Sarita Jain, Kolkata V. ITO, Ward - 36(3), Kolkata, Kolkata

ITA 112/KOL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62104 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2012
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 20-01-2012
• Court: TRIBUNAL
• Department Lawyers: O P AGARWAL
• Assessee Lawyers: S M SURANA
• Keywords: Business income; Opportunity of being heard; Non passing of speaking order

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA () BEFORE , /AND . . , !' ) [BEFORE SRI MAHAVIR SINGH, JM & SHRI C. D. RAO, AM] # # # # /I.T.A NO. 112/KOL/2012 $% &' $% &' $% &' $% &'/ // / ASSESSMENT YEAR: 2006-07 SARITA JAIN VS. INCOME-TAX OFFICER, WD.-36(3) , KOLKATA (PAN: ACKPJ1852H) ()* /APPELLANT ) (+,)*/ RESPONDENT ) DATE OF HEARING: 30.05.2012 DATE OF PRONOUNCEMENT: 30.05.2012 )* - . ! /FOR THE APPELLANT: SHRI S. M. SURANA +,)* - . ! /FOR THE RESPONDENT: SHRI O. P. AGARWAL !/ / ORDER IMMEDIATELY UPON CONCLUSION OF HEARING OF THIS APPE AL ON 30.05.2012, THE BENCH PASSED THE FOLLOWING ORDER: 30TH MAY, 2012 ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOS ES AND SET ASIDE TO CIT(A) FOR ALLOWING PROPER OPPORTUNITY OF BEING HEARD. ORDER PRONOUNCED IN OPEN COURT. DETAILED ORDER WILL FOLLO W. IN ACCORDANCE WITH THE ABOVE, THE REASONED ORDER IS NOW SET OUT AS FOLLOWS: PER MAHAVIR SINGH, JM/ , : THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XX, KOLKATA IN APPEAL NO. 185/CIT(A)-XX/WD-36(3)/08-09/KOL DATED 15.11.2011. ASSESSMENT WAS FRAMED BY ITO, WARD-36(3), KOLKATA U/S.143(3) OF THE INCOME-TAX A CT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2006-07 VIDE HIS ORDER DA TED 22.12.2008. 2. THE FIRST ISSUE IN THIS APPEAL OF ASSESSEE IS AG AINST THE EX PARTE ORDER OF CIT(A). FOR THIS, ASSESSEE HAS RAISED FOLLOWING GROUND NO.2: 2.FOR THAT THE LD. CIT(A) ERRED IN DECIDING THE AP PEAL EXPARTE WITHOUT ALLOWING ANY PROPER OPPORTUNITY TO THE APPELLANT OF BEING HEARD. 3. WE HAVE HEARD RIVAL SUBMISSIOSN AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE ORDER OF CIT(A) IS EX PARTE AND EV EN ON MERITS THE ORDER IS AS UNDER: 3. IN THE GROUNDS OF APPEAL, THE APPELLANT HAS CON TESTED THE ACTION OF THE AO IN ASSESSING THE LONG TERM CAPITAL GAIN OF RS.2,46,419 /- AS DECLARED IN THE RETURN AS BUSINESS INCOME. AS THE APPELLNT HAS BROUGHT NO MA TERIAL ON RECORD TO CONTROVERT THE FINDINGS OGF THE AO, I AM UNABLE TO INTERFERE WITH THE ASSESSMENT ORDER. THE GROUNDS RAISED IN THIS APPEAL ARE DISMISSED. 2 ITA NO.112/K/2012 SARITA JAIN A.Y. 06-07. THE ORDER OF CIT(A) IS A NON SPEAKING ORDER. WE ARE OF THE VIEW THAT WHERE APPEAL HAS BEEN DISPOSED OF EVEN THOUGH ON MERITS WITHOUT A SPEAKIN G ORDER, THE ORDER OF CIT(A) CANNOT BE SUSTAINED. THE PROVISIONS OF SECTION 250(6) OF THE ACT ARE IN THE NATURE OF JUDICIAL DISCRETION TO THE APPELLATE AUTHORITY AND EMPHASIZING THAT THE OR DER DISPOSING OF THE APPEAL SHALL BE A SPEAKING ORDER. THE ORDER SHALL NOT CRYPTIC BUT SH ALL BE SELF-EXPLANATORY. HENCE, WE SET ASIDE THE ORDER OF CIT(A) FOR FRESH ADJUDICATION AFTER PR OVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. APPEAL OF ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 5. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- . . , !' , (C. D. RAO) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( ' ' ' ') )) ) DATED: 30 TH MAY, 2012 01 $23 4 JD.(SR.P.S.) !/ - +5 6!5&7- COPY OF THE ORDER FORWARDED TO: 1 . )* /APPELLANT MS. SARITA JAIN C/O SHILPA ENTERPRISE S, 9, INDIA EXCHANGE PLACE, ROOM NO. 6, 5 TH FLOOR, KOLKATA-700 001. 2 +,)* / RESPONDENT, ITO, WARD-36(3), KOLKATA. 3 . /$ ( )/ THE CIT(A) , KOLKATA 4. CIT, 5 . >? +$ / DR, KOLKATA BENCHES, KOLKATA ,5 +/ TRUE COPY, !/$@/ BY ORDER, 3 /ASSTT. REGISTRAR .