Vivek Barter Pvt.Ltd., Kolkata V. ITO, Ward-5(4),Kolkata, Kolkata

ITA 110/KOL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1449 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 20-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHERJEE
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI N.V.VASUDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 110 / KOL / 20 17 ASSESSMENT YEAR :2012-13 VIVEK BARTER PVT LTD. 32, EZRA STREET, 4 TH FLOOR, ROOM NO.403, KOLKATA-001 [ PAN NO.AAACV 8952 B ] V/S . INCOME TAX OFFICER, WARD-5(4), 8 TH FLOOR, AAYKAR BHAVAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-69 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI SUNIL SURANA, FCA /BY RESPONDENT SHRI ARINDAM BHATTACHERJEE, ADDL. CIT-DR /DATE OF HEARING 27-02-2018 /DATE OF PRONOUNCEMENT 28-02-2018 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-2, KOLKATA DATED 06.12.2016. ASSESSMENT WAS FRAMED BY ITO WARD-5(4), KOLKATA U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 20.0 3.2015 FOR ASSESSMENT YEAR 2012-13. THE GROUNDS AS RAISED BY THE ASSESSEE READ S AS UNDER:- 1. FOR THAT THE L. CIT(A) ERRED IN DECIDING THE APP EAL X PARTE WITHOUT ALLOWING THE APPELLANT ANY PROPER AND REASONABLE OPPORTUNITY OF BEING HEARD AND IN FACT THE LAST NOTICE ISSUED FOR HEARING ON 1.12.201 6 WAS NEVER SERVED ON THE APPELLANT. 2. FOR THAT THE ORDER PASSED BY THE LD. CIT(A) IS B AD IN LAW SINCE THE LD. CIT(A) HAS NOT DECIDED THE ISSUES GROUND-WISE IN RE SPECT OF THE GROUNDS RAISED BY THE APPELLANT IN THE MEMO OF APPEAL. 3. FOR THAT THE LD. CIT(A) IS BAD IN LAW SINCE THE ORDER PASSED IS NOT ANY SPEAKING ORDER NOR THE CIT(A) HAS LOOKED INTO THE A SSESSMENT RECORDS AND RELEVANT MATERIALS TO CONCLUDE THAT THE ORDER OF TH E LD. AO CANNOT BE INTERFERED WITH. ITA NO.110/KOL/2017 A.Y. 201 2-13 VIVEK BARTER PVT. LTD. VS. ITO WD-5( 4), KOL. PAGE 2 4. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE ORDER PASSED BY THE LD. CIT(A) IS NOT MAINTAINABLE. 5. FOR THAT THE ORDER OF THE AO BE MODIFIED AND THE ASSESSEE BE GIVEN RELIEF PRAYED FOR. 6. FOR THAT THE ASSESSEE CRAVES LEAVE TO ADD, ALTER OR AMEND ANY GROUND BEFORE OR AT THE TIME OF HEARING. SHRI SUNIL SURANA, LD. AUTHORIZED REPRESENTATIVE AP PEARED ON BEHALF OF ASSESSEE AND SHRI ARINDAM BHATTACHERJEE, LD. DEPART MENTAL REPRESENTATIVE APPEARED ON BEHALF OF REVENUE. 2. AT THE OUTSET, IT WAS OBSERVED THAT THE LD. CIT- A HAS PASSED THE EX PARTE ORDER CONFIRMING THE ORDER OF THE ASSESSING OFFICER WITHOUT DECIDING THE ISSUE ON MERIT. THE LD. CIT(A) CONFIRMED THE ORDER OF THE AO EX PARTE DUE TO FACT THAT THE ASSESSEE FAILED TO ADVANCE ANY ARGUMENTS ON MER ITS AND FAILED TO ATTEND THE DATES OF HEARINGS FIXED BY THE LD. CIT(A) DURIN G THE PROCEEDINGS. THEREFORE THE EX PARTE ORDER WAS PASSED BY THE LD. CIT(A) VID E ORDER DATED 06.12.2016. 3. IT WAS FURTHER SUBMITTED IN THE GROUNDS OF APPEA L THAT THE IMPUGNED ORDER WAS DISPOSED OF BY THE LD. CIT(A) WITHOUT GIV ING REASONABLE OPPORTUNITY TO THE ASSESSEE. THE LD. AR ALSO SUBMITTED THAT THE LAST NOTICE ISSUED FIXING THE HEARING DATE ON 01.12.2016 WAS NOT SERVED UPON THE ASSESSEE. AS SUCH, IT WAS PLEADED BEFORE US BY THE LD. AR TO PROVIDE O NE MORE OPPORTUNITY AND ACCORDINGLY THE MATTER SHOULD BE SET ASIDE TO THE F ILE OF LD. CIT(A). 4. PER CONTRA, IT IS THE ARGUMENT OF LD. DR FOR THE REVENUE THAT OPPORTUNITIES WERE GIVEN TO ASSESSEE BUT HE DID NOT AVAIL THE SAME. THEREFORE THE LD. CIT(A) HAD NO OPTION BUT TO DISPOSE OF THE MATTER EX PARTE . 5. BE THAT AS IT MAY, IT IS CLEAR FROM THE RECORD A ND LOOKING AT THE ABSENCE OF THE ASSESSEE, LD. CIT(A) CONCLUDED THAT THE ASSE SSEE HAS NO INTEREST TO PURSUE THE MATTER AND TO GET IT DISPOSE OF ON MERIT S. ON PERUSAL OF THE MATTER, IT OCCURS TO OUR MIND THAT LD. CIT(A) IS MOTIVATED TO DISPOSE OF THE MATTER EX PARTE ONLY BECAUSE OF HIS OBSERVATION THAT THE ASSESSEE FAILED TO APPEAR ON THE DATES OF HEARINGS. IN OUR CONSIDERED OPINION, I T CANNOT BE A GROUND TO DENY JUSTICE WITHOUT GIVING REASONABLE OPPORTUNITY TO TH E PARTY AFFECTED. IT IS BECAUSE IN THE INSTANT CASE THE ASSESSEE ALSO FILED ADJOURNMENT PETITIONS BEFORE THE LD. CIT(A). THE PROVISIONS OF SECTION 25 0(6) OF THE ACT REQUIRE THE ITA NO.110/KOL/2017 A.Y. 201 2-13 VIVEK BARTER PVT. LTD. VS. ITO WD-5( 4), KOL. PAGE 3 COMMISSIONER (APPEAL) TO DISPOSE OF THE APPEAL IN W RITING WITH REASONING. BUT WE FIND FROM THE IMPUGNED ORDER OF LD. CIT(A) WHO C ONFIRMED THE ORDER OF AO WITHOUT DECIDING THE SAME ON MERIT. WE ALSO FIND IN THE INTEREST OF JUSTICE AND FAIR PLAY LD. CIT(A) SHOULD HAVE GIVEN ANOTHER OPPO RTUNITY TO THE ASSESSEE TO APPEAR BEFORE HIM TO EXPLAIN ITS POINTS OF CONTENTI ONS. THUS, WE ARE OF THE OPINION THAT LD. CIT(A) SHOULD HAVE GIVEN SUFFICIEN T TIME FOR ASSESSEE TO PRESENT ITS CASE FULLY AND EFFECTIVELY, THEREFORE T O MEET END OF JUSTICE WE SET ASIDE THE MATTER TO THE FILE OF LD. CIT(A) FOR DISP OSAL AFRESH AND ACCORDING TO LAW AFTER GIVING REASONABLE OPPORTUNITY OF BEING HE ARD TO ASSESSEE. THEREFORE WE DIRECT THE ASSESSEE TO CO-OPERATE INCLUDING THE APPEARANCE AND PRODUCTION OF BOOKS OF ACCOUNT AS AND WHEN THE MATTER IS TAKEN UP BY LD. CIT(A). WE ORDER ACCORDINGLY. 6. IN THE RESULT, FOR STATISTICAL PURPOSE, APPEAL OF A SSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 28/ 02/2018 SD/- SD/- ($ &) ( &) (N.V.VASUDEVAN) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP, SR.P.S (- 28 / 02 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-VIVEK BARTER PVT. LTD.32, EZRA STREET, 4 TH FL, ROOM NO.403, KOL-001 2. / RESPONDENT-ITO WARD-5(4), 8 TH FL, AAYKAR BHAVAN, P-7, CHOWRINGHEE SQ. KOL-69 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA 5. 7 $$3, 3, / DR, ITAT, KOLKATA 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO 3,