Mobile Mercantile Pvt. Ltd., Kolkata V. DCIT, Cir-2, Kolkata, Kolkata

ITA 1145/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6146 (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: 2011-2012
• Appeal Filed On: 19-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A BHATTACHARJEE
• Assessee Lawyers: MANOJ TIWARI
• Keywords: Opportunity of being heard; Principle of natural justice; Assessment record
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENCH KOLKATA BEFORE SHRI S.S. GODARA, JM & DR. A.L. SAINI, AM ITA NO.1145/KOL/2017 (ASSESSMENT YEAR: 2011-12) MOBILE MERCANTILE PVT. LTD. F-3, CIRCULAR MANSION, 222, A.J.C. BOSE ROAD, KOLKATA 700 017. VS. DCIT, CIRCLE-2, KOLKATA ./ ./PAN/GIR NO. : AABCM 7383 E ( /APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY : SHRI MANOJ TIWARI, FCA REVENUE BY : SHRI A. BHATTACHARJEE, ADDL. CIT / 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 2011-12, IS DIRECTED AGAINST THE ORDER PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-14, KOLKATA IN APPEAL NO.230/CIT(A)-14/CIR-14/2015-16 DATED 27.01.2017, WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY ASSESSING OFFICER U/S 144 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) DATED 19.03.2013. 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. 3. WE NOTE THAT IN THE ASSESSEES CASE UNDER CONSIDERATION, THE ASSESSMENT WAS CARRIED OUT U/S 144 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. MOBILE MERCANTILE PVT. LTD. ITA NO.1145/KOL/2017 ASSESSMENT YEAR: 2011-12 2 4. WE NOTE THAT LD. CIT(A) PASSED THE EX PARTE ORDER OBSERVING THE FOLLOWING: THIS APPEAL HAS BEEN INSTITUTED ON 30.04.2014 AGAINST THE ORDER U/S 144 OF THE INCOME TAX ACT, 1961 DATED 19.03.2013 PASSED BY THE DCIT, CIRCLE-2, KOLKATA FOR THE ASSESSMENT YEAR 2011-12. NOTICES OF HEARING WERE ISSUED TO THE APPELLANT ON VARIOUS OCCASIONS BUT ON EACH APPOINTED DATE NONE APPEARED THE DATE OF HEARING AND OF NON-ATTENDANCE ON THE PART OF THE APPELLANT ARE SUMMARIZED BELOW: SL. NO. DATE OF FIXING DATE OF HEARING REASONS OFFERED BY APPELLANT 1. 14.07.2016 12.08.2016 NONE 2. 17.08.2016 29.08.2016 NONE 3. 31.08.2016 26.09.2016 NONE 4. 24.10.2016 09.11.2016 NONE 5. 10.11.2016 28.11.2016 NONE 6. 08.02.2016 21.12.2016 NONE 7. 09.01.2017 18.01.2017 NONE 8. 18.01.2017 23.01.2017 NONE UNDER THE CIRCUMSTANCES, IT APPEARS THAT THE APPELLANT DOES NOT WANT TO PURSUE THIS APPEAL, THEREFORE, I HAVE NO OPTION BUT TO DECIDE THE APPEAL ON MERITS ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. AS 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. I FIND NO REASON TO INTERFERE WITH THE DECISION OF THE A.O. 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. 5. CONSIDERING THE ABOVE FACTS, WE NOTE THAT ASSESSEE HAS NOT PARTICIPATED IN THE APPELLATE PROCEEDINGS. HOWEVER, WE NOTE THAT LD CIT(A) DID NOT CONSIDER THE ASSESSMENT RECORDS AND FINDINGS OF LD ASSESSING OFFICER TO DECIDE THE VARIOUS MOBILE MERCANTILE PVT. LTD. ITA NO.1145/KOL/2017 ASSESSMENT YEAR: 2011-12 3 ISSUES ON MERITS. 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 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 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- MOBILE MERCANTILE PVT. LTD. 2. / THE RESPONDENT.- DCIT, CIRCLE-2, 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 .