.1089/KOL/2014 SKYLARK TRACOM PVT. LTD., AY: 2009-10 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA ( ) BEFORE . . , /AND , ) [BEFORE SHRI A. T. VARKEY, JM & SHRI WASEEM AHMED, AM] I.T.A. NO. 1089/KOL/2014 ASSESSMENT YEAR: 2009-10 M/S. SKYLARK TRACOM PVT. LTD. (PAN: AAMCS9299L) VS. COMMISSIONER OF INCOME-TAX, KOL-1, KOLKATA. APPELLANT RESPONDENT DATE OF HEARING 24.04.2018 DATE OF PRONOUNCEMENT 13.07.2018 FOR THE ASSESSEE/APPELLANT SHRI SUJOY SEN, ADVOCATE FOR THE RESPONDENT MD. USMAN, CIT, DR ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF LD. CIT, KOL-1, KOLKATA DATED 24.03.2014 FOR AY 2009-10 PASSED U/S. 263 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT IS AN EX PARTE ORDER. H E ALSO DREW OUR ATTENTION TO PARA 6 OF THE IMPUGNED ORDER WHEREIN THE LD. CIT NOTED THAT A NOTICE U/S. 263 OF THE I. T. ACT, 1961 WAS ISSUED FOR THE SAID REASONS ON 22.01.2014 FIXING TH E HEARING ON 17.02.2014 WHICH COULD NOT BE SERVED THROUGH POSTAL SERVICE SINCE NO SUCH COMP ANY WAS FOUND EXISTING AT THE GIVEN ADDRESS. THE NOTICE CAME BACK FROM THE POSTAL AUTH ORITIES UNSERVED. HE ALSO SUBMITTED THAT THE NOTICE WAS SENT TO OLD ADDRESS I.E. 132, C OTTON STREET, 4 TH FLOOR, KOLKATA-700 007. HOWEVER, HE SUBMITTED THAT THE CURRENT ADDRESS OF A SSESSEE IS 6A, SAKET PLACE 4 TH FLOOR, KOLKATA-700 072 WHICH WAS ALREADY IN THE RECORDS OF THE INCOME TAX DEPARTMENT AS IS EVIDENT FROM THE ORDER PASSED U/S. 147/143(3) OF TH E ACT. HENCE, HE URGED BEFORE THE BENCH TO QUASH/SET ASIDE THE ORDER OF THE LD. CIT PASSED U/S. 263 OF THE ACT. ON THE OTHER HAND, LD. DR RELIED ON THE ORDER OF THE LD. CIT. 2 ITA NO.1089/KOL/2014 SKYLARK TRACOM PVT. LTD., AY: 2009-10 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE FROM THE IMPUGNED ORDER DATED 24.03. 2014 THAT NO NOTICE IN RESPECT OF THE PROCEEDINGS U/S. 263 OF THE ACT COULD BE SERVED ON THE ASSESSEE. PARA 6 OF THE ORDER OF LD. CIT RECORDS THAT NOTICE DATED 22.01.2014 COULD NOT BE SERVED ON THE ASSESSEE, SINCE THE ASSESSEE DID NOT EXIST AT ITS GIVEN ADDRESS. HOWEV ER, IT IS EVIDENT FROM THE ASSESSMENT ORDER OF THE AO THAT THE DEPARTMENT WAS AWARE OF THE PRES ENT ADDRESS OF THE ASSESSEE. BEFORE INVOKING REVISIONAL JURISDICTION UNDER SECTION 263 OF THE ACT, THE PR. CIT MUST GIVE THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. SINCE IT I S EVIDENT FROM A READING OF THE IMPUGNED ORDER ITSELF THAT NO NOTICE OF THE PROCEEDINGS U/S. 263 OF THE ACT WAS SERVED UPON THE ASSESSEE SINCE IT RETURNED BACK, THE IMPUGNED ORDER OF LD. CIT(A) IS FRAGILE FOR VIOLATION OF NATURAL JUSTICE AND, THEREFORE, THE ORDER PASSED U/ S. 263 OF THE ACT DATED 24.03.2014 IS LIABLE TO BE SET ASIDE AND WE REMAND THE MATTER BACK TO TH E PR. CIT TO GIVE FRESH OPPORTUNITY TO ASSESSEE TO BE HEARD AND PASS ORDER IN ACCORDANCE T O LAW. THIS VIEW OF OURS GETS SUPPORTS FROM A SIMILAR VIEW EXPRESSED BY THE HONBLE CALCUT TA HIGH COURT IN A SIMILAR CASE OF GA NO. 1298 OF 2016 M/S. RATNAGIRI COMMERCIAL PVT. LTD . & ANR. VS. ITO DATED 17.05.2016. THEREFORE, THE APPEAL OF ASSESSEE IS ALLOWED FOR ST ATISTICAL PURPOSES. 4. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 13.07.2018 SD/- SD/- (WASEEM AHMED) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : `13TH JULY, 2018 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. SKYLARK TRACOM PVT. LTD., C/O S ALARPURIA JAJODIA & CO., 7, CHITTARANJAN AVENUE, KOLKATA-700 072. 2 RESPONDENT CIT, KOL-1, KOLKATA. 3 DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, SR. PVT. SECRETARY