Shri Nirmal Chandra Ojha, Kolkata V. ITO, Ward - 50(2), Kolkata, Kolkata

ITA 121/KOL/2011

• Counselvise Citation: 12123514 RSA 2011
• Duration Of Justice: 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2011
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 19-01-2011
• Court: TRIBUNAL
• Department Lawyers: A S MONDAL LD
• Assessee Lawyers: M D SHAH LD
• Keywords: Opportunity of being heard

Judgement Text

I.T.A NO. 121/KOL/2011-C-SVM 1 , C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA BEFORE SRI S.V MEHROTRA, AM & SRI MAHAVIR SINGH, JM () . ., !' !' !' !' ! #' , '$ / I.T.A NO. 121/KOL/2011 #%& !'( / ASSESSMENT YEAR : 2006-07 SRI NIRMAL CHANDRA OJHA VS. INCOME-TAX OF FICER PAN: AADP0 5055C WARD 50(2), KOLKATA (*+ /APPELLANT ) (,-*+/ RESPONDENT ) *+ / FOR THE APPELLANT : . / SHRI M.D.SHAH, LD.AR ,-*+ / FOR THE RESPONDENT : . /SHRI A.S. MONDAL, LD.DR /%!0 1 2 /DATE OF HEARING : 28/09/11 3' 1 2 /DATE OF PRONOUNCEMENT: 28/09/11 4 / ORDER . ., SHRI S.V MEHROTRA, ACCOUNTANT MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-XXXII, KOLKATA DATED 23- 08-2010 FOR THE ASSESSMENT YEAR 2006- 07. 2. THE ASSESSEE, INTER-ALIA, HAS TAKEN FOLLOWING GROUNDS OF APPEAL:- 1. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE ASSESSMENT ORDER PASSED WAS IN VIOLATION OF PRINCIPALS OF NATU RAL JUSTICE HENCE IS BAD IN LAW AND BE QUASHED. 2. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN VIEW OF THE DEFAULT OF THE COUNSEL, THE ASSESSEE WAS NOT PROVID ED ADEQUATE OPPORTUNITY OF HEARING AND HENCE THE ORDER OF THE CIT(A) AND THE A SSESSING OFFICER BE SET ASIDE FOR GIVING OPPORTUNITY TO THE ASSESSEE. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA D FILED ITS RETURN OF INCOME DECLARING TOTAL INCOME OF RS.1,91,820/-. THE ASSESSING OFFIC ER HAD GIVEN VARIOUS NOTICES TO THE ASSESSEE. HOWEVER, SINCE THERE WAS NO COMPLIANCE O N THE PART OF THE ASSESSEE, HE PASSED THE ASSESSMENT ORDER U/S. 144 DETERMINING TOTAL INCOME AT RS. 7,31,331/-. 4. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) PARTLY ALLOWED THE ASSESSEES APPEAL REJECTING THE ASSESSEES GROUND THAT COMPLET ION OF ASSESSMENT U/S.144 WAS NOT CORRECT. I.T.A NO. 121/KOL/2011-C-SVM 2 5. AT THE TIME OF HEARING THE LEARNED COUNSEL FOR T HE ASSESSEE HAS FILED WRITTEN SUBMISSIONS, IN WHICH AT PAGES 7-8 IT IS STATED AS UNDER:- NON-SERV1CE OF NOTICE OF FINAL HEARING I VERY RESPECTFULLY SUBMIT THAT THE NOTICE OF HEA RING SO FAR SERVED UPON ME BY THE LD. 1. T. 0. ASKING ME TO APPEAR BEF ORE HIM FINALLY ON 19.12.2008 WAS IN FACT SERVED UPON ME ON 22.12.2008 BY THE POSTAL PEON. HAD 1 RECEIVED THE SAID NOTICE PRIOR TO 19.12.200K, I MUST APPEAR BEFORE THE LD LT.0 AND SUBMIT THE DOCUMENTS ABOVE REFERRED TO FOR HIS CONSIDERATION. PLEASE BE MENTIONED THAT SOON AFTER RECEIPT OF THE SAID NOTICE ON 22.12.2008, I IMMEDIATELY RUSHED TO MY PR EVIOUSLY APPOINTED ADVOCATE MR. ANIL GHOSH AND ASKED HIM AS TO THE DAT E OF HEARING AS WAS FIXED ON 19.12.2008 HE ANSWERED IN NEGATIVE THAT HE WAS NOT AT ALL AWARE AS TO SUCH DATE OF HEARING. ON ENQUIRY FROM THE OFF ICE OF SUPERINTENDENT OF POST OFFICES, NORTH 24 PARGANAS DISTRICT, I FINA LLY CAME TO LEARN FROM HIS LETTER DATED 06.01.2009 THAT THE SAID REGISTERE D LETTER CONTAINING THE NOTICE WAS DELIVERED TO ME ON 22.12.2008. IT IS THU S APPARENTLY CLEAR ON THE FACE OF THE RECORD THAT THE NOTICE OF FINAL HEA RING AS WAS FIXED ON 19.12.2008 BY THE LD. I. T. 0. WAS SERVED UPON ME O N 22.12.2008 AND AS SUCH I WAS NOT GIVEN ANY OPPORTUNITY TO BE HEARD BY THE LD. I. T. 0. AS THE NOTICE OF HEARING WAS SERVED UPON ME AFTER PASSING AND OR MAKING THE ORDER OF ASSESSMENT EXPARTE, WITHOUT PROPER SERVICE OF NOTICE AND AS SUCH SERVICE OF NOTICE IN QUESTION IS BAD IN LAW AND I W AS PREVENTED BY SUFFICIENT AND BONAFIDE REASONS FROM APPEARING BEFO RE THE LD. I.T.O. ON 19.12.2008. AND THAT THERE WAS NO NEGLIGENCE OR LAC HES ON MY PART TO APPEAR BEFORE THE LD. I. T. 0. ON THE DATE FIXED. * * * XEROX COPIES OF LETTER, ENQUIRY PARTICULARS AND ENVELOP CONTAINING THE LETTER SO FAR ISSUED BY THE SUPERINTENDENT OF POST OFFICES, NORTH 24 PARGANAS AT BARASAT ARE ENCLOSED HEREWITH AND COLLECTIVELY MARKED WITH ANNEXURE (SERIES) . THEREFORE, HE SUBMITTED THAT THE MATTER MAY BE RE STORED TO THE FILE OF THE ASSESSING OFFICER. 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED O N THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS). BUT HE DID NO T SERIOUSLY OBJECT TO THE ASSESSEES SUBMISSIONS. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE RECORD OF THE CASE. IT IS EVIDENT THAT THE HEARING OF TH E CASE WAS FIXED ON 19/12/08, BUT THE NOTICE OF I.T.A NO. 121/KOL/2011-C-SVM 3 HEARING WAS SERVED ON 22/12/08. AFTER CONSIDERING THE ENTIRETY OF FACTS AND CIRCUMSTANCES OF THE CASE IN ORDER TO PROVIDE SUFFICIENT OPPORTUNIT Y OF HEARING TO THE ASSESSEE, WE SET ASIDE THE ORDER OF LEARNED COMMISSIONER OF INCOME-TAX (APPEAL S) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR PASSING THE ASSESSMENT OR DER DENOVO. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. 4 / 5 /% 6 7 2 28-09-2011 ORDER PRONOUNCED IN THE OPEN COURT ON 28-09-2011 SD/- SD/- [ ! #' , ] [ . . , ] ( MAHAVIR SINGH, JUDICIAL MEMBER) (S.V. MEHROTRA, ACCOUNTANT MEMBER ) (2) DATED : 28-09-2011 *PP !89 #%:; #='?- COPY OF THE ORDER FORWARDED TO: 1. *+ /APPELLANT- SHRI NIRMAL CHANDRA OJHA C/O D.J SHAH & CO., KALYAN BHAVAN, 2 ELGIN ROAD, KOL-20. 2 ,-*+ / RESPONDENT : INCOME-TAX OFFICER, WARD 50(2), KOL KATA 3. #4%/ THE CIT, 4. #4% ()/ THE CIT(A), KOLKATA. 5. !#6 ,#%/ DR, KOLKATA BENCHES, KOLKATA -= ,#/ TRUE COPY , 4%// BY ORDER , '; /ASSTT. REGISTRAR