Shree Vardhan Metaliks Pvt. Ltd., Kolkata V. DCIT, Circle-3(1), Kolkata

ITA 114/KOL/2021

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 6015 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 31-03-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Period of limitation; Time period of passing order; Set aside
• Section: 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH KOLKATA BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI GIRISH AGRAWAL, ACCOUNTANT MEMBER ITA No.114/Kol/2021 Assessment Year: 2012-13 Shree Vardhan Metaliks Pvt. Ltd. 8/53/1, Fern Road, 1 st Floor, Gariahat, Near Goal Park, Kolkata-700029 (PAN: AAICS3466M) Vs. Deputy Commissioner of Income Tax, Circle-3(1), Kolkata. (Appellant) (Respondent) Present for: Appellant by : N o n e Respondent by : Shri Biswanath Das, Addl. CIT Date of Hearing : 10.05.2022 Date of Pronouncement : 18.07.2022 O R D E R PER GIRISH AGRAWAL, ACCOUNTANT MEMBER: This appeal by the assessee is directed against the order of ld. CIT(A)-1, Kolkata vide Appeal No. 44/CIT(A)-1/C-3(1)/2015-16 dated 31.08.2018 for A.Y. 2012-13 passed against the assessment order u/s 143(3) of the Income-tax Act, 1961 (hereinafter referred to as ‘the Act’) by DCIT, Circle-3(1),Kolkata dated 12.03.2015. 2. None appeared on behalf of the assessee. Shri Biswanath Das, Addl. CIT appeared on behalf of the revenue. 3. At the outset, we note that there is a delay of 40 days in filing the present appeal which was filed on 01.04.2021. Assessee has placed on record a petition for condonation of delay. From the perusal of the said condonation petition, we note that the order passed by Ld. CIT(A) is dated 31.08.2018 which was passed ex parte qua the assessee. Assessee came to know about this order in the month of December, ITA No.114/Kol/2021 Shree Vardhan Metaliks Pvt. Ltd., A.Y: 2012-13 2 2020 and was made available a certified true copy on 22.12.2020. We note that the order of Ld. CIT(A) bears the signature and stamp of certified to be true copy with the date 21.12.2020. Considering the date of receipt of certified true copy on 22.12.2020 the appeal ought to have been filed on or before 21.02.2021. The period of this delay of 40 days falls within the lock-down owing to Covid-19 Pandemic for which the Hon’ble Supreme Court has directed that the period from 15.03.2020 to 28.02.2022 is to be excluded for the purpose of computing the limitation period during the COVID-19 pandemic. Further, a period of 90 days is allowed after 28.02.2022 vide same order. Considering the facts and the explanation of the assessee placed on record, we condone the delay in filing the appeal and admit it for adjudication. 4. We note that the sole ground of appeal of the assessee is against the order of Ld. CIT(A) in deciding the appeal ex parte without giving reasonable opportunity of being heard and hence, Ld. CIT(A)’s order is liable to be set aside. We not that Ld. CIT(A) has passed the order ex parte. From a perusal of ground no.(1) and the order of the Ld. CIT(A), it is discerned that the Ld. CIT(A) has passed ex-parte order without allowing proper opportunity of being heard. It is noted that the hearing of appeal was fixed by the Ld. CIT(A) on 08.08.2018, 17.08.2018 and 30.08.2018. Under the aforesaid circumstances, the appeal was disposed off by the Ld. CIT(A) ex-parte with the information available on records. So it is noted that the impugned appellate order has been passed ex parte qua the assessee is in violation of natural justice. 5. It is noted that the ld. CIT(A) has passed an ex parte order without providing any proof of serving the notice upon the assessee in his appellate order. Therefore, the impugned order of Ld. CIT(A) is erroneous for violation of sub-sections (1), (2), (2a) and 2(b) of section 250 of the Act. It should be kept in mind that if an assessee is aggrieved by the order of the AO, then he (assessee) has the statutory right to file an appeal before the Ld. CIT(A) and has a right to be heard as per sub-section (2) of ITA No.114/Kol/2021 Shree Vardhan Metaliks Pvt. Ltd., A.Y: 2012-13 3 section 250 of the Act. This valuable/statutory right of the assessee cannot be lightly brushed aside . Having said so, we expect the assessee to be diligent while pursuing the appeal. In the light of above discussion, the impugned order of the Ld. CIT(A) is set aside and the appeal is restored back to him with direction to pass a speaking order by going through the statements of facts as well as oral/written submissions/documents, if any, filed by the assessee. The assessee is directed to be diligent and either appear or/and file necessary papers before him, if advised to do so and the Ld. CIT(A) to pass a speaking order on each grounds raised by the assessee as stipulated u/s 250(6) of the Act and in accordance to law. 6. In the result, the appeal of the assessee is allowed for statistical purposes. Order is pronounced in the open court on 18 th July, 2022. Sd/- Sd/- (RAJPAL SINGH) (GIRISH AGRAWAL) VICE PRESIDENT ACCOUNTANT MEMBER Kolkata, Dated: 18.07.2022 JD, Sr. P.S. Copy to: 1. The Appellant: 2. The Respondent:. 3. CIT(A)-18, Kolkata 4. The CIT- Kolkata. 5. The DR, ITAT, Kolkata Bench, Kolkata //True Copy// [ By Order Assistant Registrar ITAT, Kolkata Benches, Kolkata