M/s. Aalekha Supply Private Limited , Kolkata V. ITO, Ward - 4(3), Kolkata , Kolkata

ITA 1166/KOL/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 8858 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 28-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR P K SRIHARI
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Opportunity of being heard; Set aside
• Section: 143(2); 144

Judgement Text

1 ITA NO. 1166/KOL/2018 M/S. AALEKHA SUPPLY PVT. LTD ., AY- 2012-13 , C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 1166/KOL/2018 ASSESSMENT YEAR: 2012-13 M/S. AALEKHA SUPPLY PVT. LTD. (PAN: AACCA7168C) VS. INCOME-TAX OFFICER, WD-4(3), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 26.09.2019 DATE OF PRONOUNCEMENT 22.11.2019 FOR THE APPELLANT SHRI MIRAJ D. SHAH, AR FOR THE RESPONDENT DR. P. K. SRIHARI, CIT, DR ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAINST TH E ORDER OF THE LD. CIT(A)-13, KOLKATA DATED 16.02.2018 FOR AY 2012-13. 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE BROUGHT TO OUR NOTICE THAT IN THIS CASE THE IMPUGNED ORDER OF THE LD. CIT(A) IS AN EX PARTE ORDER PASSED WITHOUT HEARING THE ASSESSEE. IT WAS ALSO BROUGHT TO OUR NOTICE THAT T HE AO HAS PASSED AN EX PARTE ORDER U/S. 144 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED T O AS THE ACT). IT HAS BEEN BROUGHT TO OUR NOTICE BY THE LD. AR THAT THE ASSESSMENT HAS BE EN MADE IN THE ADDRESS AS GIVEN IN THE ASSESSMENT ORDER VIZ., 7/1A, GRANT LANE, KOLKATA-70 0 012. HOWEVER, IT HAS BEEN BROUGHT TO OUR NOTICE BY THE LD. AR THAT THE ADDRESS REFLECTED IN THE RETURN OF INCOME FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR UNDER CONSIDERATIO N IS 74, BENTINCK STREET, KOLKATA-700 001 AND THIS IS THE ADDRESS WHICH IS THE PRESENT AD DRESS OF THE ASSESSEE. THEREFORE, THE ASSESSEE HAS NOT RECEIVED ANY STATUTORY NOTICES THO UGH CLAIMED BY THE AO TO HAVE ISSUED NOTICE U/S. 143(2)/142(1) ON THE SAID ADDRESS. THE LD. AR SUBMITS THAT SINCE THE LD. CIT(A) HAS ALSO PASSED THE ORDER EX PARTE ALBEIT A DETAILED ONE, THE ASSESSEE DID NOT GET PROPER OPPORTUNITY BEFORE THE AO AT THE ASSESSMENT STAGE ITSELF WHICH IS EVIDENT FROM THE 2 ITA NO. 1166/KOL/2018 M/S. AALEKHA SUPPLY PVT. LTD ., AY- 2012-13 FACT THAT THE AO HAS TAKEN NOTE OF THE WRONG ADDRES S. THEREFORE, ACCORDING TO THE LD. AR, THE QUESTION OF ASSESSEE GETTING ANY STATUTORY NOTI CE IN THE WRONG ADDRESS DOES NOT ARISE AND THEREFORE, ASSESSEE CANNOT BE HELD RESPONSIBLE FOR NOT APPEARING BEFORE THE AO AT ASSESSMENT STAGE. ACCORDING TO HIM, SINCE THE ASSE SSEE DID NOT GET PROPER OPPORTUNITY BEFORE THE AO AT THE ASSESSMENT STAGE, THEN IT IS I NCUMBENT UPON THIS TRIBUNAL TO SEND IT BACK TO THE FILE OF THE AO FOR FRESH ADJUDICATION A S HELD BY THE HONBLE SUPREME COURT IN TIN BOX COMPANY VS. CIT (2001) 249 ITR 216 (SC) TH AT IF THE ASSESSEE DID NOT GET PROPER OPPORTUNITY BEFORE AO, THEN THE MATTER NEEDS TO BE REMANDED BACK TO AO FOR FRESH ADJUDICATION. IN THE SAID JUDGMENT, THE HONBLE AP EX COURT HAS HELD AS UNDER (HEAD NOTE): HELD, REVERSING THE DECISION OF THE HIGH COURT, TH AT ONCE THE TRIBUNAL FOUND THAT THE INCOME-TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORT UNITY OF BEING HEARD, THAT THE ASSESSEE COULD HAVE PLACED THE EVIDENCE BEFORE THE APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL WAS REALLY OF NO CONSEQUENCE FOR IT WAS THE ASSESSMENT ORDER THAT CO UNTED: THAT ORDER HAD TO BE MADE AFTER THE ASSESSEE HAD BEEN GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD. 3. PER CONTRA, THE LD. DR SUBMIT THAT THE LD. CIT(A ) HAS PASSED A DETAILED ORDER AND THAT THE ASSESSEE FOR REASONS BEST KNOWN TO IT DID NOT APPEAR BEFORE THE LD CIT(A). AND SO, THE ASSESSEE SHOULD NOT BE GIVEN A SECOND INNINGS. 4. HAVING HEARD BOTH THE PARTIES WE NOTE THAT FROM THE PERUSAL OF THE CAUSE TITLE OF THE ASSESSMENT ORDER THAT THE ADDRESS IS WRONGLY STATED TO HAVE BEEN WRITTEN AS 7/1A, GRANT LANE, KOLKATA-700 012 WHEREAS THE ASSESSEES ADDRES S IS 74, BENTINCK STREET, KOLKATA-700 001. THEREFORE, THE ASSESSEE DID NOT APPEAR BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS WHICH PROMPTED THE AO TO FRAME AN ASSES SMENT U/S. 144 OF THE ACT (BEST JUDGMENT ASSESSMENT). WE NOTE THAT BECAUSE THE AO H AS TAKEN NOTE OF THE WRONG ADDRESS AND HAD ISSUED STATUTORY NOTICE TO THE WRONG ADDRES S, PURSUANT TO WHICH THE ASSESSEE NOT RECEIVING THE SAME IS QUIET POSSIBLE, THEN THE QUES TION OF ASSESSEE APPEARING BEFORE THE AO CANNOT BE FAULTED. THEREFORE, IN OUR OPINION THE AS SESSEE DID NOT GET PROPER OPPORTUNITY BEFORE AO DURING ASSESSMENT STAGE. THEREFORE, THE M ATTER NEEDS TO BE REMANDED BACK TO THE AO FOR DE NOVO ASSESSMENT. FOR DOING SO, WE TAKE NO TE OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF TIN BOX COMPANY (SUPRA) (THREE JUDGES BENCH) WHEREIN IT HAS BEEN HELD THAT IF THE ASSESSEE DOES NOT GET PROPER OPPOR TUNITY BEFORE THE AO, THEN THE ASSESSMENT NEED TO BE DE NOVO CARRIED OUT. THEREFORE, WE FIND FORCE IN THE SUBMISSION OF THE LD. AR 3 ITA NO. 1166/KOL/2018 M/S. AALEKHA SUPPLY PVT. LTD ., AY- 2012-13 THAT ASSESSEE DID NOT GET PROPER OPPORTUNITY BEFORE THE AO, SO THE IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS REMANDED BACK TO THE AO FOR DE NOVO FRAMING OF ASSESSMENT WITH A DIRECTION TO DE NOVO ASSESS THE TOTAL INCOME OF THE ASSESSEE IN ACCORDANCE TO LAW, AFTER GIVING OPPORTUNITY TO THE ASSESSEE. THE LD. AR ALS O BROUGHT TO OUR NOTICE THAT THE ASSESSEE HAS TO BE GIVEN THE LIBERTY TO CHALLENGE THE LEGAL ISSUE AND NON-RECEIPT OF 143(2) NOTICE IN CASE IT PREFERS TO PRESS THE ISSUE BEFORE THE AO/LD . CIT(A). THE LEGAL ISSUE, IF ANY, ON THIS SCORE CAN BE TESTED IF IT SATISFIES THE RATIO AS LA ID BY THE HONBLE SUPREME COURT IN PCIT VS. IVAN INTERCETIVE LTD. IN CIVIL APPEAL NO. 8132 OF 2 019 AND IF IT STILL SURVIVES THEN THE ASSESSEE IS AT LIBERTY TO DO SO. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 22 ND NOVEMBER, 2019. SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 22ND NOVEMBER, 2019 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. AALEKHA SUPPLY PVT. LTD., C/O, RAJESH MOHAN & ASSOCIATES, UNIT NO. 18, BAGATI HOUSE, 5 TH FLOOR, 34, GANESH CHANDRA AVENUE, KOLKATA-700 013. 2 RESPONDENT ITO, WARD-7(3), KOLKATA. 3. 4. 5. CIT(A)-13, KOLKATA. CIT , KOLKATA. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR