M/s. Jap Merchants Limited, Kolkata V. ITO, Ward-9(3), Kolkata, Kolkata

ITA 1139/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6150 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 19-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K TIWARI
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Assessment record
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENCH KOLKATA BEFORE SHRI S.S. GODARA, JM & DR. A.L. SAINI, AM ITA NO.1139/KOL/2017 (ASSESSMENT YEAR : 2012-13) M/S. JAP MERCHANTS LTD. CITY CENTRE, 19, SYNAGOGUE STREET, 3 RD FLOOR, R.N.326, OLD WING KOLKATA 700 001. VS. ITO, WARD-9(3), KOLKATA AAYAKAR BHAVAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ./ ./PAN/GIR NO. : AACCJ 7459 B ( /APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY : SHRI SUNIL SURANA, FCA REVENUE BY : SHRI A. K. TIWARI, CIT(DR) / DATE OF HEARING : 11/07/2018 /DATE OF PRONOUNCEMENT: 18/07/2018 / 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)-12, KOLKATA IN APPEAL NO.59/CIT(A)-12/WARD-9(3)/2016-17 DATED 31.03.2017, 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 21.03.2015. 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 FOR THE ASSESSEE CONTENDED THAT IN THE INTEREST OF JUSTICE, ANOTHER OPPORTUNITY TO CONTEST THE APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY MAY BE GRANTED TO THE ASSESSEE. THE LD. DR FOR THE REVENUE DEBARRED FROM OBJECTING THE STAND OF THE LD. COUNSEL. M/S. JAP MERCHANTS LTD. ITA NO.1139/KOL/2017 ASSESSMENT YEAR : 2012-13 2 3. 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. THE LD. CIT(A) HAS PASSED THE EX PARTE ORDER STATING THE FOLLOWING: 3. THE INSTANT CASE WAS ORIGINALLY LYING UNDER THE JURISDICTION OF THE OFFICE OF CIT(APPEALS)-3, KOLKATA WHERE THE APPELLANT FILED THIS APPEAL ON 22.04.2015 CHALLENGING AGAINST THE ORDER UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 DATED 21.03.2015. SUBSEQUENTLY THIS CASE HAS BEEN TRANSFERRED TO THE OFFICE OF THE CLT(APPEALS)-12, KOLKATA IN OBEDIENCE TO THE ORDER OF THE HON'BLE PR. CCIT, WEST BENGAL AND SIKKIM VIDE ORDER NO.05 OF 2017 UNDER SUB-SECTION (1), (2) & (3) OF SECTION 120 OF THE INCOME TAX ACT, 196L DATED 14.03.2017. SINCE THE HUGE DEMAND IS LYING OUTSTANDING AND ALSO IN OBEDIENCE TO THE GUIDELINES OF THE CENTRAL ACTION PLAN, THE INSTANT CASE WAS INITIALLY FIXED FOR HEARING ON 24.03.2017 VIDE NOTICE UNDER SEC.250 OF THE INCOME TAX ACT DATED 15.03.2017. THE HEARING NOTICE WAS SENT TO THE APPELLANT TO THE SAME ADDRESS AS DECLARED BY THE APPELLANT IN FORM NO. 35 BY SPEED POST. NEITHER THE APPELLANT COMPANY NOR THE A/R OF THE APPELLANT COMPANY APPEARED BEFORE THE UNDERSIGNED TO REPRESENT THE CASE ON 24.03.2017. EVEN NO WRITTEN SUBMISSION WAS FILED IN FAVOUR OF ITS APPEAL TO DISPOSE OF THIS CASE ON OR BEFORE THE DATE OF HEARING. THE APPELLANT COMPANY REMAINED SILENT. THEREAFTER, THE CASE WAS REFIXED FOR HEARING ON 31.03.2017 VIDE NOTICE UNDER SEC.250 OF THE INCOME TAX ACT DATED 24.03.2017 IN VAIN. NEITHER THE APPELLANT COMPANY NOR THE A/R OF THE APPELLANT COMPANY APPEARED BEFORE THE UNDERSIGNED TO REPRESENT THE CASE ON 31.03.2017. EVEN NO WRITTEN SUBMISSION WAS FILED IN FAVOUR OF ITS APPEAL TO DISPOSE OF THIS CASE ON OR BEFORE THE DATE OF HEARING. REPEATEDLY NON-COMPLIANCE ON THE PART OF THE APPELLANT REVEALS ITS NEGATIVE APPROACH TILL TODAY. 4. UNDER THE CIRCUMSTANCES, IT IS PRESUMED THAT THE APPELLANT IS NOT INTERESTED TO PURSUE THIS APPEAL AND IT HAS NOTHING TO SAY IN DEFENCE OF THE GROUND OF APPEAL TAKEN. THEREFORE, I HAVE NO OPTION BUT TO DECIDE THE APPEAL ON MERITS ON THE BASIS OF MATERIALS AVAILABLE ON RECORD. 6. IN THE INSTANT CASE, THE APPELLANT HAS NOT ABLE TO SHOW THAT THE DECISION OF THE A.O WAS ARBITRARY, BIASED, IRRATIONAL, VINDICTIVE OR CAPRICIOUS WITHOUT ANY BASIS. THE ADDITION/DISALLOWANCE IS MADE BY THE A.O AFTER DUE DELIBERATION. THERE IS NO CONCRETE EVIDENCE(S) ON RECORD TO CONTROVERT THE DECISION OF THE A.O. I FIND NO REASON TO INTERFERE WITH THE DECISION OF THE A.O. THE ADDITION/DISALLOWANCE MADE BY THE A.O IS THEREFORE, CONFIRMED. IN THE RESULT, APPEAL FILED BY THE APPELLANT IS DISMISSED. FROM THE ABOVE EX PARTE ORDER OF THE LD CIT(A), IT IS ABUNDANTLY CLEAR THAT ASSESSEE HAD NOT PARTICIPATED IN THE APPELLATE PROCEEDINGS. THE LD CIT(A) HAD GIVEN A LOT OF OPPORTUNITY TO THE ASSESSEE BUT THE ASSESSEE DID NOT APPEAR BEFORE HIM, HENCE THERE WAS NON-COMPLIANCE ON THE PART OF THE ASSESSEE. M/S. JAP MERCHANTS LTD. ITA NO.1139/KOL/2017 ASSESSMENT YEAR : 2012-13 3 4. WE NOTE THAT THE ASSESSEE HAS RAISED GROUND NO.1 STATING AS FOLLOWS: 1. FOR THAT THE CIT(A) ERRED IN PASSING THE ORDER WITHOUT GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. WE DO NO ACCEPT THE PLEA OF THE LD COUNSEL THAT CIT(A) ERRED IN PASSING THE ORDER WITHOUT GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. THE ASSESSEE HAD NOT APPEARED BEFORE LD CIT(A). AS WE NOTED IN PARA 3 OF THIS ORDER THAT LD CIT(A) HAD GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. HOWEVER, WE NOTE THAT LD CIT(A) DID NOT CONSIDER THE ASSESSMENT RECORDS AND FINDINGS OF LD ASSESSING OFFICER TO DECIDE THE VARIOUS ISSUES ON MERITS. 5. WE ALSO NOTE THAT THE ASSESSING OFFICER HAS PASSED THE ORDER UNDER SECTION 143(3) OF THE ACT, AFTER TAKING INTO ACCOUNT THE DOCUMENTS, EVIDENCES AND EXPLANATION SUBMITTED BY THE ASSESSEE. SINCE THE ASSESSING OFFICER HAS ALREADY TAKEN A VIEW IN THE ASSESSEE`S CASE UNDER CONSIDERATION THEREFORE IT IS WORTHWHILE TO REMIT THE MATTER BACK TO THE FILE OF THE LD CIT(A), AS THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER THROUGH ITS VARIOUS GROUNDS RAISED BEFORE US. MOREOVER, THE LD CIT(A) HAS CO-TERMINUS POWERS, THAT IS, LD CIT(A) HAS ALL THE POWERS AS THE ASSESSING OFFICER HAS, THEREFORE, THE ASSESSEE MAY PROVE HIS BONA FIDE BY SUBMITTING RELEVANT DOCUMENTS/ADDITIONAL EVIDENCES ETC. BEFORE THE FIRST APPELLATE AUTHORITY. HENCE, 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 NOTE THAT LD CIT(A) DID NOT CONSIDER THE ASSESSMENT RECORDS AND FINDINGS OF LD ASSESSING OFFICER TO DECIDE THE VARIOUS ISSUES ON MERITS. THEREFORE, 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 LD. CIT(A) FOR DE NOVO ADJUDICATION AND PASS A SPEAKING ORDER AFTER AFFORDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE M/S. JAP MERCHANTS LTD. ITA NO.1139/KOL/2017 ASSESSMENT YEAR : 2012-13 4 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 18/07/2018. SD/- (S. S. GODARA) SD/- (A. L. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; DATED: 18/07/2018 RS, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT- M/S. JAP MERCHANTS LTD. 2. / THE RESPONDENT.- ITO, WARD-9(3), KOLKATA 3. ( ) / THE CIT(A), 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 .